SPACE SEGMENT ACQUISITION
This contract (“Contract” or “Agreement”) is made and entered into by and between
(“Contractor” or “Vendor”) and the Department of Public Safety, an agency of the State of
Texas, (“TXDPS”), pursuant to Request for Offer No. 405-C7-9019. Contractor and TXDPS are
collectively referred to in this contract as the “Parties.”
WHEREAS, on the basis of the written representations contained in Contractor’s offer, as well as
Contractor’s presentation, discussions with Contractor and Contractor’s experience relating to the
deliverables contemplated by this contract, TXDPS desires to engage Contractor to provide the
deliverables on the terms and conditions as stated herein;
WHEREAS, Contractor has represented to TXDPS that Contractor is a leader in and has
extensive experience in providing the deliverables made the basis of this Contract;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, Contractor and
TXDPS hereby covenant and agree as follows:
II. TERMS AND CONDITIONS
1. Controlling Order of Contract
This Contract between TXDPS and Contractor consists of the documents listed below. In the
event of any conflicts between the documents, the documents will control in the following order
a. The following contract documents:
i. This Contract, including any appendices
ii. TxDPS Request for Offers as posted, including all attachments or appendices
iii. Any modifications to or clarifications of Contractor’s offer
iv. Contractor’s original offer as submitted, including Contractor’s executed Affirmation
Clauses, HUB Subcontracting Plan and Service Level Agreement; excluding and
financial statements or financial information submitted.
b. TXDPS Purchase Order, including any Purchase Order Change Notices and excluding any
pre-printed terms and conditions.
2. Contract Term
This Contract will be effective for a period of three (3) years from the date of execution
by the last of the two Parties to this contract. TXDPS reserves the right to renew this Contract, in whole or in part under the same terms, price and conditions, for up to seven
(7) additional years in increments of one or more years at a time, for a total contract term
of ten (10) years. TXDPS reserves the right to exercise this option by providing written
notice to the Contractor not less than sixty (60) days prior to the expiration of the original
term of this Contract or any anniversary date thereof. Any renewal will only become effective after both parties sign a document to renew this Contract.
3. Time is of the Essence
Time is of the essence in the delivery of the deliverables as set forth in this Contract. 4. Submitting Invoices and Receiving Payment / Acceptance Process TXDPS will pay Contractor on the basis of itemized invoices submitted to and approved by TXDPS, showing the actual deliverables delivered, the attendant charge and a reference to the contract section that provides the basis for each charge. Itemized invoices must clearly identify the project phase or title, the deliverable, the number of hours that each allocated employee worked and the date range of work performed for the associated charge. Chapter 2251 of the Texas Government Code shall govern payment and accrual of interest on any overdue payments.
Invoices must also include the TXDPS Purchase Order number, Contractor’s Texas Identification
Number (TIN), Contractor’s address, Contractor’s contact person and Contractor’s phone
number. All invoices must be mailed to:
TEXAS DEPARTMENT OF PUBLIC SAFETY
ATTENTION: IMS Telecommunications
PO BOX 4087
AUSTIN TX 78773
TXDPS will not incur any penalty for late payment if the invoice was not mailed to the appropriate address identified herein.
If TXDPS, for any reason, including lack of supporting documentation, disputes any items in any invoices submitted by Contractor, TXDPS shall timely notify Contractor of the dispute and request clarification and/or remedial action. TXDPS will pay the undisputed portion of the invoice. If the dispute is resolved in the Contractor’s favor, TXDPS will pay the remaining
portion of the original invoice in accordance with the Prompt Payment Act, Chapter 2251 of the Texas Government Code. If the dispute is resolved in TXDPS’ favor, the Contractor shall resubmit an invoice reflecting all corrections and/or provide supporting documentation for the previously disputed items.
TXDPS will only accept a properly itemized invoice for payment for each deliverable in accordance with the payment schedule.
TXDPS will not reimburse for any travel or per diem expenses.
5. Compliance with Permitting and Purchasing Laws Contractor must be in compliance with any and all applicable permitting and purchasing laws that Texas state agencies must address before conducting business with a vendor.
Contractor agrees that payments under this Contract must be applied towards any of Contractor’s
debts to the State of Texas, including, but not limited to any child support or delinquent taxes, until paid in full.
6. Compliance with State, Federal, and Local Laws, Rules and Regulations Contractor must comply with all applicable state, federal and local laws and ordinances in providing deliverables to TXDPS under this Contract. Without limiting the generality of the foregoing, Contractor must be able to demonstrate compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of W-2s to common law employees. Contractor is responsible for both federal and state unemployment insurance coverage and standard workers' compensation insurance coverage. Contractor must comply with all federal and state tax laws and withholding requirements. TXDPS will not be liable to Contractor/subcontractor(s) or its employees for any unemployment insurance or workers' compensation coverage or federal or state tax withholding requirements. Contractor may be required to demonstrate compliance with such laws at the written request of TXDPS.
Contractor shall provide all labor and equipment necessary to furnish the deliverables under this Contract. All employees of Contractor shall be a minimum of 17 years of age and experienced in the type of work to be performed. Absent prior, written permission from TXDPS, no visitors or relatives of Contractor’s employees and subcontractors will be allowed on State property unless
they are bona fide employees or subcontractors of Contractor performing work under this Contract.
Contractor agrees that at all times its personnel must observe and comply with all laws, regulations and rules pertaining to state facilities, including but not limited to parking and security regulations. Additionally, Contractor personnel must agree to and comply with all relevant TXDPS policies that relate to the security of data and confidentiality of information.
In the event that any of Contractor’s personnel has failed to comply with such laws, regulations or
rules, TXDPS will have the right to require Contractor to remove such person from any involvement in this contract.
7. Conflict of Law, Choice of Law, U.N. Convention on Contracts and Venue This Contract shall be governed by the substantive and procedural laws of the State of Texas. The following shall not apply to this contract: a) the conflicts of law principles and rules of any other jurisdiction; and b) the United Nations Convention on Contracts for the International Sale of Goods.
Venue for any contract claims or litigation shall be in the State Office of Administrative Hearings or a court of competent jurisdiction in Travis County, Texas.
8. Force Majeure
Neither Contractor nor TXDPS shall be liable to the other for any delay in performance of, or failure to perform, any obligation contained herein caused by force majeure, provided the party
seeking to be excused has prudently and promptly acted to take any and all reasonable corrective measures that are within such party’s control; and provided, further, that any action or inaction by a subcontractor of a party shall not be considered to be outside the control of such party except to the extent the Parties may expressly agree otherwise in this Contract. The existence of such
causes of delay or failure shall extend the period of performance until after the causes of delay or
failure have been corrected.
Force majeure is defined as those causes beyond the control of the party required to perform that
are generally recognized under Texas law as a force majeure event, such as acts of God, acts of
war, epidemic and court orders. Contractor shall immediately upon discovery notify the TXDPS
project manager in writing of any delays in the implementation schedule or provision of goods or
services without regard to responsibility, fault or negligence.
9. Foreseeable Delay
If a delivery delay is foreseeable and the delay is not caused by a force majeure event,
Contractor must still give written notice to TXDPS. TXDPS has the right to extend the
delivery date if reasons appear valid. The Contractor must keep TXDPS advised at all
times of status of the deliverable. Default in promised (without accepted reasons) or
failure to meet specifications authorizes TXDPS to purchase deliverables elsewhere and
charge full increase in costs, if any, to Contractor, in addition to all other legal and
10. No Substitutions and Delivery Times
No substitutes or cancellations are permitted without written approval of TXDPS.
Delivery shall be made during normal working hours only, unless approval for late
delivery has been obtained from TXDPS in writing.
If one or more provisions of this Contract, or the application of any provision to any party or
circumstance, is held invalid, unenforceable, or illegal in any respect by a final order/judgment of
the State Office of Administrative Hearings or a court of competent jurisdiction, the remainder of
this Contract and the application of the provision to other parties or circumstances will remain
valid and in full force and effect.
Any provisions of this Contract that impose continuing obligations on the Parties including, but
not limited to the following, will survive the expiration or termination of this Contract for any
a. The indemnity obligations,
b. Contractor’s news release, advertisement and publicity restrictions,
c. Ownership rights
d. Recordkeeping requirements and audit rights
f. Confidentiality and security obligations, including the FBI CJIS Security Addendum as it
now exists and as it may thereafter be amended
g. And any other provisions of this Contract that impose continuing obligations on either of
the Parties or that govern the rights and limitations of either of the Parties after the expiration
or termination of this Contract.
13. Non-Waiver of Defaults
Any failure of TXDPS, at any time, to enforce or require the strict keeping and performance of any provision of this Contract will not constitute a waiver of such provision; will not affect or impair same or the right of TXDPS at any time to avail itself of same. A waiver does not become effective unless TXDPS expressly agrees to such waiver. Any acceptance, payment or use by TXDPS regarding any deliverable shall not constitute a waiver or otherwise impair or prejudice any right, power, privilege or remedy available to TXDPS to enforce its rights, as such rights, powers, privileges and remedies are specifically preserved.
14. No Liability for Employees and Officers
Each party to this Contract shall have no liability whatsoever for the actions or omissions of an individual employed by another party, regardless of where the individual’s actions or omissions occurred. Each party is solely responsible for the actions and/or omissions of its employees and officers; however, such responsibility is only to the extent required by Texas law. Where injury or property damage result from the joint or concurring negligence of the Parties, liability, if any, shall be shared by each party in accordance with the applicable laws of the State of Texas, subject to all defenses, including governmental immunity. These provisions are solely for the benefit of the Parties hereto and not for the benefit of any person or entity not a party hereto; nor shall any provision hereof be deemed a waiver of any defenses available by law.
15. Legislative Action
TXDPS is a state agency whose authority is subject to the actions of the Texas Legislature and the United States Congress. If TXDPS and/or the subject matter of this Contract become subject to a legislative or regulatory change or the revocation of statutory or regulatory authority that would render the deliverables to be provided under this Contract impossible, unnecessary, void or substantially amended or that would terminate the appropriations for this Contract, TXDPS may immediately terminate this Contract without penalty to, or any liability whatsoever on the part of, TXDPS, the State of Texas and the United States. This Contract does not grant Contractor a franchise or any other vested property right.
Termination under this section is immediate, so TXDPS is not required to provide 30 days notice under this section.
If any of the following occur, TXDPS may, upon thirty days written notice to the Contractor, reduce the price under this Contract in accordance with the reduction of any deliverables in such manner and for such periods of time as TXDPS may elect: a) funding for this Contract is reduced by law, b) the statutory amount of compensation authorized for the Contractor is reduced or c) the Legislative Budget Board requests TXDPS to reduce the TXDPS budget by a certain percentage. 16. Termination by Default
In the event that Contractor fails to carry out or comply with any of the requirements of this Contract with TXDPS, TXDPS may notify Contractor of such failure or default in writing and demand that the failure or default be remedied within ten (10) days. In the event that Contractor fails to remedy such failure or default within the ten (10) day period, TXDPS will have the right to cancel this Contract upon ten (10) days written notice.
The cancellation of this Contract, under any circumstances whatsoever, will not affect or relieve Contractor from any liability that may have been incurred pursuant to this Contract, and such cancellation by TXDPS will not limit any other right or remedy available to TXDPS at law or in equity.
Termination for Cause or Convenience 17.
This Contract may be terminated as follows:
? For Convenience: This Contract may be terminated, without penalty, by TXDPS, without
cause by giving thirty (30) days written notice of such termination to Contractor.
? For Cause: This Contract may be terminated by TXDPS if Contractor fails to perform as
agreed or is otherwise in default, without the necessity of complying with the requirements in
the section herein entitled “Termination by Default.”
? Termination for listing on the Terrorism List (Executive Order 13224), on the Federal
Excluded Party List or on the Texas Building and Procurement Commission’s Debarred
Vendor List – DPS shall have the absolute right to terminate this Contract without recourse as
follows: a) if Contractor becomes listed on the prohibited vendors list authorized by
Executive Order #13224, “Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism,” published by the United States
Department of the Treasury, Office of Foreign Assets Control; or b) if Contractor becomes
suspended or debarred from doing business with the federal government as listed in the
Excluded Parties List (EPLS) maintained by the General Services Administration; or c) if
Contractor becomes listed on the Texas Building and Procurement Commission’s Debarred
Vendor List. DPS will provide Contractor with written notice to terminate the Contract,
which termination will become effective immediately upon Contractor’s receipt of the notice.
If Contractor defaults on the Contract, TXDPS reserves the right to cancel the Contract without
notice and to either re-solicit or re-award the contract to the next best responsive and responsible offeror. The defaulting contractor will not be considered in the re-solicitation and may not be
considered in future solicitations for the same type of work, unless the specification or scope of
work significantly changed.
18. Termination Liability (for Termination for Convenience)
In no event will termination for convenience by TXDPS give rise to any liability whatsoever on
the part of TXDPS whether such claims of Contractor are for compensation for anticipated profits,
unabsorbed overhead, interest on borrowing, or for any other reason. TXDPS’ sole obligation
hereunder is to pay Contractor for deliverables ordered and received prior to the date of
termination, if TXDPS accepts such deliverables.
19. No Joint Enterprise
TXDPS is associated with Contractor only for the purposes and to the extent set forth herein, and
with respect to the creation and delivery of deliverables hereunder, Contractor is and shall be an
independent contractor and shall have the sole right to supervise, manage, operate, control, and
direct the performance of the details incident to its duties hereunder. Nothing contained herein
shall be deemed or construed to create a partnership or joint venture, to create the relationships of an employer-employee or principal-agent, or to otherwise create any liability for TXDPS
whatsoever with respect to the indebtedness, liabilities, and obligations of Contractor or any other party.
20. Assignment by the Contractor
Contractor must not assign or transfer any interest in this Contract without the express, prior
written consent of TXDPS.
This Contract shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors, heirs, administrators, personal representatives, legal representatives and permitted assigns.
22. News Releases, Advertisements and Publicity
Contractor must not make any news releases, public announcements, or public disclosures, nor will it have any conversations with representatives of the news media, pertaining to this Contract, without the express, prior written approval of TXDPS, and then only in accordance with explicit written instructions from TXDPS.
Contractor must not use the name of the State of Texas or TXDPS in any advertisement, promotion or otherwise for any purpose regarding this Contract without the express prior written consent of TXDPS. TXDPS is not authorized to provide endorsements.
Notwithstanding the foregoing, Contractor may make any disclosures required by law or regulation without the approval of TXDPS.
23. Employee Non-Solicitation
Contractor must not, during the term of this Contract and for a period of twelve (12) months thereafter, solicit for employment any person who is a TXDPS employee or was a TXDPS employee during the previous twelve (12) months with whom Contractor had substantial contact in the course of performing its obligations under this Contract. Indirect solicitations, such as newspaper and internet announcements, are not prohibited by this section.
24. Contract Amendments
No modification or amendment to this Contract will become valid unless in writing and signed by both Parties. All correspondence regarding modifications or amendments to this Contract must be forwarded to TXDPS for prior review and approval. Only the Executive Director of the Texas Department of Public Safety or his/her designee will be authorized to sign changes or amendments.
25. Confidentiality and Security Requirements
This section is subject to the section herein entitled “Ownership of Deliverables” and “Licenses
All information provided by TXDPS to Contractor or created by Contractor in performing the obligations under this Contract is confidential and shall not be used by Contractor or disclosed to any person or entity, unless such use or disclosure is required for Contractor to perform work under this Contract.
The obligations of this section do not apply to information that is required to be disclosed by law or final order of a court of competent jurisdiction or regulatory authority, provided that Contractor shall furnish prompt written notice of such required disclosure and shall reasonably cooperate with TXDPS, at TXDPS’ cost and expense, in any effort made by TXDPS to seek a
protection order or other appropriate protection of its confidential information.
Contractor shall notify TXDPS of any unauthorized release of confidential information within
two (2) days of when Contractor knows or should have known of such unauthorized release.
Contractor agrees to maintain all confidential information in confidence during the term of this
Contract and after the expiration or earlier termination of this Contract.
If Contractor has any questions or doubts as to whether particular material or information is
confidential information, Contractor shall obtain the prior written approval of TXDPS prior to
using, disclosing or releasing such information.
Contractor acknowledges that TXDPS’ confidential information is unique and valuable, and that
TXDPS will have no adequate remedy at law if Contractor does not comply with its
confidentiality obligations under this Contract. Therefore, TXDPS shall have the right, in
addition to any other rights it may have, to obtain in any Travis County court of competent
jurisdiction temporary, preliminary and permanent injunctive relief to restrain any breach,
threatened breach, or otherwise to specifically enforce any confidentiality obligations of
Contractor if Contractor fails to perform any of its confidentiality obligations under this Contract.
Contractor shall immediately return to TXDPS all confidential information when this Contract
terminates or at such earlier time as when the confidential information is no longer required for
the performance of this Contract or when TXDPS requests that such confidential information be
Information, documentation and other material in connection with this Contract, including
Contractor’s offer, may be subject to public disclosure pursuant to Chapter 552 of the Texas Government Code.
The FBI and TXDPS have computer security requirements, including requirements regarding
connections to the internet by any computer connected to TXDPS local area networks or
mainframe system. Contractor’s and subcontractor’s employees working on this project must
sign appropriate agreements and abide by these security requirements, upon request by TXDPS.
26. Right to Audit and Inspect
At any time during the term of this Contract and for a period of four (4) years thereafter (as
applicable), TXDPS or a duly authorized audit representative of TXDPS, at its expense and at
reasonable times, reserves the right to:
26.1 Inspect Services and Other Deliverables
1. TXDPS has the right to inspect and test all services and all other deliverables listed in
this Contract, to the extent practicable at all times and places during the term of this
Contract. TXDPS shall perform inspections and tests in a manner that will not
unduly delay the work.
2. If TXDPS performs inspections or tests on the premises of Contractor or a
subcontractor, Contractor shall furnish, and shall require subcontractor(s) to furnish,
at no increase to this Contract’s price, all reasonable facilities and assistance for the
safe and convenient performance of these duties.
If any of the deliverables do not conform to this Contract’s requirements, TXDPS
may require Contractor to perform the deliverables again in conformity with this
Contract’s requirements, at no increase in this Contract’s amount, in addition to all
other legal and equitable remedies.
TXDPS reserves the right to audit Contractor’s records and documents regarding
compliance with this Contract. Contractor is also subject to audit by any other
department or agency, including federal agencies, responsible for determining that the
Parties have complied with the applicable laws. The State Auditor may conduct an audit
or investigation of any entity receiving funds from the State of Texas directly under this
contract or indirectly through a subcontract under this contract. Acceptance of funds
directly under this contract or indirectly through a subcontract under this contract acts as
acceptance of the authority of the State Auditor, under the direction of the legislative
audit committee, to conduct an audit or investigation in connection with those funds.
Under the direction of the legislative audit committee, an entity that is the subject of an
audit or investigation by the State Auditor must provide the State Auditor with access to
any information the State Auditor considers relevant to the investigation or audit.
Contractor must keep all records and documents regarding this Contract for the term of
this Contract and for four (4) years after the termination of this Contract.
In the event such an audit by TXDPS reveals any errors by TXDPS or the Contractor, the
Contractor shall refund TXDPS the full amount of such overpayments within thirty (30)
days of such audit findings, or TXDPS at its option reserves the right to deduct such
amounts owing TXDPS from any payments due Contractor.
27. Ownership of Deliverables
With the exception of any software or source code, any research, reports, studies, data,
photographs, negatives or other information, documents, drawings or materials prepared by
Contractor in the performance of its obligations under this Contract shall be the exclusive
property of the State of Texas. Contractor must deliver, in a format requested by TXDPS, all
such research, reports, studies, etc. to TXDPS upon completion, termination or cancellation
of this Contract or upon the deadline established for providing each deliverable to TXDPS
under this Contract, whichever is sooner. The ownership rights herein shall include, but not
be limited to, any copyrights, patents, trade secrets, copyright or patent applications, other
intellectual property, as well as the right to copy, publish, display, transfer, license, prepare
derivative works, or otherwise use the research, reports, studies, etc.
As between the Parties, TXDPS owns all of the information transmitted through the satellite.
Copies of the required Certificates of Insurance must be provided to TXDPS prior to the
date Contractor begins performance under this Contract.
All required insurance must be issued by companies that are A+ financially rated and
duly licensed, admitted, and authorized to do business in the State of Texas. TXDPS will
be named as an additional insured on all required coverages. Required coverages must
remain in effect through the term of this Contract.
Standard Insurance Provisions
1. Workers’ Compensation and Employers’ Liability coverage with limits
consistent with statutory benefits outlined in the Texas Workers’
Compensation Act (Section 401.001 et seq. of the Texas Labor Code) and
minimum policy limits for Employers’ Liability of $250,000 bodily injury per
accident, $500,000 bodily injury disease policy limit and $250,000 per disease
2. Commercial General Liability with limits of not less than $500,000 for each
occurrence of personal injury and $1,000,000 per general aggregate for
personal injury and property damage insurance in the amount of $100,000 for
any one occurrence. The policy must contain the following provisions:
a. Independent Contractor’s coverage
b. TXDPS, listed as an additional insured
c. Thirty (30) day Notice of Cancellation in favor of the TXDPS
d. Waiver of Subrogation Rights
29. Chapter 2260, Texas Government Code
The Texas Government Code, Chapter 2260, prescribes dispute resolution processes for
certain breach of contract claims applicable to certain contracts for goods and services. If and
to the extent Chapter 2260 applies to this Contract, the Contractor shall comply with the
requirements of Chapter 2260 and the TXDPS administrative rules adopted pursuant to
Contractor hereby assigns to TXDPS any and all claims for overcharges associated with this
Contract arising under the antitrust laws of the United States, 15 U.S.C.A. Section 1, et seq.
(1973), and the antitrust laws of the State of Texas, Texas Business and Commerce Code
Section 15.01, et seq. (1967).
CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD TXDPS AND
THE STATE OF TEXAS (INCLUDING ITS DIRECTORS, EMPLOYEES,
AGENTS AND THEIR SUCCESSORS) HARMLESS FROM AND AGAINST
ANY OF THE FOLLOWING THAT ARISE OUT OF OR RESULT FROM
CONTRACTOR’S NEGLIGENCE (ANY AND ALL), FAULT, ACT, FAILURE
TO ACT, OMISSION, BREACH OF THIS CONTRACT OR VIOLATION OF
ANY STATE OR FEDERAL LAW AND/OR REGULATION, AS WELL AS
ANY VIOLATION OF ANY MATTER MADE THE BASIS OF A TREATY
AND/OR CONVENTION AND/OR AGREEMENT BETWEEN THE UNITED
STATES AND ANOTHER NATION: CLAIMS; LAWSUITS; DAMAGES;
LIABILITIES; PENALTIES; TAXES; FINES; INTEREST; EXPENSES