SMCISD Standard Terms Conditions - SERVICES ONLY 111723 .pdf

San Marcos Consolidated Independent School District - Standard Terms and Conditions – Services (Revised November 2023)

MASTER AGREEMENT – SERVICES

STANDARD TERMS & CONDITIONS

This Master Agreement is made effective as of the date of the last signature below (the “Effective Date”) by and between San Marcos

Consolidated Independent School District (“Customer” or “Buyer”), and

(“PROVIDER”). PROVIDER and CUSTOMER are sometimes referred to herein, individually, as a “party” and, collectively, the “Parties.” The Parties wish to enter into the agreement for services attached hereto as Exhibit A. By signing below, the Parties agree to be legally bound by the Standard Terms and Conditions contained in this Master Agreement below. To the extent there is any conflict between the provisions in any agreement/terms and conditions included in Exhibit A and the Standard Terms and Conditions below, the

Standard Terms and Conditions will govern and supersede any other agreements or the contents of Exhibit A. By signing below, the signatory represents and warrants that he/she has authority to enter into this Agreement. This Master Agreement may be signed electronically. This

Master Agreement is effective as of the date of the last signature below.

SIGNED AND AGREED TO BY:

BUYER: SAN MARCOS CONSOLIDATED INDEPENDENT PROVIDER:

SCHOOL DISTRICT

Signature Signature

Printed Name and Title Printed Name and Title

Date Date

STANDARD TERMS AND CONDITIONS - SERVICES

The following terms and conditions are requirements that bind the PROVIDER. These terms and conditions communicate BUYER’S expectations with regard to the PROVIDER’S services in connection with BUYER’S purchase(s). These terms and conditions are applicable on all such matters to which they are attached.

1. Definitions:

a. San Marcos Consolidated Independent School District shall be referred to as “BUYER” and/or “CUSTOMER” throughout this and related documents.

b. The terms “Purchase Order,” “Contract,” and

“Agreement” and their derivatives may be used interchangeably in these terms and conditions and related documents.

2. Invoices and Payments:

a. PROVIDER is required to provide a proper invoice that coincides with contract requirements. For ongoing services, payment may be made monthly upon receipt of a proper invoice. PROVIDER will not be paid in advance. At a minimum, the invoice shall include the list of services provided, the dates of services, and location(s) where services were provided during the billing period.

b. For each purchase order (when used), PROVIDER shall submit separate invoices, in duplicate, for each 30-day period, etc. Invoices shall indicate the purchase order(s) number, shall be itemized and transportation charges, if any, shall be listed separately. Mail to: San Marcos Consolidated

Independent School District, Attn: Purchasing Department, 631 Mill Street, San Marcos, Texas, 78666, P.O. Box 1087, San Marcos, Texas 78667. Payment shall not be due until the above instruments are submitted. Suppliers should keep

BUYER’S Accounts Payable section advised of any changes in your remittance addresses.

c. Do NOT include Federal Excise, State or City Sales Tax.

BUYER shall furnish tax exemption certificate, if required.

BUYER’S Tax ID number 74-6002246 and shall be reflected on each purchase order. (See Tex. Educ. Code 8.005.)

d. BUYER is subject to the Texas Prompt Payment Act, Texas Government Code 2251. Undisputed payments due and unpaid under this agreement shall be made pursuant to the

Texas Prompt Payment Act.

3. Gratuities: BUYER may, by written notice to the

PROVIDER, cancel this contract without liability to

PROVIDER if it is determined by Buyer that gratuities, in the form of entertainment, gifts, or anything of monetary value, were offered or given by the PROVIDER, or any agent, or representative of the PROVIDER, to any officer or employee of BUYER with a view toward securing a contract or securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by

PROVIDER in providing such gratuities.

4. Special Tools and Equipment: If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by PROVIDER for the purpose of filling this order(s), such special tooling equipment and any process sheets related thereto shall become the property of BUYER and to the extent feasible shall be identified by the PROVIDER as such.

5. Cancellation: BUYER shall have the right to cancel for default all or any part of the undelivered portion of this order if PROVIDER breaches any of the terms hereof, including warranties of PROVIDER or if the PROVIDER becomes insolvent or files for bankruptcy. Such right of cancellation is in addition to, and not in lieu of, any other remedies which

San Marcos Consolidated Independent School District - Standard Terms and Conditions – Services (Revised November 2023)

Buyer may have in law or equity.

6. Termination: The performance of work under this

AGREEMENT may be terminated in whole or in part by

BUYER for any reason. Termination of work hereunder shall be affected by the delivery to the PROVIDER of a Notice of

Termination specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. The PROVIDER shall be paid only for the performance of work up to the date of termination if BUYER exercises its right to terminate. Such right of termination is in addition to, and not in lieu of, rights of Buyer set forth herein.

BUYER shall have the right to terminate any agreement with or without cause upon ten (10) days’ notice to PROVIDER.

Valid causes for termination of this agreement by BUYER for cause include, but are not limited to:

a. Lack of funds by BUYER: Lack of funds includes, but is not limited to, non-appropriation and/or non-availability of funds.

b. Non-compliance with federal regulations including, but not limited to, the “Contract Work Hours and Safety Standards

Act,” the “Equal Employment Opportunity Act,” and the

“Energy Policy and Conservation Act.”

c. Failure to meet bidding specifications as determined by

BUYER.

In the event that PROVIDER becomes insolvent or commits act(s) of bankruptcy, PROVIDER shall notify BUYER in writing immediately.

d. Breach of warranties

e. Breach by bidder of any term and condition of the agreement

f. Any unethical business practice or attempt to misrepresent or commit fraud against BUYER.

7. Force Majeure: If by reason of Force Majeure, either party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement then such party shall give notice and full particulars of Force Majeure in writing to the other party within ten (10) days after occurrence of the event or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, except as hereinafter provided, but for no longer period, and such party shall endeavor to remove or overcome such inability with all reasonable dispatch.

The term Force Majeure, as employed herein, shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of government of the

United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics and pandemics, landslides, lightening, earthquake, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, or other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any

Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable in the judgment of the party having the difficulty.

8. Assignment Delegation: No right or interest in this contract shall be assigned or delegation of any obligation made by

PROVIDER without the written permission of BUYER. Any attempted assignment or delegation by PROVIDER shall be void and ineffective for all purposes unless made in conformity with this paragraph.

9. Waiver: The waiver by either party of a breach of any provision of this agreement will not be construed as a waiver of any subsequent breach. The invalidity, in whole or in part, of any provision of this agreement will not affect the validity of the remaining provisions. Notwithstanding anything contained herein to the contrary, no provision herein may be construed as a waiver of BUYER’S sovereign immunity.

10. Modifications: This contract can be modified or rescinded only by written amendment signed by both of the parties or their duly authorized agents.

11. Interpretation Parole Evidence: This writing is intended by the parties as a sole and final expression of their agreement, and is intended also as a complete and exclusive statement of the terms of their agreement. This writing supersedes all prior oral and written agreements. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this agreement.

Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is controlling.

12. Advertising: PROVIDER shall not advertise or publish, without BUYER’S prior consent, the fact that Buyer has entered into this contract, except to the extent necessary to comply with proper requests for information from an authorized representative of the federal, state or local government.

13. Right to Assurance: Whenever one party to this contract in good faith has reason to question the other party's intent to perform, he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) business days, the demanding party may treat this failure as an anticipatory repudiation of the contract.

14. Venue: Both parties agree that venue for any litigation arising from this contract shall lie in the county where BUYER’S administrative offices are located unless agreed to in writing by authorized representatives for both parties.

15. Prohibition Against Personal Interest in Contracts: Any

BUYER Board member which has any substantial interest, either direct or indirect, in any business entity seeking to contract with BUYER, shall, before any vote or decision on any matter involving the business entity, file an affidavit stating the nature and extent of interest and shall abstain from any participation in the matter. However, if a majority of the governing body are also required to file, and do file similar affidavits, then the member is not required to abstain from further participation. See Tex. Loc. Gov’t Code, Ch. 171.

For anyone doing business with a local government entity, such as BUYER, a Conflict of Interest Questionnaire must be filed by PROVIDER in accordance with Texas Local

Government Code Ch. 176. If the PROVIDER becomes aware of facts that require the statement to be filed during the term of this agreement, the PROVIDER will file a new

Questionnaire with the records administrator of BUYER no later than the seventh (7th) business day after PROVIDER became aware of such facts. See Tex. Loc. Gov’t Code Ch.

San Marcos Consolidated Independent School District - Standard Terms and Conditions – Services (Revised November 2023)

171.

16. Monetary Amounts: Sums of money shall be indicated both by Unit Cost and Total Item Cost. In case of discrepancy, the

Unit Cost shall govern.

17. NON-APPROPRIATION OF FUNDS CLAUSE: Where applicable with a multi-year contract, renewal of contracts will be in accordance with Tex. Loc. Gov’t Code. 271.903 concerning non-appropriation of funds for multi-year contracts. For applicable contracts, BUYER reserves the right to rescind the contract at the end of each fiscal year (as of

August 31) if it is determined that there are insufficient funds to extend the contract. Further, should BUYER not approve funds for this Agreement, this Agreement shall automatically terminate on the last day of the fiscal year for which funds have been appropriated at no further cost or obligation of

BUYER.

18. Equal Opportunity: BUYER encourages offers from any company or individual regardless of race, color, national origin, age, religion, sex, marital or veteran status, the presence of a medical condition, disability, or any other legally protected status.

19. Insurance: PROVIDER represents and warrants that

PROVIDER will maintain any insurance policies required by and in accordance with any insurance requirements specified by BUYER in the underlying agreement and further agrees to make the certificates of insurance and insurance policies available to BUYER upon request.

20. Contractual Relationship: Nothing herein shall be construed as creating the relationship of employer or employee between

BUYER and PROVIDER or between BUYER and

PROVIDER’S employees. BUYER shall not be subject to any obligation or liabilities of the PROVIDER or PROVIDER’S employees incurred in the performance of the contract unless otherwise herein authorized. The PROVIDER is an independent PROVIDER and nothing contained herein shall constitute or designate the PROVIDER of any of

PROVIDER’S employees as employees of BUYER. Neither the PROVIDER nor PROVIDER’S employees shall be entitled to any benefits established for BUYER’S employees nor covered by BUYER’S Worker’s Compensation program.

21. Records: PROVIDER agrees to provide to BUYER, the

Texas Education Agency, the Comptroller General of the

United States, or any other duly authorized representatives access to any books, documents, papers, and records of the

PROVIDER which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. PROVIDER also agrees to maintain all required records for five (5) years after BUYER makes final payment and all other pending matters are closed.

22. Other Required Provisions:

a. Pursuant to Texas Government Code Chapter 2271, as amended, if this contract is valued at $100,000 or more and if the PROVIDER has at least ten (10) full time employees, then the PROVIDER, by its execution of this Agreement represents and warrants to the Owner that the PROVIDER does not boycott Israel and will not boycott Israel during the term of this Agreement. This section does not apply to a sole proprietorship.

b. Pursuant to Texas Government Code Chapters 2274 and

809, if this contract is valued at $100,000 or more and if

Contractor has at least ten (10) full-time employees, then

Contractor represents and warrants to BUYER that the

Contractor does not boycott energy companies and will not boycott energy companies during the term of this Agreement.

This section does not apply to a sole proprietorship.

c. Under Section 231.006 of the Texas Family Code, the

PROVIDER certifies that the individual or business entity named in this Contract is not ineligible to receive the specified payments and acknowledges that this Contract may be terminated and payment withheld if this certification is inaccurate.

d. PROVIDER verifies and affirms that it is not a foreign terrorist organization as identified on the list prepared and maintained by the Texas Comptroller of Public Accounts. If

PROVIDER has misrepresented its inclusion on the

Comptroller’s list such omission or misrepresentation will void this Agreement.

e. The requirements of Subchapter J, Chapter 552, Government Code, may apply to this Contract and the

PROVIDER agrees that the contract can be terminated if the

PROVIDER knowingly or intentionally fails to comply with a requirement of that subchapter. Therefore, if the value of this

Project is One Million Dollars ($1,000,000.00) or more, the

PROVIDER agrees to: (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the Owner for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that is in the custody or possession of the entity on request of the Owner; and (3) on completion of the contract, either: (a) provide at no cost to the Owner all contracting information related to the contract that is in the custody or possession of the entity; or (b) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the Owner.

f. Pursuant to Texas Government Code Chapter 2273, PROVIDER represents and warrants that it not a abortion provider or an affiliate of an abortion provider.

g. Pursuant to Texas Government Code Chapters 2274 and

809, if this contract is valued at $100,000 or more and if

PROVIDER has at least ten (10) full-time employees, then

PROVIDER represents and warrants to the Owner that the

PROVIDER does not boycott energy companies and will not boycott energy companies during the term of this Agreement.

This provision does not apply to sole proprietorships.

h. Pursuant to Texas Government Code Chapter 2274, if this contract is valued at $100,000 or more and if PROVIDER has at least ten (10) full-time employees, then PROVIDER represents and warrants to the Owner that the PROVIDER does not discriminate against firearm entities or firearm trade associations and will not discriminate against firearm entities or firearm trade associations during the term of this

Agreement. This provision does not apply to sole proprietorships.

i. Pursuant to Texas Education Code Section 44.034, PROVIDER must give advance written notice to the BUYER if the PROVIDER or an BUYER or operator of the

PROVIDER has been convicted of a felony. The BUYER may terminate this Agreement if the BUYER determines that the

PROVIDER failed to give such notice or misrepresented the conduct resulting in the conviction. This paragraph requiring advance notice does not apply to a publicly-held corporation.

23. Criminal History Record Checks

So that BUYER can obtain the national criminal history record information required by Texas Education Code Section

22.0834 on all “covered employees” (as defined in Section

10.21.2) of PROVIDER, its subcontractors, or any subcontracting entities who will perform the Services, San Marcos Consolidated Independent School District - Standard Terms and Conditions – Services (Revised November 2023)

PROVIDER shall submit to BUYER the name and all necessary identifying information necessary to enable

BUYER to obtain the national criminal history information on those covered employees before they begin the Services.

PROVIDER’s submission will include the employee’s written authorization for BUYER to obtain such criminal history information. BUYER may, in its sole discretion, prohibit the use of any employee to perform the Services after its review of the criminal history information, but cannot disclose the criminal history information to PROVIDER. PROVIDER shall reimburse BUYER for BUYER’s costs incurred in obtaining the criminal history information.

PROVIDER will not assign any “covered employee” with a

“disqualifying criminal history”, as those terms are defined below, to Services. If PROVIDER receives information that a covered employee has a reported disqualifying criminal history, then PROVIDER will immediately remove the covered employee from the Services and notify the BUYER in writing within three business days. If the BUYER objects to the assignment of any covered employee on the basis of the covered employee’s criminal history record information, then

PROVIDER agrees to immediately discontinue using that covered employee to provide services to the BUYER. If

PROVIDER has taken precautions or imposed conditions to ensure that the employees of PROVIDER and any subconsultant will not become covered employees, PROVIDER will ensure that these precautions or conditions continue throughout the time the contracted services are provided.

For the purposes of this Section, “covered employees” means employees, agents, or applicants of PROVIDER who have or will have continuing duties related to the services to be performed for BUYER and have or will have direct contact with BUYER’s students. The BUYER will decide what constitutes direct contact with BUYER’s students. The definition of “covered employees" does not include individuals Services if the Services: (1.) do not involve the construction, alteration, or repair of an instructional facility as defined herein; (2.) involves construction of a new instructional facility and the person’s duties related to other contracted services will be completed not later than the seventh day before the first date the facility will be used for instructional purposes; or (3.) involves an existing instructional facility and: (a.) the Services area contains sanitary facilities and is separated from all areas used by students by a secure barrier fence that is not less than six feet in height; and (b.) the contracting entity adopts a policy prohibiting employees, contractors, and subconsultants from interacting with students or entering areas used by students, informs employees, contractors, and subconsultants of the policy, and enforces the policy at the Services area.

“Disqualifying criminal history” means: any conviction or other criminal history information designated by the BUYER;

any felony or misdemeanor conviction that would disqualify a person from obtaining educator certification under Texas

Education Code Section 21.060, and 19 Texas Administrative

Code Section 249.16; or one of the following offenses, if at the time of the offense, the victim was under 18 years of age or enrolled in a public school; a felony offense under Texas

Penal Code Title 5 Offense Against Persons; an offense for which a defendant is required to register as a sex offender under Texas Code of Criminal Procedure Chapter 62; or an equivalent offense under federal law or the laws of another state; or a felony violation of Texas Penal Code Section 43.24 related to the sale, distribution or display of harmful material to a minor. The term “instructional facility” means real property, an improvement to real property, or a necessary fixture of an improvement to real property that is used predominantly for teaching the curriculum required under the state curriculum for kindergarten through grade 12.

PROVIDER’s violation of this section shall constitute a substantial failure and termination.

PROVIDER shall assume all expenses associated with the background checks.

24. Contractual Relationship: Nothing herein shall be construed as creating the relationship of employer or employee between

CUSTOMER and PROVIDER or between CUSTOMER and

PROVIDER’S employees. CUSTOMER shall not be subject to any obligation or liabilities of PROVIDER or

PROVIDER’S employees incurred in the performance of the contract unless otherwise herein authorized. PROVIDER is an independent contractor and nothing contained herein shall constitute or designate PROVIDER of any of PROVIDER’S employees as employees of CUSTOMER. Neither

PROVIDER nor PROVIDER’S employees shall be entitled to any benefits established for CUSTOMER’S employees nor covered by CUSTOMER’S Worker's Compensation program.

25. Compliance with CUSTOMER policies and procedure: While on CUSTOMER premises, PROVIDER agrees to comply with all CUSTOMER’S policies, procedures, rules and regulations.

26. Records: PROVIDER agrees to provide to CUSTOMER, the

Texas Education Agency, the Comptroller General of the

United States, or any other duly authorized representatives access to any books, documents, papers, and records of

PROVIDER which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. PROVIDER also agrees to maintain all required records for five (5) years after

CUSTOMER makes final payment and all other pending matters are closed.

San Marcos Consolidated Independent School District - Standard Terms and Conditions – Services (Revised November 2023)

MASTER AGREEMENT – SERVICES

STANDARD TERMS & CONDITIONS

EXHIBIT A

The attached agreement is incorporated herein by reference.

As set out above, to the extent there is any conflict between the provisions in the agreement/terms and conditions in this Exhibit A and the Standard Terms and Conditions in the Master Agreement, the Standard Terms and Conditions will govern and supersede any other agreements and the contents of Exhibit A.

[attached agreement here]