This VENDING MACHINE AGREEMENT (“Agreement”) is entered into effective as of _______, 20____ (“Effective Date”) by and between THE UNIVERSITY OF TEXAS ___________________________ (“University”), an agency and institution of higher education authorized by the laws and Constitution of the State of Texas, and _______________________________________ (“Contractor”), a _____________________.
RECITALS
University desires that certain products and services be made available on the University’s campus (“Campus”) by means of vending machines for the benefit and convenience of its students, faculty, staff and visitors;
Contractor represents that it has the knowledge, ability, equipment, and personnel to conduct vending machine operations on Campus; and
University, in reliance on Contractor’s representations, is willing to contract with Contractor on the terms and conditions set out in this Agreement.
For and in consideration of the mutual benefits and covenants contained in this Agreement the parties agree as follows:
TERMS AND CONDITIONS
Section 1.
TERM AND EXTENSION
The term of this Agreement (“Term”) will commence on the Effective Date and expire on ______________, 20_____, unless earlier terminated pursuant to the terms and conditions of this Agreement.
This Agreement may be extended for one (1) additional period, not exceeding two (2) years, by written agreement of University and Contractor.
Section 2.
CONTRACTOR’S OBLIGATIONS
2.1 Preparation Activities; Schedule. Contractor’s activities (“Preparation Activities”) to be performed in preparation to provide vending machine operations on Campus and the related schedule for performance of the Preparation Activities are set forth in Exhibit A attached and incorporated for all purposes.
2.2 Commencement of Services. Beginning on [Option: _____________, 20___] [Option: the Effective Date], Contractor will, in accordance with the terms and conditions of this Agreement, commence performance of vending machine operations at Campus locations (collectively, “Locations”) more particularly identified in Exhibit B attached and incorporated for all purposes, through Contractor’s vending machines and related equipment (collectively, “Equipment”) dispensing the products (collectively, “Products”) listed in Exhibit C attached and incorporated for all purposes. The Preparation Activities, vending machine operations and all other services, duties and obligations required to be performed by Contractor under this Agreement will sometimes be collectively referred to as “Services.”
2.3 Limited Access; Location License. Contractor, its employees, representatives, agents, and subcontractors, will have the right to use and access only the Locations to perform Services and will have no right to use or access any other University facilities. University will permit Contractor to use the Locations in accordance with the license contained in this Section. University licenses the Locations in their current, “as is” condition to Contractor for use by Contractor and its employees, representatives, agents, and subcontractors in the performance of Services and for no other purpose. This is a non exclusive license to use the Locations. University may enter the Locations at any time for any reason. No unlawful activities will be permitted in the use of the Locations. Contractor will comply with all applicable federal, state and local laws, rules, regulations, ordinances and orders (collectively, “Applicable Laws”), as well as the Rules and Regulations of the Board of Regents of The University of Texas System, the Administrative Rules of The University of Texas System (“UT System”) and the institutional rules and regulations and policies of the University (collectively, “University Rules”), in connection with the use of the Locations. Contractor will cause all of its employees, representatives, agents, and subcontractors to observe and comply with all Applicable Laws and University Rules.
Contractor will not modify, alter or repair the Locations or any other University facilities without the prior written approval of University and with project management of renovations by University.
Contractor will not harm the Locations or make any use of the Locations that is offensive as determined by University. Upon expiration or termination of this Agreement for any reason, Contractor will remove Equipment and Contractor’s other effects, repair any damage caused by the removal, and peaceably deliver up the Locations in clean condition and in good order, repair and condition, ordinary wear and tear excepted. Any personal property of Contractor not removed within two (2) days after expiration or termination of this Agreement will be deemed abandoned by Contractor and University may dispose of the property in any manner it chooses, with no liability or reimbursement obligation to Contractor.
Contractor will not suffer any mechanic's lien to be filed against the Locations or the adjoining facilities by reason of any work, labor, services, or materials performed at or furnished to the Locations for Contractor. Nothing in this Agreement will be construed as the consent of University to subject University’s estate in the Locations or adjoining facilities to any lien.
Contractor has inspected the Locations and agrees that the Locations are sufficiently equipped for Contractor to provide Services in accordance with the terms and conditions of this Agreement.
UNIVERSITY WILL NOT BE RESPONSIBLE FOR INTERRUPTIONS IN UTILITY SERVICE TO THE LOCATIONS. HOWEVER, UNIVERSITY WILL EXERCISE REASONABLE DILIGENCE IN PURSUING THE RESTORATION OF INTERRUPTED UTILITY SERVICE.
UNIVERSITY WILL NOT BE LIABLE TO CONTRACTOR OR CONTRACTOR’S EMPLOYEES, REPRESENTATIVES, AGENTS, SUBCONTRACTORS, GUESTS OR INVITEES (COLLECTIVELY, “CONTRACTOR PARTIES”), FOR ANY LOSS, EXPENSE, OR DAMAGE, EITHER TO PERSON OR PROPERTY SUSTAINED BY REASON OF ANY CONDITION OF LOCATIONS, CAMPUS OR ADJOINING GROUNDS OR FACILITIES, OR DUE TO ANY ACT OF ANY EMPLOYEE, REPRESENTATIVE, AGENT, SUBCONTRACTOR, GUEST OR INVITEE OF UNIVERSITY, OR THE ACT OF ANY OTHER PERSON WHATSOEVER. UNIVERSITY, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, SUBCONTRACTORS, GUESTS AND INVITEES WILL NOT BE LIABLE FOR, AND CONTRACTOR WAIVES, ALL CLAIMS FOR DAMAGE TO PERSON OR PROPERTY SUSTAINED BY ANY CONTRACTOR PARTIES, RESULTING FROM ANY ACCIDENT OR OCCURRENCE IN OR UPON LOCATIONS, CAMPUS OR ADJOINING GROUNDS OR FACILITIES. CONTRACTOR WILL PAY ON DEMAND UNIVERSITY’S EXPENSES INCURRED IN ENFORCING ANY OBLIGATION OF CONTRACTOR UNDER THIS LICENSE.
2.4 Change in Locations. The Locations may be changed from time to time upon written agreement of the parties documented through an amendment to this Agreement in accordance with Section 13.
2.5 Products.
2.5.1 Products Vended. Contractor will offer for sale only Products that University has approved as to brand, size, sales price and royalties.
2.5.2 Applicable Laws; Product Standards; Perishable Products. Contractor will ensure that all Products will conform in all respects to Applicable Laws relating to the standards or specifications of those Products. All Products intended for human consumption will be fresh and suitable for human consumption in all respects. Contractor will identify perishable Products by means of coded markings with explanatory “keys” required to read Contractor’s coding system. On the Effective Date, Contractor will deliver to University a written report with a list of all coded markings and explanatory “keys.” Contractor will deliver to University an updated version of that report within five (5) days after Contractor changes the coding system or any explanatory “key.”
2.5.3 Sales Prices for Products. Contractor will not increase the sales prices charged for Products above the sales prices designated in Exhibit C. University and Contractor may, by mutual agreement, adjust Product sales prices through an amendment to this Agreement in accordance with Section 13.
2.5.4 Change in Products. If it becomes desirable to change the Products to be vended by Contractor, then the Products to be deleted, the Products to be added and associated sales prices, royalties, location and type of vending machine, will be negotiated between Contractor and University and documented through an amendment to this Agreement in accordance with Section 13.
2.6 Equipment.
2.6.1 Type of Equipment; Compliance with Applicable Laws. Contractor will provide, install and operate all Equipment. Equipment operated on Campus by Contractor will be new or like-new models, will contain coin changers and dollar bill reader/changers, and will be of a size and type acceptable to University. [Option: University and Contractor agree to cooperate in implementing a phase in of Equipment with credit card and debit card reader capability, at a rate to be mutually agreed upon between University and Contractor.] [Option: Contractor will operate and maintain credit card and debit card readers on [Option: all Equipment.] [Option: at least __________ percent (___ %) of Equipment and at the Locations specified by University]. All Equipment will be installed and operated in conformity with Applicable Laws and University Rules.
2.6.1 On-Call Service. Contractor will provide on-call maintenance and repair service for Equipment twenty-four (24) hours a day, seven (7) days a week, at no cost to University. Contractor will make available to University a toll-free telephone number for service calls, and will respond with service technician on-site within four (4) hours after a service call placed between 7:30 AM and 5:30 PM, Monday through Friday, except holidays (collectively, “working days” and each a “working day”), and within twenty-four (24) hours after a service call placed at all other times. Contractor will keep at least one on-duty supervisor available each working day, and at least one on call supervisor available at all other times.
2.6.2 Maintaining Equipment. Contractor will service all Equipment as often as is necessary to keep all Equipment properly supplied and in good working order. Contractor will maintain a program of regular preventive maintenance and replacement of worn, damaged, or malfunctioning Equipment. University may require Contractor to replace Equipment that cannot be returned to service within four (4) working days after a service call is placed. Replacement equipment will be of a type and condition at least equal to the type and condition of Equipment being replaced. Contractor will keep all Equipment in a neat and sanitary condition. Contractor will clean all spills that occur while filling, cleaning, or maintaining Equipment, clean Equipment each time Contractor restocks or services Equipment, and remove packaging and waste from Campus after each service call. Contractor will cooperate with University to promptly remedy any sanitary problems related to Equipment.
2.6.3 Inspecting and Restocking Equipment. Contractor will inspect and restock Equipment at least once each working day, unless University directs otherwise.
2.6.4 Operating Notices. Contractor will affix to all Equipment a prominent notice containing instructions on how to (1) operate Equipment, (2) report malfunctions, (3) comment on Product quality, and (4) request refunds.
2.7 Refunds. Contractor will provide University up to [_____________] [Option: three (3)] separate cash funds in the amount of [_____________] [Option: $10.00] each, which will be used by University for making refund payments available at Campus locations designated by University. Contractor will make additional funds available to University as required to maintain each fund at a level adequate to pay refunds promptly upon submission of a refund claim. Contractor will supply a written form, mutually agreeable to both parties, to be used as a voucher for submitting refund claims. The form will include space for claimants to identify (1) the type of Equipment, (2) the Location, (3) the amount of the loss, (4) a description of how the loss occurred, (5) the date of the loss, (6) the claimant's name and signature, and (7) the date of the refund claim.
2.8 Auxiliary Enterprise.
Contractor, at its sole cost and expense, will comply with all requirements of Subchapter C, Chapter 2252, Texas Government Code, including the provision of financial statements, payment statements derived from sales tax reports, and bonds.
2.8.1 Financial Statement. In accordance with Section 2252.062, Texas Government Code, Contractor will submit to University on or before the Effective Date, two (2) copies of Contractor’s most recent financial statement prepared by a certified public accountant on the Effective Date.
2.8.2 Payment Statement. In accordance with Section 2252.063, Texas Government Code, Contractor will submit to University, no later than the 15th day after the end of each contract year, an annual payment statement derived from all of Contractor’s sales tax reports for its operations during the preceding contract year. The annual payment statement must be certified by a certified public accountant licensed in the State of Texas. “Contract year” means that period of time beginning on the Effective Date and ending __________, 20____ [Note: Insert date that is 12 months after Effective Date (i.e., if Effective Date is January 1, 2007, then insert December 31, 2007).] and each twelve (12) month period thereafter, during the term of this Agreement.
2.8.3 Performance Bond. In accordance with Section 2252.064, Texas Government Code, Contractor will provide University with a performance bond for each contract year during the term of this Agreement. The amount of the performance bond [Option (Include only if the performance bond amount should be adjusted each contract year.): for the first contract year] during the term of this Agreement will be equal to __________ ($____________). [Note: Amount of performance bond may not exceed the contract price.]. [Option (Include only if the performance bond amount should be adjusted each contract year.): Thereafter, the amount of the performance bond will be adjusted at the beginning of each contract year to __________.] The performance bond will be issued by a surety company authorized to do business in the State of Texas and acceptable to University in all respects. The performance bond will be made payable to University and conditioned upon Contractor’s prompt and faithful performance of Services.
2.9 Costs of Operation. Contractor will pay all costs for installing, operating, stocking, servicing, and replacing the Equipment; provided, however, subject to Section 2.3, University will provide Contractor with electricity and water for operation of Equipment on Campus. Contractor will absorb all money shortages that may develop due to theft, burglary, inoperable Equipment or any other causes.
2.10 Energy-Saving; Energy Management. Pursuant to Section 2165.058, Texas Government Code:
2.10.1 Internal Energy Saving or Management Device. Contractor will activate and maintain any internal energy saving or energy-management device or option that is already part of or contained in the Equipment.
2.10.2 External Energy Saving or Management Device. Contractor will use an external energy-saving or energy-management device in all Equipment that (a) operates with a compressor, and (b) does not have an activated and operational internal energy-saving or energy-management device or option.
2.10.3 Expenses. Contractor is responsible for any and all expenses associated with the acquisition, installation, or maintenance of all energy-saving devices required by this Section.
2.10.4 Exception. This Section 2.10 does not apply to any Equipment that contains a perishable food product, as defined by Section 96.001, Texas Civil Practice and Remedies Code.
2.11 Signs. Contractor will not post signs or posters at the Locations or elsewhere on Campus. Contractor will not engage in any marketing or promotional activity on Campus without, in each instance, (a) full compliance with Applicable Laws and University Rules, and (b) University’s advance written approval.
2.12 Student Evaluation. Contractor will comply with requirements of Section 51.945, Texas Education Code, and all University Rules regarding students’ involvement in the evaluation of the performance of Contractor, by periodically holding meetings or forums to provide University’s students with a reasonable opportunity to discuss the performance of Contractor. Contractor will obtain University’s prior written approval concerning the date, time and location for each meeting or forum at least [Option: ______] [Option: thirty (30) ] days in advance.
2.13 University’s Right to Refuse Entry and Eject; Identification Badges; Background Checks; Certification.
2.13.1 Right to Refuse Entry and Eject. University has the right to (a) require identification from any person on University’s Campus, (b) refuse entry to persons having no legitimate business on Campus, and (c) eject any undesirable person refusing to leave peaceably on request. Contractor will cooperate with all authorized University representatives in the exercise of University’s rights described in this Section.
2.13.2 Identification Badge. Contractor will provide each of Contractor’s employees, representatives, agents and subcontractors with an identification badge and will cause each employee, representative, agent and subcontractor to prominently display the badge on his or her person at all times while on Campus.
2.13.3 Background Check. Each individual who is assigned to perform any of Contractor‘s duties and obligations under this Agreement will be an employee of Contractor or an employee of a subcontractor engaged by Contractor and previously approved by University in writing. Contractor is responsible for the performance of all individuals performing Services under this Agreement. Prior to commencing any Services on Campus, Contractor will at its expense (a) provide University with a list ("List") of all individuals who may be assigned to perform Services, and (b) have an appropriate criminal background screening performed concerning each individual. Contractor will determine on a case-by-case basis whether each individual is qualified to provide Services. Contractor will not knowingly assign any individual to provide Services who has a history of criminal conduct unacceptable for a university campus, including violent or sexual offenses. Contractor will update the List each time there is a change in the individuals assigned to perform Services.
2.13.4 Certification. Prior to commencing any Services under this Agreement, Contractor will provide University a letter signed by an authorized representative of Contractor certifying compliance with Section 2.13.3. Contractor will provide University with an updated certification letter each time there is a change in the individuals assigned to perform Services.
Section 3.
ROYALTY PAYMENTS, RECORDS AND REPORTS
[Note: Because this Agreement is a revenue generating or revenue sharing contract, this Agreement must comply with UTS103 and your institution must complete and submit the Non Financial Questionnaire related to the Unrelated Business Income Tax.]
3.1 Royalty. Contractor will pay University a royalty (“Royalty”) on gross revenue generated by Services, all as more particularly provided in Exhibit D attached and incorporated for all purposes. The term “gross revenue” will mean gross revenue before exclusion of applicable sales taxes.
3.2 Payment and Report. Contractor will pay University the Royalty on or before the 10th day of the month that follows the month in which the Royalty was earned. Contractor will make all Royalty checks payable to “The University of Texas__________________,” and will deliver the monthly payments to University’s _________________________________, accompanied by a written report for the preceding month, showing the Royalty due and the dollar amount of gross revenue (a) from each piece of Equipment, and (b) from each Location. The report will also contain a summary showing all monthly and year-to-date gross revenue generated by Contractor as a result of Services.
3.3 Accurate Records. Contractor will keep accurate records of all sales on Campus. Contractor will make all records related to the Services available to University upon written request during the Term of this Agreement and for up to four (4) years after the expiration or termination of this Agreement. Contractor will permit authorized representatives of University to accompany Contractor's employees during cash collection and counting activities and to randomly examine the receipts of Equipment operated by Contractor.
3.4 Form of Reports. All reports required or given under this Agreement will be presented in forms satisfactory to University in all respects.
Section 4.
LICENSES, TAXES, APPLICABLE LAWS AND UNIVERSITY RULES
4.1 Licenses and Taxes. Contractor will obtain, maintain in effect, and pay the cost of all licenses, permits, certifications, and inspections required in connection with Contractor’s performance of Services. Contractor will pay all taxes (including sales, excise and payroll taxes), payroll deductions, employee benefits, fines, penalties, or other payments required by Applicable Laws in connection with Contractor’s performance of Services. Contractor will file proper sales tax returns with and remit sales tax payments to the Texas Comptroller of Public Accounts.
4.2 Applicable Laws and University Rules. Contractor will comply with, and will cause its employees, representatives, agents, and subcontractors to comply with, all Applicable Laws and University Rules.
4.3 Health and Safety Inspections. CONTRACTOR WILL PROVIDE UNIVERSITY WITH COPIES OF ALL HEALTH AND SAFETY INSPECTION REPORTS RELATED TO THE SERVICES IN ANY WAY WITHIN ________ (____) [OPTION: THREE (3)] DAYS AFTER CONTRACTOR RECEIVES THE REPORTS.
4.4 Remedies. In the event University reasonably believes that Contractor is not in compliance with Applicable Laws and reasonably determines that a violation of Applicable Laws creates an imminent health hazard or immediate threat to the health and safety of University’s Campus community or the public, University may immediately (a) perform any cleaning or other services deemed necessary by University (Contractor will reimburse University for all reasonable costs, including overtime costs.), (b) report Contractor’s non-compliance with Applicable Laws to any governmental body or authority, and (c) at University’s option, (i) require Contractor to cure the violation within a timeframe that is acceptable to University, or (ii) suspend Contractor’s performance of Services, and/or (iii) terminate this Agreement without notice or opportunity to cure. Upon receipt of written notice of suspension or termination of this Agreement, Contractor will immediately cease performance of Services under this Agreement.
Section 5.
INSURANCE
[NOTE: These are minimum insurance requirements. Depending on the type of services covered by your contract, consideration should be given to increasing the types of insurance coverages and the limits. In particular, services related to health and safety concerns require increased types of insurance coverages and increased limits. You may refer your contract to your institution’s Risk Manager or the UT System Office of Risk Management for assistance.]
Contractor, consistent with its status as an independent contractor will carry and will cause its subcontractors to carry, at least the following insurance in the form, with companies having an A.M. Best Rating of A-:IV or better, and in amounts (unless otherwise specified), as University may require:
5.1 Worker’s Compensation. Workers’ Compensation Insurance with statutory limits, and Employer’s Liability Insurance with limits of not less than $1,000,000:
Each Accident $1,000,000
Disease Each Employee $1,000,000
Disease Policy Limit $1,000,000
Policies must include a waiver of all rights of subrogation and other rights in favor of University;
5.2 Commercial General Liability. Commercial General Liability Insurance with limits of not less than:
General Aggregate $2,000,000
Products & Completed Operations Aggregate $2,000,000
Personal & Advertising Injury $1,000,000
Each Occurrence $1,000,000
Fire Damage (any one fire) $ 50,000
Medical Expenses (any one person) $ 10,000
5.3 Automobile Liability. Commercial Automobile Liability Insurance covering all owned, non-owned or hired automobiles, with limits of at least $1,000,000 Combined Single Limit Bodily Injury and Property Damage; [Option: and]
5.4 [Option: Crime. Third Party Employee Crime Insurance to protect the assets and property of University with limits of not less than _______ [Option: $500,000] [Option: $1,000,000] per claim [Option: . ] [Option: ; and] ] [Note: Limit amount should be adequate to cover University’s exposure. Appropriate limit will depend on the subject matter of this Agreement. Contact the UT System Office of Risk Management for guidance and review of insurance certificates.]
5.5 [Option (review Section 2261.102, Gov. Code, requiring agencies to include Director and Officer Liability Insurance when feasible): Director and Officer Liability. Director and Officer Liability Insurance with limits of not less than $1,000,000 on an occurrence basis [Option: .] [Option: ;] [Option: and]
5.6 [Option: Umbrella Liability. Umbrella/Excess Liability Insurance with limits of not less than $2,000,000 per occurrence and aggregate with a deductible of no more than $10,000, and (i) providing coverage in excess of the coverages of, and (ii) “following form” subject to the same provisions as, the underlying policies required in Section 6.3.1.1 Employers Liability Insurance, Section 6.3.1.2 Commercial General Liability Insurance, and Section 6.3.1.3 Commercial Auto Liability Insurance.]
5.7 Evidence. Contractor will deliver to University:
5.7.1 Evidence of Insurance. Evidence, satisfactory to University, of the existence of all insurance promptly after the execution and delivery of this Agreement and prior to the performance or continued performance of any Services to be performed by Contractor under this Agreement.
5.7.2 Additional Evidence. Additional evidence, satisfactory to University, of the continued existence of all insurance not less than thirty (30) days prior to the expiration of any insurance. Insurance policies, with the exception of Workers’ Compensation, [Option: and] Employer’s Liability, [Option: and] [Option: Director and Officer Liability,] will name and the evidence will reflect University as an Additional Insured and will provide that the policies will not be canceled until after thirty (30) days' unconditional written notice to University.
5.8 Insurance Periods. The insurance policies required in this Agreement will be kept in force for the periods specified below:
5.8.1 Commercial General Liability Insurance, Commercial Automobile Liability Insurance, Third Party Employee Crime Insurance [Option: , ] [Option: and] [Option: Director and Officer Liability Insurance] [Option: , ] [Option: and] [Option: Umbrella/Excess Liability Insurance], will be kept in force until receipt of final payment by Contractor to University; and
5.8.2 Workers' Compensation Insurance and Employer’s Liability Insurance will be kept in force until Services have been fully performed and accepted by University in writing.
Section 6.
INDEMNIFICATION
TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR WILL INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS UNIVERSITY AND UT 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 MAY BE 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. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.
IN ADDITION, CONTRACTOR WILL INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS INDEMNITEES FROM AND AGAINST ALL CLAIMS ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY INTEREST ARISING BY OR OUT OF THE PERFORMANCE OF SERVICES OR THE PROVISION OF GOODS BY CONTRACTOR, OR THE USE BY INDEMNITEES, AT THE DIRECTION OF CONTRACTOR, OF ANY ARTICLE OR MATERIAL; PROVIDED, THAT, UPON BECOMING AWARE OF A SUIT OR THREAT OF SUIT FOR INFRINGEMENT, UNIVERSITY WILL PROMPTLY NOTIFY CONTRACTOR AND CONTRACTOR WILL BE GIVEN THE OPPORTUNITY TO NEGOTIATE A SETTLEMENT. IN THE EVENT OF LITIGATION, UNIVERSITY WILL REASONABLY COOPERATE WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.
Section 7.
REPRESENTATIONS AND WARRANTIES
7.1 Organization and Authority. Contractor represents 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, 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.
7.2 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 it is exempt from the payment of those taxes, or that it is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.
7.3 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.
7.4 Payment of Debt or Delinquency to the State. 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 such debt or delinquency is paid in full.
7.5 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.
7.6 Products and Materials Produced in Texas. If Contractor will provide services under this Agreement, Contractor 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 such products and materials are available at a price and delivery time comparable to products and materials produced outside of Texas.
7.7 No Conflict. Contractor has not entered into, and during the Term of this Agreement will not enter into, any other agreements that would conflict with Contractor’s obligations under this Agreement or prevent it from fully complying with the provisions of this Agreement.
7.8 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 I-9 Employment Eligibility Verification Form (“I-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 I-9 Form certifying that they are eligible for employment; (2) examine verification documents required by the I-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 I-9 Form, and complete the certification portion of the I-9 Form; and (4) retain the I-9 Form as required by law. 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 in accordance with Section 10. 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.
Section 8.
RELATIONSHIP OF PARTIES
For all purposes of this Agreement and notwithstanding any provision of this Agreement to the contrary, Contractor is an independent contractor and is not a state employee, partner, joint venturer, or agent of University. Contractor will not bind nor attempt to bind University to any agreement or contract. As an independent contractor, Contractor is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any kind, including workers’ compensation insurance.
Section 9.
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: __________________________
__________________________
__________________________
__________________________
Attention:__________________
with copy to: __________________________
__________________________
__________________________
Attention: __________________
If to Contractor: _________________________
_________________________
_________________________
Attention: _________________
or another person or address as may be given in writing by either party to the other in accordance with this Section.
Notwithstanding any other requirements for notices given by a party under this Agreement, if Contractor intends to deliver written notice to University pursuant to Section 2251.054, Texas Government Code, then Contractor will send that notice to University as follows:
___________________
___________________
___________________
___________________
___________________
Attention:___________
Fax: _______________ [NOTE: Fax and email are required by law.]
Email: ______________
with copy to: ___________________
___________________
___________________
___________________
___________________
Attention:___________
Fax: _______________ [NOTE: Fax and email are required by law.]
Email: ______________
or other person or address as may be given in writing by University to Contractor in accordance with this Section.
Section 10.
DEFAULT AND TERMINATION
10.1 Termination Without Cause. This Agreement may be terminated by University without cause by giving Contractor not less than __________ (___) [Option: forty-five (45)] days written notice of University’s intention to terminate this Agreement as of a specified date. In the event this Agreement is terminated by University before the end of the then current contract year, the Royalty will be paid by Contractor to University (on a pro-rata basis through the effective date of termination) in accordance with Section 3 of this Agreement.
[Option (use only if University is comfortable granting Contractor the right to terminate this Agreement without cause): This Agreement may be terminated by Contractor without cause by giving University not less than __________ (___) [Option: forty-five (45)] days’ written notice of Contractor’s intention to terminate this Agreement as of a specific date. In the event this Agreement is terminated by Contractor before the end of the then current contract year, the Royalty will be paid by Contractor to University (on a pro-rata basis through the effective date of termination) in accordance with Section 3 of this Agreement.
10.2 Termination for Default. Except as provided in Section 4.4, in the event of a material failure by a party to this Agreement to perform in accordance with the terms of this Agreement (“default”), the other party may terminate this Agreement upon ________ (___) [Option: thirty (30)] days’ written notice of termination setting forth the nature of the default; provided, that, the default is through no fault of the terminating party. Termination will not be effective if the default is fully cured prior to the end of the __________ [Option: thirty (30)] day period. If Contractor fails to cure any default within _____________ (___) [Option: thirty (30)] days after receiving written notice of default, University will be entitled (but will not be obligated) to cure the default and will have the right, at University's option, to collect any and all reasonable expenses incurred in connection with the curative actions from Contractor or to set off the expenses against any amounts due to Contractor under this Agreement.]
10.3 No Release of Liability. Termination of this Agreement under Sections 4.4, 10.1 or 10.2 will not relieve Contractor or any of its employees, representatives, agents, or subcontractors from liability for any default under the terms of this Agreement or any other act or omission.
10.4 Transition Period. If this Agreement expires or is terminated for any reason, then at University’s option, Contractor will continue to perform Services in accordance with the terms of this Agreement until University contracts with a new qualified and experienced vendor(s) to perform Services or is able to perform Services in-house; provided, that, Contractor will not be required to continue performing Services for more than ___________ (___) [Option: three (3)] months after expiration or termination of this Agreement. Contractor will cooperate with, and assist, University’s efforts to transition Services to another vendor(s) or to perform Services in-house.
10.5 Continuing Obligations. The expiration or termination of this Agreement will not relieve either party of any obligations under this Agreement that by their nature survive expiration or termination.
Section 11.
NO OTHER RIGHTS
Except as expressly granted in this Agreement, nothing in this Agreement is intended to entitle either party to claim any right, title or interest in, or right to use, the name of the other party, the name or existence of any property or facility owned by the other party (or any portion thereof), or any other names, designs, logos, symbols, trademarks, service marks, representations or other identification of the other party.
Section 12.
ASSIGNMENT AND SUBCONTRACTING
12.1 Assignment and Subcontracting. [Option (include if the value of this Agreement is expected to equal or exceed $100,000 or if University has requested a HUB Subcontracting Plan): Except as specifically provided in Exhibit E, Historically Underutilized Business Subcontracting Plan, attached and incorporated for all purposes,] 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 default under this Agreement for which Contractor will be subject to all remedial actions provided by Texas law, 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.
[Option (include if the value of this Agreement is expected to equal or exceed $100,000 or if University has requested a HUB Subcontracting Plan): 12.2 Historically Underutilized Business Subcontracting Plan. Contractor will use good faith efforts to subcontract Services in accordance with the Historically Underutilized Business Subcontracting Plan (“HSP”) (ref. Exhibit E). Contractor will maintain business records documenting its compliance with the HSP and submit a monthly compliance report to University in the format required by the Texas Procurement and Support Services Division of the Texas Comptroller of Public Accounts or any successor agency (collectively, “TPSS”). Submission of compliance reports will be required as a condition for any payments by University under this Agreement. If University determines that Contractor has failed to subcontract as set out in the HSP, University will notify Contractor of any deficiencies and give Contractor an opportunity to submit documentation and explain why the failure to comply with the HSP should not be attributed to a lack of good faith effort by Contractor. If University determines that Contractor failed to implement the HSP in good faith, University, in addition to any other remedies, may report nonperformance to TPSS in accordance with 34 TAC Chapter 20, §§20.101 – 20.108. University may also terminate this Agreement for default and make a claim against Contractor.
12.2.1 Changes to the HSP. If at any time during the term of this Agreement, Contractor desires to change the HSP, before the proposed changes become effective (a) Contractor must comply with 34 TAC Section 20.14; (b) the changes must be reviewed and approved by University; and (c) if University approves changes to the HSP, this Agreement must be amended in accordance with Section 13 to replace the HSP with the revised subcontracting plan.
12.2.2 Expansion of Services. If University expands the scope of Services through a change order or any other amendment, University will determine if the additional Services contain probable subcontracting opportunities not identified in the initial solicitation for Services. If University determines additional probable subcontracting opportunities exist, Contractor will submit an amended subcontracting plan covering those opportunities. The amended subcontracting plan must comply with the provisions of 34 TAC Section 20.14 before (a) this Agreement may be amended to include the additional Services; and (b) Contractor may perform the additional Services. If Contractor subcontracts any of the additional subcontracting opportunities identified by University without prior authorization and without complying with 34 TAC Section 20.14, Contractor will be deemed to be in default of this Agreement under Section 10 and will be subject to any remedial actions provided by Texas law including Chapter 2161, Texas Government Code, and 34 TAC Section 20.14. University may report nonperformance under this Agreement to TPSS in accordance with 34 TAC Chapter 20,§§20.101 – 20.108.]
Section 13.
MERGER AND AMENDMENT
This Agreement (including the Exhibits) constitutes the entire agreement between the parties and supersedes any existing rights in prior contracts between the parties with regard to the subject matter of this Agreement. No prior or contemporaneous agreement, oral or written, will be effective to vary the terms or conditions of this Agreement. No amendment to this Agreement will be effective unless reduced to writing and signed by an authorized representative of each party.
Section 14.
BREACH OF CONTRACT CLAIMS
To the extent that Chapter 2260, Texas Government Code, is applicable to this Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, will be used by University and Contractor to attempt to resolve any claim for breach of contract made by Contractor that cannot be resolved in the ordinary course of business. The chief business officer of University will examine Contractor's claim and any counterclaim and negotiate with Contractor in an effort to resolve the claims. The parties specifically agree that (a) neither the execution of this Agreement by University nor any other conduct, action or inaction of any representative of University relating to this Agreement constitutes or is intended to constitute a waiver of University’s or the state's sovereign immunity to suit; and (b) University has not waived its right to seek redress in the courts.
Section 15.
GENERAL PROVISIONS
15.1 Approvals. Except as otherwise specified in this Agreement, in every circumstance in which an approval or consent from University is required under this Agreement, Contractor will obtain that approval or consent from the University’s chief business officer.
15.2 Venue; Governing Law. ___________ County [Note: Insert “Travis” or county in which University is located, then delete this note.], Texas, will be the proper place of venue for suit on or in respect of this Agreement. This Agreement and all of the rights and obligations of the parties to this Agreement and all of the terms and conditions of this Agreement will be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Texas.
15.3 Time for Performance. Time is of the essence with regard to this Agreement and Contractor’s performance of Services. Contractor will complete all Preparation Activities, commence delivery of Services and perform Services to the satisfaction of University in accordance with the schedules, deadlines and other terms and conditions set forth in this Agreement. University will have no obligation to accept late performance or to waive timely performance by Contractor.
15.4 University's Right to Audit. At any time during the Term of this Agreement and for a period of four (4) years after the termination or expiration of this Agreement, University or a duly authorized representative of University, UT System, or the State of Texas, at its expense, will have the right to audit Contractor’s records and books relevant to all services provided under this Agreement. In the event an audit reveals any errors or underpayments to University, Contractor will pay to University the full amount of the underpayments within thirty (30) days after being notified in writing of the audit findings.
15.5 Force Majeure. Neither party will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control including acts of God, strikes, epidemics, war, riots, flood, fire, sabotage, or any other circumstances of like character [Option (include for medical institutions): (“Force Majeure Occurrence”). Provided, however, in the event of a Force Majeure Occurrence, Contractor will use its best efforts to mitigate the impact of the occurrence so that University may continue to provide healthcare services during the occurrence].
15.6 Ethics Matters, No Financial Interest. Contractor and its employees, representatives, agents, and subcontractors have read and understand University’s Conflicts of Interest Policy available at [Note: Insert University’s web page where Policy is posted.] [Option (Include for UT System only.): http://www.utsystem.edu/policy/policies/int160.html], University’s Standards of Conduct Guide available at [Note: Insert University’s web page where Guide is posted.] [Option (Include for UT System only.): http://www.utsystem.edu/systemcompliance/], and applicable state ethics laws and rules available at www.utsystem.edu/ogc/ethics. Neither Contractor nor its employees, representatives, agents, or subcontractors will assist or cause University employees to violate University’s Conflicts of Interest Policy, provisions described by University’s Standards of Conduct Guide, or applicable state ethics laws or rules. 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.
15.7 Severability. In case any provision of this Agreement shall, for any reason, 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 in this Agreement. Captions and titles 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.
15.8 Loss of Funding. University’s performance of its duties and obligations under this Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the “Legislature”) and/or allocation of funds by the Board of Regents of The University of Texas System (the “Board”). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then University will issue written notice to Contractor and University may terminate this Agreement without further duty or obligation. Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the control of University.
15.9 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, 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 (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.
15.10 Confidentiality and Safeguarding of University Records; Press Releases; Public Information. Under this Agreement, Contractor may (a) create, (b) receive from or on behalf of University, or (c) 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, (a) University designates Contractor as a University official with a legitimate educational interest in University Records, and (b) Contractor acknowledges that its improper disclosure or redisclosure 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: (a) hold University Records in strict confidence and will not use or disclose University Records except as (i) permitted or required by this Agreement, (ii) required by Applicable Laws, or (iii) otherwise authorized by University in writing; (b) 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; (c) continually monitor its operations and take any action necessary to assure 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 (d) comply with University Rules 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.
15.10.1 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) business 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.
15.10.2 Return of University Records. Contractor agrees that within thirty (30) 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 (20) 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.
15.10.3 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 Section.
15.10.4 Press Releases. Except when defined as part of the Services, Contractor will not make any press releases, public statements, or advertisement referring to the Project or the engagement of Contractor as an independent contractor of University in connection with the Project, or release any information relative to the Project for publication, advertisement or any other purpose without the prior written approval of University.
15.10.5 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.
15.10.6 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 Section, University may immediately terminate this Agreement without notice or opportunity to cure.
15.10.7 Duration. The restrictions and obligations under this Section will survive expiration or termination of this Agreement for any reason.
SECTION 16.
ACCESS BY INDIVIDUALS WITH DISABILITIES
Contractor represents and warrants (“Accessibility Warranty”) that at all times during the Term the Equipment will be compliance with (a) all applicable requirements of the Americans with Disabilities Act and (b) the following standards/specifications:
16.1 Usable by People with Disabilities. Contractor’s Equipment will be usable by people with disabilities without requiring an end-user to attach assistive technology to the product. Personal headsets for private listening are not assistive technology.
16.2 Sufficient Time to Respond. When Equipment requires a timed response, the user will be alerted and given sufficient time to indicate more time is required.
16.3 Mechanically Operated Controls. If Equipment utilizes touch screens, contact-sensitive controls, or has mechanically operated controls or keys, then the Equipment will comply with the following, as applicable:
16.3.1 All controls and keys will be tactilely discernible without activating the controls or keys.
16.3.2 All controls and keys will be operable with one hand and will not require tight grasping, pinching, or twisting of the wrist. The force required to activate controls and keys will be 5 lbs. (22.2 N) maximum.
16.3.3 If key repeat is supported, the delay before repeat will be adjustable to at least 2 seconds. Key repeat rate will be adjustable to 2 seconds per character.
16.3.4 The status of all locking or toggle controls or keys will be visually discernible, and discernible either through touch or sound.
16.4 Color Coding. Equipment will not use color coding as the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element.
16.5 Flicker Rate. Equipment that includes a video screen will be designed to avoid causing that screen to flicker with a frequency greater than 2 Hz and lower than 55 Hz.
16.6 Freestanding, Non-Portable Equipment. Equipment that is freestanding, non-portable, and intended to be used in one location and which has operable controls will comply with the following:
16.6.1 Reference Plane. The position of any operable control will be determined with respect to a vertical plane, which is 48 inches in length, centered on the operable control, and at the maximum protrusion of the Equipment within the 48 inch length.
16.6.2 Height of Control 10 Inches or Less Behind Reference Plane. Where any operable control is 10 inches or less behind the reference plane, the height will be 54 inches maximum and 15 inches minimum above the floor.
16.6.3 Height of Control More Than 10 Inches Behind Reference Plane. Where any operable control is more than 10 inches and not more than 24 inches behind the reference plane, the height will be 46 inches maximum and 15 inches minimum above the floor.
16.6.4 Distance of Control Behind Reference Plane. Operable controls will not be more than 24 inches behind the reference plane.
SECTION 17.
BOARD APPROVAL
This Agreement is not effective or binding until approved by the Board.
University and Contractor have caused their authorized representatives to execute and deliver this Agreement to be effective as of the Effective Date.
CONTRACTOR UNIVERSITY
By: __________________________ By: __________________________
Name: _______________________ Name: _______________________
Title: _________________________ Title: ________________________
Date Signed: _________________ Date Signed: ________________
Attachments:
Exhibit A – Preparation Activities and Schedule
Exhibit B – Campus Locations for Equipment
Exhibit C – Products and Sales Prices
Exhibit D – Vending Royalty Schedule
[Option (include if the value of this Agreement is expected to equal or exceed $100,000 or if University has requested a HUB Subcontracting Plan): Exhibit E – HUB Subcontracting Plan]
EXHIBIT A
PREPARATION ACTIVITIES AND SCHEDULE
EXHIBIT B
CAMPUS LOCATIONS FOR EQUIPMENT
[ATTACH CAMPUS MAP AND BUILDING FLOOR PLANS SHOWING LOCATION OF EQUIPMENT.]
EXHIBIT C
PRODUCTS AND PRODUCT PRICING LIST
PRODUCTS CASE/PACK PRICE PER CASE/PACK
Carbonated, 20 oz. 24 Rs_______
Carbonated, 12 oz. 24 Rs_______
_________________ ___ Rs_______
_________________ ___ RS_______
EXHIBIT D
VENDING ROYALT SCHEDULE
[Option: EXHIBIT E
HUB SUBCONTRACTING PLAN
ATTACH IF APPLICABLE]
RECITALS
University desires that certain products and services be made available on the University’s campus (“Campus”) by means of vending machines for the benefit and convenience of its students, faculty, staff and visitors;
Contractor represents that it has the knowledge, ability, equipment, and personnel to conduct vending machine operations on Campus; and
University, in reliance on Contractor’s representations, is willing to contract with Contractor on the terms and conditions set out in this Agreement.
For and in consideration of the mutual benefits and covenants contained in this Agreement the parties agree as follows:
TERMS AND CONDITIONS
Section 1.
TERM AND EXTENSION
The term of this Agreement (“Term”) will commence on the Effective Date and expire on ______________, 20_____, unless earlier terminated pursuant to the terms and conditions of this Agreement.
This Agreement may be extended for one (1) additional period, not exceeding two (2) years, by written agreement of University and Contractor.
Section 2.
CONTRACTOR’S OBLIGATIONS
2.1 Preparation Activities; Schedule. Contractor’s activities (“Preparation Activities”) to be performed in preparation to provide vending machine operations on Campus and the related schedule for performance of the Preparation Activities are set forth in Exhibit A attached and incorporated for all purposes.
2.2 Commencement of Services. Beginning on [Option: _____________, 20___] [Option: the Effective Date], Contractor will, in accordance with the terms and conditions of this Agreement, commence performance of vending machine operations at Campus locations (collectively, “Locations”) more particularly identified in Exhibit B attached and incorporated for all purposes, through Contractor’s vending machines and related equipment (collectively, “Equipment”) dispensing the products (collectively, “Products”) listed in Exhibit C attached and incorporated for all purposes. The Preparation Activities, vending machine operations and all other services, duties and obligations required to be performed by Contractor under this Agreement will sometimes be collectively referred to as “Services.”
2.3 Limited Access; Location License. Contractor, its employees, representatives, agents, and subcontractors, will have the right to use and access only the Locations to perform Services and will have no right to use or access any other University facilities. University will permit Contractor to use the Locations in accordance with the license contained in this Section. University licenses the Locations in their current, “as is” condition to Contractor for use by Contractor and its employees, representatives, agents, and subcontractors in the performance of Services and for no other purpose. This is a non exclusive license to use the Locations. University may enter the Locations at any time for any reason. No unlawful activities will be permitted in the use of the Locations. Contractor will comply with all applicable federal, state and local laws, rules, regulations, ordinances and orders (collectively, “Applicable Laws”), as well as the Rules and Regulations of the Board of Regents of The University of Texas System, the Administrative Rules of The University of Texas System (“UT System”) and the institutional rules and regulations and policies of the University (collectively, “University Rules”), in connection with the use of the Locations. Contractor will cause all of its employees, representatives, agents, and subcontractors to observe and comply with all Applicable Laws and University Rules.
Contractor will not modify, alter or repair the Locations or any other University facilities without the prior written approval of University and with project management of renovations by University.
Contractor will not harm the Locations or make any use of the Locations that is offensive as determined by University. Upon expiration or termination of this Agreement for any reason, Contractor will remove Equipment and Contractor’s other effects, repair any damage caused by the removal, and peaceably deliver up the Locations in clean condition and in good order, repair and condition, ordinary wear and tear excepted. Any personal property of Contractor not removed within two (2) days after expiration or termination of this Agreement will be deemed abandoned by Contractor and University may dispose of the property in any manner it chooses, with no liability or reimbursement obligation to Contractor.
Contractor will not suffer any mechanic's lien to be filed against the Locations or the adjoining facilities by reason of any work, labor, services, or materials performed at or furnished to the Locations for Contractor. Nothing in this Agreement will be construed as the consent of University to subject University’s estate in the Locations or adjoining facilities to any lien.
Contractor has inspected the Locations and agrees that the Locations are sufficiently equipped for Contractor to provide Services in accordance with the terms and conditions of this Agreement.
UNIVERSITY WILL NOT BE RESPONSIBLE FOR INTERRUPTIONS IN UTILITY SERVICE TO THE LOCATIONS. HOWEVER, UNIVERSITY WILL EXERCISE REASONABLE DILIGENCE IN PURSUING THE RESTORATION OF INTERRUPTED UTILITY SERVICE.
UNIVERSITY WILL NOT BE LIABLE TO CONTRACTOR OR CONTRACTOR’S EMPLOYEES, REPRESENTATIVES, AGENTS, SUBCONTRACTORS, GUESTS OR INVITEES (COLLECTIVELY, “CONTRACTOR PARTIES”), FOR ANY LOSS, EXPENSE, OR DAMAGE, EITHER TO PERSON OR PROPERTY SUSTAINED BY REASON OF ANY CONDITION OF LOCATIONS, CAMPUS OR ADJOINING GROUNDS OR FACILITIES, OR DUE TO ANY ACT OF ANY EMPLOYEE, REPRESENTATIVE, AGENT, SUBCONTRACTOR, GUEST OR INVITEE OF UNIVERSITY, OR THE ACT OF ANY OTHER PERSON WHATSOEVER. UNIVERSITY, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, SUBCONTRACTORS, GUESTS AND INVITEES WILL NOT BE LIABLE FOR, AND CONTRACTOR WAIVES, ALL CLAIMS FOR DAMAGE TO PERSON OR PROPERTY SUSTAINED BY ANY CONTRACTOR PARTIES, RESULTING FROM ANY ACCIDENT OR OCCURRENCE IN OR UPON LOCATIONS, CAMPUS OR ADJOINING GROUNDS OR FACILITIES. CONTRACTOR WILL PAY ON DEMAND UNIVERSITY’S EXPENSES INCURRED IN ENFORCING ANY OBLIGATION OF CONTRACTOR UNDER THIS LICENSE.
2.4 Change in Locations. The Locations may be changed from time to time upon written agreement of the parties documented through an amendment to this Agreement in accordance with Section 13.
2.5 Products.
2.5.1 Products Vended. Contractor will offer for sale only Products that University has approved as to brand, size, sales price and royalties.
2.5.2 Applicable Laws; Product Standards; Perishable Products. Contractor will ensure that all Products will conform in all respects to Applicable Laws relating to the standards or specifications of those Products. All Products intended for human consumption will be fresh and suitable for human consumption in all respects. Contractor will identify perishable Products by means of coded markings with explanatory “keys” required to read Contractor’s coding system. On the Effective Date, Contractor will deliver to University a written report with a list of all coded markings and explanatory “keys.” Contractor will deliver to University an updated version of that report within five (5) days after Contractor changes the coding system or any explanatory “key.”
2.5.3 Sales Prices for Products. Contractor will not increase the sales prices charged for Products above the sales prices designated in Exhibit C. University and Contractor may, by mutual agreement, adjust Product sales prices through an amendment to this Agreement in accordance with Section 13.
2.5.4 Change in Products. If it becomes desirable to change the Products to be vended by Contractor, then the Products to be deleted, the Products to be added and associated sales prices, royalties, location and type of vending machine, will be negotiated between Contractor and University and documented through an amendment to this Agreement in accordance with Section 13.
2.6 Equipment.
2.6.1 Type of Equipment; Compliance with Applicable Laws. Contractor will provide, install and operate all Equipment. Equipment operated on Campus by Contractor will be new or like-new models, will contain coin changers and dollar bill reader/changers, and will be of a size and type acceptable to University. [Option: University and Contractor agree to cooperate in implementing a phase in of Equipment with credit card and debit card reader capability, at a rate to be mutually agreed upon between University and Contractor.] [Option: Contractor will operate and maintain credit card and debit card readers on [Option: all Equipment.] [Option: at least __________ percent (___ %) of Equipment and at the Locations specified by University]. All Equipment will be installed and operated in conformity with Applicable Laws and University Rules.
2.6.1 On-Call Service. Contractor will provide on-call maintenance and repair service for Equipment twenty-four (24) hours a day, seven (7) days a week, at no cost to University. Contractor will make available to University a toll-free telephone number for service calls, and will respond with service technician on-site within four (4) hours after a service call placed between 7:30 AM and 5:30 PM, Monday through Friday, except holidays (collectively, “working days” and each a “working day”), and within twenty-four (24) hours after a service call placed at all other times. Contractor will keep at least one on-duty supervisor available each working day, and at least one on call supervisor available at all other times.
2.6.2 Maintaining Equipment. Contractor will service all Equipment as often as is necessary to keep all Equipment properly supplied and in good working order. Contractor will maintain a program of regular preventive maintenance and replacement of worn, damaged, or malfunctioning Equipment. University may require Contractor to replace Equipment that cannot be returned to service within four (4) working days after a service call is placed. Replacement equipment will be of a type and condition at least equal to the type and condition of Equipment being replaced. Contractor will keep all Equipment in a neat and sanitary condition. Contractor will clean all spills that occur while filling, cleaning, or maintaining Equipment, clean Equipment each time Contractor restocks or services Equipment, and remove packaging and waste from Campus after each service call. Contractor will cooperate with University to promptly remedy any sanitary problems related to Equipment.
2.6.3 Inspecting and Restocking Equipment. Contractor will inspect and restock Equipment at least once each working day, unless University directs otherwise.
2.6.4 Operating Notices. Contractor will affix to all Equipment a prominent notice containing instructions on how to (1) operate Equipment, (2) report malfunctions, (3) comment on Product quality, and (4) request refunds.
2.7 Refunds. Contractor will provide University up to [_____________] [Option: three (3)] separate cash funds in the amount of [_____________] [Option: $10.00] each, which will be used by University for making refund payments available at Campus locations designated by University. Contractor will make additional funds available to University as required to maintain each fund at a level adequate to pay refunds promptly upon submission of a refund claim. Contractor will supply a written form, mutually agreeable to both parties, to be used as a voucher for submitting refund claims. The form will include space for claimants to identify (1) the type of Equipment, (2) the Location, (3) the amount of the loss, (4) a description of how the loss occurred, (5) the date of the loss, (6) the claimant's name and signature, and (7) the date of the refund claim.
2.8 Auxiliary Enterprise.
Contractor, at its sole cost and expense, will comply with all requirements of Subchapter C, Chapter 2252, Texas Government Code, including the provision of financial statements, payment statements derived from sales tax reports, and bonds.
2.8.1 Financial Statement. In accordance with Section 2252.062, Texas Government Code, Contractor will submit to University on or before the Effective Date, two (2) copies of Contractor’s most recent financial statement prepared by a certified public accountant on the Effective Date.
2.8.2 Payment Statement. In accordance with Section 2252.063, Texas Government Code, Contractor will submit to University, no later than the 15th day after the end of each contract year, an annual payment statement derived from all of Contractor’s sales tax reports for its operations during the preceding contract year. The annual payment statement must be certified by a certified public accountant licensed in the State of Texas. “Contract year” means that period of time beginning on the Effective Date and ending __________, 20____ [Note: Insert date that is 12 months after Effective Date (i.e., if Effective Date is January 1, 2007, then insert December 31, 2007).] and each twelve (12) month period thereafter, during the term of this Agreement.
2.8.3 Performance Bond. In accordance with Section 2252.064, Texas Government Code, Contractor will provide University with a performance bond for each contract year during the term of this Agreement. The amount of the performance bond [Option (Include only if the performance bond amount should be adjusted each contract year.): for the first contract year] during the term of this Agreement will be equal to __________ ($____________). [Note: Amount of performance bond may not exceed the contract price.]. [Option (Include only if the performance bond amount should be adjusted each contract year.): Thereafter, the amount of the performance bond will be adjusted at the beginning of each contract year to __________.] The performance bond will be issued by a surety company authorized to do business in the State of Texas and acceptable to University in all respects. The performance bond will be made payable to University and conditioned upon Contractor’s prompt and faithful performance of Services.
2.9 Costs of Operation. Contractor will pay all costs for installing, operating, stocking, servicing, and replacing the Equipment; provided, however, subject to Section 2.3, University will provide Contractor with electricity and water for operation of Equipment on Campus. Contractor will absorb all money shortages that may develop due to theft, burglary, inoperable Equipment or any other causes.
2.10 Energy-Saving; Energy Management. Pursuant to Section 2165.058, Texas Government Code:
2.10.1 Internal Energy Saving or Management Device. Contractor will activate and maintain any internal energy saving or energy-management device or option that is already part of or contained in the Equipment.
2.10.2 External Energy Saving or Management Device. Contractor will use an external energy-saving or energy-management device in all Equipment that (a) operates with a compressor, and (b) does not have an activated and operational internal energy-saving or energy-management device or option.
2.10.3 Expenses. Contractor is responsible for any and all expenses associated with the acquisition, installation, or maintenance of all energy-saving devices required by this Section.
2.10.4 Exception. This Section 2.10 does not apply to any Equipment that contains a perishable food product, as defined by Section 96.001, Texas Civil Practice and Remedies Code.
2.11 Signs. Contractor will not post signs or posters at the Locations or elsewhere on Campus. Contractor will not engage in any marketing or promotional activity on Campus without, in each instance, (a) full compliance with Applicable Laws and University Rules, and (b) University’s advance written approval.
2.12 Student Evaluation. Contractor will comply with requirements of Section 51.945, Texas Education Code, and all University Rules regarding students’ involvement in the evaluation of the performance of Contractor, by periodically holding meetings or forums to provide University’s students with a reasonable opportunity to discuss the performance of Contractor. Contractor will obtain University’s prior written approval concerning the date, time and location for each meeting or forum at least [Option: ______] [Option: thirty (30) ] days in advance.
2.13 University’s Right to Refuse Entry and Eject; Identification Badges; Background Checks; Certification.
2.13.1 Right to Refuse Entry and Eject. University has the right to (a) require identification from any person on University’s Campus, (b) refuse entry to persons having no legitimate business on Campus, and (c) eject any undesirable person refusing to leave peaceably on request. Contractor will cooperate with all authorized University representatives in the exercise of University’s rights described in this Section.
2.13.2 Identification Badge. Contractor will provide each of Contractor’s employees, representatives, agents and subcontractors with an identification badge and will cause each employee, representative, agent and subcontractor to prominently display the badge on his or her person at all times while on Campus.
2.13.3 Background Check. Each individual who is assigned to perform any of Contractor‘s duties and obligations under this Agreement will be an employee of Contractor or an employee of a subcontractor engaged by Contractor and previously approved by University in writing. Contractor is responsible for the performance of all individuals performing Services under this Agreement. Prior to commencing any Services on Campus, Contractor will at its expense (a) provide University with a list ("List") of all individuals who may be assigned to perform Services, and (b) have an appropriate criminal background screening performed concerning each individual. Contractor will determine on a case-by-case basis whether each individual is qualified to provide Services. Contractor will not knowingly assign any individual to provide Services who has a history of criminal conduct unacceptable for a university campus, including violent or sexual offenses. Contractor will update the List each time there is a change in the individuals assigned to perform Services.
2.13.4 Certification. Prior to commencing any Services under this Agreement, Contractor will provide University a letter signed by an authorized representative of Contractor certifying compliance with Section 2.13.3. Contractor will provide University with an updated certification letter each time there is a change in the individuals assigned to perform Services.
Section 3.
ROYALTY PAYMENTS, RECORDS AND REPORTS
[Note: Because this Agreement is a revenue generating or revenue sharing contract, this Agreement must comply with UTS103 and your institution must complete and submit the Non Financial Questionnaire related to the Unrelated Business Income Tax.]
3.1 Royalty. Contractor will pay University a royalty (“Royalty”) on gross revenue generated by Services, all as more particularly provided in Exhibit D attached and incorporated for all purposes. The term “gross revenue” will mean gross revenue before exclusion of applicable sales taxes.
3.2 Payment and Report. Contractor will pay University the Royalty on or before the 10th day of the month that follows the month in which the Royalty was earned. Contractor will make all Royalty checks payable to “The University of Texas__________________,” and will deliver the monthly payments to University’s _________________________________, accompanied by a written report for the preceding month, showing the Royalty due and the dollar amount of gross revenue (a) from each piece of Equipment, and (b) from each Location. The report will also contain a summary showing all monthly and year-to-date gross revenue generated by Contractor as a result of Services.
3.3 Accurate Records. Contractor will keep accurate records of all sales on Campus. Contractor will make all records related to the Services available to University upon written request during the Term of this Agreement and for up to four (4) years after the expiration or termination of this Agreement. Contractor will permit authorized representatives of University to accompany Contractor's employees during cash collection and counting activities and to randomly examine the receipts of Equipment operated by Contractor.
3.4 Form of Reports. All reports required or given under this Agreement will be presented in forms satisfactory to University in all respects.
Section 4.
LICENSES, TAXES, APPLICABLE LAWS AND UNIVERSITY RULES
4.1 Licenses and Taxes. Contractor will obtain, maintain in effect, and pay the cost of all licenses, permits, certifications, and inspections required in connection with Contractor’s performance of Services. Contractor will pay all taxes (including sales, excise and payroll taxes), payroll deductions, employee benefits, fines, penalties, or other payments required by Applicable Laws in connection with Contractor’s performance of Services. Contractor will file proper sales tax returns with and remit sales tax payments to the Texas Comptroller of Public Accounts.
4.2 Applicable Laws and University Rules. Contractor will comply with, and will cause its employees, representatives, agents, and subcontractors to comply with, all Applicable Laws and University Rules.
4.3 Health and Safety Inspections. CONTRACTOR WILL PROVIDE UNIVERSITY WITH COPIES OF ALL HEALTH AND SAFETY INSPECTION REPORTS RELATED TO THE SERVICES IN ANY WAY WITHIN ________ (____) [OPTION: THREE (3)] DAYS AFTER CONTRACTOR RECEIVES THE REPORTS.
4.4 Remedies. In the event University reasonably believes that Contractor is not in compliance with Applicable Laws and reasonably determines that a violation of Applicable Laws creates an imminent health hazard or immediate threat to the health and safety of University’s Campus community or the public, University may immediately (a) perform any cleaning or other services deemed necessary by University (Contractor will reimburse University for all reasonable costs, including overtime costs.), (b) report Contractor’s non-compliance with Applicable Laws to any governmental body or authority, and (c) at University’s option, (i) require Contractor to cure the violation within a timeframe that is acceptable to University, or (ii) suspend Contractor’s performance of Services, and/or (iii) terminate this Agreement without notice or opportunity to cure. Upon receipt of written notice of suspension or termination of this Agreement, Contractor will immediately cease performance of Services under this Agreement.
Section 5.
INSURANCE
[NOTE: These are minimum insurance requirements. Depending on the type of services covered by your contract, consideration should be given to increasing the types of insurance coverages and the limits. In particular, services related to health and safety concerns require increased types of insurance coverages and increased limits. You may refer your contract to your institution’s Risk Manager or the UT System Office of Risk Management for assistance.]
Contractor, consistent with its status as an independent contractor will carry and will cause its subcontractors to carry, at least the following insurance in the form, with companies having an A.M. Best Rating of A-:IV or better, and in amounts (unless otherwise specified), as University may require:
5.1 Worker’s Compensation. Workers’ Compensation Insurance with statutory limits, and Employer’s Liability Insurance with limits of not less than $1,000,000:
Each Accident $1,000,000
Disease Each Employee $1,000,000
Disease Policy Limit $1,000,000
Policies must include a waiver of all rights of subrogation and other rights in favor of University;
5.2 Commercial General Liability. Commercial General Liability Insurance with limits of not less than:
General Aggregate $2,000,000
Products & Completed Operations Aggregate $2,000,000
Personal & Advertising Injury $1,000,000
Each Occurrence $1,000,000
Fire Damage (any one fire) $ 50,000
Medical Expenses (any one person) $ 10,000
5.3 Automobile Liability. Commercial Automobile Liability Insurance covering all owned, non-owned or hired automobiles, with limits of at least $1,000,000 Combined Single Limit Bodily Injury and Property Damage; [Option: and]
5.4 [Option: Crime. Third Party Employee Crime Insurance to protect the assets and property of University with limits of not less than _______ [Option: $500,000] [Option: $1,000,000] per claim [Option: . ] [Option: ; and] ] [Note: Limit amount should be adequate to cover University’s exposure. Appropriate limit will depend on the subject matter of this Agreement. Contact the UT System Office of Risk Management for guidance and review of insurance certificates.]
5.5 [Option (review Section 2261.102, Gov. Code, requiring agencies to include Director and Officer Liability Insurance when feasible): Director and Officer Liability. Director and Officer Liability Insurance with limits of not less than $1,000,000 on an occurrence basis [Option: .] [Option: ;] [Option: and]
5.6 [Option: Umbrella Liability. Umbrella/Excess Liability Insurance with limits of not less than $2,000,000 per occurrence and aggregate with a deductible of no more than $10,000, and (i) providing coverage in excess of the coverages of, and (ii) “following form” subject to the same provisions as, the underlying policies required in Section 6.3.1.1 Employers Liability Insurance, Section 6.3.1.2 Commercial General Liability Insurance, and Section 6.3.1.3 Commercial Auto Liability Insurance.]
5.7 Evidence. Contractor will deliver to University:
5.7.1 Evidence of Insurance. Evidence, satisfactory to University, of the existence of all insurance promptly after the execution and delivery of this Agreement and prior to the performance or continued performance of any Services to be performed by Contractor under this Agreement.
5.7.2 Additional Evidence. Additional evidence, satisfactory to University, of the continued existence of all insurance not less than thirty (30) days prior to the expiration of any insurance. Insurance policies, with the exception of Workers’ Compensation, [Option: and] Employer’s Liability, [Option: and] [Option: Director and Officer Liability,] will name and the evidence will reflect University as an Additional Insured and will provide that the policies will not be canceled until after thirty (30) days' unconditional written notice to University.
5.8 Insurance Periods. The insurance policies required in this Agreement will be kept in force for the periods specified below:
5.8.1 Commercial General Liability Insurance, Commercial Automobile Liability Insurance, Third Party Employee Crime Insurance [Option: , ] [Option: and] [Option: Director and Officer Liability Insurance] [Option: , ] [Option: and] [Option: Umbrella/Excess Liability Insurance], will be kept in force until receipt of final payment by Contractor to University; and
5.8.2 Workers' Compensation Insurance and Employer’s Liability Insurance will be kept in force until Services have been fully performed and accepted by University in writing.
Section 6.
INDEMNIFICATION
TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR WILL INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS UNIVERSITY AND UT 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 MAY BE 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. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.
IN ADDITION, CONTRACTOR WILL INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS INDEMNITEES FROM AND AGAINST ALL CLAIMS ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY INTEREST ARISING BY OR OUT OF THE PERFORMANCE OF SERVICES OR THE PROVISION OF GOODS BY CONTRACTOR, OR THE USE BY INDEMNITEES, AT THE DIRECTION OF CONTRACTOR, OF ANY ARTICLE OR MATERIAL; PROVIDED, THAT, UPON BECOMING AWARE OF A SUIT OR THREAT OF SUIT FOR INFRINGEMENT, UNIVERSITY WILL PROMPTLY NOTIFY CONTRACTOR AND CONTRACTOR WILL BE GIVEN THE OPPORTUNITY TO NEGOTIATE A SETTLEMENT. IN THE EVENT OF LITIGATION, UNIVERSITY WILL REASONABLY COOPERATE WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.
Section 7.
REPRESENTATIONS AND WARRANTIES
7.1 Organization and Authority. Contractor represents 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, 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.
7.2 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 it is exempt from the payment of those taxes, or that it is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.
7.3 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.
7.4 Payment of Debt or Delinquency to the State. 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 such debt or delinquency is paid in full.
7.5 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.
7.6 Products and Materials Produced in Texas. If Contractor will provide services under this Agreement, Contractor 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 such products and materials are available at a price and delivery time comparable to products and materials produced outside of Texas.
7.7 No Conflict. Contractor has not entered into, and during the Term of this Agreement will not enter into, any other agreements that would conflict with Contractor’s obligations under this Agreement or prevent it from fully complying with the provisions of this Agreement.
7.8 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 I-9 Employment Eligibility Verification Form (“I-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 I-9 Form certifying that they are eligible for employment; (2) examine verification documents required by the I-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 I-9 Form, and complete the certification portion of the I-9 Form; and (4) retain the I-9 Form as required by law. 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 in accordance with Section 10. 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.
Section 8.
RELATIONSHIP OF PARTIES
For all purposes of this Agreement and notwithstanding any provision of this Agreement to the contrary, Contractor is an independent contractor and is not a state employee, partner, joint venturer, or agent of University. Contractor will not bind nor attempt to bind University to any agreement or contract. As an independent contractor, Contractor is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any kind, including workers’ compensation insurance.
Section 9.
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: __________________________
__________________________
__________________________
__________________________
Attention:__________________
with copy to: __________________________
__________________________
__________________________
Attention: __________________
If to Contractor: _________________________
_________________________
_________________________
Attention: _________________
or another person or address as may be given in writing by either party to the other in accordance with this Section.
Notwithstanding any other requirements for notices given by a party under this Agreement, if Contractor intends to deliver written notice to University pursuant to Section 2251.054, Texas Government Code, then Contractor will send that notice to University as follows:
___________________
___________________
___________________
___________________
___________________
Attention:___________
Fax: _______________ [NOTE: Fax and email are required by law.]
Email: ______________
with copy to: ___________________
___________________
___________________
___________________
___________________
Attention:___________
Fax: _______________ [NOTE: Fax and email are required by law.]
Email: ______________
or other person or address as may be given in writing by University to Contractor in accordance with this Section.
Section 10.
DEFAULT AND TERMINATION
10.1 Termination Without Cause. This Agreement may be terminated by University without cause by giving Contractor not less than __________ (___) [Option: forty-five (45)] days written notice of University’s intention to terminate this Agreement as of a specified date. In the event this Agreement is terminated by University before the end of the then current contract year, the Royalty will be paid by Contractor to University (on a pro-rata basis through the effective date of termination) in accordance with Section 3 of this Agreement.
[Option (use only if University is comfortable granting Contractor the right to terminate this Agreement without cause): This Agreement may be terminated by Contractor without cause by giving University not less than __________ (___) [Option: forty-five (45)] days’ written notice of Contractor’s intention to terminate this Agreement as of a specific date. In the event this Agreement is terminated by Contractor before the end of the then current contract year, the Royalty will be paid by Contractor to University (on a pro-rata basis through the effective date of termination) in accordance with Section 3 of this Agreement.
10.2 Termination for Default. Except as provided in Section 4.4, in the event of a material failure by a party to this Agreement to perform in accordance with the terms of this Agreement (“default”), the other party may terminate this Agreement upon ________ (___) [Option: thirty (30)] days’ written notice of termination setting forth the nature of the default; provided, that, the default is through no fault of the terminating party. Termination will not be effective if the default is fully cured prior to the end of the __________ [Option: thirty (30)] day period. If Contractor fails to cure any default within _____________ (___) [Option: thirty (30)] days after receiving written notice of default, University will be entitled (but will not be obligated) to cure the default and will have the right, at University's option, to collect any and all reasonable expenses incurred in connection with the curative actions from Contractor or to set off the expenses against any amounts due to Contractor under this Agreement.]
10.3 No Release of Liability. Termination of this Agreement under Sections 4.4, 10.1 or 10.2 will not relieve Contractor or any of its employees, representatives, agents, or subcontractors from liability for any default under the terms of this Agreement or any other act or omission.
10.4 Transition Period. If this Agreement expires or is terminated for any reason, then at University’s option, Contractor will continue to perform Services in accordance with the terms of this Agreement until University contracts with a new qualified and experienced vendor(s) to perform Services or is able to perform Services in-house; provided, that, Contractor will not be required to continue performing Services for more than ___________ (___) [Option: three (3)] months after expiration or termination of this Agreement. Contractor will cooperate with, and assist, University’s efforts to transition Services to another vendor(s) or to perform Services in-house.
10.5 Continuing Obligations. The expiration or termination of this Agreement will not relieve either party of any obligations under this Agreement that by their nature survive expiration or termination.
Section 11.
NO OTHER RIGHTS
Except as expressly granted in this Agreement, nothing in this Agreement is intended to entitle either party to claim any right, title or interest in, or right to use, the name of the other party, the name or existence of any property or facility owned by the other party (or any portion thereof), or any other names, designs, logos, symbols, trademarks, service marks, representations or other identification of the other party.
Section 12.
ASSIGNMENT AND SUBCONTRACTING
12.1 Assignment and Subcontracting. [Option (include if the value of this Agreement is expected to equal or exceed $100,000 or if University has requested a HUB Subcontracting Plan): Except as specifically provided in Exhibit E, Historically Underutilized Business Subcontracting Plan, attached and incorporated for all purposes,] 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 default under this Agreement for which Contractor will be subject to all remedial actions provided by Texas law, 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.
[Option (include if the value of this Agreement is expected to equal or exceed $100,000 or if University has requested a HUB Subcontracting Plan): 12.2 Historically Underutilized Business Subcontracting Plan. Contractor will use good faith efforts to subcontract Services in accordance with the Historically Underutilized Business Subcontracting Plan (“HSP”) (ref. Exhibit E). Contractor will maintain business records documenting its compliance with the HSP and submit a monthly compliance report to University in the format required by the Texas Procurement and Support Services Division of the Texas Comptroller of Public Accounts or any successor agency (collectively, “TPSS”). Submission of compliance reports will be required as a condition for any payments by University under this Agreement. If University determines that Contractor has failed to subcontract as set out in the HSP, University will notify Contractor of any deficiencies and give Contractor an opportunity to submit documentation and explain why the failure to comply with the HSP should not be attributed to a lack of good faith effort by Contractor. If University determines that Contractor failed to implement the HSP in good faith, University, in addition to any other remedies, may report nonperformance to TPSS in accordance with 34 TAC Chapter 20, §§20.101 – 20.108. University may also terminate this Agreement for default and make a claim against Contractor.
12.2.1 Changes to the HSP. If at any time during the term of this Agreement, Contractor desires to change the HSP, before the proposed changes become effective (a) Contractor must comply with 34 TAC Section 20.14; (b) the changes must be reviewed and approved by University; and (c) if University approves changes to the HSP, this Agreement must be amended in accordance with Section 13 to replace the HSP with the revised subcontracting plan.
12.2.2 Expansion of Services. If University expands the scope of Services through a change order or any other amendment, University will determine if the additional Services contain probable subcontracting opportunities not identified in the initial solicitation for Services. If University determines additional probable subcontracting opportunities exist, Contractor will submit an amended subcontracting plan covering those opportunities. The amended subcontracting plan must comply with the provisions of 34 TAC Section 20.14 before (a) this Agreement may be amended to include the additional Services; and (b) Contractor may perform the additional Services. If Contractor subcontracts any of the additional subcontracting opportunities identified by University without prior authorization and without complying with 34 TAC Section 20.14, Contractor will be deemed to be in default of this Agreement under Section 10 and will be subject to any remedial actions provided by Texas law including Chapter 2161, Texas Government Code, and 34 TAC Section 20.14. University may report nonperformance under this Agreement to TPSS in accordance with 34 TAC Chapter 20,§§20.101 – 20.108.]
Section 13.
MERGER AND AMENDMENT
This Agreement (including the Exhibits) constitutes the entire agreement between the parties and supersedes any existing rights in prior contracts between the parties with regard to the subject matter of this Agreement. No prior or contemporaneous agreement, oral or written, will be effective to vary the terms or conditions of this Agreement. No amendment to this Agreement will be effective unless reduced to writing and signed by an authorized representative of each party.
Section 14.
BREACH OF CONTRACT CLAIMS
To the extent that Chapter 2260, Texas Government Code, is applicable to this Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, will be used by University and Contractor to attempt to resolve any claim for breach of contract made by Contractor that cannot be resolved in the ordinary course of business. The chief business officer of University will examine Contractor's claim and any counterclaim and negotiate with Contractor in an effort to resolve the claims. The parties specifically agree that (a) neither the execution of this Agreement by University nor any other conduct, action or inaction of any representative of University relating to this Agreement constitutes or is intended to constitute a waiver of University’s or the state's sovereign immunity to suit; and (b) University has not waived its right to seek redress in the courts.
Section 15.
GENERAL PROVISIONS
15.1 Approvals. Except as otherwise specified in this Agreement, in every circumstance in which an approval or consent from University is required under this Agreement, Contractor will obtain that approval or consent from the University’s chief business officer.
15.2 Venue; Governing Law. ___________ County [Note: Insert “Travis” or county in which University is located, then delete this note.], Texas, will be the proper place of venue for suit on or in respect of this Agreement. This Agreement and all of the rights and obligations of the parties to this Agreement and all of the terms and conditions of this Agreement will be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Texas.
15.3 Time for Performance. Time is of the essence with regard to this Agreement and Contractor’s performance of Services. Contractor will complete all Preparation Activities, commence delivery of Services and perform Services to the satisfaction of University in accordance with the schedules, deadlines and other terms and conditions set forth in this Agreement. University will have no obligation to accept late performance or to waive timely performance by Contractor.
15.4 University's Right to Audit. At any time during the Term of this Agreement and for a period of four (4) years after the termination or expiration of this Agreement, University or a duly authorized representative of University, UT System, or the State of Texas, at its expense, will have the right to audit Contractor’s records and books relevant to all services provided under this Agreement. In the event an audit reveals any errors or underpayments to University, Contractor will pay to University the full amount of the underpayments within thirty (30) days after being notified in writing of the audit findings.
15.5 Force Majeure. Neither party will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control including acts of God, strikes, epidemics, war, riots, flood, fire, sabotage, or any other circumstances of like character [Option (include for medical institutions): (“Force Majeure Occurrence”). Provided, however, in the event of a Force Majeure Occurrence, Contractor will use its best efforts to mitigate the impact of the occurrence so that University may continue to provide healthcare services during the occurrence].
15.6 Ethics Matters, No Financial Interest. Contractor and its employees, representatives, agents, and subcontractors have read and understand University’s Conflicts of Interest Policy available at [Note: Insert University’s web page where Policy is posted.] [Option (Include for UT System only.): http://www.utsystem.edu/policy/policies/int160.html], University’s Standards of Conduct Guide available at [Note: Insert University’s web page where Guide is posted.] [Option (Include for UT System only.): http://www.utsystem.edu/systemcompliance/], and applicable state ethics laws and rules available at www.utsystem.edu/ogc/ethics. Neither Contractor nor its employees, representatives, agents, or subcontractors will assist or cause University employees to violate University’s Conflicts of Interest Policy, provisions described by University’s Standards of Conduct Guide, or applicable state ethics laws or rules. 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.
15.7 Severability. In case any provision of this Agreement shall, for any reason, 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 in this Agreement. Captions and titles 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.
15.8 Loss of Funding. University’s performance of its duties and obligations under this Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the “Legislature”) and/or allocation of funds by the Board of Regents of The University of Texas System (the “Board”). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then University will issue written notice to Contractor and University may terminate this Agreement without further duty or obligation. Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the control of University.
15.9 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, 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 (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.
15.10 Confidentiality and Safeguarding of University Records; Press Releases; Public Information. Under this Agreement, Contractor may (a) create, (b) receive from or on behalf of University, or (c) 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, (a) University designates Contractor as a University official with a legitimate educational interest in University Records, and (b) Contractor acknowledges that its improper disclosure or redisclosure 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: (a) hold University Records in strict confidence and will not use or disclose University Records except as (i) permitted or required by this Agreement, (ii) required by Applicable Laws, or (iii) otherwise authorized by University in writing; (b) 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; (c) continually monitor its operations and take any action necessary to assure 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 (d) comply with University Rules 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.
15.10.1 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) business 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.
15.10.2 Return of University Records. Contractor agrees that within thirty (30) 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 (20) 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.
15.10.3 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 Section.
15.10.4 Press Releases. Except when defined as part of the Services, Contractor will not make any press releases, public statements, or advertisement referring to the Project or the engagement of Contractor as an independent contractor of University in connection with the Project, or release any information relative to the Project for publication, advertisement or any other purpose without the prior written approval of University.
15.10.5 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.
15.10.6 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 Section, University may immediately terminate this Agreement without notice or opportunity to cure.
15.10.7 Duration. The restrictions and obligations under this Section will survive expiration or termination of this Agreement for any reason.
SECTION 16.
ACCESS BY INDIVIDUALS WITH DISABILITIES
Contractor represents and warrants (“Accessibility Warranty”) that at all times during the Term the Equipment will be compliance with (a) all applicable requirements of the Americans with Disabilities Act and (b) the following standards/specifications:
16.1 Usable by People with Disabilities. Contractor’s Equipment will be usable by people with disabilities without requiring an end-user to attach assistive technology to the product. Personal headsets for private listening are not assistive technology.
16.2 Sufficient Time to Respond. When Equipment requires a timed response, the user will be alerted and given sufficient time to indicate more time is required.
16.3 Mechanically Operated Controls. If Equipment utilizes touch screens, contact-sensitive controls, or has mechanically operated controls or keys, then the Equipment will comply with the following, as applicable:
16.3.1 All controls and keys will be tactilely discernible without activating the controls or keys.
16.3.2 All controls and keys will be operable with one hand and will not require tight grasping, pinching, or twisting of the wrist. The force required to activate controls and keys will be 5 lbs. (22.2 N) maximum.
16.3.3 If key repeat is supported, the delay before repeat will be adjustable to at least 2 seconds. Key repeat rate will be adjustable to 2 seconds per character.
16.3.4 The status of all locking or toggle controls or keys will be visually discernible, and discernible either through touch or sound.
16.4 Color Coding. Equipment will not use color coding as the only means of conveying information, indicating an action, prompting a response, or distinguishing a visual element.
16.5 Flicker Rate. Equipment that includes a video screen will be designed to avoid causing that screen to flicker with a frequency greater than 2 Hz and lower than 55 Hz.
16.6 Freestanding, Non-Portable Equipment. Equipment that is freestanding, non-portable, and intended to be used in one location and which has operable controls will comply with the following:
16.6.1 Reference Plane. The position of any operable control will be determined with respect to a vertical plane, which is 48 inches in length, centered on the operable control, and at the maximum protrusion of the Equipment within the 48 inch length.
16.6.2 Height of Control 10 Inches or Less Behind Reference Plane. Where any operable control is 10 inches or less behind the reference plane, the height will be 54 inches maximum and 15 inches minimum above the floor.
16.6.3 Height of Control More Than 10 Inches Behind Reference Plane. Where any operable control is more than 10 inches and not more than 24 inches behind the reference plane, the height will be 46 inches maximum and 15 inches minimum above the floor.
16.6.4 Distance of Control Behind Reference Plane. Operable controls will not be more than 24 inches behind the reference plane.
SECTION 17.
BOARD APPROVAL
This Agreement is not effective or binding until approved by the Board.
University and Contractor have caused their authorized representatives to execute and deliver this Agreement to be effective as of the Effective Date.
CONTRACTOR UNIVERSITY
By: __________________________ By: __________________________
Name: _______________________ Name: _______________________
Title: _________________________ Title: ________________________
Date Signed: _________________ Date Signed: ________________
Attachments:
Exhibit A – Preparation Activities and Schedule
Exhibit B – Campus Locations for Equipment
Exhibit C – Products and Sales Prices
Exhibit D – Vending Royalty Schedule
[Option (include if the value of this Agreement is expected to equal or exceed $100,000 or if University has requested a HUB Subcontracting Plan): Exhibit E – HUB Subcontracting Plan]
EXHIBIT A
PREPARATION ACTIVITIES AND SCHEDULE
EXHIBIT B
CAMPUS LOCATIONS FOR EQUIPMENT
[ATTACH CAMPUS MAP AND BUILDING FLOOR PLANS SHOWING LOCATION OF EQUIPMENT.]
EXHIBIT C
PRODUCTS AND PRODUCT PRICING LIST
PRODUCTS CASE/PACK PRICE PER CASE/PACK
Carbonated, 20 oz. 24 Rs_______
Carbonated, 12 oz. 24 Rs_______
_________________ ___ Rs_______
_________________ ___ RS_______
EXHIBIT D
VENDING ROYALT SCHEDULE
[Option: EXHIBIT E
HUB SUBCONTRACTING PLAN
ATTACH IF APPLICABLE]
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