HomeMy WebLinkAboutC2008-128 - 4/1/2008 - NA ' + ~ ~ ~
1
~RI~~I~NAL ~I~~I~ I~I~~ LIED APTIININ
This CONTRACT is made and entered into by and between the City of Corpus Christi
~"CITY"}, a Texas municipal corporation, acting by and through its City Manager, and Terry
McGinty, rn her ind~v~dual capacity dlbla Texas Closed Capt~on~ng ~"CONTRACTOR"}
collectively the "Parties"}.
wITN~SETH
wI~ER.EA, CITE desires to secure professional services for the purpose of
it~plementin live closed captioning services in the City Council Chambers ~"the Project"}; and
wHER.EA, CONTRACTOR has agreed to provide such professional services for the
compensation provided herein:
NOw, TI~EREFORE, FOR VALUABLE CONSIDERATION, the Parties hereto
severally and collectively agree and by the execution hereof are bound, to the mutual obligations
herein contained and tv the performance and accomplishment of the tasl~s hereina~er described.
I. TERM
l . l The primary term of the contract shall be one year beginning ~ I -207 and ending
3~-~~~8.
l If the City has not completed the bidding Process and warded a new professional
services contract for live closed captioning upon the expiration of this Agreement, then
Contractor must continue to provide services under this Agreement, at Its Current fee, on
a month-to-month basis until a new contract is awarded by the City Manager or designee.
This agreement automatically expires on the effective date of a new contract. The City
Manager or designee will provide written notice of the effective date of the new contract
to Contractor.
1.3 ~]urin any extended term of the contract, the terms of the contract shall remain
materially the same as the contract applicable during the primary term.
~ ,4 The City may terminate the contract immediately for cause either by oral or written
notice to the CONTRACTOR. or its agent Termination for cause may be given only
under the circumstances set out in paragraph 5 of the CONTRACT The City may
terY~linate the contract VVlth or without cause upon thirty ~ days prlor wrltten notice to
the CONTRACTOR or its agent.
II. SCOPE OF wO.
~.1 CONTRACTOR, in accordance and compliance with the terms, provisions and
requirements of the CONTRACT shall manage, perform and provide all activities and
Q~~~~~~~
1
1Vlc~inty, Terry .
~ ' ~ i f
t
services and produce all reports set out in ~NTRA~TOR' Response to the ITS'
Request for Proposal, a copy of said Response being attached hereto and incorporated
herein for all purposes as F~xhibit "A,"
~~Z Modi~catlons or alterations to Exhibit "A" may be nnade only pursuant to prior
madif
icatian and written ~ppro~ral by CITY and ~NTRATQR. -
2.3 DNTRA~TDR warrants and represents that any person performing on its behalf under
thl DNTRAT pUSSesses the ~blllty, licenses, certifications and skills necessary to
provide the services. The DNTRATDR must maintain and provide proof of at least
three of the following certificates for each captioner, one of which must be for ARR.
Texas , or equivalent
ERR, certified Real-tune Reporter
RPR, Registered Real-tune Reporter
RMR, Registered Merit Reporter
2.4 DNTRATDR warrants and represents that it and any person ar entity performing under
this ~DNTRAT shall comply with any and all applicable federal, state and local laws
and regulations, including the American with Disabilities Act of 1990.
~ The DNTRATOR' office shall be open and available to provide assistance to the
pity at least from 9:00 a.m. to x:00 p.in. on all weekdays except far weekdays that are
also legal holidays. The actual live closed captioning hours may extend beyond the
Scheduled tune. The DNTRATDR is expected to remain an the fob until the meetings
are ad~aurned.
III. DIVIPENATIDN AND DST
3 ~ 1 For services rendered as herein described, CITY agrees to pay and ~DNTRATDR
agrees to accept either payment option at the ITY's discretion:
~A} Lump hum Payment of $2~,aaa far ~aa captioning hours x$11 Olhour}, with any
additional captioning hours paid at the rate of l l 0 per captioning hour; or
~B} Monthly Payment for captioning services based on a rate of $ l 10 per captioning
hour.
~,2 DNTRA~TDR understands and agrees that all casts and expenses incurred by it under
this DNTRAT, including but not limited to lobar, supervision of woxli, report
reproduction, typing, travel, insurance, communication, computer access, materials, -
supplies, UBONTRATOR casts, postage, telephone, stationary, rent and any and all
other casts and expenses necessary to complete this CONTRACT shall be borne by
CDNTRACT~R and paid from the ruin set out in paragraph 3 ~ 1 -
r , f
+ 1
3.3 gNTRAT~R understands and agrees that it shall be compensated on a reirnbursen~ent
basis and that payments will be processed based on documented completion of the task or
phase so tang asp
A} payment does not exceed the actual cost of the work con~pleted~
B ex erases are properly documented at the tine the progress billing is submitted;
~ ~ p
and,
a went would not exceed the total value of this ~NTRAT, asset out in
~ } py
paragraph 3. l
Far reimbursement purposes under this gNTRACT, ~NTRATgR shall submit a
. ' Relations the "I]e artment" an or before the fifteenth ~l
progress billing to ~Iuman { p }
da of each month during the term of this ~NTRA~T~ Regarding the final billing,
~ acct
however, ~gNTRAT~R shall be permitted thirty {3a~ days from the date of Pxo~ .
corr~pletian during which to submit Bald billing,
each b111in submitted under ara raph ~.4 shall reference this ONTRAT and shall be
3.5 p
certified as fallows~
"I {we}hereby certify that the above bill is correct and dust and that
payment thereof has not been received."
3,~ LJ on recei t of an approval by 1TY of each of OI~TRATgR.'s billing packages,
p p
CITY a reel to pay ~NTRATgR an amount equal to CITY s liabilities not
g .
reviousl billed to and subsequently paid by CITY within 3~ days of receipt afthe
f
billin acka e, sub`ect to deduction far any costs questioned or not allowable. In the
gp J
event CITY elects to mare the Lump burn Payment described in paragraph .1 {A~, QTY
shall make such a ent to gNTATgR no later than ~ days frorri execution ofthis
P
gNTRAT by the pity tanager.
.7 QTY re resents that it has complied v~ith all procedures necessary to retain
p .
ONTRAT~R for the services herein and to reirriburse ~~NT1TOR for services
rendered pursuant hereto.
I~. REgRD
4.1 gNTRA~TOR a reel to and shall maintain all books, documents, papers, accounting
g .
records and other evidence pertaining to this Project and shall make such materials
available at their res ective offices at all reasonable times during the contract period for
the ose of accounting and audit inspections by CITY, BUD, the oinptroller general
P .
of the United Mates, aridlor any other authorised representatives Furthermore,
01~TRA~~T~R shall retain all records for a period of no less than four {4} years after
this CgNTRAT terminates and thereafter may only be destroyed upon ITY's written
3
i ~ f
e 1
t
a roval. The oblrgattons imposed under this paragraph shall survive termination of this
CONTRACT.
4.~ C~NTRACT~~ farther agrees to require and oversee that any and all
UBC~NT~.ACT~R ar any other person or entity that performs any service or activity
under this C~NTR.ACT shall comply with paragraph 4.1,
4, CONTRACT~~ agrees to and shall cooperate with CITY an any request for documents
and information under the pubic Information ~1ct or other applicable laws, without cast to
the CITY.
TERNiINATI~N
5.1 Termination of this CONTRACT shall mean termination by expiration of the
CONTRACT term or earlier termination pursuant to any of the provisions hereof.
5.2 Natwithstandingny other provision in this CONTRACT, CITY nay terminate this
CONTRACT far any afthe following reasons:
A Ne lector failure by CONTRACTOR to perform or observe any of the terms,
g
conditions, covenants ar guarantees of this CONTRACT
Finding by CITY that CONTRACTOR
l , is in such unsatisfactory financial condition as to endanger performance
under this CONTRACT, including, but not limited:
~a.} The apparent inability of CONTR~ACTOI~ to meet itS financial
obligations, including but not limited to payroll.
~b~} Items that reflect detrirrrentally on the credit worthiness of
CONTRACTOR, including but not limited to, such as liens,
encumbrances, etc., on the assets of CONTRACTOR;
2. is delinquent, in the ordinary course of business, in the payment of taxes
or in the payment of casts of performance of this CONTRACT;
~ ointment of a trustee, receiver ar liquidator far all or a substantial part of
~ ~ pp
CONTRACTOR'S property, or institution of bankruptcy, reorganization,
rearrangement of ar liquidation proceedings by ar against C~NTI~ACTOR.
+{fD The entry by court of competent jurisdiction of a final order providing for the
F ? } i .
modification ar alteration of the rights of CONTRACTOR s creditors,
~ Inabilit b CONTRACTOR to confarrr~ to changes in local, state and federal
~ } y Y
rules, regulations and laws; and
violation by CONTRACTOR of any rule, regulation or law to which
CONTRACTOR is bound or shall be bound under the terms of this CONTRACT.
~ ~ ~
t J
5.3 Upan a decision to terminate written notice of such and the effective date thereof shall be
immediately provided to the other Party. The effective date shall not be far less than ten
a}business days unless otherwise provided in this CONTRACT.
5.~ Upan receipt by CONTRACTOR of a notice to terminate under paragraph 5.3,
CONTRACTOR shall cancel, withdraw or otherwise terminate any outstanding orders or
subcontracts that relate to the perforrr~ance of this CONTRACT. To this effect, C1TY
shall not be liable to CONTRACTOR nor CONTRACTOR'S creditors far any expense,
encumbrances or obligations whatsoever incurred aRer the effective date of termination.
J.J within thirty ~~a~ days of the effective date of terrn~natlan sunless an extension 1s
authorised in writing by CITY}, CONTRACTOR shall submit to CITY a claim for the
monies owed by CITY for services performed through the effective date of ternninatian, if
any. In addition to said cla1rrY,CONTRACTOR shall also submit to CITY all records,
data, reports, and other such materials pertaining to the Project completed through the
effective date of termination. CITY shall then reimburse all reasonable and eligible
expenses and prafessianai fees incurred by CONTRACTOR prior to the effective date of
termination, pravided, however, that such payment does not exceed the maximum
arriount set out in Section 4.1 hereof,
VI, SUBCONTRACTING
l An other clause of this CONTRACT to the contrary notwithstanding, none of the work
y
or services covered by this CONTRACT shall be subcontracted without the prier written
a ravel of CITY, except that CONTRACTOR nay use any of the captianers lder~tlfied
in Exhibit "A" attached hereto to provide services hereunder regardless of whether such
ca tianers are ernplayees of CONTRACTOR ar a SUBCONTRACTOR. Any work or
p
services approved for subcontracting hereunder, however, shall be subcontracted only by
written contract or agreement and unless CITY wants specific waiver in writing, shall be
sub'ect by its terms to each and every provision afthis CONTRACT. Corr~pliance by
~
SUBCONTRACTOR with this CONTRACT shall be the sale respans~b~lity of
CONTRACTOR.
.2 CONTRACTOR agrees that no subcontract approved pursuant to this CONTRACT shall
provide for payment of a cost plus a "percentage of cost" basis.
~.3 Des ite CITY approval of a subcontract, CITY shall in no event be obligated to any third
p
art ,including any SUBCONTRACTOR of CONTRACTOR, for performance of work
p y
or services, nar sha11 CITY funds ever be used for payment of work or services extending
beyond the expiration date of this CONTRACT.
5
~ ~ r , ~ ~
VII. CONFLICT OF INTEREST
7.1 CONTRACTOR covenants that neither it nor any member of its governing body or of its
staff presently has any interest, direct or indirect, which would conflict in any manner or
degree with the performance of services required to be performed under this
CONTRACT. The CONTRACTOR further covenants that throughout the term of this
CONTRACT, no persons having such interest shall be employed or appointed as a
member of its governing body or of its staff.
7.2 No member of CITY's governing body or of its staff who exercises any function or
responsibility in the review or approval of the undertaking or carrying out of this
CONTRACT shall
(A) participate in any decision relating to this CONTRACT which may affect his or
her personal interest ar the interest of any corporation, partnership, or association
in which he or she has a direct or indirect interest; and
(B) have any direct or indirect personal interest in this CONTRACT or the proceeds
thereof.
VIII. INDEMNIFICATION
8.1 CONTRACTOR covenants and agrees to FULLY INDEMNIFY and
HOLD HARMLESS, the CITY and the elected official, employees,
off cers, directors, and representatives of the CITY, individually ar
collectively, from and against any and all costs, claims, liens, damages,
losses, expenses, fees, fines, penalties, proceedings, actions, demands,
causes of action, liability and suits of any kind and nature, including but
not limited to, personal injury or death and property damage, made
upon the CITY, directly or indirec#ly arising out of, resulting from or
related to C4NTRACTOR's activities under this CONTRACT,
including any acts or omissions of CONTRACTOR, any agent, officer,
director, representative, employee, CONTRACTOR or
SUBCONTRACTOR of CONTRACTOR, and their respective officers,
agents, employees, directors, and representatives while in the exercise or
performance of the rights or duties under this CONTRACT, ali without,
however, waiving any governmental immunity available to the CITY
under Texas law and without waiving any defenses of the Parties under
Texas law. The provisions of this INDEMNIFICATION are solely for
the benefit of the Parties hereto and not intended to create or grant any
rights, contractual or otherwise, to any other person or entry.
CONTRACTOR shall promptly advise the CITY in writing of any
claim or demand against the CITY or CONTRACTOR known to
CONTRACTOR related to or arising out of CONTRACTOR's
6
r t r
~ r f
activities under this CUNTRACT and shall see to the investigation and
defense of such claim or demand at CONTRACTOR'S cost. The CITY
shall have the right, at its option and at its own expense, to participate
in such defense without relieving CONTRACTOR of any of its
obligations under this paragraph.
8.2 It is the EXPRESS INTENT of the Parties to this CONTRACT, that the
INDEMNITY provided for in this article {Article VIII), is an
INDEMNITY extended by CONTRACTOR to INDEMNIFY,
PROTECT, and HQLD HARMLESS the CITY from the consequences
of the CITY'S OWN NEGLIGENCE provided, however, that the
INDEMNITY provided for in this article SHALL APPLY only whin the
NEGLIGENT ACT of the CITY is a CONTRIBUTORY CAUSE of the
resultant injury, death, or damage, and shall have no application when
the negligent act of the CITY is the sole cause of the resultant injury,
death or damage. CONTRACTOR further AGREES TO DEFEND, AT
ITS OWN EXPENSE and ON BEHALF OF THE CITY AND IN THE
NAME OF THE CITY, any claim or litigation bought against the CITY
and its elected officials, employees, officers, directors and
representatives, in connection with any such injury, death, damage for
which this INDEMNITY shall apply, as set forth above.
8.3 It is expressly understood and agreed that CONTRACTOR is and shall be deemed to be
an independent CONTRACTOR and operator responsible to all persons for its respective
acts or omissions and that CITY shall in no way he responsible therefore.
IX. CHANGES AND AMENDMENTS
9.1 Except when the terms of this CONTRACT expressly provide otherwise, any alterations,
additions, or deletions to the terms hereof shall only be by written amendment and
approved by formal action taken by each Party's governing body.
9.2 It is understood and agreed by the PARTIES hereto that changes in local, state and
federal rules, regulations or laws applicable hereto may occur during the term of this
CONTRACT and that any such change shall be automatically incorporated into this
CONTRACT without written amendment hereto, and shall become part hereof as of the
effective date of the rule, regulation or law.
X. INSURANCE and APPLICABLE LAWS
1 Q.1 For the duration of ids contract with the City, the CONTRACTOR shall purchase at its
own expense and maintain in effect the following insurance coverages with insurance
campany(s) acceptable to tt~e City's Risk Manager.
7
~ ~ r
~ f
The CONTACTOR must furnish to the City's Risk Manager, {two} ~ copies of
Certificates of Insurance showing the fallowing minimum coverage insurance
company{s} acceptable to the Clty's Risk Manager. The City must be noted as
an addlt~anal Insured far the General I~labil~ty pallcy, and a blanket waiver of
subrogation is required an all applicable policies
~ , CDlr~merc~al general llablltty with a m~nlmum can~b~ned single llmlt of
coverage of SOa,aaa;
The CONTRACTOR must not commence work under this agreement until all
insurance required herein has been obtained and such insurance has been
approved by the City, The C~~TRACTOR must not allow any subcontractor to
cot~mence work until all sirr~ilar insurance of the subcontractor has been obtained.
On the Certificate of Insurance, { 1 }the City of Carpus Christi must be named as
an additional insured on the general liability coverage, and blanket waiver of
subrogation is required on all applicable pol~cles; If your insurance company .
uses the standard ~C~RI) form, the cancellation clause {bottom right} rrrust be
ametlded adding the warding "changed or" between "be}' and "canceled,'} alld
deleting the words "endeavor ta" and deleting the wording after "lei." In the
alternative, verification of endorsement to the applicable policy is acceptable; {3}
The name of the prod ect must be listed under "Description of ~peratians," and {4}
At a rninin~um of ~ ~-days written notice of material change, non-renewal,
cancellation, or termination and a 1 ~-day writken notice of cancellation for non
payment of premium is required.
I a.2 CITY reserves the right to review the insurance requirerraents of this section during the
effective date of this ACrR~MI~NT and any extension ar renewal hereof and to modify
insurance coverage and their limits when deemed necessary and prudent by C1TY's Risk
Manager based upon changes in statutory law, court decisions, or circurr~stances
surrounding this AORE~MENT but in no instance will CITY allow modification
whereupon CITY rrYay i~tcur increased risk. Notwithstandingony other provision of this
CONTRACT, if CONTRACTOR determines CITY's modifications made pursuant to
this paragraph are unacceptable far any reason, CONTRACTOR may terminate this
CONTRACT by providing CITY with at sixty {~~}day notice of such intent. The notice
provided must identify the termination date and the contested modification{s}. It is
agreed that if CITY retracts the contested change{s} in writing prior to the expiration of
the sixty {~a} day period, CONTRACT~R's termination under this paragraph shall not
become effective,
I ~.3 The CITY shall be entitled, upon request and without expense, to receive copies of the
palicies and all endorsements thereto as they apply to the limits required by CITY, and
may make a reasonable request for deletion, revision, or madi~cation of particular policy
terms, conditions, limitations or exclusions {except where pallcy provisions are
established by law ar regulation binding upon either of the parties hereto or the
8
r ~ ~
~ ~
underwriter of such policies}. Upon such request by CITY, ~NTRA~T~R shall
exercise reasonable efforts to accan~plish such changes in policy va~rerage, and shall pay
the cast thereof.
10.4 ~~NTRAT~R agrees that with respect to the above~required insurance, that each
insurance policy required by this ~ONTRAT shall contain the following required
prov~s~ons;
• Name 1TY and its officers, en~playees, volunteers and elected
representatives a addrtianal insureds as respects operations and act~vtt~es af,
or an behalf of, the Warned insured performed under contract with CITY with
the exception ofthe professional liability policies.
• The ~ONTRAT~R's insurance shall be deemed primary with respect to any
insurance or self insurance carried by the 1TY far liability arising out of
operations under this ~NTRAT with the CITY; and
10.5 ~NTA~T~R shall notify the CITY in any event of any notice of cancellation} nonR
renewal ar material change in coverage and shall give such natives not less than thirty
~ 0}days prior to the change or ten ~ 1 a} days notice far cancellation diie to nonpayment
of premiums which notice must be accompanied by a replacement certificate of
Insurance. A11 notices shall be given to the CITY at the following addresses:
~A} pity secretary's ~ffive of pity of carpus Christi
P.O. Box 9277 ~ l ~t Floor, pity Hall
corpus Christi, Teas 784b9-977
~B} Human Relations Department
pity of corpus Christi
P.~. Box 9277
corpus Christi, Texas 78449-977
10.E I~' ~NTRA~TDR fails to maintain the aforementioned insurance, or fails to secure and
maintain the aforementioned endorsements, CITY nay obtain such insurance, and deduct
and retain the amount of the premiums for such insurance from any surds due under the
a regiment, however, producing of said insurance by 1TY i an alternative to other
g .
rerrledies CITY may have and is not the exclusive remedy for failure of ~~NTRACT~R
to maintain said insurance or secure such endorsement. In addition to any other remedies
CYTY may have upon ~NTRA~TR's failure to provide and maintain any insurance or
alit endorsements to the extent and within the time herein required. CITY shall have
p y
the right to order ONTRAT~R to stop work hereunder andlor withhold any
a ment~s}which became due to NTRAT~R hereunder until performable in Nueces
p
bounty, Texas.
1 ~.7 For the duration of its contract with the pity, the ONTRAT~R shall at its own
ex ease vamply with the accessibility requirements and not operate in any disvriminatary
p
manner under the Americans with Disabilities Act and any other Mate, Federal and Local
applicable laws.
9
~ J ~ a t
t
10.E The ~NT~A~T~R agrees to comply with any applicable provts1ons of Section 24-5~
throe h 2453 of the corpus Christi bode. These sections concern discr~inination ~n
errs loyn~ent. ~A copy of these sections ~s attached to the C~NTRAT as Exhibit B.}
1 D.9 The ~NTRAT~R also agrees to corrlply with any applicable provisions of chapter
224 of the Texas Government bode. This chapter concerns professional and consulting
services, ~A copy ofthis chapter is also included in Exhibit B ofthis ~NTI~AT}.
10.1 ~ The ~NTRATI~R agrees to ~ 1 } comply with any and all applicable Local, State, and
Federal Lam, and ~2} provide assurance of non-discrimination on the basis of; race, color,
national origin, age, gender, religion, and disability including under the Americans with
~labllltle5 ACt of ~
~I. LEGAL AUTHORITY
I l . l The si er of this CNTRAT for ONTRATC~R represents, warrants, assures and
uarantees that she has full legal authonty to execute this ~NTRAT on behalf of
g
~NTRACT~ and to bind ~~NTRACT~R to all of the terms, conditions, provisions
and obligations herein contained.
III. PARTIES BOUND
12.1 This C~NTRA~T shall be binding vn or inure to the benefit of the Parties hereto and
their res ective heirs, executors, administrators, legal representatives, successors and
P ,
assigns, except as otherwise expressly provided for herein.
~IIY. C~ENI]ER
13.1 Wards of an ender used in this CONTRACT shall be held and construed to include any
Yg ,
other ender and words in the singular number shall be held to include the plural, unless
g
the context otherwise requires,
~I~, CAPTIONS
1 l Theca bons contained in this CONTRACT are for convenience of reference only, and in
p ,
no way limit or enlarge the terms andlor conditions of this CONTRACT,
INDEPENDENT CONTRACTDI~
l 5.1 The CONTRACTOR is an independent contractor and is not an employee or agent of the
CITY. Nothin in this CONTRACT shad be interpreted to establish any relationship
g
other than that of an independent contractor between the CITY and the CONTRACTOR,
its ern to ees, a eats, subcontractors, orassigns, during or aver the performance of this
p Y g
CONTRACT. The CONTRACTOR is free to provide siiniiar non-conflicting services
for others.
lfl
' r ~
r
III ~~'~E T~R~~, N`f~A~' i~ e~ecu~ed In t~~~l~~te o~g~~~.~~
CST ~ ~
r e doe e c ate
City N~anag~r P~~~der~~l~}v~er
A,ppro~v~d a. to forte:
~ tte ~3ate
A s~stant ~~y Att~r~e~r
fvr its ~t#orney
ATT~T:
Armada had
~~etary
~ Fags 1 of ~2
EXHIBIT A
Subj: ccbid
bate: Mix105 2:51:24 PM Centt~l Daylight'Time
From: cca~t~'an~~us~in.rr.,
oar
'Carry S, McGinty CSR, RPR, CRR, RMR, F2pR Wh~triey Ak~enf CSR, RPR, CRR
Tiao~t~on~ausltn.rr.aom whiEsc~ad.c~m
5'~2~4-0290 (phone} 5iZ-4$0-022~ (mac) 210-325-5907 (R~e)
3~a 34~' St~eat 4123 Boerne s#age Road. Suite ~a35
A~Stln, TX 787Q5 San Af~to~ro, tK 78258
x~~?s c~as~a cap~oN~N~
gay zoo4
Gty o~ Corpus Chri~ki
Purchasing Qiv~~on
P.O.Box 9277
CArpus Christir TX 78469-977
- . ~ Re: BI-0499-04, Live C[~sed Captia~ing in City Caur~il Chambers
inclosed please find an ar~ginal and tl~ree ~apies of Texas t~osed Captionlr3g's proposal fog
closed captioning s~rv~o~ss for tfie City of Corpus chri~;.
Texas Go9ed t~~tioning has of~i~es to Austln acrd San Anb~nio, with Terry McGinty, CRR,
owner, in charge of the overall comparry aid Whitney Alden, CRR, heading up the San As~vnio
operations. Uur aantack information is lis~d in the let6etfiead and we would bob be happy
answer any questions rega~+d~ng tftis pr~o~x~sal,
1 cannot stress enough t~ imporFance ofi utilizing a sfienoc~p~ionist familiar wi#h Texts and
labino/Hispanic culbtEr~ foi programming as r+e~fon-specific ~s dty oounc;ii rn~etings. People
who 1~ i~ otlter parts o~ sate or oour~try wi11 have a very di#~tult cnatlenge uncier55tanding
and cornecdy spelling proper names and ~ren~s, i.e.~ Cabal~e~v, Beniabazal, C~noo de Mayo,
etc., ~f they are oat iamitiar with Tex~z and the Corpus Ch~f~ti area,
I am endosirtg a brief summary of our company and the qu~lifica~#ons of our r~p~ivning tam
that would provide doped captioning ~viaes for t~ CJty of Corpus Chrisfi. A sa~mpte
videotape of Five closed captloning o~ an Austin City oouncit mee~in~ is also enclosed. The
videotape must be vi~wu~d with #~e TELEUTSI~N DECObER TURNED ON in order ~o view
the captions. I would caution you #a ensure that the videos you r~aei~e are c~ 1~
captioning and not a hytx+d type of cap~tiorting where tfie .~ber~ocaptionst inserts prescrip~d
Tuesday. Ap~l ~2, 24U5 ~e~rica Online: Wb~itcs~
. .r~. yy
~a~e ~
I~I~O ~ IiV~ ~ ~I'~~'!.
,
' ~ - - . ~ nv~ u~
Psge 3 of 12
2
Texas Closed Cap~on~ng believes that we can provide tf~ best caplfoning service for tf~e Ctly
by utiilixinq sbenocap~onf~s wfio a+~ Familiar with the goveri~~e, geographic area,
b~rmlt~OlOgyi lgC~1! CUSkA~'!S ar1[I CtJitU~ Of TeXdS.
~ of May 29t z004~ wee have not r+~eiv~ed any addenda ~a #~e original RFP. The required
exhibits are s#~adt~d h~r~eta.
Please Irk me know ff we can be of any assisFarx~e or answer any qu~ons.
~~~Y~
Terry S. McGinty, Owmer
Enclosures
Exhibit i, Disclosure Firm
~ibit Z, Prang Summary
,W, Exhtb~it 3, Required QuesEf011r~a~r+~
~IlOC8~1W7~StS' f1D[1S
1~deot~pe of ~#us~n City Council meting
Ttiesday, April 12, 2005 A,r~r~ea~ca aniline: Whitcsr
~ ~ ~ Page 4 of12
'texas c~.asEa c~~oNin~~
Summary of Company
Texas Closed CaptionirK~, a woman-owned, small bu~n~ss, has been in operaf~on sine
gust of X990, pravkiing closed c~p~tar~€ng aid CART ~Communi~ation A~ess It+~al~ime
~nsta~on} for tl~e c~eaf and har~d-~of hearing r~ommunity In Central Texas. T~xa~ G'Io~ed Cap~oni
p~ia~ed t#~e first rea~~me Ihre r~wscast in Central Texas in ~Jcbot~eer ofi x.990. We hive been
:~gnlzed by Travis County Serv~aes fog the Deaf fqr quaNty cap~oning and Terry S. McGinty way
~nb~ci the St~v~ r~d~es Award in re~agr~itlon of servJc~ and dedicatlon i~a tfie late~de~fe~ed
d h~rri-of heating people ire tfie Austin area.
Texas Closed CdptioMng has provided dosed capbor~ng, CART and remote CART far a
rle~y of ev+ent~ and agende5, a few of which are named below:
• KWE-24 Newscast
• ICEY~~2 Newscasi~
Austln City C~undl Mee#~r~gs
• ran Antpnio City Caund! Mee~r~gs
• T~auis County T~levis+on, Commissioners Court Meetings and Au~tln Deaf Ward
• Austin Community Colt~ge Board Me~ngs
• ~CRA W~~re#eng#h tvideo news maga~r~e)
• Gubemabc~al debates
• ~lec#fon CoMerage
• Cove~nar's CommiCtee on Aging
• Texas Reh~bifitatia~ Cout~;11
• Texas School fior the Deaf
Texts Commission far die #~f and Hard of Hearing
• Univ~rslty of Texas (cJassr~aom ~ocess fir sbud~n~s)
• Austin Community College (cx~mmenoement cerema~ies)
• Texas Parks and W#Idiifie
• Texas Co~i~on on P~rsor?s w~#h ~is~bi~ities
• Te~cas L,egi~#ature (oomml~tee he~~ings)
Paramount `~ite8#er (iirre 1ter prodtut~on~)
Texas Closed Ca~tioning emplace fiighfy trained prof~sslonals. Our s~enacaptlonist~ at+e
~ul~ed at minimum to bare the following oertifitati~ns: Ce~#ified Si~ortl~and Reporter, RegisOer+e
~fesstona! Reporter and Gertifi~d Reaibme ~teporber. Two of our reporters ar+~ also Certffica~e o
:rat hailers and one ~s a Regis~'ed Dip~omafie Repvrtc~', the higher honer awarded court
ors in the caantry. Terry McGinty, the owner of Texas ~Ic~sed [~paaning, is also pr+~sident-
:ct of the CART' A~dviso~r Task Fora ~ the Texas C~trk Reporters A~~lon, a 9rouP whiC~t
plemerr~s procedures, ru#es and testing for CART r~porber~s. Whitney AIai~R and Pally Fife are tc
named ba~ar~ members ~ tha CAR"f' Task Fore in June 20x4.
Tuesday. April 12, 20Q5 ,A,xx~erica (?aline: Whi,t~csx'
Page S of 12
Exhibit ~
~e ~ of t~
REQUIRED PRlCINC SU1WI~IIIARY ~QRM
FOR
LIVE CLQSEb CARTIONlNC31N CITY CQUNCIL CHAMBERS
A. REGULAR GI7Y CQUNCIL MEETINGS
Provide tha detailed oostts) for live cEosed onir~ services of meetings held in the
City Council Chambers in contract years one; and !ha cost(s) for years two ar~d three
may be prov~ted z~s a ~onnu~~ or cyst may be provided as the actual cost.
Closed captioneng servic~a arse la~lled on an hourly basis in the following manner;
6:04 pm to midnight ~135~lu~
Midni~h~ t~ 6:Q~ am $185~hr
W~lh the pro~rid~d ~nwrb~ ~?f me~ng~ lasl~nq flve~ hours per week and
appt~oxima#e!~ ~0 hours per' fir, tiur annual ye~l~ly cost wvutd be
app~+axiim~a~eh/ ~~,00~. 1'h~ price would renr~~ #,he same throughout dear
four. ~ foirmu~e for de~erminin~ tha cost would be:
HoM~tg x rate (app[Fcabre ~r1 tlme o~ d8r~ ~ Cwt
Year 1 Year 2 Year 3 Year ~
Monthly Mvrtthiy Monthly Monthly
Co&t Detail by Year
{~4hPRO~fMA7E MON7~nr
C~?'8~:
sz,os3 ~z,os~ $2,083 ; 2,a3$
APPR4XiMATE .
Totat Cast by Year: ~25,~ #25,044 ~S,t100 $Z5~000
Tuesday, A}~ri112, 2p4S America Online: W~tcsr
Page 6 aF 12
B. SPEGIAVOTHER MEETl~1GS fN COUNCML CRAM@ERS
Provide the defailed ca~s#(s) for five closed captioning serv[ces of speCiaUvther mee#ir~gs
tse#d in the City Councit Chambers in oontr~ct year one; end cost{s) for years two and
three may be provided as a formula or cosh may be provided as the ac#uai cast.
Same pricing structure as listed above, an hourly rate ba~sd an time a~
~Y~
me ot` Hou
g:~0 am to 6:Qp pm ~1~51hr
~:DO pm to midnight ~~#3blhr
Midnight to 6:00 am ~18aJhr
DEPENDEMT ~N NUMBER Q~ H(?URS CLt~ED CAP'T~C~NINC SERVICE IS
REQUESTED. Tl~er~ ~ not en+~ugh iniorn~atlan i~ estlma#~e thls amount, but the
~arnnula would b~;
Hours x rate applicable io timo of dxyj =Cost
'~'~~esday, April i 2, 2805 ,Aame~,ica Online: W~ut~csr
~ Page 7 0€ ~7
~xhi6it 3
REQUfRED QUE3T#ONNAiRE FOR ~ ~a1x a~ 93
LNE Ct05~D GAPTIONINI~ 1n CITY COUNCIL CHAMBERS
1. describe the ofganizstion submitting the propos~E;
A. Company name: Tee Cioaeed Captioning
g. Company Address; 3i0 E. 34~' gam. l~us6n, Texan 78705; and 4 #23
Bc~eme 5#~ge Raid, $u~e 4~5, San Antonio, TX 78256
C_ Catalogue tr~formation Sys#ems Vendor (CISV) Number:
4. Ysar founded: X990
E. Contact per5an
Name: Tarry S. McGinty Phones: 51 .480.0210
Tale: Qwner
E-t1Aai!Address:;xc.~,n ,~~t~i.~n~.cosn
2A. is your #i~m an the State aF Texas Cer~#r~Iized Master Bidders List (CMBL}? X Y~~
o Na
~f "yes", what is your company's V1P} number. CMBL YID! # 174?,582153900
2B. Is you arm an improved Cateiogue Informaition System Vendor {~131f~~
n YES X N~
!f "yes°, whet is your campar~y's ViN number
36A. Provide three Texas client refarerzces of comparable size;
Contact 7s~ephonu
Name cii~nt P_
e ~
Cit~r of Austin Erred ~lartland 512.874.2460
City o~ San ll~?~tttonio Diane Csal~an 21t1.20T.7~~9
Travis Gaunty Al Jacfcsan 51 .864.9643
'b`u y, April l2, 2045 Amo~ica Ontine_ W'l~tcsr
T. Page S o£.12
3B. Provide the name of amr cyF your clients, whose City Cou~cii meetings are web-used,
for viewing your live cEosed captioning s~rvioes.
.v
Contact Telephone
Name of ciient Person ~m6~
City of Austin ~rr~! Mortfand 51~.974.24B0
Travis County A! Jackat~n 5~2.854.9~03
The City o~ Austin and Travis Guunty post ;`t~~nsc~pts" an their webslts, which
a~r+e decoded a~# #~e video strum and put rota a file.
Travis County's we~ite,
~i :ll~vww
~~.tras~~~~usfcomm~~~~~~~~tl.~~~n~.~l_~t. has tie tex#
associated wi#h agenda items. Find the agen~#a item you with to review, and cCtck
0~1 view t~ransc~ipl.
Cfi the City o~ Auetin w~eb~ito, bits,~lv?-v~~w_,~i., ~.t~c~lco~~i~~~~ns_~~rip._~, ,'ate
City runs the capfivns through ~ program au~d strips some ~`ormattlng and
~Y refarm~Cs pvrdons of the texts so it is not err exact dupl~catlon of the captioning,
but a very close approxima#ian a$ to what is seen on t~evislon, ~Occaelonatly
the program that strips ~orma~fir~g wfit add some very odd symbols to the best on
tote webs~te. Thee symbols we~+e not part of the c~pt~dnin9 ~ ~I
4. Describe the #r~nsmission of dive closed cs~tioni~a serv~c.~es by your fine:
by transmission. you mean physically haw tl~e ~ap~tions are send from our
computer to the ~~sovision s~fan~ the transmission is through a~ modem at our
bCatioil COfIndC~ed Via tQl~fhons line to ~e modem at the Ci~'s ~n~od~r.
The City must have an encoder which has modem capability and an ~naiag
tele~hon~ line dedicated to drat modem. The o~e~r' has a modem on their
camputtr which transmits the captions to the encoder.
A, Address where the live dOS~3d rapt+oning service would be performed:
Each capt~oner has a home stadia with backup equipment Everyone is required
to have duality 1n #heir studio: Tav~ computers, twa sa~f'lw~e ~pplic~tions~ two
steno machfne~ twa modems, at feast two phone linos and a eel! phone end two
Tuesday, APriI ~2, 20US America ~al~~e~ Whitrsx
T age 9 of 12
internal connections and e~ b~tck~up power source or battery-powered back-up
pow9er. Ail c~ptioners are required to be anitne dur~n~ captioning and able to
communicate with one enoth~r through the !n#emgt.
B. what ~s the normat t~an,~smissiontpracessing time by your firm?
~ this gs~e~ion refers to time flro~ request for service until se~vi~o prevision, wa
can usually a~acommodate a same-day r~qu~s~, but we prefer to have a woek ~e~d
dime.
i~ this question r~et`ers to transmission i'i~om hearing the spoken word to seeing It
appear on the televEsion screen, the average i~ 1.5 ~oconds.
5. What Type of equipmen# is your firm ut~tixing to perform live clc~sed captioning services?
Our firm ~i'iiiz~es Advant~e S~ftwar+e, ~~o known as E~lip~e AcaucapNT,
a~?~w+.eclinseea#.cnro. the AccucapNT captioning soTtware is compa#~b1e with a~1
malnstrream encoder brands in the closed captioning industry.
C. your firm wire awarded the City of Corpus Christi's vontracc~ for live Dosed eapt€onin~
servit~es, provide a detailed implementation plan for the transition to go live. Be specific
about the firm's ca~aability #o feci~itate the transition. (An attachment i$ alto acceptable-)
pur firm hals provided closQd ~caNptionin~ services for I~raadc~t t~evis~on for 14
"'~J ye~u^a~ speciRcally far city councils for ate last six years YVe would A~Sign a team
of fwo captioitiers to the shy oaf Coypus Christi, with two b~clc-up captioners ~n
caa~se aF emergencies.
The ca~fion~ng team will then research the Ci#y's website, end ob~in fnam the
~~ty a ii~t af' City employes names and pv~ltfons, ~omrr~it~s and boa[+ds that are
Trequently rafi~~nd #o during ~e ciiy council mselfngs. The c0ptioners they input
this data irH:a fhair so~lwer~ to aid ~n prepa~tion #or br+oadcast We would also
request videotapes of pas# council mesfiings aid have our captioning team view
same and input information garnered from viewing tl~e tapes into their safitvrare.
7'hi~ taci~itat~ss the provf~on ct ex~cetlent, high quality cap~aning for the City.
We also ~"squi~e the captioning team do several tesis with the an-site ~ech~ic~t
stag at the TV station. troubleshooting ipment and t~s#~ng modems and
IFBlaudto lines prior to start date of ~ptionin8 the ~aunetl rneetlngs.
Aber we ha~o propped for the broa~de~~ end solved any technical i~ues~
we ate ready to go to 11ve brnadca~t. This process is usually less than fwa weeks
and can be accon~lished much more quickly if #here are no equipment issues a~t
the TV at~~tion.
The N station must have at least two phsrna i~nes dedicated to capttonin9
a~ervices. Qne phone line is for iha ~ncader modem and one is far the audio line.
It ~s much pre~e~rle to have a# least #hree pha~te linesE two for audio, and
TueadaY, Aril 12, 2U05 .A,~aecica OEetine: VV'hitcsr
T' 1 P~~re x0 0~ 12
possibly fa,r (one backup far encoder modem) fn the event there are technical
problems with the'N ~#atlon.
What are your firm's pra~ed~res for live closed captioning of mes~ings; i.e.: weekly City
Counal meetmgs7
At this time we do not ha~~e a cap#iorf~r stationed in Carpus Ghrls~i~ so the
cap~onsrs wit! be f'~steninA do the broadcast thrvueh a ~el~hone line, rsferr~ed to
as an lFB {infernal f~requancy b~dcastj or~ ~n audio line. The CCty should have at
lesgt ore phone I~r~e dedicated for pending audio; two phone lines art p~f~rab~e.
The captiQner listens t~ the live broadcast, and writes the proceedings on a steno
machine. The steno machine is connected to a computer, which trar~sl~s
steno into English, and then that ~ngli~h ~c# is sent vier modom to the encsoder at
the City Council. 'ihe time #rum spoken ward ~o the words appearing on the
~elevisign screen is approximately 7.5 secand~.
Our standard mode o~ ope~at~on ~`ar government meetings is to as~~gn a team two
capti4neraF respon~ibio for each meeting. Through p$s# experience we hive
fiaund that due ~d fatlgue, errors can incr~se fairly drama~dcally after an hour of
Ilve writing time, so we sch~dute a cha~?pe in capfioners aarery hour. We have
done this with fhe Ct#~es of Austin and San Antonio and with Traais bounty and
have found that it wark~ quite well.
All technical tr~ouWeshooiing will be done in ad+rance of the first me~dng ~o be
captioned. After that initi~! testing has been completed, the m~tlngs ara
capl~oned a~ faltow~:
Prior to dte meeting, the capfioners will download the a~nda for the meeting and
input qty ~ermiinology for ~t~t particular day. Captioner 1 will do an equipment
check with the Tif st~#ion 96 minutes prior to or~~r time and be ready to g~o ,~t the
appointed t#me. I~ the meeting a~tarts at 1:00 p.m,, C~i~vner 1 wi11 captlvn untll
x:00 p.m, or a natural breaking point close to that hour #~rne period. Captioner ~
will then dispf~y on the captic~nin9 output l~N~ MC~IIi1~NT PLEASE FQR GHANG~
~N C~PnvN~as~~ and Captia?ne~r 1 wild immedtatety hand up the en+~oder.
!f these are two audio I#nss~ Cap~oner 2 is already on the audio line and listening
try ~e meeHnp poor to diafin~ the encoder: When Captloner 1 hangs up the
encoder Ilne, hefshe instant messages Cap~tiane~ 2 through the in#sm~k and tells
C~tionar 2 to coal encoder. Captionar 2 immed~a~ely dials the encoder and
continues captioning the meet~~. Vile hanre #~med lhia process and found ~t take$
~Q~}a ~ 45 seconds, daring any technical problemsr 7~{j/i~~ N S~{~7A W V~~l~
have one audio fi~ne~ and that sows cbwn the switching proc~as, !f thane is only
one aydia one, it takes 4~ -80 s~con~la to acco~iish the switch.
7'hs eaptiontng team caontinues3 with the above ~n~rio until the end of the
meeting. We have captioned numerous meetings that be~gan at 10:00 am. and
'I~xssdaY, A~?ri1 12, 2005 AYt~ezics Online: Whitcsr
~ ~ ~~tge 11 of ~ 2
ended Ott 2:00 a.m. end our tran~l~ti~n ~sm~ined at 99.8% and error gate stayed
below fhe 696 av~ra~e.
This tag-fieam team approach ensures accuracy a~Q prevents captloner Fatigue,
B. What is the expe~enoe and training level of the staff involved in performing the live
dosed capf~anin~ services by your firnn?
A!1 of our optioning stag Ar+e required to have t'~re years o~ r~altime captioning
experience, and mus# hold at least three of the #o1loMring cerWicafies; Cerd~ed
Rea~tlme Reporter, Texas CSR, Regists~ed Professional Report4r, Registered
~Iteri! Rsporter~ Texas BART Lire! V certificate.
Terry McGinty and Candie Brickner began optioning in 9990, whin there were
emery few live captioners in the world. Thy estimab~ is 40 people were doing
captioning during that erne. Naar there ire many, many ReoPle Prrn?id#ng If?re
captioning services„ but many capt~aner~ are not qualified a ~pec~fically tr~r~ed
for the task of Iive captioning. ~t ~s im~psra~ve that qualM~d captlone~s art ~s~d
~o ensure a high qual#ty output.
Whiney Alden and Pally Fffe ~e also taro of the rrwst expertencad captioners in
tmxaa All f~u~ capbonscs have provided captloni~g and carnmunfcation access
f+or numerous broadcasts and meefiings aver the last 14 years.
It is also extnemety frnporkant that the City know exaady wha tfie cep~oners wllE
b~ and fhet there is oons~st~enc~ in sung. 'the same tvMro cap~ioners wo~lcinp on
a jab week after week vv~l[ have much grater success and accuracy than h~nr~~g a
dliferont captio~er each vrpak.
And it canncrt be stressed enough that knowing the locaf culture and gavemment
is a requir4ment for cap~ion~ng Ioca1 goremmenta~ meetings. Many captianers
from the north may have no idea what Clnco de Mayo ~s or how to spelf it
9. Haw frequently and to what ex#ent are the #ransmissions of dive closed
captioning subje# to quel~ty review?
Every broadcast is subject to quality review. 1Aie have sash capt~oner rariew
portions of dteir broadcas# in ~~tt?dom flee-minute incremen#s to spat check the
accu~acY o~ same aid take repo tsibelily four any trouble spEots they may need to
address. Newer capdoners are required to send copies of their text to Terry
McGinty #ar resew. Ho~ver~ that vvOUld not apply in this ca~se~ as the capgoneYs
to be uglized on the Corpus Christi council arse h~glNy quallfled ~d exps~nenced
at monitoring their output.
10_ 1Nhat is the daisy time in seoor~ds in yaur'~cm's live dosed captioning services?
A~er~tge delay is 1 to 1,5 seaond~.
Tt;es~ay, Ap~i~ 12, 2£15 Aane~tica Ox~ine: Whitcs~'
r ~ rake ~z o~ iz
1'#. Describe haw the addition cif the City's account to your firm's clienteEe would be
handed?
.
1Ne woyfd schedule a ~e~un v~f iwo Captioners for every Tu~daty o~ the month
except those which may be exempt~d~ fvr pratii~ng the live captioning #or the
meetlngs. We would utili~s the same to m of ca~#bners ft~ each meeting, un#e,Ss
an illness or vacation prec#uded one o~ the beam from c~~stioning. In the event a
team member canno# pro~r~de aap~tianin~ on a Tuesday. we w9ould have ano~er
captioner peep and be prepared ~o tek~ vvst tho gnmern.
12. list the c~ptioners who would be assigned to the City ~f Corpus Christi meetings,
Provide copies of e~oh c e~tiffc~te held by e2~ch c~ptioner.
Name Years Tr~ns~atian ~rrar
Captioning Rate Rate
Terry S. M~Gi~tfy 1~ 9~.9°N~ ~e~s #~an
4°~6
Candle Bcidatier 14 99.9~b less than
4~6 Pa!!y Fie 72 99.9°
lei than 4°~6
1Athi y Atden 7 ~8.99i, less Chap
a~?
CertihcateS arse AttBChed hereto.
'ferry McGinty, CSR, RPR, R!lA~t, RDR, CRR, CART 1t
Caandis Brirkrter. CSR, RPI~ RMR. CRR
Pally Fife, CSR, RPR, CRR, CART V
~IYhitney Alden. CSR, RPR, GR~ CART
RII
13. Describe you[' fnn's billing process €or live closed cap#ioning services.
We bilt monthly or semi tthly for the provision of services broken dow~1 into
quarter hour increments„ with p~yrnent due ne! ~0 days.
14. ~rov~de e sample videotape of your firm's dive closed captioning services.
sample is enclv~gd herewith.
. Ci~r of ~orpns chi B! - uv+~ Cloud Ca g
Tuesday, April #.2, 20Q5 America U~nline: Whitc~c
+ ~ a
~ +
~IIBIT B
ARTILY DI~I~III~ATI~N IN ENIPL~YIVIE~T'*
*tate law references: Political subd~vts~on may adopt ordinance prahib~t~ng employment
discrimination also made unlawful under state or federal la~v, ~.T..A~, Lobar bode ~ 2l . ~ ~ 1.
dec. Z4-S4. Declaration of policy.
It is hereby declared to be the policy of the pity of corpus Christi to bring about
through fair, orderly and lawful procedures, the oppai~tunity for each person to obtain
employment without regard to race, color, religion, sex, national origin, disability, or age
as set Earth by the commission on human rights act.
fib} Yt is further declared that this policy is grounded upon ~ recognition of the
inalienable rights of each individual to work to earn images and obtain a share of the
wealth of this city through gainful employment; and further that the denial of such rights
through considerations based upon race, color, religion, sex, national origin, disability, ar
age is detrimental to the health, safety and welfare of the inhabitants of the pity of
carpus Christi and constitutes are unjust denial ar depriv~tian of such inalienable rights
which is within the power and the proper responsibility of government to prevent.
~~rd. Na. 23411, ~ 1, ~~l 5-19~~}
dec. 24-5 I ~ Definitions,
Far purposes of this article the follving terms shall have the fallowing meanings;
.cause of ale ar o~z t ~asrs of age refers anl~ to discrimination because of age cr an
the basis of age against an individual forty ~40~ years of age or alder a defined by the Texas
orn~nission on Human Rights Act, as amended,
because o'd~sa~i~i~y ar ~l~e basis o d~sa~r`~i~y, in section 24-5 l refers to
discrirninationbecause of or anthe basis of a physical or mental condition that does not impair
an individual's ability to reasonably perform a jab.
Because of six or o~z ~asrs of six, includes but is not l~~nited to dicriminatiar~
because of or on the basis of pregnancy, childbirth, ar related medical conditions. Women
affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all
employment-related purposes, including receipt of benefits under fringe benefit programs, as
other individuals not so affected but similar In their abrl~ty or inability to work.
1
~ f t i ~
~arta~ f
ode o~c~pa~iorra~ q~a~i a~ario~z mean a quali~ativn that is reasonably related to
the satisfactory performance of the duties of a j ob and for which there is a factual basis for
believing that a person of the excluded group would be unable to perform satisfactorily the duties
of the job with safety or efficiency.
Disa~i~if~ means a mental or physical impairment that substantially limits at least one
major life activity or a record of such mental or physical impairment. The term does not
include:
~ l } A person with a current condition of addiction to the use of alcohol or any drug or
illegal or federally controlled substance; or
~2} A person with a currently communicable disease or infection including but not
limited to acquired immune deficiency syndrome or infection with the human
irnrnunodeficiencyoirus, that constitutes a direct threat to the health or safety of other
persons or that makes the affected person unable to perform the duties of the persan's
employment.
~isa~~e~ means having a disability.
~~o,~e means an individual employed by an employer including employees subject to
the civil service laws of a state government, governmental agency or political subdivision; except
that "employee" shall not include any person elected to public office in any state or political
subdivision of any state by the qualified voters thereof, or any person chosen by such officer to
be on such officer's personal staff, or an appointee on the policy rriaking Level or an i~nrnediate
advisor with respect to the exercise of the constitutional or legal powers of public office.
E~~oyer means a person engaged in an industry affecting com~.merce who has f~een
~l } ar mare employees for each working day in each of twenty ~2~} ar Mare calendar weeks in
the current ar preceding calendar year, and any agent of such a person.
~~r~~~yr~~n~ shall mean any persan regularly undertaking with or without compensation
to procure employees for an employer or to procure for employees opportunities to work for an
employer and includes an agent of such a person.
~bor ~r~~tr`za~r'o~z means a labor organization and any agent of such an organization,
and includes any organization of any kind, any agency, or employee representation camrnittee,
group, assoc~at~on, or plan so engaged 1n whlch erriployees participate and wh1ch exists for the
purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours, or other terms ar conditions of employment; and any conference,
general committee, faint or system board, or ~olnt ounc~I so engages which is subordinate to a
national or international labor organization.
a~io~ra~ ~~ig~rr~ includes the national origin of an ancestor.
e~rror~ means all aspects of religious observance and practice, as well as belief, unless
an employer demonstrates that helshe is unable reasonably to accommodate the religious
" r ' ~ ,
observance or practice of an employee or applicant without undue hardship on the conduct of the
employer's business
{ord. No. X341 1, § I, 8-1 S~l 998}
Sec. ~4-~. Discrimination in employment; prob~bited and permitted ~Cts.
{a} It shall be an unlar~uful employrr~ent practice fvr an emplayer~
{ 1 ~ To fail or refuse to hire or to discharge an individual, or otherwise to
discriminate against an individual with respect to compensation, terms,
canditinns, or privileges of employment, because of race, color, disability,
religion, sex, national origin or age; ar
{2} To limit, segregate, ar classify an employee or applicant far employment in a
way which would deprive ar tend to deprive an individual of employment
opportunities ar otherwise adversely affect the status of an err~ployee, because of
race, color, dlsabll~ty, religion, sex, national origin or age.
{b~ It shall be an unlawful employment practice far an employment agency to fail or
refuse to refer for err~ployrrzent, or otherwise to discriminate against, an individual
because of race, color, religion, disability, sex, national origin, or age, or to classify or
refer far erriplayrr~ent an individual an the basis of race, color, disability, rellglon, sex,
age or national origin.
{c} It shall be an unlawful employment practice far a labor organization;
{ 1 } To exclude yr to expel from its n~ernbership, ar otherwise to discriminate
against, any individual because of hislher race, valor, disability, religion, sex, age
ar national origin;
To limit, segregate, ar classify its membership, or applicants far naernberslnip
or to classify or fail ar refuse to refer for employment an individual, in any way
which would deprive ar end to deprive an individual of en~ployrnent
opportunities, or would limit such employment opportunities ather~vise adversely
affect an employee ar an applicant far employment, because or race, color,
religion, sex, disability, age, or national origin; or
To cause ar attempt to cause a.n employer to discriminate against an
individual in violation of this section,
{d} It shall be an unlawful employment practice far an employer, lobar organization, or
j Dint labor-management committee controlling apprenticeship ar other training ar
retraining, including vn~the~
job training programs, to discriminate against any individual
because of hisser race, valor, religion, sex, age, disability, or national origin in
admission ta, ar e~nplayrrient in, any program established to provide apprenticeship or
other tralning ar retralning oppartunltles,
{e} Notwithstanding any other provision of this article it shall not be an unlawful
en~playn~ent practice:
3
F ~ i ~
~ 1 } For an en~plvyer to hire and employ emplayees, far an emplayn~ent agency
to classify, or refer for ernployrnent any individual, far a labor argani~ation to
classify its membership or to classify ar refer for employment any individual, or
for an emplayer, lobar organization, or joint labor-management committee
cantrolling apprenticeship or other training or retaining programs to admit ar
employ any individual in any such program, on the basis of hisser disability,
religion, sex, national origin or age in thane certain instances where disability,
religion, sex, national origin or age is a bane fide occupational qualification
reasonably necessary tv the normal operation of that particular business or
enterprise, and
~2} For an educational organization operated, supervised, or controlled in whole
or in Substantial part, by a r~llglous corporation, association, or society to llmlt
employment- or~ give preference to members of the same religion,
~3} For an employer to apply different standards of compensation, or different
terrris, conditions, or privileges of employment under a bans fide seniority system,
bona f de merit system, or a bane f
ide employee benefit plan such as a retirement, .
pension, or insurance plan, which i net a subterfuge to e~rade this article, ar under
a system which measures earnings by quantity or quality of production, if thane .
different standards are not discriminatory on the basis of race, valor, disability,
religion, sex, national origin ar age,
~4} For an emplayer to apply to employees who work indifferent locations,
different standards of compensation, or different terms, conditions, ar privileges
of employment if thane different standards are not discriminatory an the basis of
race, color, disability, religion, sex, national origin, or age;
Far an emplayer to impose n~ininnum or mxi~nun~ age requirements for
peace officers or firefighters.
~f~ It shall be an unlawful employment practice for an employer, labor organization,
err~playment agency, or j Dint labor-nnnagen~ent committee controlling apprenticeship or
other training or retraining, including an-the-job training programs, to print or publish or
cause to be printed or published a notice or membership in or any classification or
referral for employment by such a lobar organization, or relating tv any clasif
icatian or
referral far employment by Such an employment agency? or relating to admission to, or
ernployrnent in, any program established to provide apprenticeship or other training by
such a joint lobar-management committee indicating a preference, limitation,
specification, or discrimination, based on disability, religion, sex, natlonal origin or age,
unless disability, religion, sex, natlonal origin or age is a balls fide occupational
qualification for einplayinent,
fig} It shall be an unlawful employment practice for an emplayer to discriminate against
any of hislher emplayees ar applicants for employment} far an employment agency, or
j Dint lobar-management committee cantrolling apprenticeship or other training or
retraining, including on-the j ob training programs, to discriminate against any individual,
or for lobar organization to discriminate against any member thereof or applicant far
membership, because helshe has opposed any practice made an unlawful employment
4
+ f k ~
r
practice by this article, or because helshe has made a charge, testifed, assisted, or
participated in any rr~anner in an investigation, proceeding, or hearing under this article.
{h~ It shall be unlawful for any person, whether or not an employer, employment agency
or labor organization, to aid, incite, compel, coerce, or participate in the doing of any act
declared to be an unlawful er~aployrnent practice by this article, or to obstruct or prevent
any person from enforcing or complying with the provisions ofthis article ar any rule,
regulation or order of the commission, or to attempt directly or indirectly to comrrYit any
act declared by this article to be an unlawful employment practice.
{i} Nothing contained in this article shall be interpreted to require any employer,
employment agency, labor organization, or joint labor#~nanagernent cornn~ittee sub
jest to
this article to grant preferential treatment to any individual or tv any group because of the
race, color, disability, religion, sex, national origin, or age of that individual or group
because an imbalance exists between the total number or percentage of persons of that
individual's or group's race, color, disability, religion, sex, national origin, or age
employed by an employer, referred or classified for err~ployment by an ernployrnent
agency ar labor organization, admitted to membership or classif ed by an labor
organization, or admitted to, or employed in any apprenticeship, on-the~job or other
training or retraining program, and the discrirninatoryproctice for a person subject to this
article to disability, religion, sex, natlQnal arlgln, or age wlth~n the clty, or in the available
work force within the city however, it is not a discriminatory practice far a persan
subject to this article to adapt and carry out an affirmative action plan to eliminate or
reduce unbalance with respect to race, solar, d~sablllty, religion, sex, national origin, or
age if the plan has been filed with the commission or any other appropriate agency,
{~rd~ loo, X3411, ~ l , g-18-1995
dec. 24-8~. Er~forcemen~.
{a~ ~'he pavers exercised by the city, commission, its officers and err~ployees, except
those based on the laws of the Mate of ~`exas and the pity charter, are derived by virtue
of contract with the Equal Employment opportunity ~omnaissian~ In connection with any
investigation of a charge filed under this ordinance, the con~.mission or its designated
representative shall at all reasonable tunes have access to, far the purposes of
exarrrination, and the right to copy any evidence of any person being investigated or
proceeded against that related to unlawful employment practices covered by this article
and is relevant t~ the charge under ]nvestigatian,
{b} Every employer, employment agency, and labor organization subject to this article
shall:
{ 1 } I~a~e and keep such records relevant to the determinations of whether
unlawful empioyrrient practices have been or are being corxirnitted;
Preserve such records for such periods; and
5
~ a ~ ~
lVCake such reports therefrom as the commission shad prescribe by regulation
or order, aver public hearing, a reasonable, necessary, or appropriate far the
enforcement of this article or the regulations or orders thereunder.
{c} In prescribing requirements pursuant to subsection {b} of this section, the
commission shall consult with other interested Mate and federal agencies and shall
endeavor to coordinate its re~uirernents with those adopted by such agencies,
{d} In any case in which an employer, employment agency, or labor organization fails to
comply with the commission's request far inspection of records during investigation, the
can~nission will refer the complaint to the appropriate offce ofthe equal ernplayn~ent
opportunity commission.
{e~ The administrator may conduct a conciliation conference in accordance with the
cvrnmissian's rules of procedure, in an attempt to effect a conciliation ar resolution of a
complaint under this article. Such canference and any action taken by the administrator as
a result of the conference shall be in accordance wi#h the provisions of Title VII of the
111 ~lgh# ACt Of ~
{f} In the event the respondent fails ar refuses to comply with any artier of the
commission or violates any of the provisions of this article, the commission shall certify
the case and the entire record of its proceedings to the city attorney who sha11 invoke the
aid of an appropriate court or governmental body to secure enforcement or compliance
with the order ar to impose the penalties as prescribed by law.
{Grd.1~o, X3411, 1, 518-1998}
~~~RNENT I~D~
HAPT~R, ~~4. PRFESS~ONAI~ AND I~NSULTIN EIS
Si~~HAPTE~ A. PRI~FESII~NAL SEItV~ES
Sec. 224.~U 1. SHI~~'T TITI~~. This subchapter may be cited as
the Professional Services procurement Act.
Added by Acts 1993, 73rd Leg., ch, ~~5, Sec. 1, eff, Sept. 1, I993.
Sec. 2~~4.~~~. DEFINITII~NS. In this subchapter:
~ 1 ~ "Governmental entity" means,
{A} a state agency or department;
a district, authority, county, n~unic~pality, ar other political subdivision of the
state;
a local government corporation or another entity created by ar acting an
behalf of a political subdivision in the planning and design of a construction
project; or
a publicly awned utility, ,
{2} "Professional services" means services;
r ~ 1 , ~
{A} within the scope of the practice, as defined by state lave, af:
{l~ aCOUnting;
{ll~ architecture;
{1~~} landscape architecture;
{iv} land surveying;
medlClne;
{vi} optarnetry;
{vii} professional engineering;
{viii real estate appraising; or
{ix} professional nursing; or
provided in connection v~ith the professional en~ployrnent or practice of a
person who is licensed ar registered as;
{i} a certified public accountant;
{ll~ an archltect;
{ll~~ ~ landscape arChlteGt;
{iv} a land surveyor;
{v~ physician, including a surgeon;
{vi} an optarnetrist;
{vii} a professional engineer;
{viii a state certified or state licensed real estate appraiser; ar
{ix} a registered nurse.
Added by Acts 1993, 73rd Leg., ch. Sec. 1, eff. Sept, 1, X993. Amended by Acts 1997, 75th
Leg., ch. SeG. 1, eff. Sept. 1, 1997; Acts 1999, 7th Leg., ch. 14~, Sec. 1, eff. Sept. 1,
1999; Acts ~~Ol, 77th Leg., ch.14a9, Sec, H, eff. Sept, 1, 2~a1.
Sec. ~~~4.003. SELEI~TI~N ~F ~~VI~EI~; FEES.
{a~ a governmental entity may not select a provider of professional services or a group
or association of providers or av~ard a contract for the services on the basis of Gornpetitive
bids submitted for the contract ar far the services, but shall make the selection and
award:
{ 1 } on the basis of demonstrated competence and qualifications to perform the
se~'v1Ce~; and
{2~ for fair and reasonable price.
{b} The professional fees under the contract:
{ 1 } must be consistent with and not higher than the recommended practices and
fees published by the applicable professional associations; and
{2} may not e~Geed any maxinr~urn provided by lam.
Added by Acts 1993, 73rd Leg., ch, fig, Sec. 1, eff. Sept. 1,1993.
Sec. Z24.~~~1. IN~EIVINIFI~ATII~N. A state governmental entity may require a
contractor selected under this subchapter to indemnify or hold harmless the state from claims and
liabilities resulting from the negligent acts or omissions of the contractor or persons employed by
the contractor. ,A state governmental entity may not require a contractor to indemnify or hold
7
j y ~ ~
harmless the state for claims or liabilities resulting from the negligent acts or o~nissians of the
state governmental entity or its employees.
Added b~ Acts 1999, 7th Leg., ch. 1499, Sec. 1.37, eff. Sept, 1, 1999.
ec~ ~24.~~4. C~NTRAT ~'~R P~I;~FESI~NAL SERVICES ~F ARHIT~T,
E~I;iIN~ER~ I~R URVE'YI;~R.
{a~ In procuring architectural, engineering, or land surveying services, a governmental
entity shall;
{1} first select the most highly qualified provider ofthose services on the basis cf
demonstrated competence and qualif
~catians; and
then attempt to negotiate v~ith that provider a contract at a fair and reasonable
price.
{b} If a satisfactory contract cannot be negotiated with the mast highly qualified provider
of architectural, engineering, or land surveying services} the entity shall;
{ 1 } formally end negotiations with that provider;
select the next mast highly qualified provider; and
attempt to negotiate a contract with that provider at a fair and reasonable
.
price.
{c} The entity shall continue the process described in Subsection {b} to select and
negotiate with providers until a contract is entered into.
Added by Acts 1993, 73rd Leg, ch. ~6H, Sec.1,eff. Sept. 1, l 993 .
Amended by Acts 1997, 75th Leg., ch,119, Sec. 1, eff. Sept. 1,
199?,
Sec. ~~.D~S. vI;~ID I~I~NTRAT, A contract entered into yr an arrangement rr~ade in
violation of this subchapter i void as against public policy.
Added by Acts 1993, 73rd Leg, ch~ 2G8, Sec,1,eff, Sept. 1,1993.
Sec. ~~~4.4~. Ii~I;~NTI~.AT NI~TIFII~ATII~N. A state agency, rnclud~ng an ~nst~tution of
higher education as defined by Section ~ 1.a~3, Education bode} shall provide written notice to
the Legislative Budget Board of a contract fir professional services, other than a contract for
physician or apton~etric ser~rices, if the arnaunt of the contract, including an amendment,
~nodificatian, renewal, or extension of the contract, exceeds 14,~~a. The notice
must be on a form prescribed by the Legislative Budget Board and f
fled not later than the l Otl~
day aver the date the agency enters into the contract,
Added by Acts 1999, 7th Leg., ch. ~S 1, Sec 13, eff. Sept. 1, 1999.
UBHA~T~R B, I;~I;~~ISUI~TI~I;i ~RVIE
Sec, ~~4.421. DEFI~ITII:~~. In this subchapter;
{ 1 } "consulting service' means the service of studying or advls~ng a state agency under a
contract that does not involve the traditional relationship of employer and employee.
8
~ ~ { r i
1
{2} "ajar consulting services contract" means a consulting services contract for which
it is reasonably foreseeable that the value of the contract wiil exceed $15,Oaa, ar 25,~a~
for an institution of higher education other than a public junior college.
"consultant" means person that provides or proposes to provide a consulting
service. The term includes a political subdivision but does not include the federal
government, a state agency, or a state governmental entity.
{4} "political subdi~rision" means;
{A~ a county;
~B~ an incorporated or unincorporated municipality;
a public ~uniar college;
~D} a public school district or other educational ar rehabilitative district;
a rrietropolitan ar regional transit authority;
~F} an airport authority;
a river authority or compact;
~H} a regional planning commission, a council of governments, ar a similar
rcgionai planning agency created under chapter 391, Local C~overnrr~ent bode;
{I} the Edwards Aquifer Authority or a district governed by Title 4, Water bode;
{J} a soil and water canserva#ian district;
{K} county or municipal in~pro~rerr~ent district;
~L} a county rand or road utility district;
{N!} a county housing authority;
{N} an emergency services ar communications district;
afire prevention district;
{P} a public health or hospital authority or district;
a mosquito control district;
{R} a special waste district;
a rural roll transportation distriat~ ar
any other local government ar special district of this state,
{5} "State agency" has the meaning assigned by Section ~ 1 1.0~~.
"State governmental entity" rrieans ~ state department, commission, board, off ce,
lnstltut~on, facility, or other agency the ~urisdictlan of Which is not llm~ted to ~
geographical portion of the state. The term includes a university system and an institution
of higher education, other than a public junior college, as defined by Section 1.03,
Education bode. The term does not include a political subdivision.
Added by Acts 1993, 73rd Leg., ch. ~~8, Sec,1,eff. dept.1,1993. Amended by Acts 1995, 74th
Leg., ch. 7G, Sec. ~ .44{a}, eff. Sept. 1,1995; Acts 1997, 75th Leg., ch. ~ ~5, Sec. ~ 7.19{ 11 },eff.
Sept. 1, 1997; Acts 1997, 75th Leg., ch.1 a35, Sec. 3, eff. June 19,199?; Acts 2aa3, 78th Leg.,
ch. l ~d, Sec. 1.02, eff. June Z~, Z~~3.
Sec. ~NTERPRETATI~1~ OF iI~~APTE~.
{a} This subchapter shall be interpreted to ensure:
{ 1 } the greatest and fairest competition in the selection by state agencies of
CDnsultants; and
the giving of notice to all potential consultants of the need far and opportunity
to provide consulting services.
9
1 4 1 ~ r
P
{b} This subchapter does not:
{ 1 } discourage state agencies from using consultants if the agencies reasonably
foresee that the use of consultants will produce a rrxore efficient and less costly
operation or project; .
{2} prohibit thenuking of asale-source contract for consulting services if a
proposal is not received from a competent, knowledgeable, and qualified
consultant at a reasonable fee, aver compliance with this subchapter; ar
{3 } require or prohibit the use of competitive bidding procedures to purchase
consulting services.
Added by Acts 1993, 73rd Leg,, ch, ~~5, Secf 1, eff~ Sept, x,1993, Amended by Acts 1997, 75th
Leg., ch,1035, Sec, 4, eff, dune 19,1997.
dec. ~~~.~Z, A~~L~~ABILITY ~F UBI~APTER, This subchapter applies to consulting
services that a state agency acquires with money;
{ t } appropriated by the legislature;
{2} derived from the exercise of the statutory duties of a state agency; or
received frvrn the federal government, unless a federal law ar regulation conflicts
with the application of this subchapter.
Added by Acts 199, 73rd Leg,, ch. 2~8, Sec.1, eff, Sept 1,1993.
ce. 2~~4.~~4. ~~1VIPTI~~.
{a~ This subchapter does not apply to or discourage the use o consulting services
provided by:
{ 1 ~ practitioners of professional services described in Subchapter A;
{2} private legal counsel;
lnv~stmerlt counselors;
{4} actuaries;
{5} medical or dental services providers; or
other consultants whose services are determined by the governing board of a
retirement system trust fund to be necessary for the governing board to perform
its constitutional f
iducir~ duties, except that the governing board shall comply
with Section 2254.030,
{l~} If the gavrnar, comptroller, and general Services ornmission consider it more
advantageous to the state to procure a particular consulting service under the procedures
of chapters 21 5- 15 S, instead of under this subchapter, they may make a
rnenavrandum of understanding to that effect and each adopt the memorandum by rule.
Procurerr~ent of a consulting service described in a memorandum of understanding under
this subsection is subject only to chapters ~15~-155.
{c} The con~ptrvller by rule nay define circumstances in which a state agency may .
procure, without complying with this subchapter, certain consulting services that will cost
less than a n~inirnum amount established by the corrip~oller. The comptroller must
determine that noncompliance in those circumstances is more cast-effective far the state,
l0
~ 1 i t
Added by Acts 1993, 73rd Leg,, ch, 2bS, Sec. 1, eff. Sept, 1,1993. Amended by Acts 1997, 75th
Leg., ch.1 ~5, Sec,17.19~ 1 eff. Sept. 1, 1997.
Sec. ~~54,~~5. EN~ER~~1~Y wAI~ER,
The governor, after receipt of ~ request complying with this section, may grant
limited waiver of the provisions of this subchapter far a state agency that requires
consulting services before compliance with this subchapter can be completed because of
an unforeseen emergency
fib} A state agency's request far a waiver must include information required by the
goveor, including;
~ 1 } information about the nature of the emergency;
the reason that the state agency did not foresee the emergency;
~3~ the name of the consultant with whom the agency intends to contract; and
~4} the amount of the intended contract.
~c} As span as passible after the governor grants a limited waiver, a state agency shall
comply with this subchapter to the extent that the requirements of this subchapter are not
superfluous or ineffective because of the waiver. The agency shall include with
information ~ led with the secretary of state for publication in the Texas Register a
detailed description of the emergency on which the request for waiver was predicated.
~d} The gaverr~or shall adapt rules to administer this section.
fie} In this section, „unforeseen errrergency" means ~ situation that suddenly and
unexpectedly causes a state agency to need the services of a consultant. The term
includes the issuance of a court order, an actual or in~n~inent natural disaster, and new
state or federal legislation. An emergency is not unforeseen if a state agency was
negligent in foreseeing the occurrence ofthe emergency.
This section applies to all consulting services contracts and renewals, amendments,
and extensions of consulting services contracts.
Added by Acts 1993, 73rd Leg., ch. 2~5, Sec, 1, eff, Sept, ~ } 1993.
Amended by Acts 1997', 75th Leg., ch.1a35, Sec. 5, eff. June 19,1997.
Sec. ~~~4,~~b. ~NTRAT WITH ~NU~TANT. A state agency nay contract with a
consultant only if:
~ 1 } there is a substantial need for the consulting services; and
{2} the agency cannot adequately perform the services with its vwn personnel or obtain
the consulting services through a contract with a state governmental entity.
Added by Acts 1993, 73rd Leg., ch, 2~8, Sec,1,eff. ept.1,1993.
Arr~ended by Acts 1997, 75th Leg., ch.1 a3 , Sec. eff, June 19,1997,
Sec. ~~~4.~~7. S~L~TI~1~ OF ~~NSULTAN'~. In selecting a consultant, a state agency
shall:
~ 1 ~ base Its choice on demonstrated competence, knov~ledge, and qualifications and an
the reasonableness of the proposed fee for the services; and
11
~ ~ ~ 1 ~
1
if other considerations are equal, give Preference to a consultant whose principal
place of business i in the Mate or v~ho gill manage the consulting contract v~holly from
an off ce in the state.
Added by Acts 1993, 73rd Leg, ch. CGS, Sec' 1, eff, Sept, 1,1993
Amended by Acts 1997, 75th Leg,, ch~ 1 X35, Sec. eff, June ~ 9,1997.
Sec. ~254.U21~. NI~TI~E IMF INTENT: AJ~It ~NULTIN~ ERVI~
I~I~NTRAT.
{a} Before entering into a major consulting services contract, a state agency shall:
{1} notify the Legislative Budget Board and the governor's Budget and Planning
office that the agency intends to contract with a consultant;
{2} give information to the Legislative Budget Board and the governor 's Budget
and Planning ~ffce to demonstrate that the agency has complied ar mill comply
with Sections Z~54,~2 and2~54,0~7; and
{3} obtain a finding of fact from the governor's Budget and Planning office that
the consulting services are necessary.
{b} A major consulting services contract that a state agency enters into ithaut first
obtaining the finding required by Subsection {a}{3} is void.
{c} Subsection {a}{} does not apply tv a major consulting services contract to be entered
into by an institution of higher education other than a public junior college if the
institution includes in the invitation published under Section Z~54.4~9 a finding by the
chief executive officer of the institution that the consulting services are necessary and an
explanation of that finding.
Added by Acts 1993, 73rd Leg,, ch~ 2b8, Sec. 1, eff. Sept,1,1993. Amended by Acts 1997, 75th
Leg,, h~ ~ 0 , Sec. S, eff, June 19,1997; Acts ~~D3, 7$th Leg., ch~ 12~, Sec,1.03, eff. June ~o,
~0~3.
Sec. 2~4.U~9. PUB~I~TI~N IN T~xA ~EI~ITER B~~'~RE ENTERING
INT[] 1VIAJ~R I~NUI~TIN ~R~II1~S IINTRAI~T.
{a}Not later than the 3~th day before the date it enters into a major consulting services
eont~~Ct, a state agency shall fle nth the secretary of state for publlcatlon in the Texas
register;
{ 1 } an invitation for consultants to provide offers of consulting services;
the Hanle ~f the individual ~vho should be contacted by a consultant that
intends to rrrake an offer;
{3} the closing date for the receipt of offers; and
{4} the procedure by which the state agency gill award the contract.
fib} if the consulting services sought by a state agency relate to services Previously
provided by a consultant, the agency shall disclose that fact in the invitation required by
Subsection ~a}. If the state agency intends to av~ard the contract far the consulting
services to a consultant that previously provided the services, unless a better offer is
received, the agency shall disclose its intention in the invitation required by Subsection
# ~ ~ { ~
Added by Acts 1993, 73rd Leg,, ch, 2, Sec. 1, eff. Sept.1,1993.
Amended by Acts 1997, 75th Leg., h, l ~3 , Sec. 9, eff. June ~ 9,1997.
Sec. ~~4.~~~. I'UBLIATII~~ IN T~~AS R~IxISTER AFTER ~NTLRII~I~
I1~T~ AJI~R I~~NS~JLTINI~ S~R~II~ES ~NTI~.AT. Not cater than the ~at~ day after
e date of entering into ~ mad or consult~rig services contract, the contracting state agency shall
file with the secretary of state far publication in the Texas Register:
~ 1 } description of the activities that the consultant will conduct;
~Z} the name and business address of the consultant;
~3} the total value and the beginning and ending dates
of the contract; and
~4} the dates an which docurr~ents, films, recordings, ar reports that the consultant is
required to present to the agency are due.
Added by Acts 1993, 73rd Leg., ch. Sec.1,ef. Sept.1,1993.
Amended by Acts 1997, 75th Leg., ch,1~35, ec.1~, eff. June 19,
1997; Acts 1999, 7th Leg,, ch. I4G7, Sec.1.30, eff. Sept. 1,1999.
Sec. ~~~.0~ ONTItAI~T 1~I~TIFIATI~1~. A state agency shall provide written
notice to the Legislative Budget hoard of a contract for consulting services if the amount of tl~e
contract, including an amendment, naodlficatton, renewal, or extension of the contract, exceeds
~ 14,aaa. The ~aotice must be on a farm prescribed by the Legislative Budget Board and filed not
rater than the 1 ern day after the date the entity enters into the contract.
Added by Acts 1999, 7dth Leg., ch. ~S I, Sec,14, eff. Sept.1,1999.
Sec. ~254.~31. R~NLAL; AiVILNIlNIE1~T~ LXTEl~SYON.
~a} A state agency that intends to renew a maj ar consulting services contract shall
~ 1 } file with the secretary of state for publication in the Texas Register the
informat1on required by Section ~24.a3a not later than the lath day offer the date
the contract is renewed if the renewal contract is not a major consulting services
contract; or
comply with Sections 2~54,~~~ and ~~54.a29 ifthe renewal contract is a
major consulting services contract.
fib} A state agency that intends to renew a contract that is not a major consulting
services contract shall comply with Sections ~254.a28 and 2~54.aZ9 if the original
contract and the renewal contract have a reasonably foreseeable value totaling more than
$1 S,~~a, or $25,aaa for an institution of higher education other than a public junior
college.
~e~ A state agency that intends to amend ar extend a major consulting services contract
shall:
~ 1 } not later than the lath day aver the date the contract is amended yr extended,
file the information required by section 254.030 with the secretary of state for
publication in the Texas Register ifthe contract after the amendment or extension
is not a mad or consulting services contract; ar
~ ~ ~ f r
i
comply with sections ~254.~~$ and ~~54.~2 if the contract offer the
amendment ar extension 15 ~ ~rla~Dr consulting services contract.
~d} A state agency that intends to amend or extend a contract that is not a rnaj or
consulting services contract shall comply with Sections ~~54,~ZS and ~54.0~9 if the
original contract and the amendment or extension have a reasonably foreseeable value
totaling more than ~ 15,~OD, or 25,00 for an institution of higher education other than a
public j unior college.
Added by Acts I993, 73rd Leg., ch. 2~8, Sec.1,eff, Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch.1035, ec,11, eff. June 1,
1997; Acts 1999, ?nth Leg., ch,14G7, dec. l , 1, eff. Sept,1,1999; Acts 7th Leg., ch,
1 ec,1.~4, eff. June 20, 2003.
Sec. Z~S4.~~~, ~NFLITS OF INTEIST.
~a} An officer or employee of a state agency shall report to the chief executive of
the agency, not later than the 10th day after the date on which a private cvnsultarrt -
subrriit an offer to provide consulting services to the agency, any financial interest that; -
~ 1 } the officer or employee has in the private consultant who submitted the offer; -
or
an individual who xs related to the off
icer ar employee within the ~ecQnd
degree by consanguinity ar affinity, as determined under chapter 573 has in the
private consultant who submitted the offer.
{b} This section applies to all consulting services contracts and renewals, amendments,
and extensions of consulting services contracts.
Added by Acts 1993, 73rd Leg., ch, Sec. 1, eff. ept.1,1993.
Sec, ~~~4.D~, RESTRIT~~N ~N FARMER EN~PL~YEES 0~" A TATL
AEN~'~.
~a} An individual who offers to provide consulting services to a state agency and who has
been employed by that agency or by another agency at any time during the two years
preceding the mal~ing of the offer shall disclose in the offer:
~ 1 } the nature of the previous employment with the agency or the ether agency;
the date the employment was terminated; and
the annual rate of corrrpensation for the employment at the time of its
terll~lnatrOn.
fib} A state agency that accepts an offer from an individual described in Subsection ~a}
shall include in the lnformatlon filed under Section 2254.30 a statement about the
individual 's previous employment arad the nature of the employment.
Added by Acts 1993, ?3rd Leg., ch, 2GH, Sec.1,eff. Sept. 1, 1993.
Sec. ~~54.04, I~NTRAT VOID.
~a} A contract entered into in violation of Sections 2254.029 through 254,031 is void.
~h} A contract entered into with a private consultant who did not comply with Section
2254.033 is void.
14
f ~ x l
~c} If a contract is void under this section:
~1 } the comptroller may not drag a warrant or transmit money to satisfy an
obligation under the contract; and
a state agency may not make any payment under the contract with state or
federal money or money held in or outside the state treasury.
~d} This section applies to ail consulting services
contracts, including renewals, amendments, and extensions of consulting services
contracts.
Added by Acts 1993, 73rd Leg., ch. 28, Sec.1,eff. Sept.1,1993.
Amended by Acts 1999, 7bth Leg., ch,14~7, Sec, 1.32, eff, June 19, 1999.
Sec. ~~~4.~~~. DIVIDING ~NTRATS.
~a~ A state agency rrlay not divide a consulting services contract into more than one
cantract to avoid the requirements of this subchapter.
fib} This section applies to all consulting services contracts, including renewals,
amendments, and extensions of consulting services contracts.
Added by Acts 1993, 73rd Leg., ch. 2~8, Sec. 1, eff. Sept. 1, 1993.
See. ~24.03G. ARI~~IIES.
~a} ~n request, a state agency shall, after the agency 's contract with a consultant has
ended, supply the Legislature Budget Board and the governor 's Budget and Planning
~ffce with copies of all documents, ~lrr~s, recordings, or reports compiled by the
consultant under the contract.
fib} copies of all documents, films, recordings, or reports compiled by the consultant
shall be filed with the Texas State Library and shall be retained by the library for at least
five years,
~c} The Texas State Library shall list each document, f l~n, recording, and report given to
it under Subsection ~b~ and shall file the list at the end of each calendar quarter with the
secretary of state for publication in the Texas Register.
Added by Acts 1993, 73rd Leg., ch. 2~8, Sec.1,eff. Sept. 1,1993.
Amended by Acts 1997, 7th Leg., ch.1 ~3, Sec. 12, eff. June 19,1997.
Sec. ~~4.4~7. REPORTS. As part of the biennial budgetary hearing process conducted by the
Legislative Budget Board and the governor 's Budget and Planning office, a state agency shall
report tv the Legislature Budget Board and the governor 's Budget and Planning office on any
actions taken in response to the recommendations of any consultant with whom the state agency
contracts during the previous biennium.
Added by Acts 1993, 73rd Leg,, ch. 2S, Sec.1,ff, Sept. 1, 1993.
Amended by Acts 1997, 7th Leg., ch.103 , Sec. 13, eff. June 19,1997.
1~
~ ~ i ~ ¦
t
dec. ~2~4.438. MIMED GNTRA~T, This subchapter applles to a contract that Involves
both consulting and other services if the primary objective of the contract is the acquisition of
cansulting ervlCe~,
Added by Acts 1993, 73rd Leg,, ch, 2b$, Sec. eff. Sept.1,1993.
dec. ~24.~~9. ~N~PTRGLLER' RULE.
~a} The comptroller shall adapt rules to irr~plement and adrr~inister this subchapter, The
comptroller 's rules may not confYict with vx cover a matter on which this subchapter
autharizes the governor to adopt rules,
fib} The comptroller shall give proposed rotes to the governor and the General Services
Commission for review and comment before adopting the rules.
Added b~ Acts 1993, 73rd Leg,, ch. Sec.1,eff. Sept.1,1993.
Sec. ~~4.~40. FR~UREMENT B~ GENERAL SERIES ~MM~IGN.
~a~ The General Services Commission rnay, on request of a state agency, procure far the
agency consulting services that are covered by this subchapter.
fib} The commission tray require reimbursement for the costs it incurs in procuring the
Serv1C~5.
Added b~ Acts 1993, ?3rd Leg., ch. _ 2G8, Sec.1,eff. Sept. 1, 1993.
Amended by Acts 1999, 7bth Leg,, ch. 42~, Sec, l eff. June 1 S, ~ 999.
SUBCHAPTER . CONTINGENT FEE ~NTRAT EAR LEGAL SER~IE
See. ~~4.~U~. DEEIN~TIGN, In this subchapter:
~ ~ ~ 'Contingent fee's means that part of a fee for legal services, under a contingent fee
contract, the amount or payrr~ent of which is contingent on the outcome of the matter for
which the services were obtained.
"Contingent fee cantrac#" means a contract for legal services under which the amount
or the payment of the fee for the services is contingent in whole or in part vn the outcome
of the matter for which the services were obtained.
"Mate governmental entity':
~A} means the state or a board, commission, departrr~ent, office, or other agency
in the executive branch of state government created under the constitution or a
statute of the state, including an institution of higher education as defined by
Section ~ 1.003, education Code;
includes the state when a state off
icer is bringing a parens patriae proceeding
in the name of the state; and
does not include a state agency or state officer acting as a receiver, special
deputy receiver, liquidator, or liquidating agent in connection with the
administration of the assets of an insolvent entity under Article 21.2$, Insurance
Code, or Chapter 3~, 9~, or 12~, finance Code,
Added by Acts 1999, 7th Leg., ch. 1499, Sec. 3.03, eff, Sept. 1, 1999.
1
4 i t ti ?
1
fie} Before entering into a contingent fee contract for legal services in which the
estimated amount that maybe recovered exceeds 100,000, a state governmental entity
that proposes to enter into the contract in its own name or in the narrie of the state must
also notify the Legislative Budget Board that the entity proposes to enter into the
contract, send the board copies of the proposed contract, and send the board information
demonstrating that the conditions required by Subsection ~d}~3} exist. If the state
governmental entity finds under Subsection ~d}~3}that the state governmental entity does
not have appropriated funds available to pay the estirr~ated amounts required under a
contract for the legal services providing only for the payment of hourly fees, the state
governmental entity nay not enter into the proposed contract in its own name or in the
name of the state unless the Legislative Budget Board finds that the state gavern~nental
entity 's finding with regard to available appropriated funds is correct.
~f} A contingent fee contract for legal services that is subject to Subsection {e} and
requires a finding by the Legislative Budget Board is void unless the board has made the
finding required by Subsection ~e},
Added by Acts 1999, 7th Leg., ch. 1499, Sec. 3.03, eff, Sept. 1, 1999.
Sec. 224.144. TIME AND EXPENSE ~EI~I~D REUIItED} FINAL
STATEMENT.
~a} The contract must require that the contracting attorney ar law firm keep current and
ca~nplete written time and expense records that describe in detail the time and money
spent each day in performing the contract.
fib} The contracting attorney or law f rrn shall permit the governing body or governing
officer of the state governmental entity, the attorney general, and the state auditor each to
inspect ar obtain copies of the tirr~e and expense records at any tine on request.
~c} On conclusion of the matter for which legal services were obtained, the contracting
attorney or law firm shall provide the. contracting state governmental entity with a
complete written statement that describes the outcome of the matter, states the amount of
any recovery, shows the contracting attorney 's yr law firm 's computation of the amount
of the contingent fee, and contains the final complete tine and expense records required
by Subsection ~a}. The complete written statement required by this subsection is public
information under chapter 552 and may not be withheld from a requester under that
chapter under Section 552.1 ~3 or any other exception from required disclosure.
~d} This subsection does not apply to the complete written statement required by
Subsection All time and expense records required under this section are public
information subject to required public disclosure under chapter 552. Information in the
records may be withheld from a member of the public under Section 552.103 only if, in
addition to meeting the requirements of Section 552.103, the chief legal officer or
employee ofthe state governmental entity deternrtines that withholding the information is
necessary to protect the entity 's strategy ar position in pending or reasonably anticipated
litigation. lnforrnatian withheld from publlc dlsclosure under this subsection shall be
segregated frorr~ information that is subject to required public disclosure,
Added by Acts 1999, ?nth Leg., ch,149, Sec. 3.03, eff. Sept. I ,1999.
1S
~ y ~ ~ ¦
Sec. X4.14. ~RTAIN ~NE~AL ~NTRACT R~UIR~.E~IENT, The contract
must;
~ 1 } provide for the method by which the contingent fee is computed;
state the differences, if any, in the method by which the contingent fee is computed if
the matter i settled, tried, or tried and appealed;
~3} state how iitigation and other expenses will be paid and, if reimbursement of any
expense is contingent on the outcarrre of the matter or reirnbursabie from the amount
reco~rered in the matter, state whether the amount recovered for purposes of the
contingent fee computation is considered to be the amount obtained before or alder
expenses are deducted;
~4} state that any subcontracted legal or support services performed by a person who is
not a contracting attorney or partner, shareholder, or employee of a contracting attorney
or law frm is an expense subject to reimbursement only in accordance with this
subchapter; and
~5} state that the amount afthe contingent fee and reimbursement of expenses under the
contract will be paid and limited in accordance with this subchapter.
Added by Acts 1999, 7th I.~eg., ch. 1499, Sec. ~.~3, eff. Sept.1,1999.
Sec, ~~4, I4G. ~NTR~T REIUIREMENTS: ~1VIPUT'A~'I~N OF
~NTINNT FED; REINIB~JREMENT ~F ~X~~N~.
{a} The contract must establish the reasonable hourly rate for work performed by an
attorney, iaw clerk, or paralegal who will perform legal or support services under the
contract based on the reasonable and customary rate in the relevant locality far the type
afwork performed and on the relevant experience, demonstrated ability, and standard
hourly billing rate, if any, of the person performing the work. The contract may establish
the reasonable hourly rate for one ar mare persons byname and may establish a rate
schedule for work performed by unnamed persons. The highest hourly rate for a Warned
person or under a rate schedule may not exceed $~,Oa~ an hour. This subsection applies
to subcontracted work performed by an attorney, law clerk, or paralegal who is not a
contracting attorney or a partner, shareholder, or employee of a contracting attorney or
law firm as well as to work performed by a contracting attorney or by a partner,
shareholder, or employee of a contracting attorney or law arm.
fib} The contract must establish a base fee to be computed as follows. For each attorney,
law clerk, ar paralegal who i a contracting attorney or a partner, shareholder, ar
employee of a contracting attorney or law f rm, multiply the number of hours the
attorney, iaw clerk, or paralegal works in providing legal or support services under the
contract times the reasonable hourly rate far the work performed by that attorney, law
clerk, or paralegal. Add the resulting amounts to obtain the base fee. The computation of
the base fee may not include hours or costs attributable to work performed by a person
who is not contracting attorney or a partner, shareholder, or employee of a contracting
attorney or law fr.
~c} Subject to Subsection ~d},the contingent fee is computed by multiplying the base fee
by a multiplier. The contract must establish a reasonable multiplier based on any
expected difficulties in performing the contract, the amount of expenses expected to be
19
,y ~ 1 i
risked by the contractor, the expected risk of no recovery, and any expected Tong delay in
recovery. The rrlultipller may not exceed four without prior approval by the legislature,
~d} In addition to establishing the method of computing the fee under Subsections ~a},
~b}, and ~c}, the contract must limit the amount of the contingent fee to a stated
percentage of the amount recovered. The contract may state different percentage
limitations for different ranges of possible recoveries and different percentage limitations
in the event the rriatter is settled, tried, or tried and appealed, The percentage limitation
may not exceed 5 percent without prior approval by the legislature, The contract
must state that the amount of the contingent fee will not exceed the lesser of the stated
percentage of the amount recovered or the amount corr~puted under Subsections ~a~, ~b},
and ~c},
~e~ The can#ract also may:
{ 1 } limit the amount of expenses that tray be rein~bursed~ and
~2} provide that the amount or payment of only part of the fee is contingent on
the outcome of the matter for which the services were obtained, with the an~aunt
and payment of the remainder of the fee payable on a regular hourly rate basis
without regard to the outcome of the matter,
Except as provided by Section Z~~~,107, this section does not apply to a contingent
fee contract for legal services;
~ 1 } in which the expected amount to be recovered and the actual amount
recovered do not exceed 1 oQ,OQO; ar
under which a series of recoveries is contemplated and the amount of each
individual recovery is not expected to and does not exceed ~ QQ,Q~~.
fig} This section applies to a contract described by Subsection for each individual
recovery under the contract that actually exceeds ~ QQ,aQO, and the contract must provide
for computing the fee in accordance with this section for each individual recovery that
actually exceeds ~ l QQ,OOQ.
Added by Acts 1999, 7th Leg., c1~,1 X99, Sec, 3 ,Q3, eff, Sept, 1, 1999,
Sec. ~~4,1~?. N~~~ED H~UREY ~?ND ~~NTIN~ENT FEE ~~NT~ATS;
RE~NI~~SENIENT FAR Si~BHNTRATE wl~
~a~ This section applies only to a contingent fee contract:
~ 1 } under which the amount or payment of only part of the fee is contingent on
the outcome of the matter for which the services were obtained, with the amount
and payment of the remainder of the fee payable on regular hourly rate basis
without regard to the outcome of the matter; or
under which reimbursable expenses are incurred for subcontracted legal or
support services performed by a person who is not a contracting attorney or a
partner, shareholder, or employee of a contracting attorney or law firm.
fib} Sections 2~4. ~ QG~a} and fie} apply to the contract without regard to the expected or
actual amount of recovery under the contract.
~c} The lirr~i#ations prescribed by Section ~~4, ~ D on the a~naunt of the contingent fee
apply to the entire amount of the fee under the contingent fee contract, including the part
of the fee the amount and payment a~" which is not contingent on the outcome of the
matter,
2Q
~ ti ~
{d} The limitations prescribed by Section 224,1 OS an payment of the fee apply only to
payrr~ent of the contingent portion of the fee.
Added by Acts 1999, 7th Leg., ch. 1499, Sec, 3,~~, eff, Sept, 1, 1999,
Sec. 2254.148. FEE PAYIVIENT ADD E~FENSE ~tE~BURSEMENT.
{a}Except as provided by Subsection {b}, a contingent fee and a reimbursement of an
expense under a contract with a state governmental entity is payable only from funds the
legislature specifically appropriates to pay the fee ar reimburse the expense, An
appropriation to pay the fee or reimburse the expense must specifically describe the
individual contract, or the class afcantract classified by subject matter, on account of
which the fee is payable ar expense is reimbursable. A general reference to contingent fee
contracts for legal services or to contracts subject to this subchapter or a similar general
descriptiar~ is not a sufficient description for purposes of this subsection.
{b} if the legislature has not specifically appropriated funds for paying the fee ar
reimbursing the expense, state governmental entity rriay pay the fee or reimburse the
expense from other available funds only if:
{ 1 } the legislature is not in session; and
{2} the Legislative Budget Board gives its prior approval for that payment ar
rein~burserrrent under Section Article VI, Texas anstitution, after
examining the statement required under Section 2254.1 a4{c} and determining that
the requested payment and the contract under which payment is requested
meet all the requirements of this subchapter,
{c} A payment or reimbursement under the contract may not be made until;
{ 1 } final and unappealable ar~rangen~ents have been made far depositing all
recovered funds to the credit of the appropriate fund or account in the state
treasury; and
the state governmental entity and the state auditor have received from the
contracting attorney or law firm the statement required under Section
Z2 ~ 4,144{c}.
{d} f,itxgation and other expenses payable under the contract, including expenses
attributable to attorney, paralegal, accountant, expert, or other professional work
performed by a person who is not a contracting attorney ar a partner, shareholder,
or employee of a contracting attorney or law firm, may be reimbursed only if the state
go~ernn~ental entity and the state auditor determine that the expenses were reasonable,
proper, necessary, actually incurred on behalf of the state governmental entity, and
paid for by the contracting attorney or law f
irm. The contingent fee rriy not be paid until
the state auditor has reviewed the relevant time and expense records and verif
ied that the
hours of work on which the fee con~putatian is based were actually worked in performing
reasonable and necessary services for the state governmental entity under the contract.
Added by Acts 1999, 7Gth Leg., ch,14, Sec. x.03, eff, Sept. 1,1999.
Sec. 224.149. EF~`ET ~N ETHER LAw.
{a}This subchapter does not limit the right of a state governmental entity to recover
f
fees and expenses frorr~ apposing parties under other law.
~1
.1 ~ ~
fib} compliance with this subchapter does not relieve a contracting attorney or lave ~rrn
of an obligation or responsibility under other lave, including under the Texas Disciplinary
Rules of Professional conduct.
fie} A state officer, employee, or governing body, including the attorney general, may
not v~aive the requirements of this subchapter or prejudice the interests of the state under
this subchapter. This subchapter does not v~aive the state's sovereign immunity from suit
or its irnn~unity from suit in federal court under the Eleventh Amendment to the federal
Constitution.
Added by Ants 1999, 7th Leg,, ch. i 499, Sec. ~ eff. Sept. 1, l 999.
~JBCHAPTER D. OUTSIIIE LEGAL SERVI~S
Sec. Z24.1~1. HEFINITION. In this subchapter, „state agency" rnear~s a department,
ca~nmissian, board, authority, office, or other agency in the executive branch of state
government created by the state constitution or a state statute.
Added by Acts 2oa, 78th Leg., ch. 3~9, Sec. 7.18, eff. June ~ 8, 2~0.
Sec. Z~4.1 A~PLII~ABILITY, Tlxis subchapter does not apply to a contingent fee contract
for legal services.
Added by Acts ~~03, 7Sth Leg., ch. 3~9, dec. 7.18, eff. June l S, 203,
Sec. ~~~4.I~. I~NTRAI~TS FOR LEI~AL SERVICES AUTHORI~EI~. Subject to
section 4~2.~~ l a state agency may contract for outside legal services.
Added by Acts 7Sth Leg., ch. 309, dec. 7,18, eff. June 18,
Sec. ~~~4.~4, ATTORNEY GENERAL; I~OMPETITIV~ ~ROI~URENIENT. The
attorney general may require state agencies to obtain outside legal services through a competitive
procurement process, under conditions prescribed by the attorney general.
Added by ,Acts 200, 78th Leg,, ch. X09, sec, 7,1 S, ef. June 18, ~o~.
2~