TEXAS A&M UNIVERSITY - BidNet 601 University Drive, JCK Bldg. Room 960 . San Marcos, TX 78666-4616 ....

Texas State University

REQUEST FOR PROPOSAL (RFP) Fundraising Campaign Feasibility Study

RFP NUMBER: 754 -15-FUNDRAISING

PROPOSAL MUST BE RECEIVED AT THE DESIGNATED LOCATION SPECIFIED IN THIS

SOLICITATION ON OR BEFORE:

March 13, 2015 at

3:00 PM CDT

MAIL, COURIER or HAND DELIVER PROPOSAL TO:

Texas State University ATTN: Dan Perry

Vice President for University Advancement 601 University Drive, JCK Bldg. Room 960

San Marcos, TX 78666-4616

Show RFP Number, Opening Date and Time on Return Envelope NOTES TO POTENTIAL RESPONDENTS: Proposals must be received at the location designated above and time stamped on or before the time and date specified in this solicitation in order to be considered. It is the Respondent’s sole responsibility for preparing, submitting and delivering a response with all required materials to the designated location on or before the published submittal deadline. Courier or delivery services may not deliver directly to the specified location. It is strongly recommended that the response be hand carried to insure receipt at the proper location:

• If mailing or sending by courier, the Respondent (Offeror) is cautioned to allow sufficient time for delivery prior to the published deadline to the location specified above.

• Failure to deliver, for whatever reason, may not be grounds for disputing the procurement solicitation process or any resulting contract award.

All questions relating to the RFP shall be in writing via fax or e-mail as provided below. All requests for information shall result in written responses sent to all potential Offerors known to the University.

REFER INQUIRIES IN WRITING TO: ATTN: Dan Perry

University Advancement Fax: 512-245-2336

Email: [email protected] Due to the nature of the solicitation and evaluation process being utilized, after receipt of proposals only the names of Respondents will be made public. Prices, terms and other proposal details will only be divulged upon written request after the contract award, if one is made. All proposals submitted shall become the property of the State of Texas upon receipt.

Texas State University is a member of The Texas State University System




TABLE OF CONTENTS

PAGE NUMBER

SECTION 1 INTRODUCTION

1.1 Statement of Intent and Purpose 3 1.2 Background 3 1.3 HUB Outreach Program 4 1.4 Form Of Proposal 4 1.5 Proposal Evaluation 5 1.6 Award Process 6 1.7 Term of Agreement 7 1.8 Insurance Requirements 7 1.9 Public Information 9 1.10 Nondiscrimination 9 1.11 Parking Permit Requirements 10

SECTION 2 SCHEDULE OF PROPOSAL PROCESS 11

SECTION 3 GENERAL INFORMATION

3.1 Submittal Deadline and Location 12 3.2 Submittal Instructions 12 3.3 Texas State Contacts 12 3.4 Inquiries and Interpretations 13 3.5 Terms and Conditions 13 3.6 Confidential or Proprietary Information 14 3.7 Right To Not Make An Award, Waive Formalities or 14 Technicalities 3.8 Referenced Documents 14

SECTION 4 (SAMPLE CONTRACT) GENERAL TERMS AND CONDITIONS 15 SECTION 5 SCOPE OF WORK & SPECIAL INSTRUCTIONS

5.1 Exhibit A-Scope of Work 31 5.2 Exhibit B-Pricing Page 32 SECTION 6 EXECUTION OF OFFER 33

Texas State University is a member of The Texas State University System

RFP for Campaign Feasibility Study Services

SECTION 1: INTRODUCTION 1.1 STATEMENT OF INTENT AND PURPOSE Texas State University (“Texas State” or “University”) is seeking responses to this solicitation for proposal from qualified individuals or firms (Respondents) to perform a readiness review and feasibility study. The goal is a feasibility study that will provide the University and the Division of University Advancement with a strategic direction for a major comprehensive campaign enabling the University to plan and secure both endowed and current funds in support of students, faculty, and programs at Texas State. The University seeks consultation services to conduct an assessment of its fund raising programs, capacity and potential with an emphasis towards carrying out a significant fund raising initiative. This includes an assessment of the institutional environment, potential campaign leadership, the university community (faculty and staff), as well as institutional operations, systems and process, the level of alumni, donor, community and other interest and capacity to support fund raising efforts, and the types of initiatives that will appeal to potential donors. Proposals will be accepted from service providers with significant demonstrable and direct work experience in the field of fund raising consulting. Service providers must be prepared to share this expertise and knowledge in both a written proposal and potential interview with the selection committee. Experience with public higher education institutions, readiness review audits, campaign planning and feasibility studies is required. 1.2 BACKGROUND Authorized by the Texas Legislature in 1899, Southwest Texas State Normal School opened its doors in 1903. Over the years, the Legislature broadened the institution's scope and changed its name, in succession, to Normal College, Teachers College, Southwest Texas State University, and in 2003 to Texas State University. Each name reflects the university's growth from a small teacher preparation institution to a major, multipurpose university. Texas State's original mission was to prepare Texas public school teachers. It became renowned for carrying out this mission, but today it does far more. SAN MARCOS CAMPUS: Texas State's main campus of more than 35,000 students choose from 96 bachelor’s, 86 master’s and 12 doctoral degree programs offered by the following colleges: Applied Arts, McCoy College of Business Administration, Education, Fine Arts and Communication, Health Professions, Liberal Arts, Science and Engineering, University College and the Graduate College. As an Emerging Research University, Texas State offers opportunities for discovery and innovation to faculty and students. Our students come from around the globe, and our student body is diverse. Forty-two percent of Texas State students are ethnic minorities. Texas State ranks among the top 20 universities in the nation for the number of bachelor's degrees awarded to Hispanic students. See the University Factbook for more information on our student body. Texas State's main campus is in San Marcos, a growing community of 50,000 people in the Austin Metropolitan Area. Located in the Texas Hill Country, where blackland prairies roll into beautiful hills, Texas State enjoys a setting that is unique among Texas universities. The beauty of the crystal-clear San Marcos River and the stately cypress and oak trees on the campus add to the charm of the university’s picturesque setting. Our location on the banks of the

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http://www.txstate.edu/appliedarts/

http://www.business.txstate.edu/

http://www.education.txstate.edu/

http://www.finearts.txstate.edu/

http://www.health.txstate.edu/

http://www.txstate.edu/liberalarts/

http://www.txstate.edu/science/

http://www.txstate.edu/ucollege/

http://www.gradcollege.txstate.edu/

http://www.gradcollege.txstate.edu/

http://www.ir.txstate.edu/Facts/xfacts.html

http://www.ir.txstate.edu/Facts/xfacts.html


San Marcos River provides recreational activities for students throughout the year. ROUND ROCK CAMPUS is located north of Austin. Students there can take upper-level courses leading to bachelor’s degrees and complete master’s degree and certificate programs. Students who complete their degree requirements at the Round Rock Campus earn their degrees from Texas State University. You can find more complete information about Texas State’s Round Rock Campus in these Frequently Asked Questions Additional information may be found at: http://www.txstate.edu/about/index.html On February 28, 2014, the University ended the successful Pride in Action capital campaign, which began in 2006 and generated over $152 million in support of Texas State University. More information about the Pride in Action campaign is available at http://www.ua.txstate.edu/. 1.3 HUB OUTREACH PROGRAM All agencies of the State of Texas are required to make a "good faith effort" to assist Historically Underutilized Businesses (each a “HUB”) in receiving their fair share of Contract or Subcontract awards. The goal of the HUB program is to promote full and equal business opportunity for all businesses in contracting with state agencies. If under the terms of any Agreement or Contractual arrangement resulting from this Solicitation, Respondent subcontracts any of the Services then, Respondent must make a good faith effort attempt to utilize HUBs certified by the Texas Procurement and Support Services Division of the Texas Comptroller of Public Accounts (TPASS). STATEMENT OF PROBABILITY: The University has determined that subcontracting opportunities are NOT probable in connection with this Procurement Solicitation. Therefore, a HUB Subcontracting Plan (HSP) is NOT required as a part of the Respondent's Proposal. The Respondent shall develop and administer a HSP as a part of the Respondent's Proposals. For additional information regarding any aspect of the University’s HUB Outreach Program, please contact Yolanda Strey, HUB Specialist at (512) 245-2523 or [email protected]. 1.4 FORM OF PROPOSAL Proposals shall contain the following information: 1. A statement of your business philosophy as it pertains to campaign readiness assessment,

feasibility studies and the consultant’s role in these projects. 2. A succinct explanation of how your firm will meet the requirements of this RFP. Describe the

firm’s understanding of the project as outlined in the Scope of Work section of this RFP and a plan for accomplishing these tasks.

3. Provide a list of references, particularly large public universities, for whom you have provided assistance consistent with the scope of this RFP. For each client listed, please identify a contact person’s name, title, telephone number, and the relationship to the contract, as well as any measurable results that were achieved. Specifically identify public university campaigns at the level of $100 million or more. Sample of previous work are recommended.

4. Provide the name and a corporate bio/resume for each of the proposed team members who

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http://www.rrhec.txstate.edu/about/faq.html

http://www.txstate.edu/about/index.html

http://www.ua.txstate.edu/

mailto:[email protected]


will work on the project, including subcontractors. List team members’ qualifications, relevant experience, particularly with public universities, including a management/manpower summary that clearly specifies the number, type and time commitment of individual personnel who will be assigned to the project. It should also include a project work plan and detailed breakdown of anticipated hours by each individual who will work on the project.

5. A listing of project materials that will be prepared and the projected timeline when each will be delivered to the client.

6. Provide a timeline to perform assessment, study and deliverables. The contract is expected to run from May 1, 2015 through October 30, 2015.

7. The precise method by which the firm expects to be compensated, including expected partial payments, breakdown of professional fees and expenses, and a total-not-to-exceed amount. The firm should submit a cost estimate that includes all activities and deliverables identified in the Scope of Work. The proposed pricing of the consulting services must encompass all anticipated expenses into the proposed fees, including the detailed information on all the one-time costs the University will incur and detailed information on all ongoing fees that will be incurred. If the firm wishes to propose services based upon a monthly management fee, the firm shall summarize all aspects of what the fee will include and what additional expenses will be required as separate charges. If the firm wishes to propose fees based upon itemized expenses, the firm shall summarize all the items that will be included therein and provide estimates of what a typical billing would be. The proposal should fully explain optional, additional, special, and alternative services, which are related to but not necessarily required, that the firm can recommend or make available to the University along with the financial and non- financial benefits or reasons for the University to choose those options.

8. Any additional information, which demonstrates that your firm would be the best possible match to perform this service.

1.5 PROPOSAL EVALUATION Proposals shall be evaluated based on the weights assigned below. If additional information or proposal clarification is required, the RFP evaluation team shall make written requests to the appropriate firm and require all responses to be made in writing. All proposals shall be reviewed to verify that the vendor has met the minimum requirements. Proposals that have not complied with requirements or do not meet minimum content will be eliminated from further consideration. Proposals will be reviewed and evaluated by a committee. Award will be made in the best interest of the University. The evaluation process will consider the following criteria:

A. SCOPE OF WORK & APPROACH: The committee will evaluate the value and completeness of the proposed plan/methodology and the extent to which it ensures the attainment of the University’s goals.

B. RESOURCES/REFERENCES: The committee will evaluate the vendor’s qualifications,

experience and ability to provide services in the appropriate environment. Significant demonstrable, direct work experience and expertise in the field of fund raising consulting and projects related to fund raising for institutions of higher education is essential.

C. SCHEDULE: The committee will evaluate the vendor’s ability to provide services that meet

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the University’s timeline. D. PRICE: The committee will evaluate the vendor’s price and the total value it offers Texas

State University. 1.6 AWARD PROCESS It is the University’s intention to award/contract to a single contractor for the Work. University shall be the sole judge in making this determination and it shall be done if it is determined to be in the University’s best interests. The University reserves the right to make a “best value” award based solely upon the initial evaluation of the proposals submitted; completion of any clarifications or presentations; or on the basis of a “best and final offer”.

In accordance with The Texas State University System “Rules and Regulations”, Chapter III, Section 17 and the Texas Education Code Sections 51.9335 (a) – (e), the University intends to carefully evaluate responses to this RFP to determine which Proposal “in total” shall constitute the “best value” to the University.

1.6.1 Evaluation

1. Administrative Review

The University will review timely received proposals to determine if mandatory requirements are met and to verify that the proposals meet administrative and formatting requirements. Compliant proposals will be approved for subsequent evaluation steps.

2. Initial Ranking

The University will review and rank compliant proposals, without consideration of cost, from best to least qualified. The evaluation team will use detailed evaluation and weighting guidelines to carefully review and assign a score to each section of each Proposal. Upon completion of the evaluation and scoring, the next step of this evaluation will be performed.

3. Cost Proposal Evaluation

Cost proposals will be opened and reviewed by evaluation team members. Scores for cost will be based on pre-determined guidelines and weightings. These scores will be added to those assigned in the Initial Ranking process.

4. Reference Checks, Clarification, and Presentation

The University will perform reference checks and seek further information, as needed from all firms whose proposals Texas State University, at its discretion, considers viable, based on the initial evaluation and scoring. Firms may be asked to discuss their Proposals or to provide written clarification.

All firms selected for further consideration will be asked to present their proposals. The conduct, content and extent of such discussions and demonstrations are a matter of the University’s judgment, based on the particulars of the selected proposals.

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In the course of seeking additional information, the University will:

• Control all discussions; • Attempt to resolve any uncertainties concerning a firm’s Proposal; • Attempt to resolve any suspected mistakes by calling them to a firm’s attention as

specifically as possible without disclosing information concerning other firm’s proposals or confidential aspects of the evaluation process; and,

• Provide the firm a reasonable opportunity to submit any technical, cost or other revisions to its Proposal that may result from discussions.

5. Best and Final Offers (BAFO)

The University may choose to issue a written Request for Best and Final Offer to one or more firms. The request will also include general instructions to and questions for all BAFO participants, as well as a list of issues, concerns and/or requests for additional clarification including, but not limited to functional capabilities, cost, contractual gaps, and other Proposer-specific issues unique to each BAFO participant.

The objectives of the Request for BAFO include obtaining:

• The best price for requested services; • Changes to proposals to better align them with University Advancement’s

requirements or needed services; • Clarifications where initial proposals were deemed ambiguous or confusing by the

evaluation team; • Changes to the proposed approach or timing to the extent deemed necessary by the

University; and • Changes to or more information about proposed project personnel.

6. Final Evaluation

The University intends to make the contract award to the Proposer whose proposal best meets the evaluation criteria and reflects the “best value” to the University.

In determining “best value”, the Evaluation Committee will be instructed to consider all information contained in the initial proposals; BAFO responses; and information obtained from references, site visits, Proposer presentations, and any other information obtained during this procurement process.

1.7 TERM OF AGREEMENT The University anticipates that this RFP will result in a contract for services between May 1, 2015 through October 30, 2015. 1.8 INSURANCE REQUIREMENTS Upon notification of award, the Successful Respondent (Contractor) shall furnish proof of the stipulated insurance coverage requirements to the University’s Authorized Representative. Contractor will be required to maintain this insurance coverage through completion of the Work. This proof shall be in the form of a certificate listing Texas State University as an additional named

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insured. It shall be executed by an approved insurance company authorized to do business in the State of Texas with an A.M. Best rating of “B+” or higher. The Contractor shall carry and pay the premiums for the required insurance in the amounts stated below:

1.8.1 Workers’ Compensation Insurance coverage for each of the successful Respondent’s employees employed on this project. The successful Respondent(s) must meet the statutory requirements of the Tex. Lab. Code, 401.011(44) and specific to construction projects for public entities as required by Tex. Lab. Code, §406.096; and

1.8.2 Contractor's Public Liability and Property Damage Insurance limits of not less than: Bodily Injuries (including accidental death) $500,000 Per Occurrence $500,000 Property Damage $300,000 1.8.3 Owner's Protective Liability Insurance limits of not less than: Bodily Injuries (including accidental death) $500,000 Per Occurrence $500,000 Property Damage $300,000 1.8.4 Automobile Liability Insurance Limits, covering all owned, non-owned or hired

automobiles of not less than: Bodily Injuries (including accidental death) $500,000 Per Occurrence $500,000 Property Damage $300,000

Coverage shall be written on an occurrence basis by companies authorized and admitted to do business in the State of Texas and rated A- or better by A.M. Best Company or otherwise acceptable to the University. Policies must include the following clauses, as applicable: This insurance shall not be canceled, materially changed, or non-renewed until after thirty-days prior written notice has been given to the University. It is agreed that the successful Respondent’s insurance shall be deemed primary with respect to any insurance or self-insurance carried by the University for liability arising out of operations under the any Agreement or Contractual arrangement resulting from this Solicitation with the University. The Board of Regents of The Texas State University System; their respective affiliated enterprises, officers, directors, employees, representatives; and agents will be named as additional insureds under the policy and provide The Board of Regents of The Texas State University System; their respective affiliated enterprises, officers, directors, employees, representatives, and agents with a waiver of subrogation. The workers’ compensation and employers’ liability policy will provide a waiver of subrogation in favor of the University. Without limiting any of the other obligations or liabilities of the successful Respondent, the

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successful Respondent(s) shall require each Subcontractor performing work under any Agreement or Contractual arrangement resulting from this Solicitation, at the Subcontractor's own expense, to maintain during the term of any Agreement or Contractual arrangement resulting from this Solicitation, the same stipulated minimum insurance including the required provisions and additional policy conditions as shown above. As an alternative, the successful Respondent(s) may include its Subcontractors as additional insureds on its own coverage as prescribed under these requirements. The successful Respondent's certificate of insurance shall note in such event that the Subcontractors are included as additional insureds and that the successful Respondent(s) agrees to provide Workers’ Compensation for the Subcontractors and their Employees. The successful Respondent(s) shall obtain and monitor the certificates of insurance from each Subcontractor in order to assure compliance with the insurance requirements. The successful Respondent(s) must retain the certificates of insurance for the duration of any Agreement or Contractual arrangement resulting from this Solicitation plus five years and shall have the responsibility of enforcing these insurance requirements among its Subcontractors. The University shall be entitled, upon request and without expense, to receive copies of these certificates. Proof that insurance coverage exists and is in force shall be furnished to the University’s Authorized Representative by way of a certificate of insurance before any part of the Work is started. The certificate of insurance shall contain a provision that in the event of cancellation or any material change in the coverage stated above, the University shall be notified in writing no less than thirty (30) days prior to the change. 1.9 PUBLIC INFORMATION: University strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act, Chapter 552, Texas Government Code. Sponsor is required to make any information created or exchanged with the state pursuant to this contract that is 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. The following format(s) shall be deemed to be in compliance with this provision: electronic files in Word, PDF, or similar generally accessible format.

1.9.1 The University strictly complies with all statutes, court decisions, and opinions of the Texas

Attorney General with respect to disclosure of Proposal information. 1.9.2 Due to the nature of the competitive solicitation process used, the University may withhold

certain information until after the execution of the Contract. 1.9.3 Successful Respondent(s) is required to make any information created or exchanged

with the state pursuant to any Agreement or Contractual arrangement resulting from this Solicitation, 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.

1.10 NONDISCRIMINATION: In their execution of any Agreement or Contractual arrangement resulting from this Solicitation, all contractors, subcontractors, their respective employees, and others acting by or through them shall comply with all federal and state policies and laws prohibiting discrimination, harassment, and sexual misconduct. Any breach of this covenant may result in termination of this agreement.

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1.11 PARKING PERMIT REQUIREMENTS: There is no free parking on any Texas State University campus. The successful Respondent(s) will be required to purchase a parking pass for each vehicle that is parked on campus. 1.11.1 Non-construction related parking: May purchase red restricted permits that will allow a

broader range of parking places. Perimeter parking permits may also be purchased. However, perimeter-parking places are generally off-campus. There are two fee for parking garages on campus. One at 405 N. Edward Gary Street and one at 704 Gaillardia Street.

1.11.2 Construction related parking: Construction related vehicles may be able to park inside the

fenced staging areas, even though that space is not intended for parking use, but area will be limited to one to four spaces and be set aside for the Job Superintendent and other essential personnel. The Job Superintendent will provide the authorization for utilizing this space. A dashboard permit will be provided to vehicles that are approved to park inside the staging fence at no charge. This permit must be displayed at all times when paring inside the staging fence. Vehicles parked outside the pre-arranged staging area may be subject to ticketing, immobilization (booting), and towing at the vehicle owner’s expense.

All other personnel must purchase perimeter permits, will park in lot P/AZ 10W (Bobcat Stadium West) and be transported to the work-site. Permits must be displayed in all vehicles to legally park on campus.

1.11.2.1 Vehicles illegally parked on campus or do not have a visible permit may be

subject to ticketing, immobilization (booting), and towing at the vehicle owner’s expense.

1.11.2.2 Parking permit fees may be viewed at http://www.parking.txstate.edu/Parking-Information/Vendors

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http://www.parking.txstate.edu/Parking-Information/Vendors




SECTION 2

SCHEDULE OF PROPOSAL PROCESS The University wishes to adhere to the following schedule: DATE: ACTION: February 13, 2015: RFP posted on the Electronic State Business Daily February 23, 2015: Deadline for submission of questions and/or clarifications

regarding RFP. All questions must be received by 5:00 p.m. Central Daylight Time in order to be considered.

March 13, 2015: Written proposals received by the University on or before 3:00

p.m. Central Daylight Time. Proposals should be presented in the format described in the Section below titled “Form of Proposal”.

April 14, 2015: Contract executed. May 1, 2015: Work to begin. NOTE: This schedule may be modified or changed at the sole discretion of the University, if it is determined to be in the University’s best interests to do so.

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SECTION 3

GENERAL INFORMATION

3.1 Submittal Deadline and Location (a) All proposals must be received by Texas State at the designated location no later

than the time and date specified. (b) Proposals are to be submitted to the location specified. (c) It is the Respondent’s sole responsibility for preparing, submitting and delivering a

response with all required materials to the designated location on or before the published submittal deadline.

Please note that many courier or delivery services do not deliver directly to offices on campus, but rather to the University’s Central Distribution Warehouse. All University mail is received by the University’s Mail Services at a central location for later distribution to the various departments on campus. If handcarrying, please note that visitor’s parking on campus is limited and may not be convenient to the designated submittal location. Late offers properly identified will be returned to Respondent unopened. Late offers will not be considered under any circumstances.

3.2 Submittal Instructions

(a) Proposals including Execution of Offer (Section 6) must be signed by Respondent’s company official or representative authorized to commit such proposals and bind the Respondent in the event of a contract award. Failure to sign the Execution of Offer may be basis for proposal disqualification.

(b) An original and one (1) copy of your complete proposal submitted in response to this solicitation are required.

(c) Proposal package (envelope/box/carton) must indicate on the lower left-hand corner: • the Respondent’s company name; • the proposal opening date; and, • RFP number.

(d) Telephone and/or facsimile (Fax) responses to this RFP are not acceptable. (e) All costs and expenses related to the preparation and submittal of a response to this

solicitation shall be borne by the Respondent. (f) Upon receipt, all submittals shall become property of the University.

3.3 Texas State Contacts

Any questions or concerns regarding this Request for Proposal shall be directed in writing to:

Texas State University ATTN: Dan Perry University Advancement Office 601 University Drive, JCK Bldg. Room # 960 San Marcos, Texas 77666-4616 E-mail: [email protected]

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Texas State specifically requests that Respondents restrict all contact and questions regarding this RFP to the above named individual.

3.4 Inquiries and Interpretations

Any questions or inquiries regarding the specifications or any other aspect of this solicitation must be received no later than close of business or 5:00 p.m. on February 23, 2015 (see Section 2 “Schedule of Proposal Process”). Responses to inquiries, which directly affect an interpretation or change to this RFP will be issued in writing by addendum (amendment) and sent to all parties recorded by Texas State as having received a copy of the RFP. All such addenda issued by Texas State prior to the time that proposals are received shall be considered part of the RFP, and the Respondent shall consider and acknowledge specific receipt of each in his/her proposal response. Only those Texas State replies to inquiries, which are made by formal written addenda, shall be binding. Oral and other interpretations or clarification will be without legal effect.

3.5 Terms and Conditions

The following Section 4 represents the contract format used by Texas State for engaging services. Prior to providing any services or incurring any costs, the successful Respondent (service provider) will be required to execute a contract using the language as shown without additions or deletions, save specific provider identification, related scope of work and agreed upon fee schedule. No changes to the agreement will be considered and it is recommended proposed bidder find the contract terms acceptable prior to submission of response to this RFP. The Respondent should note that there are constitutional and statutory limitations on the authority of University (a State agency) to enter into certain terms and conditions of a Contract or Agreement (collectively, the “Limitations”), including, but not limited to:

• those terms and conditions relating to liens on University’s property; • disclaimers and limitations of warranties; • disclaimers and limitations of liability for damages; waivers, disclaimers and

limitations of legal rights, remedies, requirements and processes; • limitations of periods to bring legal action; granting control of litigation or settlement

to another party; • liability for acts or omissions of third parties; • payment of attorneys’ fees; dispute resolution; indemnities; and, • confidentiality.

Terms and conditions related to the Limitations will not be binding on University except to the extent authorized by the laws and Constitution of the State of Texas. Section 4 is a Sample Only. Do not attempt to complete this section. This section is intended to give all potential Respondents the contract language that will be used with the successful respondent(s).

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By signing the Execution of Offer in Section 6, Respondent is accepting the terms and conditions which will become a part of any resulting contract.

3.6 Confidential or Proprietary Information

University considers all information, documentation and other materials requested to be submitted in response to this solicitation to be of a non-confidential and/or non-proprietary nature and therefore shall be subject to public disclosure after a contract is awarded under the Texas Public Information Act (Texas Government Code, Chapter 552.001, et seq.). Any or all information, documentation, and other material provided in connection with this solicitation, or any resulting contract, may be subject to public disclosure as noted above. Any part of this solicitation response that, in the opinion of the Respondent, is of a proprietary or confidential nature must be clearly, specifically and prominently marked as such by the Respondent; however merely indicating or marking in no way guarantees that the State shall view the furnished information as such regardless of how it is identified. Respondents are hereby notified that the University strictly adheres to all statutes, court decisions, and opinions of the Texas Attorney General with respect to disclosure of RFP information.

3.7 Right To Not Make An Award, Waive Formalities or Technicalities

University makes no guarantee that an award will be made as a result of this solicitation, and reserves the right to accept or reject any or all Offers, waive any formalities or minor technical inconsistencies, or delete any item/requirements from this solicitation or resulting contract when deemed by the University to be in University's best interest. Representations made within the Offer will be binding on responding firms. University will not be bound to act by any previous communication or Offer submitted by the firms other than in response to this solicitation.

3.8 Referenced Documents The following list of documents, attachments or exhibits are attached and incorporated into this solicitation by reference: Title Revision Date Number of Pages None

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SECTION 4

(SAMPLE CONTRACT)

GENERAL TERMS AND CONDITIONS

SERVICES AGREEMENT BETWEEN

TEXAS STATE UNIVERSITY AND

PROVIDER

This Agreement to provide (“Work”) is made and entered into effective as of , 20 ("Effective Date") by and between Texas State University (“University”), an Agency and Institution of Higher Education authorized under the laws of the State of Texas and (“Contractor”). In consideration of the mutual promises and covenants contained in the Agreement, University and Contractor agree as follows:

1. TERM – The initial term of this Agreement will be for year(s) and will begin on the

Effective Date and expire , 20 . University will have the option to renew this Agreement for additional year term(s).

2. STATEMENT OF WORK – Contractor agrees to perform the Work as more particularly

described in the Scope of Work for attached and incorporated for all purposes.

3. PERMITS AND LICENSES – Contractor agrees to obtain and keep in effect all necessary

permits, licenses and notices required for its performance under this Agreement, and will post or display in a prominent place the permits, licenses and notices as required by Applicable Laws.

4. STANDARD OF PERFORMANCE – Contractor agrees to use its best efforts, skill, diligence,

judgment, and abilities to perform the Work in accordance with the standards specified in this Agreement, SECTION 7 Scope of Work, the highest standards of Contractor's business, and all Applicable Laws.

5. PAYMENT TERMS – University will pay for Work performed under this agreement in accordance

with Texas Government Code; section 2251 “Prompt Payment”.

5.1 No work shall commence until such time as a valid signed purchase order is received. Invoices that are submitted without a purchase order number and issued before the commencement of work will be subject to loss of payment.

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5.2 The amount due to Contractor will be paid upon receipt of an invoice that details the

date of service, describes the Work performed, and provides supporting documentation relating to the Work. The Contractor must sign the invoice and submit to University.

5.3 University, an agency of the State of Texas, is exempt from Texas Sales & Use Tax on the

Work in accordance with Section 151.309, Texas Tax Code, and Title 34 Texas Administrative Code ("TAC") Section 3.322.

5.4 Within ten calendar days after termination of this Agreement, Contractor will submit any

outstanding invoice(s) ("Final Invoice(s)") to the University Department that ordered the Work, which will set forth all amounts due and remaining unpaid to Contractor and upon approval of the Final Invoice(s) by University, University will pay to Contractor the amount due.

5.5 Notwithstanding any provision to the contrary, University will not be obligated to make any

payment to Contractor if any one or more of the following conditions exist: 5.5.1 Contractor is in breach or default under this Agreement; or

5.5.2 Any part of the payment is attributable to Work, which is not performed in

accordance with this Agreement provided; however, payment will be made as to the part attributable to Work, which is performed in accordance with this Agreement.

5.6 No partial payment made will be or construed to be final acceptance or approval of that part

of the Work to which the partial payment relates or relieve Contractor of any of its obligations under this Agreement.

5.7 The acceptance of Final Payment(s) constitutes a waiver of all claims by Contractor except

those previously made in writing and identified by Contractor as unsettled at the time of the Final Invoice(s).

5.8 Except for the obligation of University to pay Contractor certain amounts pursuant to the

terms of this Agreement, University will have no other liability to Contractor or to anyone claiming through or under Contractor by reason of the execution or performance of this Agreement. Notwithstanding any obligation or liability of University to Contractor, no present or future agent, officer, director, employee, or regent of University or of the institutions comprising The Texas State University System, or anyone claiming under University, has or will have any personal liability to Contractor or to anyone claiming through or under Contractor by reason of the execution or performance of this Agreement.

6. INDEPENDENT CONTRACTOR – Contractor recognizes that it is engaged as an independent

contractor and acknowledges that University has no responsibility to provide transportation, insurance, vacation or other fringe benefits normally associated with employee status. Contractor, in accordance with its status as an independent contractor, covenants and agrees that it will conduct itself consistent with that status, that it will neither hold itself out as, nor claim to be an officer, partner, employee or agent of University, and that it will not make any claim, demand or application to or for any right or

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privilege applicable to an officer, representative, employee or agent of University, including unemployment insurance benefits, social security coverage or retirement benefits. Contractor agrees to make its own arrangements for any fringe benefits as it may desire and agrees that it is responsible for all income taxes required by Applicable Laws. All of Contractor's employees providing the Work to University will be deemed employees solely of Contractor and will not be deemed for any purposes whatsoever employees, agents or borrowed servants of, acting for or on behalf of, University. No acts performed or representations, whether oral or written, made by Contractor with respect to third parties will be binding upon University.

7. LABOR RELATIONS – Contractor agrees to take immediate and reasonable steps to continue its

provision of the Work under this Agreement in the event of any labor dispute or other action involving its employees.

8. INSURANCE – Contractor, consistent with its status as an independent contractor, will carry, and

will cause its subcontractors to carry, at least the following insurance in a form, with companies and in amounts (unless otherwise specified) as University may require:

8.1 Insurance: During the term of any Agreement or Contractual arrangement resulting from this

Solicitation, the successful Respondent(s) agrees to procure and maintain, at its expense: 8.2 Workers’ Compensation Insurance coverage for each of the successful Respondent’s

employees employed on this project. The successful Respondent(s) must meet the statutory requirements of the Tex. Lab. Code, 401.011(44) and specific to construction projects for public entities as required by Tex. Lab. Code, §406.096; and

8.3 Contractor's Public Liability and Property Damage Insurance limits of not less than: Bodily Injuries (including accidental death) $500,000 Per Occurrence $500,000 Property Damage $300,000

8.4 Owner's Protective Liability Insurance limits of not less than: Bodily Injuries (including accidental death) $500,000 Per Occurrence $500,000 Property Damage $300,000 8.5 Automobile Liability Insurance Limits, covering all owned, non-owned or hired

automobiles of not less than: Bodily Injuries (including accidental death) $500,000 Per Occurrence $500,000 Property Damage $300,000

Coverage shall be written on an occurrence basis by companies authorized and admitted to do business in the State of Texas and rated A- or better by A.M. Best Company or otherwise acceptable to the University. Policies must include the following clauses, as applicable: This insurance shall not be canceled, materially changed, or non-renewed until after thirty-days prior written notice has been given to the University.

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It is agreed that the successful Respondent’s insurance shall be deemed primary with respect to any insurance or self-insurance carried by the University for liability arising out of operations under the any Agreement or Contractual arrangement resulting from this Solicitation with the University. The Board of Regents of The Texas State University System; their respective affiliated enterprises, officers, directors, employees, representatives; and agents will be named as additional insureds under the policy and provide The Board of Regents of The Texas State University System; their respective affiliated enterprises, officers, directors, employees, representatives, and agents with a waiver of subrogation. The workers’ compensation and employers’ liability policy will provide a waiver of subrogation in favor of the University. Without limiting any of the other obligations or liabilities of the successful Respondent, the successful Respondent(s) shall require each Subcontractor performing work under any Agreement or Contractual arrangement resulting from this Solicitation, at the Subcontractor's own expense, to maintain during the term of any Agreement or Contractual arrangement resulting from this Solicitation, the same stipulated minimum insurance including the required provisions and additional policy conditions as shown above. As an alternative, the successful Respondent(s) may include its Subcontractors as additional insureds on its own coverage as prescribed under these requirements. The successful Respondent's certificate of insurance shall note in such event that the Subcontractors are included as additional insureds and that the successful Respondent(s) agrees to provide Workers’ Compensation for the Subcontractors and their Employees. The successful Respondent(s) shall obtain and monitor the certificates of insurance from each Subcontractor in order to assure compliance with the insurance requirements. The successful Respondent(s) must retain the certificates of insurance for the duration of any Agreement or Contractual arrangement resulting from this Solicitation plus five years and shall have the responsibility of enforcing these insurance requirements among its Subcontractors. The University shall be entitled, upon request and without expense, to receive copies of these certificates.

9. ACCESS TO UNIVERSITY FACILITIES – Contractor and its employees, permitted

subcontractors and agents may access only the Areas and those University facilities that are necessary to perform Contractor's duties and obligations under this Agreement and will have no right of access to any other University facilities. Contractor and its Employees, permitted Subcontractors and Agents will not use any University equipment including computers, printers, typewriters, radios, televisions, telephones, desks, chairs, or other equipment, and will not disturb papers or other items on desks or in open drawers or cabinets located on University's premises.

10. PRESENCE ON UNIVERSITY PREMISES – Contractor agrees that it will ensure that all of its

Employees, Subcontractors and Agents whose duties bring them upon University's premises will obey the rules and regulations that are established by University and will comply with reasonable directions University's representatives may give to Contractor.

Contractor is responsible for acts of its Employees, Subcontractors and Agents while on University's premises. Accordingly, Contractor agrees to take all necessary measures to prevent injury and loss to persons and property located on University's premises. Contractor is responsible for all damages to persons or property caused by Contractor or any of its Employees, Subcontractors and Agents. Contractor will promptly repair, in accordance with the specifications of University, any damage that it, or of its Employees, Subcontractors and Agents, may cause to University's premises or equipment. On Contractor's failure to do so, University may repair the damage and Contractor will reimburse University promptly for any and all reasonable expenses incurred in connection with the repair. At its

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option, University may offset against all amounts due to Contractor any and all reasonable expenses incurred in connection with the repair.

11. DEFAULT AND TERMINATION – In the event of a material failure by Contractor to perform in

accordance with the terms of this Agreement, University may terminate this Agreement at any time upon giving fifteen (15) days advance written notice to Contractor.

11.1 In addition, if at any time an involuntary petition of bankruptcy is filed against Contractor and

not dismissed within thirty days, or if Contractor files a voluntary petition in bankruptcy, takes advantage of any insolvency law, or if a receiver or trustee is appointed and the appointment is not vacated within thirty days, University has the right to terminate this Agreement upon fifteen days advance written notice to Contractor, in addition to any other rights of any nature that University may have at law or in equity.

11.2 Either Party, without cause, may, terminate this Agreement at any time upon giving ninety

calendar days advance written notice unless agreed in writing otherwise by the parties. Upon termination pursuant to this Section, Contractor is entitled to payment of an amount that will compensate Contractor for Work satisfactorily performed from the time of the last payment to the termination date in accordance with this Agreement. University is not required to reimburse Contractor for any Work performed or expenses incurred after the termination date.

11.3 Termination under this Section does not relieve Contractor or any of its employees,

subcontractors or agents from liability for violations of this Agreement or any other act or omission of Contractor.

11.4 University is entitled (but not obligated) to cure any default of Contractor and has the right to

offset against all amounts due to Contractor any and all reasonable expenses incurred in connection with curative actions.

12. INDEMNIFICATION – CONTRACTOR WILL AND DOES HEREBY AGREE TO INDEMNIFY,

PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS UNIVERSITY AND THE TEXAS STATE UNIVERSITY SYSTEM, AND THEIR RESPECTIVE AFFILIATED ENTERPRISES, REGENTS, OFFICERS, DIRECTORS, ATTORNEYS, EMPLOYEES, REPRESENTATIVES AND AGENTS (COLLECTIVELY "INDEMNITEES") FROM AND AGAINST ALL DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS, EXPENSES, AND OTHER CLAIMS OF ANY NATURE, KIND, OR DESCRIPTION, INCLUDING REASONABLE ATTORNEYS' FEES INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE FOREGOING (COLLECTIVELY "CLAIMS") BY ANY PERSON OR ENTITY, ARISING OUT OF, CAUSED BY, OR RESULTING FROM CONTRACTOR'S PERFORMANCE UNDER OR BREACH OF THIS AGREEMENT AND THAT ARE CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENT ACT, NEGLIGENT OMISSION OR WILLFUL MISCONDUCT OF CONTRACTOR, ANYONE DIRECTLY EMPLOYED BY CONTRACTOR OR ANYONE FOR WHOSE ACTS CONTRACTOR MAYBE LIABLE. THE PROVISIONS OF THIS SECTION WILL NOT BE CONSTRUED TO ELIMINATE OR REDUCE ANY OTHER INDEMNIFICATION OR RIGHT, WHICH ANY INDEMNITEE HAS, BY LAW OR EQUITY. IN THE EVENT OF LITIGATION, UNIVERSITY AGREES TO COOPERATE REASONABLY WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.

13. CONFIDENTIALITY AND SAFEGUARDING OF UNIVERSITY RECORDS; PRESS

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RELEASES; PUBLIC INFORMATION – Under this Agreement, Contractor may (1) create, (2) receive from or on behalf of University, or (3) have access to, records or record systems (collectively, "University Records"). Among other things, University Records may contain social security numbers, credit card numbers, or data protected or made confidential or sensitive by Applicable Laws, including the Gramm-Leach-Bliley Act (Public Law No: 106-102) and the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g ("FERPA''). If University Records are subject to FERPA, (1) University designates Contractor as a University official with a legitimate educational interest in University Records, and (2) Contractor acknowledges that its improper disclosure or re-disclosure of personally identifiable information from University Records will result in Contractor's exclusion from eligibility to contract with University for at least five (5) years. Contractor represents, warrants, and agrees that it will: (1) hold University Records in strict confidence and will not use or disclose University Records except as (a) permitted or required by this Agreement, (b) required by Applicable Laws, or (c) otherwise authorized by University in writing; (2) safeguard University Records according to reasonable administrative, physical and technical standards (such as standards established by (i) the National Institute of Standards and Technology and (ii) the Center for Internet Security, as well as the Payment Card Industry Data Security Standards) that are no less rigorous than the standards by which Contractor protects its own confidential information; (3) continually monitor its operations and take any action necessary to assume that University Records are safeguarded and the confidentiality of University Records is maintained in accordance with all Applicable Laws, including FERPA and the Gramm-Leach Bliley Act, and the terms of this Agreement; and (4) comply with University's rules, policies, and procedures regarding access to and use of University's computer systems. At the request of University, Contractor agrees to provide University with a written summary of the procedures Contractor uses to safeguard and maintain the confidentiality of University Records.

13.1 Notice of Impermissible Use. If an impermissible use or disclosure of any University

Records occurs, Contractor will provide written notice to University within one (1) day after Contractor's discovery of that use or disclosure. Contractor will promptly provide University with all information requested by University regarding the impermissible use or disclosure.

13.2 Return of University Records. Contractor agrees that within thirty days after the expiration

or termination of this Agreement, for any reason, all University Records created or received from or on behalf of University will be (1) returned to University, with no copies retained by Contractor; or (2) if return is not feasible, destroyed. Twenty days before destruction of any University Records, Contractor will provide University with written notice of Contractor's intent to destroy University Records. Within five (5) days after destruction, Contractor will confirm to University in writing the destruction of University Records.

13.3 Disclosure. If Contractor discloses any University Records to a subcontractor or agent,

Contractor will require the subcontractor or agent to comply with the same restrictions and obligations as are imposed on Contractor by this Agreement.

13.4 Press Releases. Except when defined as part of the Work, Contractor will not make any

press releases, public statements, or advertisement referring to the Work or the engagement of Contractor as an independent contractor of University in connection with the Work, or release any information relative to the Work for publication, advertisement or any other purpose without the prior written approval of University.

13.5 Public Information. University strictly adheres to all statutes, court decisions and the

opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act, Chapter 552, Texas Government Code. Sponsor is

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required to make any information created or exchanged with the state pursuant to this contract that is 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. The following format(s) shall be deemed to be in compliance with this provision: electronic files in Word, PDF, or similar generally accessible format.

13.6 Termination. In addition to any other termination rights set forth in this Agreement and any

other rights at law or equity, if University reasonably determines that Contractor has breached any of the restrictions or obligations set forth in this Agreement, University may immediately terminate this Agreement without notice or opportunity to cure.

13.7 Duration. The restrictions and obligations under this Section will survive expiration or

termination of this Agreement for any reason. 14. COMPLIANCE WITH LAW – Contractor is aware of, fully informed about and in full compliance

with its obligations with all applicable, federal, state and local, laws, regulations, codes, ordinances and orders and with those of any other body or authority having jurisdiction ("Applicable Laws"), including Title VI of the Civil Rights Act of 1964, as amended (42 USC 2000(D)), Executive Order 11246, as amended (41 CFR 60-1 and 60-2), Vietnam Era Veterans Readjustment Act of 1974, as amended (41 CFR 60250), Rehabilitation Act of 1973, as amended (41 CFR 60-741), Age Discrimination Act of 1975 (42 USC 6101 et seq.), Non-segregated Facilities (41 CFR 60-1), Fair Labor Standards Act of 1938, Sections 6, 7, and 12, as amended, Immigration Reform and Control Act of 1986, Utilization of Small Business Concerns and Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals (PL 95-507), Americans with Disabilities Act of 1990 (42 USC 12101 et seq.), Civil Rights Act of1991, Occupational Safety and Health Act of1970, as amended (PL 91-596), Immigration and Nationality Act (8 United States Code 1324a) and all other applicable laws. Contractor represents and warrants that neither Contractor nor any firm, corporation or institution represented by Contractor, nor anyone acting for that firm, corporation or institution, (1) has violated the antitrust laws of the State of Texas, Chapter 15, Texas Business and Commerce Code, or federal antitrust laws, or (2) has communicated directly or indirectly the content of Contractor's response to University's procurement solicitation to any competitor or any other person engaged in a similar line of business during the procurement process for this Agreement.

15. COMPLAINCE WITH UNIVERSITY POLICIES –

Contractor agrees to comply with all University Policies including but not limited to the following and, at a minimum, shall apply to the Contractor's employees, subcontractors, and agents while on the Texas State campus: a. On-campus driving and parking; b. Prohibition on smoking or tobacco use; c. Fire safety; d. Hazardous Materials; e. Drug-free workplace; and, f. Prohibition of sexual harassment, or harassment or discrimination based on race,

color, national origin, age, sex, religion, disability, or sexual orientation.

All University Policies and Procedures Statements may be viewed at

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http://www.txstate.edu/effective/upps/ 16. NONDISCRIMINATION: In their execution of this agreement, all contractors, subcontractors, their

respective employees, and others acting by or through them shall comply with all federal and state policies and laws prohibiting discrimination, harassment, and sexual misconduct. Any breach of this covenant may result in termination of this agreement.

17. NOT USED 18. UNDOCUMENTED WORKERS – The Immigration and Nationality Act (8 United States Code

1324a) ("Immigration Act") makes it unlawful for an employer to hire or continue employment of undocumented workers. The United States Immigration and Customs Enforcement Service has established the Form 1-9 Employment Eligibility Verification Form ("1-9 Form") as the document to be used for employment eligibility verification (8 Code of Federal Regulations 274a). Among other things, Contractor is required to: (1) have all employees complete and sign the 1-9 Form certifying that they are eligible for employment; (2) examine verification documents required by the 1-9 Form to be presented by the employee and ensure the documents appear to be genuine and related to the individual; (3) record information about the documents on the 1-9 Form, and complete the certification portion of the 1-9 Form; and (4) retain the 1-9 Form as required by Applicable Laws. It is illegal to discriminate against any individual (other than a citizen of another country who is not authorized to work in the United States) in hiring, discharging, or recruiting because of that individual's national origin or citizenship status. If Contractor employs unauthorized workers during performance of this Agreement in violation of the Immigration Act then, in addition to other remedies or penalties prescribed by Applicable Laws, University may terminate this Agreement. Contractor represents and warrants that it is in compliance with and agrees that it will remain in compliance with the provisions of the Immigration Act.

19. EQUAL OPPORTUNITY – Pursuant to Applicable Laws, Contractor represents and warrants that it

is an equal opportunity employer and does not discriminate on the basis of race, color, religion, national origin, age, mental or physical disability, or sex.

20. TAXES – Contractor will pay when due all taxes or assessments applicable to Contractor. Contractor

will comply with the provisions of all Applicable Laws related to taxes and taxing authority. 21. ACCESS BY INDIVIDUALS WITH DISABILITIES – Contractor represents and warrants (the

“EIR Accessibility Warranty”) that the electronic and information resources and all associated information, documentation, and support that it provides to University (collectively, the “EIRs”) comply with the applicable requirements set forth in Title 1, Chapter 213 of the Texas Administrative Code and Title 1, Chapter 206, Rule §206.70 of the Texas Administrative Code (as authorized by Chapter 2054, Subchapter M of the Texas Government Code.) To the extent Contractor becomes aware that the EIRs, or any portion thereof, do not comply with the EIR Accessibility Warranty, then Contractor represents and warrants that it will, at no cost to University, either (1) perform all necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or (2) replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty. In the event that Contractor fails or is unable to do so, then University may terminate the Contract and Contractor will refund to the University all amounts the University has paid to Contractor within thirty days after the termination date.

22. OWNERSHIP OF WORK PRODUCTS INCLUDING INTELLECTUAL PROPERTY

– The parties shall deem all work products produced as a result of this Agreement as “works

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http://www.txstate.edu/effective/upps/


for hire.” Upon delivery, all work products, including writings, drawings, plans, reports, specifications, calculations, documents, presentations, and other materials developed under this Agreement shall be UNIVERSITY’S exclusive property, to use as UNIVERSITY deems appropriate.

CONTRACTOR relinquishes all claims to copyright and other intellectual property rights in favor of the UNIVERSITY. Neither CONTRACTOR nor its subcontractors, if any, shall make any such materials available to any individual or organization, without the prior written approval of the UNIVERSITY’S AUTHORIZED REPRESENTATIVE, or designee. CONTRACTOR makes no representation of the suitability of the work product for use in, or application to, circumstances not contemplated by the scope of work.

23. PATENT, TRADEMARK, COPYRIGHT, AND OTHER INFRINGEMENT CLAIMS

– Contractor shall indemnify, save and hold harmless the University from and against claims of patent, trademark, copyright, trade secret or other proprietary rights, violations or infringements arising from University’s or Contractor's use of or acquisition of any services or other items provided to University by Contractor or otherwise to which University has access as a result of Contractor's performance under Agreement, provided that University shall notify the Contractor of any such claim within a reasonable time of University's receipt of notice of any such claim. If Contractor is notified of any claim subject to this section, Contractor shall notify University of such claim within five business days of such notice. No settlement of any such claim shall be made by Contractor without University’s prior written approval. Contractor shall reimburse University for any claims, damages, losses, costs, expenses, judgments, or any other amounts, including, but not limited to, attorneys' fees and court costs, arising from any such claim. Contractor shall pay all reasonable costs of University’s legal counsel and shall also pay costs of multiple counsel, if required, to avoid conflicts of interest.

24. CONTRACTOR CONFLICT – Contractor agrees that it will not at any time prior to or during the

term of this Agreement, either directly or indirectly, use labor or materials that could or will create any difficulty with other contractors or labor engaged by Contractor or University or with any other party in the construction, maintenance or operation of University or any part thereof.

25. ASSIGNMENT AND SUBCONTRACTING – This Agreement is a personal service contract for the

service of Contractor, except as specifically provided in Historically Underutilized Business Subcontracting Plan ("HSP"), attached, and incorporated for all purposes. The Contractor's interest in this Agreement (including Contractor's duties and obligations under this Agreement, and the fees due to Contractor under this Agreement) may not be subcontracted, assigned, delegated, or otherwise transferred to a third party, in whole or in part, and any attempt to do so will (a) not be binding on University; and (b) be a breach of this Agreement for which Contractor will be subject to all remedial actions provided by Applicable Laws, including Chapter 2161, Texas Government Code, and 34 TAC Chapter 20,§§20.101 -20.108. The benefits and burdens of this Agreement are assignable by University.

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26. TEXAS FAMILY CODE CHILD SUPPORT CERTIFICATION – Pursuant to Section 231.006, Texas Family Code, Contractor certifies that it is not ineligible to receive the award of or payments under this Agreement and acknowledges that this Agreement may be terminated and payment may be withheld if this certification is inaccurate.

27. ELIGIBILITY CERTIFICATIONS – Pursuant to Sections 2155.004 and 2155.006, Texas

Government Code, Contractor certifies that the individual or business entity named in this Agreement is not ineligible to receive the award of or payments under this Agreement and acknowledges that this Agreement may be terminated and payment withheld if these certifications are inaccurate.

28. REPRESENTATIONS AND WARRANTIES BY CONTRACTOR – Contractor warrants,

represents, covenants, and agrees that it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization and is duly authorized and in good standing to conduct business in the State of Texas, that it has all necessary power and has received all necessary approvals to execute and deliver this Agreement, and the individual executing this Agreement on behalf of Contractor has been duly authorized to act for and bind Contractor.

29. PAYMENT OF DEBTS OR DELINQUENCY TO THE STATE OF TEXAS – Pursuant to

Sections 2107.008 and 2252.903, Texas Government Code, Contractor agrees that any payments owing to Contractor under this Agreement may be applied directly toward any debt or delinquency that Contractor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until the debt or delinquency is paid in full.

30. FRANCHISE TAX CERTIFICATION – If Contractor is a taxable entity as defined by Chapter

171, Texas Tax Code ("Chapter 171"), then Contractor certifies that it is not currently delinquent in the payment of any taxes due under Chapter 171, or that Contractor is exempt from the payment of those taxes, or that Contractor is an out –of–state taxable entity that is not subject to those taxes, whichever is applicable.

31. PRODUCTS AND MATERIALS PRODUCED IN TEXAS – If Contractor will provide services

under this Agreement, Contractor covenants and agrees that, in accordance with Section 2155.4441, Texas Government Code, in performing its duties and obligations under this Agreement, Contractor will purchase products and materials produced in Texas when the products and materials are available at a price and delivery time comparable to products and materials produced outside of Texas.

32. LOSS OF FUNDING – Performance by University under this Agreement may be dependent upon the

appropriation and allotment of funds by the Texas State Legislature (the "Legislature"), allocation of funds by the Board of Regents of The Texas State University System (the "Board") or funding availability through a Sponsored Program Funding Agency. If the Legislature fails to appropriate or allot the necessary funds, the Board fails to allocate the necessary funds, or funding is not available through a Sponsored Program Funding Agency, then University will issue written notice to Contractor and University may terminate this Agreement without further duty or obligation hereunder. Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the control of University.

33. LIMITATIONS – THE PARTIES ARE AWARE THAT THERE ARE CONSTITUTIONAL AND

STATUTORY LIMITATIONS ON THE AUTHORITY OF UNIVERSITY (A STATE AGENCY) TO ENTER INTO CERTAIN TERMS AND CONDITIONS THAT MAY BE A PART OF THIS AGREEMENT, INCLUDING THOSE TERMS AND CONDITIONS RELATING TO LIENS ON UNIVERSITY'S PROPERTY; DISCLAIMERS AND LIMITATIONS OF WARRANTIES;

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DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR DAMAGES; WAIVERS, DISCLAIMERS AND LIMITATIONS OF LEGAL RIGHTS, REMEDIES, REQUIREMENTS AND PROCESSES; LIMITATIONS OF PERIODS TO BRING LEGAL ACTION; GRANTING CONTROL OF LITIGATION OR SETTLEMENT TO ANOTHER PARTY; LIABILITY FOR ACTS OR OMISSIONS OF THIRD PARTIES; PAYMENT OF ATTORNEYS' FEES; DISPUTE RESOLUTION; INDEMNITIES; AND CONFIDENTIALITY (COLLECTIVELY, THE "LIMITATIONS"), AND TERMS AND CONDITIONS RELATED TO THE LIMITATIONS WILL NOT BE BINDING ON UNIVERSITY EXCEPT TO THE EXTENT AUTHORIZED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS.

34. ENTIRE AGREEMENT; MODIFICATIONS – This Agreement supersedes all prior agreements,

written or oral, between Contractor and University and will constitute the entire Agreement and understanding between the parties with respect to the subject matter of this Agreement. This Agreement and each of its provisions will be binding upon the parties and may not be waived, modified, amended or altered except by a writing signed by University and Contractor.

35. VENUE, GOVERNING LAW – Hays County, Texas, will be the proper place of venue for suit on

or in respect to this Agreement. This Agreement and all of the rights and obligations of the parties and all of the terms and conditions will be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Texas.

36. WAIVERS – No delay or omission in exercising any right accruing upon a default in performance of

this Agreement will impair any right or be construed to be a waiver of any right. A waiver of any default under this Agreement will not be construed to be a waiver of any subsequent default under this Agreement

37. RIGHT TO AUDIT; INDEPENDENT AUDITS – Contractor understands that acceptance of funds

under this Agreement constitutes acceptance of the authority of the State of Texas Auditor's Office or any successor agency ("Auditor"), to conduct an audit or investigation in connection with those funds pursuant to Sections 51.9335(c), 73.115(c) and 74.008(c), Texas Education Code. Contractor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all of the Work as requested. Contractor's failure to comply with this requirement shall constitute a material breach of Agreement and shall authorize University and the State of Texas to assess immediately appropriate damages for such failure. Contractor acknowledges and understands that the acceptance of funds under Agreement shall constitute consent to an audit by the State Auditor, Comptroller or other agency of the State of Texas. Contractor shall ensure that this paragraph concerning the State’s authority to audit funds received indirectly by subcontractors through Contractor and the requirement to cooperate is included in any subcontract it awards. Furthermore, under the direction of the legislative audit committee, an 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.

38. BINDING EFFECT – This Agreement is binding upon and inures to the benefit of the parties and

their respective permitted successors and assigns. 39. APPOINTMENT – University hereby expressly reserves the right from time to time to designate by

notice to Contractor a representative to act partially or wholly for University in connection with the performance of University's obligations hereunder. Contractor will act only upon instructions from that representative unless otherwise specifically notified to the contrary.

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40. RECORDS – Contractor agrees that University, or any of its duly authorized representatives, at any time during the term of this Agreement, will have access to, and the right to audit and examine, any pertinent books, documents, papers, and records of Contractor (such as sales receipts, salary lists, itemized expenses and disbursements, time reports, equipment charges, overtime reports, etc.), and related Contractor's charges incurred in its performance under this Agreement. Such records will be kept by Contractor for a period of four years after Final Payment under this Agreement. Contractor agrees to refund to University within thirty days of being notified by University of any overpayments disclosed by any audits.

41. NOTICES –Except as otherwise provided in this Section, all notices, consents, approvals, demands,

requests or other communications provided for or permitted to be given under any of the provisions of this Agreement will be in writing and will be sent via registered or certified mail, overnight courier, confirmed facsimile transmission (to the extent a facsimile number is set forth below), or email (to the extent an email address is set forth below), and notice will be deemed given (i) if mailed, when deposited, postage prepaid, in the United States mail, (ii) if sent by overnight courier, one business day after delivery to the courier, (iii) if sent by facsimile (to the extent a facsimile number is set forth below), when transmitted, and (iv) if sent by email (to the extent an email address is set forth below), when received:

If to University:

Fax:

Email:

Attention:

with copy to:

Fax:

Email:

Attention:

If to Contractor:

Fax:

Email:

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Attention:

or other person or address as may be given in writing by University to Contractor in accordance with this Section.

42. SEVERABILITY – In case any provision of this Agreement, for any reason, will be held invalid or unenforceable in any respect, the invalidity or unenforceability will not affect any other provision of this Agreement, and this Agreement will be construed as if the invalid or unenforceable provision had not been included.

43. ASSIGNMENT OF OVERCHARGE CLAIMS – Contractor hereby assigns to University any and

all claims for overcharges associated with this Agreement arising under the antitrust laws of the United States, 15 U.S.C.A., Sec. 1 et seq., or arising under the antitrust laws of the State of Texas, Texas Business and Commerce Code, Sections 15.01, et seq.

44. ETHICS MATTERS, NO FINANCIAL INTEREST – Contractor and its employees, agents,

representatives and subcontractors have read and understand University's Conflicts of Interest Policy available at http://www.txstate.edu/effective/upps/upps-01-04-02.html and applicable state ethics laws and rules. Neither Contractor nor its employees, agents, representatives or subcontractors will assist or cause University employees to violate University's Conflicts of Interest Policy. Contractor represents and warrants that no member of the Board has a direct or indirect financial interest in the transaction that is the subject of this Agreement.

45. NOT USED 46. FORCE MAJEURE – Except as otherwise provided, neither Contractor nor University, shall be

liable to the other for any delay in, or failure of performance, of a requirement contained in this agreement caused by Force Majeure. The existence of such causes of delay or failure shall extend the period of performance until after the causes of delay or failure have been removed, provided the non-performing party exercises all reasonable due diligence to perform. “Force Majeure” is defined as acts of God, war, strike, fires, explosions, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome. Each party must inform the other in writing with proof of receipt within three (3) business days of the existence of such Force Majeure or otherwise waive this right as a defense.

47. ALTERNATIVE DISPUTE RESOLUTION – The dispute resolution process provided for in

Chapter 2260 of the Government Code shall be used, as further described herein, by University and Contractor to attempt to resolve any claim for breach of Contract made by Contractor:

47.1 Contractor’s claim for breach of Contract that the parties cannot resolve in the ordinary course

of business shall be submitted to the negotiation process provided in Chapter 2260, subchapter B, of the Texas Government Code. To initiate the process:

47.1.1 Contractor shall submit written notice, as required by subchapter B, to

University’s representative. 47.1.2 This notice shall specifically state that the provisions of Chapter 2260,

subchapter B, are being invoked.

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47.1.3 A copy of the notice shall also be given to all other representatives of University

and Contractor otherwise entitled to notice under the parties’ Contract. 47.1.4 Compliance by Contractor with subchapter B is a condition precedent to the

filing of a contested case proceeding under Chapter 2260, subchapter C, of the Government Code.

47.2 The contested case process provided in Chapter 2260, subchapter C, of the Government Code

is Contractor’s sole and exclusive process for seeking a remedy for any and all alleged breaches of Contract by University if the parties are unable to resolve their disputes under subparagraph (A) of this paragraph.

47.3 Compliance with the contested case process provided in subchapter C is a condition precedent

to seeking consent to sue from the Legislature under Chapter 107 of the Civil Practices and Remedies Code. Neither the execution of Contract by University nor any other conduct of any representative of University relating to Contract shall be considered a waiver of its defenses, privileges, immunities including its sovereign immunity to suit.

47.4 The submission, processing and resolution of Contractor’s claim is governed by the published

rules adopted by the Attorney General pursuant to Chapter 2260, as currently effective, hereafter enacted or subsequently amended.

47.5 Neither the occurrence of an event nor the pendency of a claim constitutes grounds for the

suspension of performance by Contractor, in either whole or in part. 47.6 The designated individual responsible on behalf of University for examining any claim or

counterclaim and conducting any negotiations related thereto as required under §2260.052 of the Texas Government Code shall be University’s representative named herein.

48. CAPTIONS – The captions of sections and subsections in this Agreement are for convenience only

and will not be considered or referred to in resolving questions of interpretation or construction.

49. GROUP PURCHASING AUTHORITY – Texas law authorizes Institutions of Higher Education (defined by Section 61.003, Education Code) to use group purchasing procurement methods (Section 51.9335, Education Code). Contractor agrees that other State agencies, including Institutions of Higher Education, may enter into an Agreement or Contract with Contractor for the purchase of the services described herein based on the terms, conditions, and prices, of this Contract.

50. NOTICES TO CAMPUS – At no time shall the Contractor send notices, by email or other methods,

to campus staff, other than direct correspondence related to specific projects, without the express written approval from the Office of Procurement and Strategic Sourcing.

51. PARKING – Effective August 16, 2014 there will be no free parking on any Texas State

University campus. All visitors must either pay for a parking permit as outlined below, or park in one of the pay parking garages. The pay parking garages are: Edward Gary Parking Garage located at 405 N. Edward Gary Street LBJ Student Center Garage located at 704 Gaillardia Street

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Construction related vehicles may be able to park inside the fenced staging areas, even though that space is not intended for parking use, but area will be limited to one to four spaces and be set aside for the Job Superintendent and other essential personnel. The Job Superintendent will provide the authorization for utilizing this space. A dashboard permit will be provided to vehicles that are approved to park inside the staging fence at no charge. This permit must be displayed at all times when parking inside the staging fence. Vendors with marked vehicles who provide short-term business on campus such as the delivery of food, flowers, newspapers, etc… may park in university surface lots or in loading zones for no longer than 15 minutes with emergency flashers.

All other personnel must purchase perimeter permits, will park in lot P/AZ 10W (Bobcat Stadium West) and be transported to the work-site. Permits must be displayed in all vehicles to legally park on campus.

Vehicles illegally parked on campus or do not have a visible permit may be subject to ticketing, immobilization (booting), and towing at the vehicle owner’s expense. The parking map may be viewed at http://www.parking.txstate.edu/Campus-Maps.html

Parking Fees may be viewed at http://www.parking.txstate.edu/Parking-Information/Vendors 52. In accordance with Texas Education Code, Chp. 51, Section 51.9335, Subsection (h), any Contract for

the acquisition of goods and services to which an institution of higher education is a party, a provision required by applicable law to be included in the Agreement or Contract is considered to be a part of the executed Agreement or Contract without regard to:

52.1 Whether the provision appears on the face of the Agreement or Contract; or

52.2 Whether the Agreement or Contract includes any provision to the contrary.

THE FOLLOWING LIST OF ATTACHMENTS ARE INCORPORATED INTO THIS AGREEMENT BY REFERENCE. ANY DESCREPENCIES BETWEEN ATTACHMENTS AND AGREEMENT, AGREEMENT TERMS AND CONDITIONS WILL PREVAIL. Attachment A – Scope of Work Attachment B – Pricing and Delivery Proposal RFP incorporated by reference

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http://www.parking.txstate.edu/Campus-Maps.html

http://www.parking.txstate.edu/Parking-Information/Vendors


IN WITNESS WHEREOF, duly authorized representatives of University and Contractor have executed and delivered this Agreement effective as of the Effective Date. CONTRACTOR: UNIVERSITY: TEXAS STATE UNIVERSITY By: By: Name: Name: Title: Title: Date: Date:

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SECTION 5

EXHIBIT A

Texas State University Request for Proposal

5.1 SCOPE OF WORK To complete this assessment, prospective contractors must submit a proposal that demonstrates their understanding and experience in regard to developing case support, fund raising feasibility studies, campaign planning and resource development, as well as the unique nature of fund raising as it relates to institutions of higher education, public universities, and Texas State University in particular. At a minimum, this proposal must address the following key components, which will deliver a university- level fund raising assessment that guides future campaign efforts:

1. Conduct an internal assessment of Texas State University’s capacity and fund raising programs.

2. Recommend and oversee the implementation of a formal needs assessment process to help the University validate its strategic funding priorities. This process must include one-on-one interviews, focus groups, and a survey of a sample of alumni in order to gather relevant information.

3. Test a preliminary case for support that articulates the reasons our organization warrants support and how we best articulate our value with major gift prospects through focus groups or interviews during the feasibility study process.

4. Identify the types of fund raising strategies likely to be successful and necessary to reach our goal, and the level of resources necessary both within the Division of University Advancement and in other areas of the University.

5. Identify the challenges and opportunities facing Texas State University in order to achieve our goals.

6. Assess overall campus culture and environment and its level of readiness to support fund raising activities.

7. Submit a detailed final report that includes a summary of the internal assessment including Texas State’s institutional assessment and development operating assessment, external assessment, final actionable recommendations, and proposed strategies for future fund raising and resource development efforts

8. Identify a potential campaign goal, including recommended campaign potential (size and scope).

9. Develop a campaign timetable and sequence of action. 10. Establish an overall strategy for cultivating and soliciting campaign lead kick-off gifts. 11. Present and lead the discussion of the assessment results with the University leaders by

presenting the final report in person to the University administration and the Development Foundation Board of Directors.

12. The report should be available by October 30, 2015.

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Texas State University Request for Proposal

Exhibit B

5.3 PRICING PAGE The offeror must complete, and return this Pricing Page in addition to all other requested information. 1. The offeror must provide a firm, fixed price for production services. 2. The price must include all required services, travel, delivery of final product, etc. $ _______________________ firm, fixed price By signature below, I hereby attest that the above is stated in accordance with the terms and conditions of the Request for Proposal for __________________________. ____________________________________________________________ Company Name ____________________________________________________________ Signature / Date

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SECTION 6

EXECUTION OF OFFER

DATE: In compliance with this solicitation, and subject to all the conditions herein, the undersigned offers and agrees to furnish any or all commodities or services at the prices quoted. Proposer Affirmation

Signing this “Execution of Offer” with a false statement is a material breach of contract and shall void the submitted proposal or any resulting contracts, and the Respondent may be removed from all solicitation lists. By signature hereon affixed, the Respondent hereby certifies that: 1. The Respondent has not given, offered to give, nor intends to give at any time hereafter

any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the submitted proposal.

2. The Respondent is not currently delinquent in the payment of any franchise tax owed the State of Texas.

3. Pursuant to Section 2155.004 Government Code, relating to collection of state and local sales and use taxes, the proposer certifies that the individual or business entity named in this proposal is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and/or payment withheld if this certification is inaccurate.

4. Neither the Respondent nor the firm, corporation, partnership or institution represented by the proposer, or anyone acting for such firm, corporation or institution has violated the antitrust laws of this State, codified in Section 15.01, et seq., Texas Business and Commerce Code, or the Federal Antitrust Laws, nor communicated directly or indirectly the proposal made to any competitor or any other person engaged in such line of business.

5. The Respondent has not received compensation for participation in the preparation of the specifications for this Invitation for Proposal.

6. The Respondent shall defend, indemnify, and hold harmless the State of Texas, all of its officers, agents and employees from and against all claims, actions, suits, demands, proceedings costs, damages, and liabilities, from any acts or omissions of proposer or any agent, employee, subcontractor of Respondent in the execution or performance of this purchase order.

7. Respondent agrees that any payments due under this contract will be applied towards any debt, including but not limited to delinquent taxes and child support that is owed to the State of Texas.

8. Respondent certifies that they are in compliance with section 618.003 of the Government Code, relating to contracting with executive head of a State agency. If section 618.003 applies, proposer will complete the following information in order for the proposal to be evaluated:

9. Name of Former Executive:

Name of State Agency:

Date of Separation from State Agency:

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Position with Proposer:

Date of Employment with Proposer:

10. Respondent agrees to comply with Government Code 2155.4441, pertaining to service contract use of products produced in the State of Texas.

Texas Family Code Section 231.006

Ineligibility to Receive State Grants or Loans, or Receive Proposals or Payments on State Contracts. 1. A child support obligor who is more than 30 days delinquent in paying child support and

a business entity in which the obligor is a sole proprietor, partner, shareholder, or owner with an ownership interest of at least 25 percent is not eligible to:

a. receive payments from state funds under a contract to provide property, materials, or services: or

b. receive a state-funded grant or loan. 2. A child support obligor or business entity ineligible to receive payments under

Subsection (a) remains ineligible until: a. all arrearages have been paid; or b. the obligor is in compliance with a written repayment agreement or court order as

to any existing delinquency. 3. Pursuant to Section 231.006 (c), Family Code, proposal should include name and Social

Security number of each person with at least 25% ownership of the business entity submitting the proposal. Proposers that have pre-registered this information on the GSC Centralized Master Proposers List have satisfied this requirement. If not pre-registered, attach name & social security number for each person. Otherwise this information must be provided prior to contract award.

4. “Pursuant to Section 231.006, Family Code, re: child support, the proposer certifies that the individual or business entity named in this proposal is not ineligible to receive the specified payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate.”

5. If a state agency determines that an individual or business entity holding a state contract is ineligible to receive payment under Section (a) the contract may be terminated.

6. If the certificate required under Subsection (d) is shown to be false, the vendor is liable to the state for attorney’s fees, the costs necessary to complete the contract, including the cost of advertising and awarding a second contract, and any other damages provided by law or contract.

Signature, Individual/Firm Information

Respondent represents and warrants that the individual signing is authorized to sign this document on behalf of Respondent and to bind Respondent under any contract resulting from this Proposal. The person signing the proposal should show title or authority to bind his/her firm in contract. Failure to manually sign proposal will disqualify it. If Respondent signs with a false statement or signs any resulting contract with a false statement or it is subsequently determined that Respondent has violated any of the representations, warranties, guarantees, certifications or affirmations included in the contract, Respondent shall be in default under the Contract and the University may terminate or void the Contract for cause

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and pursue other remedies available under the Contract and applicable law. Proposal should give full firm name and address of Respondent, Texas Identification Number (TIN) (Formerly Vendor ID (VID), or Payee Identification Number (PIN)). The Texas Identification Number is the taxpayer number assigned and used by the Comptroller of Public Accounts of Texas. Enter this number in the spaces provided on the Execution of Offer. Sole Owner should also enter Social Security No. (SSN). This offer consists of pages number (1) through _____. Signature/Date (INK): Name (Typed/Printed):

Title:

Proposer/Company:

Texas Identification Number (TIN):

Sole Owner should also enter Social Security No. (SSN):

Street:

City/State/Zip:

Telephone No.: ( ) Fax No.: ( )

E-mail:

THIS SHEET MUST BE SIGNED, COMPLETED AND RETURNED WITH RESPONDENT’S PROPOSAL. FAILURE TO SIGN AND RETURN THIS SHEET WILL RESULT IN THE

REJECTION OF YOUR PROPOSAL.

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TEXAS A&M UNIVERSITY - BidNet 601 University Drive, JCK Bldg. Room 960 . San Marcos, TX 78666-4616 ....

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