ESBD_384458_1733870052666_02. Negotiated Terms and Conditions.pdf

Dated April 2021

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TEXAS DEPARTMENT OF TRANSPORTATION AND VOITH

NEGOTIATED TERMS AND CONDITIONS

PART 1. INTRODUCTION

1.01 GENERAL: These Terms and Conditions apply to the solicitation for goods and/or services [whether a Request for Quote (RFQ), Invitation for Bid (IFB), Request for Offer (RFO) or Request for Proposal (RFP)] offered by the Texas Department of Transportation (TxDOT) (“solicitation”) and any contract issued by TxDOT resulting from the solicitation (“purchase order” or “contract”). The term “response” or “bid” means the proposal, quote, bid, or offer made to TxDOT in response to the solicitation. The term “respondent” or “bidder” means the party who submits the response to the solicitation, including the vendor. The term “vendor” or “contractor” means the party listed as vendor in the contract.

1.02 STATUTORY AUTHORITY: The solicitation and contract are authorized by Government Code Title 10, Subtitle D (the “Purchasing Act”). The solicitation and contract are subject to all applicable requirements of the Purchasing Act [in particular, Government Code Chapter 2151 (General Provisions), Chapter 2155 (Purchasing: General Rules and Procedures), Chapter 2157 (Purchasing: Purchase of Automated Information Systems) and Chapter 2161 (Historically Underutilized Businesses, “HUBs”)] and those requirements established by rule of the Texas Comptroller of Public Accounts (CPA), Statewide Procurement Division (SPD), as contained in Title 34, Chapter 20 of the Texas Administrative Code (“TAC”), and to other applicable Federal and State statutes and rules herein cited. Any references in this contract to the “Government Code” mean the Texas Government Code.

1.03 TITLE VI ASSURANCE: TxDOT, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and 49 C.F.R. Part 21 and 28 CFR Section 50.3 (for purposes of this Section and Section 6.10 only, the “Acts” and the “Regulations,” respectively), hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award.

Nondiscrimination programs require that federal-aid recipients, sub-recipients, and contractors prevent discrimination and ensure nondiscrimination in all their programs and activities, whether those programs and activities are federally-funded or not.

1.04 ENVIRONMENTAL IMPACT: It is TxDOT’s intent to purchase goods, equipment, and services having the least adverse environmental impact within the constraints of statutory purchasing requirements, departmental need, availability, and sound economic considerations in accordance with 34 TAC §20.306 and 20.307.

1.05 COMPLIANCE WITH LAWS: Vendor must comply with all federal, state, and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any court or administrative bodies or tribunals in any matter affecting contract performance, including, if applicable, laws and regulations regarding workers’ compensation, minimum and maximum salaries and wages, prompt payment, and licensing. Vendor must maintain all licenses and certifications required by law or by the contract throughout the term of the contract. When required, vendor must furnish TxDOT with satisfactory proof of its compliance.

PART 2. GENERAL INSTRUCTIONS

2.01 SPECIFICATIONS

(a) Respondent must carefully examine the solicitation. Respondent is responsible for securing any additional information from the TxDOT purchaser needed to gain a clear and full understanding of TxDOT’s requirements.

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(b) TxDOT will not be bound by any oral statement or representation contrary to the written specifications of the solicitation. Any revision, clarification, or interpretation pertaining to the solicitation will be in writing and issued by TxDOT as an addendum. Any change or interpretation not in an addendum will not legally bind TxDOT. Any addendum must be issued through TxDOT’s Procurement Division.

(c) The goods furnished or services performed shall be in accordance with the specifications set forth in the solicitation and with these Terms and Conditions. TxDOT will provide clarification of the specifications and determine the quality and acceptability of goods furnished or work performed.

If the solicitation is for a service, TxDOT will determine the manner of performance, the rate of progress of the work, and whether vendor’s performance of the service is acceptable.

(d) Any catalog, brand name, or manufacturer’s reference used in the solicitation is descriptive only (not restrictive) and is used to indicate type and quality desired. Responses on brands of like nature and quality will be considered unless advertised as proprietary or sole source under Government Code Section 2155.067. Respondent must show manufacturer, brand or trade name, and other description of the product offered in response to the solicitation. If offer is for other than example(s) shown in the solicitation, include illustration(s) and complete description(s) of product(s) in the response to the solicitation. If respondent takes no exception to specifications or reference data in the response, vendor will be required to furnish brand names, numbers, etc., as specified.

(e) Unless otherwise specified, all goods offered must be new and in first-class condition, including shipping and storage containers. Verbal agreements to the contrary will not be recognized.

(f) Manufacturer’s standard warranty must apply unless otherwise stated in this solicitation.

(g) All electrical items must meet all applicable OSHA standards and regulations and bear the appropriate listing from UL, FMRC, or NEMA.

(h) Any iron or steel product produced through a manufacturing process and used in the project must be produced in the United States, to the extent required by Government Code Chapter 2252, Subchapter F. That Subchapter generally applies to contracts to (A) construct, remodel, or alter a building, a structure, or infrastructure; (B) supply a material for a project described by subsection (A); or (C) finance, refinance, or provide money from funds administered by a governmental entity for a project described by subsection (A).

2.02 RESPONSE SUBMISSIONS

(a) Response must be submitted in the format and quantity noted in the solicitation. If submitting multiple responses, each response must be placed in a separate envelope or on a separate flash drive and correctly identified with the solicitation number and opening date.

(b) Response must be time stamped in TxDOT’s mail room or hand-delivered to the address on the solicitation before the hour and date specified for the solicitation opening. Late responses will not be considered under any circumstances and will be returned unopened to respondent.

(c) Documentation provided with the response should be complete and comprehensive. TxDOT will not be responsible for locating or securing information not included in the response. Failure to furnish required documentation with the response may result in the response being deemed incomplete and non-responsive, resulting in rejection. TxDOT will not be responsible for any expenses relating to responses or development of documentation that may result from this solicitation.

(d) Failure to sign the solicitation manually will disqualify the response. The person signing the response must have authorization to contractually bind the company. The solicitation response must include an Employer Identification Number (EIN), full firm name and address. The EIN should be entered in the space provided on the solicitation.

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(e) Facsimile (FAX) responses may be submitted to the FAX number provided in the solicitation for procurements less than $25,000, unless otherwise stated in the solicitation. For procurements $25,000 and greater, FAX responses will not be considered unless otherwise stated in the solicitation. Fax responses must be received before the hour and date specified for the solicitation opening. TxDOT will not be responsible for failure of electronic equipment or operator error. Responses that are late, illegible, incomplete, or otherwise non-responsive will not be considered.

(f) Email responses may be accepted if stated on the solicitation. Email responses must be received before the hour and date specified for the solicitation opening and be in Portable Document Format (pdf) (except for pricing schedules, which must be submitted in Excel format using the pricing spreadsheet developed by the department), all attached documents together must not exceed a total of 20 MB, signed by respondent, and attached to the email to be considered for award. TxDOT will not be responsible for failure of electronic equipment, operator error, or system delays or outages. Responses that are late, illegible, incomplete, file-corrupted, flagged as a virus, or otherwise non-responsive will not be considered.

(g) RESPONDENT EXCEPTIONS OR CONDITIONED RESPONSES: Exceptions taken by respondent to TxDOT’s Terms and Conditions or respondent’s Terms and Conditions attached to a response will not be considered unless specifically referred to and clearly identified as such within the response, including without limitations, exceptions related to software maintenance and usage or equipment maintenance services. TxDOT may reject a response that takes exception to TxDOT’s Terms and Conditions.

(h) TxDOT reserves the right to accept or reject all or any part of any response, waive minor technicalities, and make an award to best serve the interests of the State. TxDOT reserves the right to reject any response not prepared and submitted in accordance with the solicitation requirements.

(i) Response should indicate number of days required to deliver goods, or begin service (if required), at TxDOT’s designated location. Failure to indicate delivery time obligates vendor to complete delivery in fourteen (14) calendar days.

(j) Samples, when requested must be furnished at no cost to TxDOT. TxDOT may perform tests on samples. If not destroyed in testing, samples will be returned upon request at respondent’s expense. Each sample must be marked with respondent’s name and address and TxDOT solicitation number. Samples must not be enclosed or attached to a response unless specified in the solicitation.

(k) The response, including price, is irrevocable for 120 calendar days following the hour and date specified for the solicitation opening. TxDOT may extend this period with respondent’s written agreement.

2.03 PRICING

(a) TxDOT’s automated purchasing system requires pricing to be submitted per unit, and extended by multiplying the submitted price by the quantity. Unit prices govern in the event of extension errors. If a trade discount is offered on the solicitation response, it should be deducted and net line extensions should be shown.

(b) All purchases are on a firm, fixed price basis unless otherwise stated in the solicitation.

(c) Vendor must not increase price(s) during the term of the contract unless otherwise stated in the contract. Vendor must give price reductions to TxDOT that result from reduced cost to vendor during the term of the contract.

(d) All prices must be F.O.B. destination, freight prepaid and allowed. This means vendor must prepay the freight charges and include them in the unit price.

(e) Purchases made for State use are exempt from State and Local Sales tax and Federal Excise tax. Do not include tax in response pricing unless otherwise specified in the solicitation. State Sales Tax and Federal Excise Tax Exemption Certificates will be furnished by TxDOT on request.

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(f) The contract may contain a “Total Cost Not to Exceed” statement. Vendor must not perform any work that may exceed either the contract total or the not-to-exceed total without prior written authorization from TxDOT.

(g) Consistent and continued tie response pricing may lead to rejection of the responses by TxDOT and investigation for antitrust violations.

2.04 ADA CONSIDERATIONS AND NOTIFICATION: Persons with special needs or disabilities who plan to attend any pre-response conference or bid opening and who require auxiliary aids or service should contact the purchaser noted on the solicitation as the point of contact a minimum of three (3) business days prior to the meeting so arrangements can be made.

2.05 RESPONSE OPENINGS AND DISCLOSURE OF INFORMATION

(a) At the time of opening for RFOs or RFPs, only the names of respondents will be announced.

Prices will not be disclosed.

(b) At the time of opening for RFQs and IFBs, names of respondents will be announced and pricing disclosed.

(c) Information submitted in an accepted response will not be returned to respondent. Government Code Chapter 552 (the “Public Information Act”) allows the public to have access to information in the possession of a governmental body through an open records request. Therefore, respondent must clearly identify in the response any confidential or proprietary information. Proprietary information identified by respondent in the response will be kept confidential by TxDOT to the extent permitted by state law. TxDOT will use best efforts to give respondent or vendor an opportunity to present to the Office of the Attorney General its arguments for non-disclosure of its identified confidential or proprietary information.

2.06 ALTERATIONS OR WITHDRAWAL OF RESPONSES

(a) Any alterations to a response made before the opening date and time must be initialed by respondent or authorized agent. Response cannot be altered or amended after the opening date and time.

(b) A response may be withdrawn if requested in writing prior to the opening or closing date and time.

A response may be withdrawn from consideration after the opening date only with the approval of TxDOT based on respondent’s written, acceptable reason. The response will not be considered for award but will be retained by TxDOT according to the response information confidentiality provision referenced in Section 2.05 (c).

2.07 DETERMINING AWARD: A response to a solicitation is an offer to contract with TxDOT based upon the terms, conditions, and specifications contained in the solicitation. Responses do not become contracts unless and until they are accepted through an authorized TxDOT designee by issuance of a contract. In determining the best value for the state, the purchase price and whether the goods or services meet specifications are the most important considerations, unless otherwise stated in the solicitation.

(a) BEST VALUE CRITERIA FOR PURCHASE OF GOODS OR SERVICES: When specified in the solicitation, the factors listed in Government Code Section 2155.074 will be considered in making a best value award. This section allows TxDOT to apply best value criteria to obtain goods and services that provide the best value for TxDOT. Under these guidelines, a respondent is not automatically awarded a contract if they submit the lowest bid response. TxDOT will be the sole judge as to which response is the most advantageous and in the best interest of TxDOT.

Factors, other than price, that may be considered in making an award are:

(1) Life cycle costs.

(2) Quality and reliability of goods and services.

(3) Delivery terms.

(4) Indicators of probable vendor performance.

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(5) Cost of employee training associated with a purchase.

(6) The effect of a purchase on agency productivity.

(7) Other factors relevant to determining best value for the state set forth in the solicitation.

(b) ADDITIONAL BEST VALUE CRITERIA FOR RFO PURCHASES: Additional best value criteria will be used on all information technology equipment or service purchases including but not limited to:

(1) Compatibility to facilitate exchange of existing data.

(2) Capacity for expansion and upgrading to more advanced levels of technology.

(3) Quantitative reliability factors.

(4) Level of training required to bring end-users to a stated level of proficiency.

(5) Technical support requirements for maintenance of data across a network platform and management of the network hardware and software.

(6) Items, features, etc., which are in addition to requirements listed, as well as factors which, in TxDOT’s opinion, add value to the product or service but are not specifically required within the solicitation.

(c) NEGOTIATIONS FOR RFO AND RFP PURCHASES: TxDOT reserves the right to conduct formal negotiations with respondent(s) judged to have the best offer pertaining to price, goods, services, and terms.

(d) TxDOT reserves the right to reject a response from a respondent whose goods or services to TxDOT or other state agencies have been documented as unsatisfactory in providing the same goods or services.

(e) TIE RESPONSES: In case of tie responses, one or more preferences described in Government Code Chapter 2155 and 34 TAC §20.306 will be used to make an award. Tie responses which cannot be resolved by application of one or more preferences will be made by drawing lots.

2.08 PREFERENCES: A respondent may claim a preference under 34 TAC §20.306. To claim a preference, a respondent must identify the preference on the solicitation or on the response to the solicitation. If the appropriate area on the solicitation or response is not marked, a preference will not be granted unless other documents included in the response show a right to the preference.

2.09 DELIVERY: No substitutions or cancellations will be permitted without written approval from TxDOT.

Approval must be issued in the form of a purchase order change notice issued by TxDOT’s Procurement Division.

(a) If delay is foreseen, vendor must promptly give written notice to TxDOT. TxDOT has the right to extend delivery or service date if reasons appear valid. Vendor must keep TxDOT advised at all times of the status of the order. If vendor fails to complete any goods or services by any guaranteed date for reasons solely within vendor’s control, then the vendor shall pay TxDOT as liquidated damages and not as a penalty, 0.5% of the price payable under the contract for each week of such delayed goods or services; provided, however, that in no event (a) shall an unexcused delay in goods or services not substantially necessary for start-up of TxDOT equipment give rise to liquidated damages, nor (b) shall such liquidated damages exceed 5% of the price payable under the contract for such delayed goods or services. TxDOT and the vendor agree that in light of the difficulty in ascertaining the actual damages arising from such an unexcused delay, the above liquidated damages constitute a fair and adequate remedy for TxDOT, and shall be TxDOT’s sole and exclusive remedy for such delay. TxDOT may not terminate or cancel the contract for any delay unless and until the liquidated damages cap set forth above is reached and the vendor has failed to continue efforts to diligently complete the goods or services.

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(b) Delivery must be made between 8 AM and 4 PM Monday through Friday except on regularly-observed state or federal holidays, unless prior approval has been obtained from TxDOT or otherwise stated in the solicitation.

(c) Receipt of goods or services does not constitute acceptance.

(d) Goods and materials must be properly packaged. Damaged goods and materials will not be accepted. If the damage is not readily apparent at the time of delivery, the goods shall be returned to vendor at no cost to TxDOT. TxDOT reserves the right to inspect goods at a reasonable time subsequent to delivery where circumstances or conditions prevent effective inspection of the goods at the time of delivery.

2.10 INSPECTIONS AND TESTS: TxDOT may test and inspect goods and services purchased under the contract to ensure compliance with the specifications of the contract. TxDOT may also test and inspect goods and services before they are purchased under the contract. Goods and services will be subject to inspection and testing by TxDOT to the extent practicable at all times and places, including, without limitation, vendor’s place of business. To the extent practical, the inspections will not disrupt vendor’s daily operations. Tests will be performed on samples taken from regular shipments. In the event samples tested fail to meet all conditions and requirements of the specification, TxDOT may, at its option, reject the goods in whole or in part. The cost of the sample used shall be borne by vendor. Goods which have been delivered and rejected in whole or in part may, at TxDOT’s option, be returned to vendor or held for disposition at vendor’s risk and expense. Acceptance of services will be based on attainment of performance in accordance with specifications and the contract.

2.11 VENDOR PERFORMANCE: State agencies shall report a vendor's performance on any purchase of $25,000 or more from contracts administered by the CPA/SPD or any other purchase made through an agency's delegated authority or a purchase made pursuant to the authority in Government Code, Title 10, Subtitle D, or a purchase exempt from CPA/SPD procurement rules and procedures.

Past Performance: A respondent's past performance will be measured based upon pass/fail criteria, in compliance with applicable provisions of Government Code Sections §2155.074, 2155.075, 2156.007, 2157.003, and 2157.125. Respondents may fail this selection criterion for any of the following conditions:

(a) A letter grade score below ‘C’ in the Vendor Performance System, or a score of “legacy unsatisfactory” for historic reports submitted prior to the implementation of the current rating system.

(b) Being currently under a Corrective Action Plan through the CPA.

(c) Having repeated negative Vendor Performance Reports for the same reason

(d) Having purchase orders that have been cancelled or terminated in the previous twelve (12) months for non-performance (i.e., late delivery, etc.).

Vendor performance information is located on the CPA website at http://www.txsmartbuy.com/vpts.

TxDOT may conduct reference checks with other entities regarding past performance. In addition to evaluating performance through the Vendor Performance Tracking System (as authorized by 34 TAC §20.115) TxDOT may examine other sources of vendor performance including, but not limited to, notices of termination, cure notices, assessments of liquidated damages, litigation, audit reports, and non-renewals of contracts. Any such investigations will be at the sole discretion of TxDOT and any negative findings, as determined by TxDOT, may result in non-award to respondent.

PART 3. RESPONDENT AFFIRMATIONS

3.01 FALSE STATEMENTS: Respondent represents and warrants that all statements and information in its submitted response are current, complete, true, and accurate. Submitting a response to the solicitation with a false statement or making material misrepresentations during the performance of a contract is a material breach of contract and may void the submitted response and any resulting contract, and may result in removal of respondent from the Centralized Master Bidders List.

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3.02 REPRESENTATIONS, WARRANTIES, AND COVENANTS: Respondent represents, warrants, and covenants that:

(a) Personnel must be competent, knowledgeable, and experienced in the types of services to be provided under the contract and perform such services in a professional and workmanlike manner consistent with industry standards. Services must meet all specifications set forth in the contract provided.

(b) All goods and services furnished in connection with the contract must be of good quality and be free from any defects in materials, workmanship, and design. Such services warranty lasts for 3 months after performance of the services. Such goods warranty lasts for the earlier of 6 months from the first date of operation of the goods or 9 months from the date of shipment of the goods. If any goods or services furnished in connection with the contract fails to conform to the above warranties, vendor shall, at is option, reperform that portion of the services, or repair or replace the goods, which failed to conform to the warranty, or adjust the purchase price. Such reperformance, repair, replacement, or price adjustment shall be Vendor’s sole obligation and TxDOT’s exclusive remedy for nonconforming goods or services and shall be conditioned upon Vendor’s receipt of written notice of any nonconformity within 10 days after TxDOT noticed or should have noticed the nonconformity. TxDOT is responsible for all costs for removal and reinstallation in connection with the foregoing remedies.

(c) THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU IF ALL OTHER WARRANTIES, EXPRESS

OR IMPLIED, AND VENDOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

3.03 GRATUITIES: Respondent has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with respondent’s submitted response.

3.04 CERTAIN BIDS AND CONTRACTS PROHIBITED: Under Government Code Section 2155.004, a state agency may not accept a bid or award a contract that includes proposed financial participation by a person who received compensation from the agency to participate in preparing the specifications or solicitation on which the bid or contract is based. If respondent is not eligible, then any contract resulting from the solicitation will be immediately terminated. Under Government Code Section 2155.004, respondent certifies that the individual or business entity named in the bid or contract is eligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

3.05 ANTITRUST LAWS: Respondent represents and warrants that, in accordance with Government Code Section 2155.005, neither respondent nor the firm, corporation, partnership, or institution represented by respondent, or anyone acting for such firm, corporation, partnership, or institution has (1) violated any provision of the Texas Free Enterprise and Antitrust Act of 1983, Chapter 15, of the Texas Business and Commerce Code, or the federal antitrust laws, or (2) communicated the contents of the response directly or indirectly to any competitor or any other person engaged in the same line of business as respondent.

3.06 DECEPTIVE TRADE PRACTICES; UNFAIR BUSINESS PRACTICES: Respondent represents and warrants that it has not been the subject of allegations of deceptive trade practices violations under Business & Commerce Code Chapter 17 or the subject of allegations of any unfair business practice in any administrative hearing or court suit, and that respondent has not been found to be liable for such practices in such proceedings. Respondent certifies that it has no officers who have served as officers of other entities who have been the subject of allegations of deceptive trade practices violations or the subject of allegations of any unfair business practices in an administrative hearing or court suit and such officers have not been found to be liable for such practices in such proceedings.

3.07 COLLUSION: Respondent has not colluded with, nor received any assistance from, any person who was paid by TxDOT to prepare specifications or a solicitation on which a respondent’s bid is based and will not allow any person who prepared the respective specifications or solicitation to participate financially in any contract awarded.

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3.08 INELIGIBILITY UNDER FAMILY CODE: Under Section 231.006, Family Code, respondent certifies that respondent and any other individual or business entity named in the contract, bid, or application are eligible to receive the specified grant, loan, or payment and acknowledges that the contract may be terminated and payment may be withheld if this certification is inaccurate. Any respondent subject to Section 231.006 must include in the response the names and social security numbers of each person holding at least a 25% ownership interest in the business entity submitting the response.

3.09 CONTRACTING WITH EX-TXDOT EXECUTIVE DIRECTOR: Under Government Code Section 669.003, respondent certifies that:

(a) All the following are true:

(1) Respondent is not the executive director of TxDOT;

(2) Respondent was not the executive director of TxDOT at any time during the past four years;

and

(3) Respondent does not employ a current or former executive director of TxDOT.

OR

(b) Respondent has disclosed its employment of any former executive director of TxDOT in its response.

Respondent acknowledges that the contract can be terminated at any time, and payments withheld, if this certification is false. If Section 669.003 applies, respondent must provide the following information as an attachment to the solicitation response: Name of former TxDOT executive director, date of separation from TxDOT, position with respondent, and date of employment with respondent.

3.10 DEBT TO THE STATE: Respondent agrees that any payments due under the contract will be applied toward any debt or delinquency that is owed to the State of Texas.

3.11 RESPONDENT ELIGIBILITY

(a) Respondent certifies that the responding entity and its principals are eligible to participate in this transaction and have not been subject to suspension, debarment, or similar ineligibility determined by any federal, state, or local governmental entity.

(b) Respondent certifies that respondent is in compliance with the State of Texas statutes and rules relating to procurement.

(c) Respondent certifies that respondent is not listed in the prohibited vendors list authorized by Executive Order No. 13224, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism,” published by the United States Department of the Treasury, Office of Foreign Assets Control.

(d) Under Government Code Section 2155.006, respondent certifies that the individual or business entity named in the bid or contract is not ineligible to receive the specified contract and acknowledges that the contract may be terminated and payment withheld if this certification is inaccurate.

(e) Respondent certifies that respondent is not an abortion provider or an affiliate of an abortion provider under Government Code 2272.003.

(f) Respondent certifies that it is not:

(1) A person required to register as a lobbyist under Government Code Chapter 305.

(2) A public-relations firm.

(3) A government consultant.

3.12 NEPOTISM DISCLOSURE

(a) In this section, the term “relative” means:

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(1) A person's great grandparent, grandparent, parent, aunt or uncle, sibling, niece or nephew, spouse, child, grandchild, or great grandchild; or

(2) The grandparent, parent, sibling, child, or grandchild of the person’s spouse.

(b) A notification required by this section must be submitted in writing to the person designated to receive official notices under the contract and by first-class mail addressed to Contract Services Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701. The notice must specify vendor's firm name, the name of the person who submitted the notification, the purchase order number, the district, division, office or regional service center of TxDOT that is principally responsible for the contract, the name of the relevant vendor employee, the expected role of the vendor employee on the project, the name of the TxDOT employee who is a relative of the vendor employee, the title of the TxDOT employee, and the work location of the TxDOT employee.

(c) By signing the solicitation, respondent is certifying that respondent does not have any knowledge that any of its employees or any employees of a subcontractor who are expected to work under the contract has a relative who is employed by TxDOT unless respondent has notified TxDOT of each instance as required by subsection (b).

(d) If vendor learns at any time that any of its employees or that any of the employees of a subcontractor who are performing work under the contract have a relative who is employed by TxDOT, vendor must notify TxDOT under subsection (b) of each instance within thirty (30) calendar days of obtaining that knowledge.

(e) If vendor violates this section, TxDOT may terminate the contract immediately for cause, impose any sanction permitted by law, and pursue any other remedy permitted by law.

3.13 BOYCOTTING ISRAEL: Pursuant to Government Code Section 2271.002, respondent certifies that either (i) respondent meets an exemption criteria under Section 2271.002, or (ii) respondent does not boycott Israel and will not boycott Israel during the term of the contract. Respondent must state any facts that make it exempt from the boycott certification in its response.

3.14 DISCLOSURE OF RESTRICTED EMPLOYMENT: Respondent acknowledges that under Government Code Section 572.069, a former state officer or employee of a state agency who, during the period of state service or employment, participated in a procurement or contract negotiation involving a person may not accept employment from that person before the second anniversary of the date the contract is signed or the procurement is terminated or withdrawn.

3.15 ANTI-TERRORISM OR TERRORIST ORGANIZATION PROHIBITED: Respondent represents and warrants that it is not engaged in business with Iran, Sudan, or a foreign terrorist organization, as prohibited by Government Code Section 2252.152.

3.16 CONTRACTING INFORMATION RESPONSIBILITIES: Respondent represents and warrants that it will comply with the requirements of Government Code Section 552.372(a). Except as provided by Government Code Section 552.374(c), the requirements of Subchapter J, Chapter 552, of the Government Code may apply to the contract, and respondent agrees that the contract can be terminated if respondent knowingly or intentionally fails to comply with a requirement of that subchapter.

3.17 HUMAN TRAFFICKING PROHIBITION: Under Government Code Section 2155.0061, respondent certifies that the individual or business entity named in the response or contract is eligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

3.18 NO CONFLICTS OF INTEREST: Respondent represents and warrants that the provision of goods and services or other performance under the contract will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety.

PART 4. GENERAL TERMS AND CONDITIONS

4.01 CONTRACTS

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(a) Only authorized TxDOT purchasers have the authority to issue contracts for goods and services.

Contracts must be issued by a TxDOT purchaser prior to vendor providing the goods or services.

The only exceptions are payment card orders and bona fide emergencies. In the case of an emergency, the TxDOT Procurement Division will confirm such orders with a signed contract.

(b) Vendor acceptance of a purchase order and delivery of goods or services without an approved purchase order number or release number issued by TxDOT may result in the rejection of delivery, return of goods at vendor’s cost, and non-payment.

4.02 FUNDING: Any contract resulting from the solicitation is contingent upon the continued availability of state funds and is subject to termination without penalty, either in whole or in part, if funds become unavailable through lack of appropriations, legislative or executive budget cuts, amendment of the Appropriations Act, state agency consolidations, or any other disruptions of current appropriations. In the event of a termination under this section, TxDOT will not be liable to respondent for any damages that are caused or associated with such termination, and TxDOT will not be required to give prior notice.

4.03 INVOICING

(a) Invoices must be submitted not later than the 15th day of the month after the goods have been delivered or services have been provided, or as otherwise stated on the contract. No payment will be made under the contract without the prior submission of detailed and correct invoices which comply with the requirements set forth in this Section 4.03. Invoices must be sent to the address shown on the purchase order. Vendor may receive more detailed instructions on invoicing after award.

(b) The invoice must, at a minimum, show the following:

(1) Vendor name as it appears on the purchase order.

(2) Remit-to address.

(3) Employer Identification Number (EIN) Federal Tax I.D or Texas Identification Number (TIN).

(4) Complete PO number.

(5) Telephone number.

(6) Description of item or services as it appears on the PO in the same order as listed on purchase order. Item numbers must correspond with the item numbers on the PO.

(7) Quantity, Unit of measure, unit price, and extended price of each line item.

(8) Grand total.

(9) Shipment date of merchandise or date of service, if lease, include the payment number (e.g., 1 of 36).

(10) Any additional requirements as stated in the solicitation or specification.

4.04 PAYMENT: Payment for goods or services purchased with state funds is made by warrants or by direct deposit. Direct deposit is the preferred method of payment. No penalty for late payment will be incurred by TxDOT if payment is made in thirty (30) days or less from receipt of goods, services, or a correct invoice, whichever is later. Payments under this contract are subject to the availability of funds.

Additional information and a Direct Deposit Authorization application may be found at https://comptroller.texas.gov/programs/systems/direct-deposit/.

Payment will be made in accordance with Government Code Chapter 2251:

(a) On a monthly basis and within thirty (30) days from receipt of a correct invoice for TxDOT-accepted goods or services.

OR

(b) The service was completed to the satisfaction of TxDOT, and within thirty (30) days from receipt of a correct invoice or billing statement.

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OR

(c) As otherwise stated in the solicitation.

NOTE: Texas Department of Transportation (TxDOT) offers an opportunity to participate in its Early Payment Program to accelerate payments in exchange for a discount. Additional information may be found at the following website: http://www.txdot.gov/business/vendors/epp.html or the Priority Invoice and Early Payment Program form (Appendix B).

4.05 INTELLECTUAL PROPERTY

(a) All intellectual property developed and created in the course of the services rendered pursuant to the contract and all intellectual property rights, including but not limited to publication rights, copyrights, trademarks, patents, and trade secrets to all products and materials developed and created pursuant to the contract shall be exclusively owned by vendor. Vendor shall retain ownership in any and all intellectual property rights associated with the contract, but shall grant to TxDOT a non-exclusive, royalty-free transferable (but only to those with a need to install, operate, or maintain the goods) license to use such intellectual property for the sole purpose of installing, operating, or maintaining the goods

(b) When applicable, each vendor must obtain necessary licenses, copyrights, trademarks, or patents for TxDOT’s use.

(c) Vendor must not assert rights at common law or in equity or establish any claim to TxDOT’s intellectual property, including, but not limited to, licenses, claiming common law ownership of intellectual property, obtaining registrations for copyrights, trademarks, trade secrets, or patents for any intellectual property developed in performance of the services authorized.

(d) VENDOR AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND TXDOT AND THE

STATE FROM CLAIMS INVOLVING INFRINGEMENT OF THIRD PARTIES’ LICENSES,

TRADEMARKS, COPYRIGHTS, PATENTS, TRADE SECRETS, AND ANY OTHER

INTELLECTUAL OR INTANGIBLE PROPERTY RIGHTS AS SET FORTH IN SECTION 4.14

BELOW.

4.06 CYBER SECURITY TRAINING: In accordance with Section 2054.5192 of the Texas Government Code, each vendor personnel that will access a TxDOT computer system or database must complete a TxDOT approved cyber security training program that is certified under Section 2054.5192 of the Texas Government Code. The training program must be completed by each vendor during the term of the purchase order and during any renewal period. The vendor must provide verification of completion of the cyber security training program in a method designated by TxDOT.

4.07 SITE VISITS: Prior to and after award of the contract, designated TxDOT representatives may conduct unannounced visits to inspect vendor’s and its subcontractor’s facilities during normal business hours to monitor compliance in accordance with TxDOT specifications or carry out performance audits of the service.

4.08 NON-WAIVER OF RIGHTS: Nothing in this contract shall be construed as a waiver of the state’s sovereign immunity. This contract shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the State of Texas. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to the State of Texas under this contract or under applicable law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel.

TxDOT does not waive any privileges, rights, defenses, or immunities available to TxDOT by entering into this contract or by its conduct prior to or subsequent to entering into this contract.

4.09 LIMITATION ON AUTHORITY; NO OTHER OBLIGATIONS: Vendor has no authority to act for or on behalf of TxDOT or the State of Texas except as expressly provided for in this contract. Vendor may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the State of Texas or TxDOT.

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4.10 VENUE AND JURISDICTION; APPLICABLE LAW: Venue for any suit concerning the solicitation and any resulting contract shall be exclusively in any federal court of competent jurisdiction in Travis County, Texas. The solicitation and any resulting contract shall be governed by and construed in accordance with the laws of the State of Texas. The UN Convention on Contracts for the International Sale of Goods is not applicable to this contract and is expressly disclaimed.

4.11 FORCE MAJEURE: TxDOT may grant relief for time only from performance of the contract if vendor is prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of vendor (any such event or cause referred to herein as “force majeure”). The burden of proof for the need of such relief rests upon vendor. To obtain relief based on force majeure, vendor must file a written request with TxDOT describing the events, dates and effect of the events on vendor’s ability to perform according to the contract. Vendor must inform TxDOT in writing within three (3) business days of the existence of such force majeure; failure to do so will waive the defense provided in this Section 4.12. Upon an event of force majeure, Vendor must use commercially reasonable efforts to commence performance whenever and to whatever extent possible without delay. If any Force Majeure event of delay continues for more than ninety (90) calendar days, either party shall have the right, but not the obligation, to terminate the Contract.

4.12 RIGHT TO AUDIT

(a) The state auditor may conduct an audit or investigation of vendor or any other entity or person receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, vendor or any other entity that is the subject of an audit or investigation by the state auditor must provide the state auditor access to any information the state auditor considers relevant to the investigation or audit.

(b) TxDOT’s internal auditors may conduct an audit or investigation of vendor receiving funds directly under the contract or indirectly through a subcontract under the contract. TxDOT has the right to audit vendor's books and records pertaining to the service during normal work hours. Vendor or any other entity that is the subject of an audit or investigation by TxDOT must provide TxDOT’s internal auditor access to any information TxDOT considers relevant to the Contract.

(c) Vendor will ensure that this section concerning the authority of the state auditor and TxDOT to audit funds received indirectly by subcontractors through vendor and the requirement to cooperate is included in any subcontract it awards.

4.13 INDEMNIFICATION: Acts or Omissions

VENDOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND TXDOT,

AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, FROM ANY AND ALL

THIRD PARTY ACTIONS, CLAIMS, DEMANDS, OR SUITS TO THE EXTENT ARISING OUT OF

INJURY TO OR DEATH OF ANY THIRD PARTY OR DAMAGE, LOSS, OR DESTRUCTION OF

PROPERTY SUSTAINED BY ANY THIRD PARTY, BUT ONLY TO THE EXTENT SUCH INJURY,

DEATH, OR PROPERTY DAMAGE IS CAUSED BY THE INTENTIONAL MISCONDUCT OR

NEGLIGENT ACTS OR OMISSIONS OF VENDOR OR ITS AGENTS, EMPLOYEES,

SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS IN THE

EXECUTION OR PERFORMANCE OF THE CONTRACT. THE DEFENSE SHALL BE COORDINATED

BY VENDOR WITH TXDOT AND THE OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN THE

STATE OF TEXAS OR TXDOT IS NAMED AS A DEFENDANT IN ANY LAWSUIT AND VENDOR MAY

NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM

TXDOT AND THE OFFICE OF THE TEXAS ATTORNEY GENERAL. VENDOR AND TXDOT AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

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Infringement:

(A) PROVIDED VENDOR IS FINALLY HELD TO HAVE ACTUALLY INFRINGED THE

INTELLECTUAL PROPERTY OF A THIRD PARTY, WHICH INTELLECTUAL PROPERTY WAS

PUBLICLY DISCLOSED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT, VENDOR

AGREES TO INDEMNIFY TXDOT FOR ANY LOSS, LIABILITY OR REASONABLE, DIRECT

EXPENSE THAT TXDOT INCURS (INCLUDING REASONABLE ATTORNEYS’ FEES)

BECAUSE OF SUCH ACTUAL INFRINGEMENT BY ANY PART OF THE EQUIPMENT SOLD

BY VENDOR PURSUANT TO THIS AGREEMENT (THE “EQUIPMENT”). FORTHE

AVOIDANCE OF DOUBT, VENDOR SHALL NOT BE LIABLE FOR THE INFRINGEMENT OF

ANY THIRD-PARTY INTELLECTUAL PROPERTY THAT WAS NOT PUBLICLY DISCLOSED

PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. VENDOR HAS THE RIGHT, WITH

TXDOT’S ASSISTANCE UPON VENDOR’S REQUEST, TO CONDUCT THE DEFENSE OF

ANY LITIGATION RELATING TO SUCH ALLEGED INFRINGEMENT, INCLUDING, WITHOUT

LIMITATION, ANY SETTLEMENT NEGOTIATIONS.

(b) Vendor will have no liability under this section if the alleged infringement is caused in whole or in part by:

(1) Any intellectual property right owned by or licensed to TxDOT, or

(2) Any use of the product or service by TxDOT that is not in conformity with the terms of any applicable license agreement between vendor and TxDOT.

(3) any infringement claim resulting from the use of the Equipment contrary to the specifications or direction of Vendor;

(4) any unauthorized modification or alteration of the Equipment;

(5) any compromise or settlement made without Vendor’s written consent;

(6) any infringement of combination or process patents covering the use of the Equipment in combination with other products, equipment or technologies not furnished by Vendor;

(7) any claim of contributory or indirect infringement resulting from the resale by TxDOT of the Equipment;

(8) any infringement by products manufactured or provided by Vendor in accordance with drawings, designs, or specifications proposed or furnished by TxDOT;

(9) any refusal by TxDOT to accept or use suitable modified or replacement Equipment to avoid infringement.

(c) If vendor becomes aware of an actual or potential claim, or TxDOT provides vendor with notice of an actual or potential claim, vendor may (or in the case of an injunction against TxDOT, must), at vendor’s sole option and expense:

(1) Procure for TxDOT the right to continue to use the affected portion of the product or service, or

(2) Modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that TxDOT’s use is non-infringing.

Taxes/Workers’ Compensation/Unemployment Insurance

(a) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS

CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND

PAYMENT OF VENDOR’S AND VENDOR'S EMPLOYEES’ TAXES OF WHATEVER KIND,

ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO

COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS,

INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE, AND WORKERS'

COMPENSATION. TXDOT AND/OR THE STATE SHALL NOT BE LIABLE TO VENDOR, ITS

EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION

OF UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION OR ANY BENEFIT

AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL

ENTITY.

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4.14 DAMAGE TO TXDOT PROPERTY: Vendor shall be liable for damage to TxDOT’s equipment, workplace, and its contents to the extent caused by vendor’s or vendor’s subcontractors work or negligence in performance of the work by vendor’s or subcontractor’s personnel while vendor or vendor’s subcontractor personnel are on any TxDOT property performing the work.

4.15 PUBLIC INFORMATION ACT AND CONFIDENTIALITY: Information, documentation, and other material in connection with the solicitation or any resulting contract may be subject to public disclosure pursuant to the Public Information Act.