5-Standard Terms and Conditions-New.pdf

REQUEST FOR PROPOSAL

Annual Financial Audit Services

RFP# 994-25/27

Submittal Deadline:

Wednesday January 7th, 2026 by 4:00 pm

Issued by:

TISD Purchasing Department https://www.tomballisd.net/about-tisd/departments/finance/purchasing https://www.tomballisd.net/about-tisd/departments/finance/purchasing

GENERAL INFORMATION FOR VENDORS

The Purchasing Department of Tomball Independent School District, “the District,” is conducting this procurement to establish a contract.

The District is accepting proposals for Annual Financial Audit Services.

Direct all questions regarding this solicitation or the requirements specified herein through TISD's Bonfire E-Procurement portal under “Vendor Discussions” no less than ten (10) TISD business days before proposals are due. Tomball ISD will not answer verbal questions; any responses to a prospective vendor’s questions will be posted on the Bonfire E-Procurement portal.

Interested proposers should respond to this RFP and submit proposals online at the TISD Bonfire E-Procurement portal site. This site can be accessed by following the instructions on the “Bids and Proposals” page of TISD’s website: https://www.tomballisd.net/about-tisd/departments/finance/purchasing/bids-and-proposals. To be considered a responsive offer, proposers are required to submit an original of their proposal, proposal sheets and any other information requested and/or required in this solicitation electronically through the Bonfire portal.

Proposers are required to respond to all requests identified in this RFP and indicate their acceptance or objection to the terms of the RFP and the terms of the Agreement. Any exceptions to the terms and conditions in the RFP or the Agreement must be clearly indicated in the proposer’s “deviations” section of the proposer’s submitted proposal. Each proposer, by making its proposal, represents that the proposer has read and understands the RFP and the Agreement.

All proposers are required to respond to this RFP using the TISD Bonfire E-Procurement portal. All certifications and forms included in the TISD Vendor Packet must be completed, signed, scanned, and attached under “Vendor Packet” in the Bonfire portal. Vendor shall ensure that it complies with all requirements, and provides all information requested, within this Request for Proposal.

References: All proposers shall provide at least three references of governmental entities (school districts preferred) that have purchased services, products, and/or related items from proposer in the last 3-4 years. References are to be provided under the “Reference” section of the TISD Bonfire portal. Vendor shall use the following format for all references: (1) Company Name; (2) Address; (3) Contact Name; (4) Phone Number; and (5) Email.

No proposals will be accepted after the deadline. To qualify for evaluation, a proposal must have been submitted on time and must materially satisfy all mandatory requirements identified in this procurement solicitation.

Tomball ISD shall comply with the Texas Public Information Act in the event Tomball ISD receives an open records request for information relating to proposals submitted in response to this RFP.

Tomball ISD reserves the right: to cancel this solicitation in whole or in part by issuance of a revised or amended Request for Proposals;

to reject any and/or all proposals; to award contracts for individual products or services as may appear advantageous; to negotiate separately in any manner necessary to serve the best interests of the District; to accept, reject, or negotiate modifications in any terms of a proposed vendor’s proposal or any parts thereof; to accept any proposal(s) determined to be the most advantageous to the District and award one or more contracts, in whole or in part, to a single or to multiple prospective vendors or proposers (the decision to award multiple contracts, award only one contract, or to make no awards rests solely with TISD; TISD may make multiple awards, and this fact should be taken into consideration by each proposer); and to waive any formalities or technicalities if deemed in the best interest of the District. TISD also reserves the right as sole judge of quality, equality, and suitability in awarding the proposal deemed to be most advantageous to the District.

Tomball ISD may request clarification from vendor(s) for the purpose of eliminating minor errors, clerical errors, and/or non-substantive irregularities. Clarification does not give a vendor the opportunity to revise, change, or modify its proposal in any way except to the extent of correction of the error. Discussion between TISD and a vendor may also take place after the initial receipt of proposals. TISD reserves the right to conduct discussions with all, some, or none of the vendor(s) submitting proposals. TISD will not assist a vendor in the revision or modification of its proposal, nor will TISD assist a vendor in bringing its proposal to the same level of other proposals received by TISD.

Tomball ISD makes no guarantee or commitment of any kind concerning quantities that will actually be purchased under this RFP and the resulting contract, if any. TISD makes no guarantee or commitment of any kind regarding usage of any contract(s) resulting from this RFP.

Vendors, however, are expected to carry sufficient inventories to service the needs of TISD and shall furnish all required goods and/or services to the District at the stated price, when and if required. Because all commodities will be provided on an “as needed” basis, TISD makes no representation either orally or in writing as to the amount of commodities, services, or related items TISD will use during the Term of the Contract.

TISD maintains and uses documented procedures for procurement transactions under a Federal award or subaward, including for acquisition of property or services. TISD’s documented procurement procedures are consistent with State, local, and tribal laws and regulations and standards identified in §§ 200.317 through 200.327 of subpart D—Post Federal Award Requirements. TISD is utilizing the Request for Proposals (RFP) method of procurement in accordance with Texas Education Code Section 44.031(a)(3) Purchasing Contracts, Request for Proposals, for services other than construction services. For information regarding the proposal process, contact Susie Recio, Purchasing Coordinator (281) 357-3100 ext. 2042 or Rebecca Felder, Director of Finance ext. 2028.

TISD assumes no financial responsibility for any costs incurred by prospective vendors in developing and submitting a response or any amendments or addenda, participating in bid conferences, participating in any negotiation sessions or discussions, or any other costs incurred by prospective vendors prior to award of a contract pursuant to this RFP.

Any corrections, additions, or changes to this RFP will be communicated to vendors by the issuance of an addendum. It is the responsibility of the vendor, prior to submitting their response, to determine whether an addendum was issued. All vendors shall comply with the requirements specified in any addendum issued by TISD.

A vendor may be disqualified before or after the proposals are opened, upon evidence of collusion with the intent to defraud, or evidence of intent to perform other illegal activities for the purpose of obtaining an unfair competitive advantage.

This solicitation represents the basis for any award and supersedes all prior offers, negotiations, exceptions, and understandings (whether orally or in writing). Submitted proposals should be self-explanatory and should not require any clarification or additional information.

Once submitted, TISD will not return proposals to vendors. A proposal that has been submitted to TISD may be withdrawn by email or online prior to the deadline for submission of proposals.

Vendors are required to certify a Non-Collusive Statement. Vendors are required to state the party submitting a response; that such response is genuine and not collusive or sham; that vendor has not colluded, conspired, connived or agreed, directly or indirectly, with an entity or person, to put in a sham response or to refrain from bidding; and has not in any manner, directly or indirectly, sought by agreement or collusion, or communication or conference, with any person, to fix the response price of any other vendor, or to fix any overhead, profit or cost element of said response price, or that of any other vendor, or to secure any advantage against TISD or any person interested in the proposed contract, and that all statements in said response are true.

Vendor and TISD agree to secure the confidentiality of all information and records in accordance with applicable federal and state laws, rules, and regulations. Vendor and TISD understand that the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, governs the privacy and security of educational records and information and agree to abide by FERPA rules and regulations, as applicable.

Vendor also acknowledges that TISD is a governmental body subject to the Texas Public Information Act, and responses and other information submitted to TISD in connection with this solicitation or the Agreement may be subject to release as public information. If a vendor believes that its response, or parts of its response, or any other information submitted by vendor to TISD in connection with this procurement solicitation or the Agreement may be exempted from disclosure under Texas law, the vendor must clearly and conspicuously mark the applicable information as “CONFIDENTIAL,” including, but not limited to, specifying page-by-page and line-by-line the parts of the response which it believes are exempt. In addition, the vendor must specify which exception(s) to the Texas Public Information Act are applicable and provide detailed reasons to substantiate the exception(s). Vague or general claims of confidentiality will not be accepted.

TISD assumes no obligation or responsibility relating to the disclosure or nondisclosure of information submitted by vendors. Vendor waives any claim against and releases from liability TISD, its trustees, officers, employees, agents, and attorneys with respect to disclosure of information provided under or in this Agreement or otherwise created, assembled, maintained, or held by Vendor and determined by TISD, the Attorney General of Texas, or a court of law to be subject to disclosure under the Texas Public Information Act.

TISD is tax-exempt. Response prices should not include taxes.

In accordance with Federal EDGAR requirements, 2 CFR § 200.318(c)(1), no employee, officer, agent, or board member with a real or apparent conflict of interest may participate in the selection, award, or administration of a contract supported by the federal award. A conflict of interest includes when the employee, officer, agent, board member, or any member of their immediate family, their partner, or an organization that employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from an entity considered for a contract.

An employee, officer, agent, or board member of TISD may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors. However, through TISD's written procedures, TISD has set a De Minimis amount of less than $50 per year for items that are unsolicited and of minimal value and promotional items.

Violations of this standard by an employee will be reported to the Superintendent’s Office and addressed through TISD’s personnel policies.

Violations of this standard by an officer or the Superintendent shall be addressed to the Board President and addressed through TISD Board policies.

Time Table:

TISD anticipates following the time table listed below for this procurement solicitation:

Activity Date and Time

Job starts to advertise (1st run) Friday, November 21st, 2025

Job advertised (2nd run) Friday, November 28th, 2025

Deadline for submission of proposals Wednesday, January 7th, 2026

Award Date Tuesday, February 10th, 2026

The above dates are only estimates and may vary.

RFP PURPOSE

The intention of this Tomball Independent School District (TISD) Request for Proposal (RFP) is to solicit proposals for Annual Financial Audit Services. Vendor(s) shall, at the request of TISD, provide these products and/or services under the terms of this RFP and the Agreement set forth herein, including, without limitation, the section entitled “Tomball ISD Standard Terms and Conditions.”

TISD Purchasing Department documents are made available via its Bonfire E-Procurement portal for qualified vendors who wish to submit a formal response.

This contract can be accessed on an “as needed” basis from a list of contracts that have been competitively bid and awarded with qualified, high performance vendors based on the selection criteria set forth herein. Proposers are requested to submit a proposal offering their total line of available products and services that are commonly purchased by government entities, school districts and other public, not-for-profit agencies and organizations.

Product(s) considered for award shall equal or exceed the technical, environmental and performance standards and specifications as defined and described within this RFP.

The good(s) or service(s) to be purchased under the awarded contract, if any, may be of indefinite delivery and indefinite quantity

(IDIQ).

TOMBALL ISD STANDARD TERMS AND CONDITIONS

Please read carefully this entire proposal document and specifications. Complete all forms and submit your bid with all appropriate attachments.

The words “bids,” “requests for proposals,” “quotes,” “RFPs,” “solicitation,” “procurement,” and their derivatives may be used interchangeably in these terms and conditions. These terms and conditions apply to all bids, requests for proposals, quotes, competitive sealed proposals, and other procurement solicitations to which they are attached. The terms “Vendor” and/or “Proposer” shall mean each awarded vendor chosen by Tomball ISD.

Upon award of a District contract, these Standard Terms and Conditions shall be part of the final contract in each commodity and/or service contract; part of the terms and conditions of each purchase order or other bid/proposal forms issued in connection with this solicitation;

and legally binding on both District and Contractor. They shall remain in full force and effect during the term of the Contract, unless such Contract is amended in writing and executed by both parties, terminated prior to the expiration of the contract term, or replaced by a subsequent contract.

Proposers are responsible for identifying any exceptions to these terms and conditions. ANY EXCEPTIONS MUST BE NOTED IN THE “DEVIATIONS” SECTION OF THE BONFIRE PORTAL. Proposals that are qualified with conditional clauses, items not called for, or other irregularities may be considered non-responsive by TISD and eliminated from further consideration by TISD.

This Agreement is entered into between Tomball Independent School District (“Tomball ISD” or “TISD” or the “District”) and Vendor, having submitted a proposal in response to a procurement solicitation issued by TISD and whose proposal has been accepted and awarded by TISD. In consideration of the mutual covenants and conditions contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TISD and Vendor, intending to be legally bound, and subject to the terms, conditions, and provisions of this Agreement, agree as follows:

1. CONTRACT AWARD: The District expects to award this proposal in February 2026. This date is only an estimate and may vary.

2. FORMATION OF CONTRACT (EXECUTION OF OFFER): A response to this solicitation is an offer to contract with TISD based upon the terms, conditions, scope of work, and specifications contained in this procurement solicitation. A solicitation/proposal does not become a contract unless and until it is accepted by TISD after approval by the TISD Board of Trustees. A binding agreement (“Contract” or “Agreement”) between the parties shall be formed when either TISD’s Superintendent or Chief Financial Officer signs the Execution of Offer form. The proposer must submit a signed Execution of Offer form as part of its response to this solicitation in the “required documentation” section of the Bonfire portal, thus eliminating the need for the formal signing of a separate contract.

3. TERM AND ALLOWABLE RENEWALS: Unless otherwise specified, the initial Contract term shall be effective for a period of two

(1) years (the “Initial Term”) beginning on the date indicated on the Solicitation, Purchase Order, or other written contract duly executed by both parties hereto (the “Effective Date”). Thereafter, unless otherwise specified in the Solicitation, Purchase Order, or other resulting Agreement, the District shall have the right to elect, with mutual agreement of the awarded vendor, to renew any Agreement awarded pursuant to this procurement solicitation for up to three (3) additional one-year terms (individually, a “Renewal Term”), running from the date of execution of the contract by the authorized representative of the District, and subject to the terms and conditions of the Solicitation, Purchase Order, and/or the executed Agreement. Unless agreed to otherwise by both parties, Contract renewals shall be evidenced in writing and executed by both parties. At Tomball ISD’s option, there may be an additional 90-day transitional period added to the end of the initial term or any renewal term. The phrase “Term” in this Agreement shall mean the then-current Term of the Agreement, whether the initial term or a renewal term.

4. TERMINATION: This Agreement shall remain in effect until (1) the Agreement expires by its terms or (2) the Agreement is terminated in accordance with its terms, including, but not limited to, at any time by mutual agreement of TISD and Vendor. The District also reserves the right to terminate the Contract (and/or any purchase order) under any of the following circumstances:

A. The District may cancel or terminate all or any undelivered part of the Contract for convenience and without penalty for any reason or for no reason upon thirty (30) days’ written notice to Vendor, if TISD believes, in its sole discretion, that it is in the best interest of TISD to do so.

B. The District reserves the right to immediately terminate this Contract without penalty for non-appropriation or non-availability of funds, as set forth herein.

C. The District reserves the right to immediately terminate all or any part of the Contract for default if the awarded Vendor becomes insolvent or files any petition in bankruptcy. Such right of termination is in addition to and not in lieu of any other remedies that District may have in law or equity, specifically including, but not limited to, the District’s right(s) to collect damages and/or to demand Vendor’s specific performance.

D. The District reserves the rights: (1) to enforce the performance of the Agreement and/or the procurement solicitation by Vendor in any manner prescribed by law or deemed to be in the best interest of TISD, or, alternatively, (2) to immediately terminate for breach or default all or any part of the Contract and/or the procurement solicitation by Vendor, after providing Vendor written notice of and 30 days to cure such breach or default to the reasonable satisfaction of the District, for failure by Vendor to perform as per the conditions listed, including, but not limited to, those given below:

i. Failure to perform in accordance with the terms of the procurement solicitation, excluding any exceptions disclosed by Vendor and accepted by the District upon contract award.

ii. Failure to perform in accordance with the terms and conditions of the Contract between the District and Vendor.

iii. Failure to meet schedules, deadlines, and/or delivery dates within the time specified in the Agreement, the procurement solicitation, and/or a purchase or work order.

iv. Failure to make any payments owed.

v. Failure to perform per usual and customary industry practices.

vi. Failure to perform per guarantees and performance standards submitted to the District in connection with the Agreement and/or procurement solicitation.

vii. Failure to comply with any federal, state, or local laws, ordinances, rules, and/or regulations, and/or any District and/or campus policies and/or procedures.

E. Any compensation due to the Vendor upon termination will be limited to items received and accepted in writing by the District, and/or services performed and accepted in writing by the District. Vendor agrees that TISD shall not be liable for damages in the event that TISD declares Vendor to be in default or breach of this Agreement and/or the procurement solicitation. If federal funds are used under this Agreement, TISD shall provide written notice of termination to Vendor if TISD terminates this Agreement for any reason stated herein. Vendor further agrees that upon termination of the Agreement for any reason, Vendor shall, in good faith and with reasonable cooperation, aid in the transition to any new arrangement and/or vendor.

5. AGREEMENT TERMS: The terms of this Agreement shall govern all procurements conducted hereunder. No pre-published terms on the Vendor’s order acknowledgments, invoices, or other forms shall have any force or effect.

6. AMENDMENT: No amendment of this Agreement shall be permitted unless first approved in writing by TISD, and no such amendments shall have any effect unless and until a written amendment to this Agreement is executed by TISD’s Superintendent or its Chief Financial Officer (or their designees) after any necessary approvals have been obtained from the TISD Board of Trustees.

7. VENDOR NOTICE OF CHANGES AND UPDATES: Vendors shall immediately send all updates relating to Vendor’s company (including, without limitation, material changes in operations as described in the following section, “Assignment of Agreement”) or changes to Vendor’s contact information directly to the following TISD representative: Purchasing Coordinator at purchasing@tomballisd.net.

8. ASSIGNMENT OF AGREEMENT: Vendor may not assign this Agreement or any of its rights, duties, or obligations hereunder without the prior written approval of TISD. Any attempted assignment of this Agreement by Vendor shall be null and void. Any purchase or work order made as a result of this Agreement may not be transferred, assigned, subcontracted, mortgaged, pledged, or otherwise disposed of or encumbered in any way by Vendor without the prior written approval of TISD. Vendor is required to notify TISD when any material change in operations occurs, including but not limited to, changes in distribution rights for awarded products, bankruptcy, material changes in financial condition, change of ownership, and the like, within three (3) business days of such change.

9. OFFEROR CONDUCT – Beginning with Proposer’s receipt of this notice and throughout the entire proposal process, Proposers are not permitted to contact any District Board of Trustees member, District officer, or District employee, other than the District Purchasing Coordinator or Director of Finance. An employee, officer, agent, or board member of TISD may neither solicit nor accept gratuities, favors, or anything of monetary value from Proposers.

10. PROPOSAL SUBMITTAL – To be considered a responsive offer, proposers are required to submit an original of their proposal, proposal sheets and any other information requested and/or required in this solicitation electronically through the District’s e-bidding system portal, Bonfire.

11. CERTIFICATIONS – Vendor acknowledges and agrees to the following certifications by submission of its proposal. Vendor Information Form, Felony Conviction Notification, Ch. 22 Criminal History Records of Contractor Certification:

Contractor/Subcontractor Employees, TISD Conflict of Interest Disclosure Statement, Tomball Independent School District Proposer/Vendor Certification Forms, Required Contract Provisions for Non-Federal Entity / Recipient and Subrecipient mailto:purchasing@tomballisd.net

Contracts Under Federal Awards – Appendix II to 2 C.F.R. Part 200, IRS Form W-9 (Request for Taxpayer Identification Number and Certification), TISD Certificate of Interested Parties – Form 1295, Tomball Independent School District Antitrust Certification Statement, and Confidentiality Declaration Form.

12. PROPOSAL VALIDITY: Proposal shall remain valid, pending award, for 90 days. All prices and discounts will remain firm for the Term of the Agreement. See Agreement section entitled “Prices.”

13. INTERPRETATION –

a) If a prospective vendor contemplating submitting an offer for the proposed contract is in doubt as to the true meaning of any part of the proposal documents, he/she may submit a written request for an interpretation in writing through the district’s Bonfire e-procurement portal site under ‘Vendor Discussions’ no less than five (5) TISD business days before the proposals are due.

b) Vendor agrees that the normal rules of construction that require that any ambiguities in this Agreement are to be construed against the drafter shall not be employed in the interpretation of this Agreement.

14. LATE PROPOSALS – No proposals will be accepted after the deadline.

15. SUITABILITY – The District reserves the right: to cancel this solicitation in whole or in part by issuance of a revised or amended

Request for Proposals; to reject any and/or all proposals; to award contracts for individual products or services as may appear advantageous; to negotiate separately in any manner necessary to serve the best interests of the District; to accept, reject, or negotiate modifications in any terms of a proposed vendor’s proposal or any parts thereof; to accept any proposal(s) determined to be the most advantageous to the District and award one or more contracts, in whole or in part, to a single or to multiple prospective vendors or proposers (the decision to award multiple contracts, award only one contract, or to make no awards rests solely with TISD; TISD may make multiple awards, and this fact should be taken into consideration by each proposer); and to waive any formalities or technicalities if deemed in the best interest of the District. TISD also reserves the right as sole judge of quality, equality, and suitability in awarding the proposal deemed to be most advantageous to the District.

16. EXCEPTIONS – Proposers are responsible for identifying any exceptions to these terms and conditions. ANY EXCEPTIONS MUST BE NOTED IN THE “DEVIATIONS” SECTION OF THE BONFIRE PORTAL. Proposals that are qualified with conditional clauses, items not called for, or other irregularities may be considered non-responsive by TISD and eliminated from further consideration by TISD.

17. COMPLIANCE WITH LAWS – Vendor shall comply with all applicable federal, state, and local laws, statutes, ordinances, standards, orders, rules, and regulations, including, as applicable, workers’ compensation laws, minimum and maximum salary and wage statutes and regulations, prompt payment and licensing laws and regulations, the Davis-Bacon Act (40 U.S.C. § 276a / 29 CFR Part 5), the Copeland “Anti-Kickback” Act (18 U.S.C. § 874 / 29 CFR Part 5), the Equal Opportunity Employment requirements (Executive Orders 11246 and 11375 / 41 CFR Chapter 60), the McNamara-O’Hara Service Contract Act (41 U.S.C.

351), Section 306 of the Clean Air Act (42 U.S.C. § 1857h, Section 508 of the Clean Water Act (33 U.S.C. § 1368), Executive Order 11738, Environmental Protection Agency regulations (40 CFR Part 15), the Contract Work Hours and Safety Act (40 U.S.C. § 3701-3708; 29 C.F.R. Part 5), the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200), the Education Department General Administrative Regulations, 2 C.F.R. Parts 200 and 3474, and 34 C.F.R. Parts 75-77 and 81 (“EDGAR”), mandatory standards and policies contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871), and all applicable requirements and regulations, including those related to reporting, patent rights, copyrights, data rights and those mandated by federal agencies making awards of federal funds to TISD. Vendor understands that Vendor is ineligible to receive a contract award with TISD if Vendor or its principal(s) is listed on the government wide exclusions in the System for Award Management (Debarment and Suspension Orders Executive Orders 12549 and 12689) or is 30 days or more delinquent in paying child support (Tex. Fam. Code § 231.006). For the entire duration of this Contract, Vendor and all subcontractors shall maintain all required licenses, certifications, permits, and any other documentation necessary to perform this Contract. Vendor must comply with all state and local building code requirements unless otherwise specifically provided in the TISD’s Purchase Order, and Vendor must pay all fees and charges for connections to outside services and for use of property outside the project site. When required or requested by TISD, Vendor shall furnish TISD with satisfactory proof of Vendor’s compliance with this provision.

18. GOVERNING LAW – The laws of the State of Texas, without regard to its provisions on conflicts of laws, govern this Agreement.

The mandatory, exclusive jurisdiction for any dispute under this Agreement is in the state and federal courts located in Tomball, Harris County, Texas.

19. INDEMNIFICATION – TO THE FULLEST EXTENT PERMITTED BY LAW, VENDOR SHALL INDEMNIFY AND HOLD HARMLESS TOMBALL INDEPENDENT SCHOOL DISTRICT, ITS TRUSTEES, OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL DEMANDS, DAMAGES, LAWSUITS, EXPENSES (INCLUDING REASONABLE LITIGATION COSTS AND ATTORNEYS’ FEES), COSTS, FINES, PENALTIES, LIABILITIES, LOSSES, LIENS, CAUSES OF ACTION, AND CLAIMS FOR INJURY TO OR DEATH OF ANY PERSON, OR INJURY OR DAMAGES RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, ARISING OUT OF, OCCASIONED BY, RESULTING FROM, OR IN ANY MANNER CONNECTED WITH, DIRECTLY OR INDIRECTLY, THE PERFORMANCE UNDER THIS AGREEMENT (COLLECTIVELY, “CLAIM”), INCLUDING CLAIMS ARISING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF THE DISTRICT, WHETHER OR NOT THE CLAIM ARISES FROM THE NEGLIGENCE, WILLFUL ACT, BREACH OF CONTRACT, OR VIOLATION OF LAW BY THE VENDOR, ITS EMPLOYEES, AGENTS, CONTRACTORS, OR SUBCONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ARISING FROM CLAIMED INFRINGEMENT OF ANY PATENTS, TRADEMARKS, COPYRIGHT OR OTHER CORRESPONDING RIGHT(S) WHICH ARE RELATED TO ANY ITEM VENDOR IS REQUIRED TO DELIVER. Vendor’s obligations under this clause shall survive acceptance and payment by TISD.

20. EQUAL EMPLOYMENT OPPORTUNITY – It is the policy of Tomball ISD not to discriminate on the basis of race, color, religion, gender, national origin, age, disability, military status, genetic information, or on any other basis prohibited by law. All Vendors shall be in compliance with Executive Order 11246, entitled “Equal Employment Opportunity” as amended by Executive Order 11375, and implementing regulations at 41 CFR Part 60. Vendor agrees not to discriminate against any employee or applicant for employment to be employed in the performance of this Contract, with respect to hire, tenure, terms, conditions and privileges of employment, or a matter directly or indirectly related to employment, because of age (except where based on a bona fide occupational qualification), sex (except where based on a bona fide occupational qualification) or race, color, religion, national origin, or ancestry. Vendor further agrees that every subcontract entered into for the performance of this Contract shall contain a provision requiring non-discrimination in employment herein specified, binding upon each subcontractor. Breach of this covenant may be regarded as a material breach of the Contract.

21. PRICES – All prices in Vendor’s proposal shall be firm for the entire Term of the Agreement. Proposers must respond to all questions and identify all costs, fees, or charges for which TISD may be. Costs not indicated in proposals will not be paid by TISD. Proposers are to provide written documentation for any exceptions. All deliveries under this Agreement shall be delivered:

Freight Prepaid, F.O.B. – Destination - Tomball Independent School District, Full Freight Allowed, Inside Delivery, and shall be included in all pricing in Vendor’s proposal. Submit unit price on quantity specified – extend and show total. In case of errors in extension, unit prices shall govern. TISD may request the awarded vendor(s) to provide discounts or other adjustments to the price for larger orders, on a per-purchase order basis. If discounts or quantity prices are offered by an awarded vendor, the vendor must also offer the same reductions in pricing to be available for orders of similar size. All price changes shall be presented to TISD for acceptance or rejection by TISD, in its sole discretion, using the same format as was accepted in Vendor’s original proposal; all price changes for goods and/or services provided under this Agreement must be approved, in writing, by TISD prior to taking effect. The following documentation shall be provided to support a request for a price change: justification for change/increase; terms and conditions; market conditions; manufacturers/distributors’ impact (if any). In the event of a price decrease at any time during the entire term of the Agreement, such decrease must be made available to the District.

22. PATENT RIGHTS – Successful vendors shall indemnify, hold harmless, and protect the District, its trustees, officers, employees, and agents from and against any claim(s) involving claimed infringement of any patents, trademarks, copyright, or other corresponding right(s) which are related to any item vendor is required to deliver. See Agreement section entitled “Indemnification.”

23. ENERGY STAR COMPLIANCE – Per the requirements of the District Energy Management Department, all new equipment must be Energy Star compliant when available.

24. FEDERAL/STATE/GRANT FUNDING – TISD receives a variety of federal, state, and/or grant funding. Performance by TISD under any Contract/Agreement entered into pursuant to this RFP may be dependent upon the appropriation and allotment of state/federal/grant funds (a “Prime Contract”), including, but not necessarily limited to, grants/funding from the U.S. Department of Health and Human Services, Administration for Children and Families (“HHS”), including Head Start and/or Early Head Start funding; grants/funding from the Texas Education Agency; other federal and/or state funding; and allocation of funds by TISD. If TISD is not appropriated or allocated the necessary federal/state/grant funds or its funding under a Prime Contract is eliminated or decreased, or TISD fails to allocate the necessary funds, then TISD will issue written notice to Vendor and TISD may terminate the Agreement without further duty or obligation to Vendor. Vendor acknowledges that appropriation, allotment, and allocation of funds may be beyond the control of TISD. Vendor shall strictly comply with all applicable Prime Contract requirements and all applicable flow-down, referenced, and incorporated provisions therein and shall cooperate with TISD in fulfillment of TISD’s obligations under the Prime Contract.

25. NON-APPROPRIATION CLAUSE – Renewal of this Agreement, if any, will be in accordance with Texas Local Government Code § 271.903 concerning non-appropriation of funds for multi-year contracts. Notwithstanding any other provision of this Agreement or obligation imposed on TISD by this Agreement, TISD shall have the right to terminate this Agreement without default or liability to Vendor resulting from such termination, effective as of the expiration of each budget period of TISD if it is determined by TISD, in TISD’s sole discretion, that there are insufficient funds to extend this Agreement. The parties agree that this Agreement is a commitment of TISD’s current revenue only.

26. SIMILAR/SPECIFIED/ALTERNATE ITEMS – Whenever an article or material is defined by TISD in this solicitation by describing a proprietary product or by using the name of a manufacturer or brand name, the term “or equal” if not inserted shall be implied (as applicable). The specified article or material shall be understood as indicating type, function, minimum standard of design, efficiency, and quality desired and shall not be construed as to exclude other manufactured products of comparable quality, design, and efficiency (as applicable). If offering an alternate product, proposal must include within its proposal the complete descriptive information of each alternate product, including, without limitation, manufacturer, brand, model, etc. of the item being offered.

27. NEW PRODUCTS – New products that meet the specifications detailed in the solicitation may be added to this Agreement, with prior written approval from TISD. Pricing of any new products shall be equivalent to the percentage discount or proposed prices for other similar products. Vendor may replace or add products to an existing contract if: the replacing products are equal to or superior to the original products offered; are discounted in a similar or to a greater degree; and the products meet the requirements of the original solicitation. No products may be added to avoid competitive procurement procedures. TISD may reject any proposed additions, without cause, in its sole discretion.

28. NO SUBSTITUTION – All proposals must meet or exceed the District’s specifications. The District shall be the sole authority in evaluating and determining the equality of all alternate proposals. Substitutions below the minimum specifications shown will not be accepted. Any order issued pursuant to this Agreement shall conform to the specifications and descriptions identified in this Agreement and in the solicitation. Unless otherwise agreed to in advance by TISD, Vendor will not deliver substitutes without prior authorization from TISD.

29. EVALUATION CRITERIA – It is not the policy of the District to award contracts based solely on ‘low price’. In accordance with applicable laws, rules, and regulations for public purchasing, award(s) will be made to the responsible proposer(s) whose proposal(s) is/are determined, after evaluation by the Tomball ISD Purchasing Department, to be the overall ‘best value’ to the District per Texas Education Code 44.031(b): (1) Purchase price; (2) The reputation of the vendor and the vendor’s goods and/or services; (3) The quality of the vendor’s goods and/or services; (4) The extent to which the goods and/or services meet the District’s needs; (5) The vendor’s past relationship with the district; (6) The impact on the ability of the District to comply with laws and rules relating to historically underutilized businesses (HUBs); (7) The total long-term cost to the District to acquire the goods and/or services; and (8) for a contract for goods or services, other than goods and services related to telecommunications and information services, building construction and maintenance, or instructional materials, whether the vendor or the vendor’s ultimate parent company or majority owner: has its principal place of business in this state, or employs at least 500 persons in this state (hereinafter, “State of Texas preference”); and (9) any other relevant factor specifically listed in the request for bids or proposals. Tomball ISD represents that it has considered each of the criteria in Texas Education Code § 44.031(b), thereby fulfilling Section 44.031(b)’s requirement that it “shall consider” the criteria listed in 44.031(b); in accordance with Module 5 of the TEA FASRG and applicable federal laws, Tomball ISD has determined which criteria should be considered most important and has assigned weights/points to each criterion based on its importance. Tomball ISD will base a recommendation for contract award on the following factors, in accordance with Texas Education Code § 44.031:

EVALUATION FACTORS

Purchase price

The reputation of the vendor and the vendor’s goods and/or services.

The quality of the vendor’s goods and/or services.

The extent to which the goods and/or services meet the District’s needs.

The vendor’s past relationship with the District

The impact on the ability of the District to comply with laws and rules relating to HUBs

The total long-term cost to the District to acquire the goods and/or services

State of Texas preference

Any other relevant factor specifically listed

30. PROPOSAL AWARD – A committee selected by TISD will review and evaluate all proposals and make a recommendation to the TISD Board of Trustees. Award(s) will be made to the successful proposer(s) for the total line of products and services submitted. Awards will be based on the criteria set forth within this document. The District reserves the right to award contracts for any, all, or none of the parts and/or items of this proposal request. Likewise, the District reserves the right to award contracts to multiple vendors if these vendors offer items that are unique and have value to the District. Contracts for purchase shall be put into effect by means of purchase order(s) executed by the District’s Chief Financial Officer after this proposal has been awarded.

a) Competitive Range – It may be necessary for TISD to establish a competitive range of acceptable proposals as part of the evaluation process. Proposals not in the competitive range are unacceptable and do not receive further award consideration.

b) Estimated Quantities – Because all commodities will be provided on an “as needed” basis, TISD makes no representation either orally or in writing to the amount of commodities, services, or related items TISD will use during the Term of the Agreement.

TISD makes no guarantee or commitment of any kind concerning quantities that will actually be purchased. TISD makes no guarantee or commitment of any kind regarding usage of any contracts resulting from this solicitation.

31. NON-EXCLUSIVE AWARD – Any contract resulting from this solicitation is non-exclusive and shall be awarded with the understanding and agreement that it is for the sole convenience of TISD. Nothing in this Agreement may be construed to imply that Vendor has the exclusive right to provide products and/or services to TISD. TISD is free to have multiple contracts for the awarded goods and services and may initiate other procurement solicitations or purchasing activity with other vendors at any time, in TISD’s sole discretion. During the Term of this Agreement, TISD reserves the right to use all available resources to procure other products and/or services as needed, and doing so will not violate any rights of Vendor. The District reserves the right and option, without penalty, to purchase like materials and services from other sources when and if such purchases, in the opinion of the District, are necessary and in the best interest of the District. If the low proposal exceeds the District’s budget allocation, the District may elect, upon determination that the budget can be achieved through value engineering, to negotiate value engineering possibilities with the low contractor and award the contract upon agreement of items necessary to meet the budget. In addition, TISD reserves the right to award multiple contracts for each commodity category. Commodity categories are established at the sole discretion of TISD.

32. PURCHASES – Purchases will be made on an as needed basis throughout the period of the contract by way of Purchase Orders.

33. VENDOR NON-PERFORMANCE. Vendor agrees to use best efforts to provide the good(s) and/or service(s) subject to this

Agreement. If at any time, the Vendor is unable to provide the goods or services at the prices quoted in Vendor’s proposal or if, at any time, Vendor fails to fulfill or abide by the terms and conditions or specifications of the Contract / Agreement, the District may take the following action(s), in TISD’s sole discretion, and Vendor agrees to comply with TISD’s action(s): (a) insist that Vendor honor the quoted price(s) specified in Vendor’s proposal; (b) have Vendor pay the difference between Vendor’s price and the price of the next acceptable proposal (as determined by TISD); (c) have Vendor pay the difference between Vendor’s price and the actual purchase price of the good or service on the open market; and/or (d) recommend to TISD’s Board of Trustees that Vendor no longer be given the opportunity to submit a proposal to TISD and/or that this Agreement be terminated without written notification of intent and/or that the Vendor be removed from the active vendor file.

a) Inspection and Acceptance – Awarded vendor(s) shall deliver the goods or services procured on this contract to the TISD division issuing a Purchase Order. If delivery is not or cannot be made within proper time period, the awarded vendor must receive authorization from the issuing TISD division for the delayed delivery. If defective or incorrect goods are delivered, TISD may make the determination, in its sole discretion, to return the goods to the vendor at no cost to TISD. The vendor agrees to pay all shipping and handling costs for any such return shipment. The vendor also shall be responsible for arranging the return of the defective or incorrect goods.

34. NOTICE: Any notice provided under the terms of this Agreement by either party to the other shall be in writing and shall be given by hand-delivery or by certified or registered mail, return receipt requested, postage prepaid. Notice shall be sufficient if made or addressed to the address listed below. Notice shall be deemed effective upon receipt. Each party may change the address to which notice may be sent to that party by giving notice of such change to the other party by certified or registered mail, return receipt requested.

a) Address for notice to Tomball ISD: Tomball Independent School District, Attn: Dr. Martha Salazar-Zamora, Superintendent, 310 S. Cherry Street, Tomball, TX 77375

35. INVOICES– Vendor shall submit original invoice(s) to: Tomball Independent School District, 310 S. Cherry Street, Tomball, Texas 77375, Attention: Accounts Payable Department. Invoices must be itemized to include the type of good(s) and/or service(s) rendered. In addition, invoices must indicate the District purchase order number, invoice date, name of vendor’s company, vendor’s complete mailing address, vendor’s telephone number, a detailed description of the good(s) or service(s) rendered (including quantity, unit price, and extended price), and any other substantiating documentation or information as required by the Contract. Invoices subject to cash discount will be calculated from the date the final invoice is received by the District’s Accounts Payable Department. Vendor shall submit invoices within a timely manner during TISD’s fiscal year in which the good(s) and/or services are purchased.

36. PAYMENTS – The sum of the payments due by TISD to Vendor is limited to the amount of money stated on the face of the District’s purchase order. Any products provided or services rendered in excess of this amount will be at Vendor’s expense and not payable by the District. No alterations, substitutions or extra charges will be permitted or paid without a written Change Order signed by the District’s Chief Financial Officer. Under no circumstances may Vendor’s goods and/or services be billed at a price higher than the amount stated on the District’s purchase order. In accordance with Texas Government Code § 2251.021, payments are due to Vendor within forty-five (45) days after the later of the following (1) the date TISD receives the goods under the Agreement; (2) the date the performance of the service under the Agreement is completed; or (3) the date TISD receives an invoice for the goods or service. Vendor agrees to pay any subcontractors, if any, the appropriate share of the payment received from TISD not later than the tenth (10th) day after the date Vendor receives the payment from TISD. The exceptions to payments made by TISD and/or Vendor listed in Texas Government Code § 2251.002 shall apply to this Agreement.

a) Setoff – In addition to all other rights and remedies that TISD may have, TISD shall have the right to setoff, against any and all amounts due to Vendor by TISD, whether due under this Agreement or any other agreement between TISD (including any division of TISD) and Vendor, any sums to which TISD is entitled under this Agreement, as determined by TISD in its sole discretion, including, without limitation, sums due by Vendor to TISD as a result of indemnification obligations, and/or warranty claims.

37. TAXES –

a) The District is tax-exempt and TISD shall not pay taxes for goods and/or services provided under this Agreement. Vendor represents and warrants that it shall pay all taxes or similar amounts resulting from this Agreement, including, without limitation, any federal, state, or local income, sales or excise taxes of Vendor or its employees. TISD shall not be liable for any taxes resulting from this Agreement. TISD will furnish its tax exemption certificate upon request.

b) Vendor and all subcontractor(s) of Vendor shall pay all federal, state, and local taxes applicable to their operation and any persons employed by Vendor and all subcontractors of Vendor. Vendor shall require all subcontractors to hold TISD harmless from any responsibility for taxes, damages, and interest.