Texas Clause Addendum.PDF

ATTACHMENT C

STATE OF TEXAS CONTRACT CLAUSE ADDENDUM

___________________________________________________ (“Contractor”)

___________________________________________________ (“Customer”)

1. BYRD ANTI-LOBBYING AMENDMENT.

Applicability: Clause applies to procurement contracts exceeding $100,000 that are financed with federal funds.

Contractor certifies that no federal appropriated funds have been paid or will be paid to any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress on its behalf to obtain, extend, or modify this contract or grant. If non-federal funds are used by Contractor to conduct such lobbying activities, Contractor shall promptly file the prescribed disclosure form. In accordance with 31 U.S.C. § 1352(b)(5), Contractor acknowledges and agrees that it is responsible for ensuring that each subrecipient and subcontractor certifies its compliance with the expenditure prohibition and the declaration requirement.

2. CHILD SUPPORT OBLIGATION. Contractor represents and warrants that it will include the following clause in the award documents for every subaward and subcontract and will require subrecipients and contractors to certify accordingly:

“Under Section 231.006 of the Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid or application is not ineligible to receive the specified grant, loan, or payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate. A bid or an application for a contract, grant, or loan paid from state funds must include the name and social security number of the individual or sole proprietor and each partner, shareholder, or owner with an ownership interest of at least 25 percent of the business entity submitting the bid or application.”

3. CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT.

Applicability: Clause applies to procurement contracts exceeding $150,000 financed with federal funds.

Contractor represents and warrants that it will comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).

4. COMPLIANCE WITH LAWS, RULES, AND REQUIREMENTS. Contractor represents and warrants that it will comply, and assure the compliance of all its subrecipients and contractors, with all applicable federal and state laws, rules, regulations, and policies in effect or hereafter established. In addition, Contractor represents and warrants that it will comply with all requirements imposed by the awarding agency concerning special requirements of law, program requirements, and other administrative requirements. In instances where multiple requirements apply to Contractor, the more restrictive requirement applies.

5. CONTRACT OVERSIGHT. Contractor represents and warrants that it will maintain oversight to ensure that any subcontractor perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders.

6. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT.

Applicability: Clause applies to procurement contracts exceeding $100,000 that are financed with federal funds and involve the employment of mechanics or laborers.

Contractor represents and warrants that it will comply with the requirements of the Contract Work Hours and Safety

Standards Act (40 U.S.C. 3701-3708).

7. CYBERSECURITY TRAINING PROGRAM (LOCAL GOVERNMENT SYSTEM). Contractor represents and warrants its compliance with Section 2054.5191 of the Texas Government Code relating to the cybersecurity training program for local government employees who have access to a local government computer system or database.

8. CYBERSECURITY TRAINING PROGRAM (STATE CONTRACTOR). If Contractor has access to any state computer system or database, Contractor shall complete cybersecurity training and verify completion of the training program to the Customer pursuant to and in accordance with Section 2054.5192 of the Government Code.

9. DAVIS-BACON ACT AND THE COPELAND ACT.

Applicability: Clause applies to certain construction contracts financed with federal funds.

Contractor represents and warrants that it will comply with the requirements of the Davis-Bacon Act (40 U.S.C. 3141-

3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions

Applicable to Contracts Covering Federally Financed and Assisted Construction”) and the Copeland Act (40 U.S.C. §276c and 18 U.S.C. §874).

10. DEBARMENT AND SUSPENSION. Contractor certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the

Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services

Administration.

11. DEBTS AND DELINQUENCIES. Contractor acknowledges and agrees that, to the extent Contractor owes any debt including, but not limited to, delinquent taxes, delinquent student loans, and child support owed to the State of Texas, any payments or other amounts Contractor is otherwise owed under the contract or grant may be applied toward any debt

Contractor owes the State of Texas until the debt is paid in full. These provisions are effective at any time Contractor owes any such debt or delinquency.

12. DISASTER RECOVERY PLAN.

Applicability: Clause applies for any procurement contract with an entity that has custody of vital state records as defined by Section 441.180(13) of the Texas Government Code.

Upon request of Customer, Contractor shall provide the descriptions of its business continuity and disaster recovery plans.

13. DISCLOSURE OF PRIOR STATE EMPLOYMENT.

Applicability: Clause applies to procurement contracts for consulting services under Chapter 2254 of the Texas

Government Code.

In accordance with Section 2254.033 of the Texas Government Code, relating to consulting services, Contractor certifies that it does not employ an individual who has been employed by Customer or another agency at any time during the two years preceding the submission of the Response or, in the alternative, Contractor has disclosed in its Response the following: (i) the nature of the previous employment with Customer or the other agency; (ii) the date the employment was terminated; and (iii) the annual rate of compensation for the employment at the time of its termination.

14. DISCLOSURE PROTECTIONS FOR CERTAIN CHARITABLE ORGANIZATIONS, CHARITABLE TRUSTS, AND PRIVATE FOUNDATIONS. Contractor represents and warrants that it will comply with Section 2252.906 of the

Texas Government Code relating to disclosure protections for certain charitable organizations, charitable trusts, and private foundations.

15. DISCRIMINATION PROHIBITED. In accordance with Section 2105.004 of the Texas Government Code, Contractor represents and warrants that it will not use block grant funds in a manner that discriminates on the basis of race, color, national origin, sex, or religion.

16. DISPUTE RESOLUTION. The dispute resolution process provided in Chapter 2009 of the Texas Government Code is available to the parties to resolve any dispute arising under the agreement.

17. EQUAL EMPLOYMENT OPPORTUNITY.

Applicability: Clause applies to certain construction contracts financed with federal funds.

The Contractor hereby agrees that it will incorporate or cause to be incorporated into any subcontract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the federal Government or borrowed on the credit of the federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:

During the performance of this contract, the Contractor agrees as follows:

1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the

Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

3) The Contractor will not discharge or any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor’s legal duty to furnish information.

4) The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers’ representatives of the Contractor’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

7) In the event of the Contractor’s noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

8) The Contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of

September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The

Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States. The Contractor further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided that if the Contractor so participating is a state or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government that does not participate in work on or under the contract.

The Contractor agrees that it will assist and cooperate actively with the administering agency and the Secretary of

Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the

Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency’s primary responsibility for securing compliance. The Contractor further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the

Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the Contractor agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the

Contractor under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.

18. EXCLUDED PARTIES.

Applicability: Clause applies as long as Executive Order No. 13224 is in effect.

Contractor certifies that it is not listed in the prohibited vendors list authorized by Executive Order No. 13224, “Blocking

Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”, published by the United States Department of the Treasury, Office of Foreign Assets Control.

19. EXECUTIVE HEAD OF A STATE AGENCY AFFIRMATION. In accordance with Section 669.003 of the Texas

Government Code, relating to contracting with the executive head of a state agency, Contractor certifies that it is not (1) the executive head of a state agency, (2) a person who at any time during the four years before the date of the contract or grant was the executive head of a state agency, or (3) a person who employs a current or former executive head of a state agency.

20. FEDERAL SOLID WASTE DISPOSAL ACT. Contractor represents and warrants that it will comply with the requirements of Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery

Act.

21. FIREARM SUPPRESOR POLICY. Contractor certifies that it has not received a final judicial determination finding it adopted a rule, order, ordinance, or policy under which it enforces, or allows the enforcement of, a federal statute, order, rule, or regulation that purports to regulate a firearm suppressor in violation of Texas Government Code §2.102(a) in an action brought by the Attorney General under Texas Government Code §2.104. If Contractor is currently being sued under

Texas Government Code §2.104 or is sued under this section at any point during the duration of this grant, Contractor agrees to immediately disclose the lawsuit and its posture to the Customer.

22. FORMER AGENCY EMPLOYEES.

Applicability: Clause applies to procurement contracts that are consulting services contracts under Chapter 2254 of the Texas Government Code, if appropriated money will be used to make payments under the contract.

Contractor represents and warrants that none of its employees including, but not limited to, those authorized to provide services under the contract, were former employees of the Customer during the twelve (12) month period immediately prior to the date of execution of the contract.

23. FUNDING LIMITATION. Contractor understands that all obligations of Customer under the contract or grant are subject to the availability of grant funds. The contract or grant is subject to termination or cancellation, either in whole or in part, without penalty to Customer if such funds are not appropriated or become unavailable.

24. GOVERNING LAW AND VENUE. This agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under this agreement is fixed in any court of competent jurisdiction of Crockett County, Texas, unless the specific venue is otherwise identified in a statute that directly names or otherwise identifies its applicability to the Customer.

25. INDEMNIFICATION. CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF

TEXAS AND CUSTOMER, AND/OR ITS OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,

CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, OR

RESULTING FROM ANY ACTS OR OMISSIONS OF CONTRACTOR OR ITS AGENTS, EMPLOYEES,

SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS IN THE EXECUTION OR

PERFORMANCE OF THE CONTRACT AND ANY PURCHASE ORDERS ISSUED UNDER THE CONTRACT. THE

DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE TEXAS ATTORNEY

GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND

CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE

FROM THE OFFICE OF THE TEXAS ATTORNEY GENERAL. CONTRACTOR AND CUSTOMER AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

26. LOBBYING EXPENDITURE RESTRICTION. Contractor represents and warrants that Customer’s payments to

Contractor and Contractor’s receipt of appropriated or other funds under the contract or grant are not prohibited by Sections

403.1067 or 556.0055 of the Texas Government Code, which restrict lobbying expenditures.

27. NO CONFLICTS OF INTEREST. Contractor represents and warrants that performance under the contract or grant will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety. Further, Contractor represents and warrants that in the administration of the grant, it will comply with all conflict of interest prohibitions and disclosure requirements required by applicable law, rules, and policies, including Chapter 176 of the Texas

Local Government Code. If circumstances change during the course of the contract or grant, Contractor shall promptly notify Customer.

28. NO WAIVER OF SOVEREIGN IMMUNITY. The Parties expressly agree that no provision of the grant or contract is in any way intended to constitute a waiver by the Customer or the State of Texas of any immunities from suit or from liability that the Customer or the State of Texas may have by operation of law.

29. OPEN MEETINGS. If the Contractor is a governmental entity, Contractor represents and warrants its compliance with

Chapter 551 of the Texas Government Code, which requires all regular, special or called meeting of a governmental body to be open to the public, except as otherwise provided by law.

30. POLITICAL POLLING PROHIBITION. Contractor represents and warrants that it does not perform political polling and acknowledges that appropriated funds may not be granted to, or expended by, any entity that performs political polling.

31. TEXAS PUBLIC INFORMATION ACT. Information, documentation, and other material in connection with this

Solicitation or any resulting contract or grant may be subject to public disclosure pursuant to Chapter 552 of the Texas

Government Code (the “Public Information Act”). In accordance with Section 2252.907 of the Texas Government Code, Contractor is required to make any information created or exchanged with the State pursuant to the contract or grant, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the State.

32. RECORDS RETENTION (FEDERAL). Contractor represents and warrants its compliance with the records retention requirements of 2 CFR § 200.333. Customer reserves the right to direct a Contractor to retain documents for a longer period of time or transfer certain records to Customer custody when it is determined the records possess longer term retention value. Contractor must include the substance of this clause in all subawards and subcontracts.

33. RECORDS RETENTION (STATE PROCUREMENT). For the time period specified in Section 441.1855 of the Texas

Government Code, Contractor shall maintain and retain all records relating to the performance of the contract including supporting fiscal documents adequate to ensure that claims for contract funds are in accordance with applicable State of

Texas requirements. Contractor must include the substance of this clause in all subcontracts.

34. REMEDIES FOR NONPERFORMANCE. If Contractor fails to comply with any requirement of the contract, Customer may terminate or cancel all or any part of the contract, may obtain substitute requested items, may withhold acceptance and payments to Contractor, may revoke any prior acceptance, may require Contractor to refund amounts paid prior to revocation of acceptance and may pursue all rights and remedies against Contractor under the contract and any applicable law. Remedies for nonperformance may also include suspension or debarment. No provision of the contract shall constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to Customer as an agency of the State of Texas or otherwise available to Customer. The failure to enforce or any delay in the enforcement of any privileges, rights, defenses, remedies, or immunities detailed in the contract or otherwise available to Customer by law will not constitute a waiver of said privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel.

35. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. Contractor represents and warrants that it will comply with the requirements of 37 CFR Part 401 (“Rights to Inventions Made by Nonprofit Organizations and

Small Business Firms Under Government Grants, Contracts and Cooperative Agreements”) and any implementing regulations issued by the awarding agency, if federal award meets the definition of “funding agreement” under 37 CFR

§401.2(a) and the Contractor wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that

“funding agreement.”

36. STATE AUDITOR’S RIGHT TO AUDIT. Pursuant to Section 2262.154 of the Texas Government Code, the state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under any contract or indirectly through a subcontract under the contract. The acceptance of funds by the Contractor or any other entity or person directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, the Contractor or other entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. Contractor shall ensure that this paragraph concerning the authority to audit funds received indirectly by subcontractors through the contract and the requirement to cooperate is included in any subcontract it awards.

37. TERMINATION AND CANCELLATION CIRCUMSTANCES. Customer reserves the right to terminate the contract at any time, in whole or in part, without cost or penalty, by providing thirty (30) calendar days’ advance written notice.

Customer reserves the right, in its sole discretion, to terminate the contract in whole or in part for Contractor’s material breach, provided that Contractor has been given advance written notice specifying the nonperformance and a thirty (30)-calendar-day period in which to cure the breach.

In the event of contract termination, Contractor must, unless otherwise mutually agreed upon in writing, cease all work immediately upon the effective date of termination. Termination or expiration of the contract shall not affect Customer’s right to use previously purchased licensed software through the term of each such license, nor any maintenance or support purchased prior to such termination. In the event of contract termination, the Customer’s sole and maximum obligation shall be to pay Contractor for previously authorized services completed in accordance with contract requirements and performed prior to the effective date of termination. Customer shall have no other liability, including no liability for any costs associated with the termination.

Customer reserves the right to pursue reasonable costs, fees, expenses, and other amounts or damages available to the

Customer under the contract or under applicable law, including, but not limited to, attorneys’ fees and court costs, if termination or cancellation is at the Contractor’s request or if the Customer terminates the contract for cause.

The undersigned hereby certifies that they have reviewed the State of Texas contract clauses and that they fully understand and agree to be bound by these terms.

Authorized Signature Date