ESBD_File_353516_Attachment A - Terms and Conditions - IFBs.docx

ATTACHMENT A - TERMS AND CONDITIONS

I. INTRODUCTION.

1.1. GENERAL. These Terms and Conditions shall apply for goods and/or services including without limitation any Invitation for Bid (hereinafter referred to as “IFB” or “solicitation”) offered by the Texas Facilities Commission (hereinafter referred to as “TFC”) and any purchase order issued by TFC (hereinafter referred to as “Purchase Order”). The term “Respondent” shall mean any party who responds to a solicitation for goods offered by TFC. The term “Vendor” shall mean the party listed as vendor on the purchase order.

1.2. STATUTORY AUTHORITY. This procurement falls under the statutory authority of the Texas Government Code Chapter 2151, commonly known as the “Purchasing Act,” Chapter 2155, General Rules and Procedures, Chapter 2157, Purchasing Methods, and Chapter 2161, Historically Underutilized Businesses. The purchasing procedures include statutory requirements and those requirements established by rule of the Texas Comptroller of Public Accounts (hereinafter referred to as “CPA”), Texas Statewide Procurement Division (hereinafter referred to as “SPD”) as contained in Title 34 Texas Administrative Code, Part 1, Chapter 20, Subchapter C, Section 20.31 and other applicable federal and state statutes and rules citied herein.

1.3 COST OF SUBMITTING RESPONSE. TFC will not reimburse Respondent for any cost related to its response. Respondent is responsible for any expense related to the preparation and submission of its response.

II. GENERAL INSTRUCTIONS.

2.1 IFB REQUIREMENTS. Respondent shall comply with the following requirements when responding to a solicitation offered by TFC.

(a) Respondent must comply with all rules, regulations and statutes relating to purchasing in the State of Texas in addition to the requirements of this IFB.

(b) Respondent shall submit the number of copies required in the manner stated in the specification or in the IFB.

(c) Response shall be submitted on the indicated form(s) or in the indicated format. Response must be time stamped before the hour and date specified for the IFB opening unless specified otherwise. Late responses will not be considered under any circumstances once the opening has begun.

(d) Failure to sign the IFB will disqualify the bid. The person signing the response must have the authorization to contractually bind Respondent.

(e) Response cannot be altered or amended after opening time. Alterations made before opening time should be initialed by Respondent or its authorized agent. No response can be withdrawn after opening time without approval by TFC based on an acceptable written reason.

(f) The State reserves the right to accept or reject all or any part of any response, waive minor technicalities and award the response to best serve the interests of the State.

(g) E-mailed responses may be accepted if stated on the solicitation. E-mailed responses must be in Portable Document Format (hereinafter referred to as “PDF”), signed by Respondent and attached to the e-mail to be considered for award.

2.2 PRICING. Respondent shall comply with the following pricing requirements when responding to an IFB for goods and/or services offered by TFC.

(a) Respondent must price per unit shown. Unit prices shall govern in the event of extension errors.

(b) Respondent must quote F.O.B. destination, freight prepaid and allowed; otherwise, Respondent must show exact delivery cost and terms.

(c) Prices are requested to be firm for TFC acceptance for thirty (30) days from opening date. “Discount from list” pricing is not acceptable unless requested. Cash discounts are not considered in determining an award. Cash discounts offered will be taken if earned.

(d) Proposal should give Vendor ID Number, full firm name, and address of Respondent in the response. The Vendor ID Number is the number assigned and used by the CPA to track payments.

(e) Purchases made for State use are exempt from the State Sales Tax and Federal Excise Tax; therefore, tax should not be included in the response. Tax Exemption Certificates are available upon request.

(f) Consistent and continued tie bidding could cause rejection of response by TFC and/or investigation for antitrust violations.

2.3 SPECIFICATIONS. Respondent shall carefully examine the solicitation and shall be responsible for securing any additional information form the TFC point of contact needed to gain a clear and full understanding of TFC’s requirements.

(a) Any catalog brand name or manufacturer’s references are descriptive only, and indicate type and quality desired. Responses including brands of like nature and quality will be considered unless advertised as “Proprietary Purchase” under Texas Government Code, Section 2155.067. If responding with other than reference specifications, the response should show manufacturer, brand or trade name, and other description or product offered. If other than brand(s) specified is offered, illustrations and complete description of product offered are requested to be made a part of the response. Failure to take exception to specifications or reference data will require Respondent to furnish specified brand names, numbers, etc.

(b) The goods furnished or services performed shall be in accordance with the specifications set forth in the solicitation and with these terms and conditions. TFC will provide clarifications of the specifications and determine the quality and acceptability of goods and products furnished or work performed. If the solicitation is for a service, TFC will determine the manner of performance, the rate of progress of the work and whether the vendor’s performance of the services is acceptable.

(c) Manufacturer’s standard warranty shall apply unless otherwise stated in this solicitation.

(d) Unless otherwise specified, all goods offered shall be new, unused, and of current production, including shipping and storage containers. Verbal agreements to the contrary will not be recognized.

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

(f) Samples, when requested, must be furnished free of expense to TFC. If not destroyed in examination, samples will be returned to Respondent, on request, at Respondent’s expense. Each sample should be marked with Respondent’s name and address, and requisition number. Samples shall not be enclosed or attached to a response unless specified in the solicitation.

(g) Respondent shall include the number of days required to place material in receiving agency’s designated location under normal conditions. “Delivery days” means calendar days, unless otherwise specified. Failure to state delivery time obligates Respondent to complete delivery in fourteen (14) calendar days. Unrealistic delivery promises may cause bid to be disregarded.

(h) TFC will not be bound by any oral statement or representation contrary to the written specifications of this solicitation. Any revision, clarification, or interpretations pertaining to this solicitation will be in writing and issued by TFC as an addendum. Any changes or interpretation not in an addendum will not legally bind TFC.

2.4 TIE BIDS. If this solicitation is an Invitation for Bid, awards will be made in accordance with Title 34 Texas Administrative Code, Part 1, Chapter 20, Subchapter C, Sections 20.207(c)(2) and Subchapter D, 20.306 (Preferences).

2.5 DELIVERY. No substitutions or cancellations will be permitted without written approval from TFC.

(a) If delay is foreseen, Vendor shall give written notice to TFC. Vendor must keep TFC advised at all times of the status of an order. Default in promised delivery, without accepted reasons, or failure to meet specifications authorizes TFC to purchase supplies elsewhere and charge the full increase, if any, in cost and handling to Vendor.

(b) Delivery shall be made between 8:00 am and 4:00 pm Monday through Friday except on regularly observed State or federal holidays, unless prior approval has been obtained from TFC.

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

(d) Goods and materials shall be property 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 the vendor at no cost to TFC. TFC 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.

2.6 INSPECTIONS AND TESTS. All goods will be subject to inspection and test by TFC. If applicable, authorized TFC personnel shall have access to supplier’s place of business for the purpose of inspecting merchandise. Tests shall be performed on samples submitted with the bid or on samples taken from regular shipment. All costs shall be borne by Vendor in the event products tested fail to meet or exceed all conditions and requirements of the specification. Goods delivered and rejected in whole or in part may, at TFC’s option, be returned to Vendor or held for disposition at vendor’s expense. Latent defects may result in revocation of acceptance.

2.7 VENDOR PERFORMANCE. (a) TFC is required to report a vendor’s performance on any purchase of $25,000 or more from contracts administered by the agency or any other purchase made through TFC’s delegated authority or a purchase made pursuant to the authority in Texas Government Code, Title 10, Subtitle D or a purchase exempt from CPA/SPD procurement rules and procedures.

(b) Respondent’s past performance will be measured based upon a classification given by the CPA rating a vendor on an A through F scale, with A being the highest grade. TFC is required to review the rating in the CPA’s performance tracking system to determine whether to award a contract to a Respondent.

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

(d) TFC may conduct reference checks with other entities regarding past performance. In addition to evaluating performance through the Vendor Performance Tracking System, as authorized by Title 34, Part 1, Chapter 20, Subchapter F, Section 20.509 of the Texas Administrative Code, TFC 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-renewal of contracts. Any such investigations shall be at the sole discretion of TFC, and any negative findings, as determined by TFC, may result in non-award to the Respondent.

2.8 AWARD OF PURCHASE ORDER. A response to this IFB is an offer to contract based upon the terms, conditions, and specifications contained herein. Responses do not become a purchase order until they are accepted by the TFC Procurement Division through issuance of a purchase order number. The Purchase Order shall be governed, construed, and interpreted under the laws of the State of Texas. The factors listed in Texas Government Code, Title 10, Subtitle D, Section 2156.007 shall also be considered in making an award.

2.9 IRREVOCABILITY OF A RESPONSE. The response is irrevocable for thirty (30) days from opening if the response is an invitation for bid. This period may be extended at TFC’s request with the Respondent’s written agreement.

2.10 ORDER OF PRECEDENCE. In the event of any conflict or contradiction between or among solicitation documents, the Notice of Award, as modified by any amendments, shall control over the solicitation and the response. The solicitation, as modified by any addenda, shall control over the response.

2.11 PURCHASE ORDER DOCUMENTATION. The Purchase Order will consist of the Notice of Award, the solicitation package, all attachments and the mandatory Price Sheet, together with any modifications made through addenda thereto, and the successful response, together with any clarifications thereto that are submitted at the request of TFC. No terms or conditions that are included in any response or submitted by Respondent that differ from or are contrary to the terms and conditions of TFC’s solicitation documents constitute part of the Purchase Order unless specifically incorporated by TFC in writing signed by TFC.

III. RESPONDENT AFFIRMATIONS.

3.1 FALSE STATEMENTS. Respondent represents and warrants that all statements and information prepared and submitted in response to the solicitation are current, complete, true, and accurate. Signing the solicitation with a false statement is a material breach of this Purchase Order and shall void the submitted response or any resulting Purchase Orders, and may result in removal of the Respondent from the Centralized Master Bidders List.

3.2 CONFORMANCE. Respondent represents and warrants that all goods and services furnished shall conform in all respects to the terms of this Purchase Order, including any drawings, specifications or standards incorporated herein, and free from such defects in materials, workmanship and in design. In addition, Respondent represents and warrants that goods and services are suitable for and will perform in accordance with the purposes for which they are intended.

3.3 FINANCIAL INTERESTS/GIFTS. (a) Pursuant to Texas Government Code Sections 572.051 and 2255.001 and Texas Penal Code Section 36.09, 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 the submitted response.

(b) Pursuant to Texas Government Code Chapter 573 and Section 2254.032, if applicable, Respondent certifies that Respondent knows of no officer or employee of TFC, nor any relative within the second degree of consanguinity or affinity of an officer or employee of TFC, that has a financial interest in Respondent’s company or corporation. Respondent further certifies that no partner, corporation, or unincorporated association which employs, retains or contracts with, or which may employ, retain, or contract with any of the above, has a financial interest in any entity with which Respondent will be dealing on behalf of TFC.

3.4 FINANCIAL PARTICIPATION PROHIBITED AFFIRMATION. Pursuant to Section 2155.004(a) of the Texas Government Code, Respondent certifies that neither Respondent nor any person or entity represented by Respondent has received compensation from Agency to participate in the preparation of the specifications or solicitation on which this Response or contract is based. Under Section 2155.004(b) of the Texas Government Code, Respondent certifies that the individual or business entity named in this Response 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.

3.5 FAMILY CODE. Under Section 231.006(d) of the Texas Family Code, regarding child support, Respondent certifies that the individual or business entity named in this Response is not ineligible to receive the specified payment and acknowledges that the contract may be terminated and payment may be withheld if this certification is inaccurate. Furthermore, any Respondent subject to Section 231.006 of the Texas Family Code, must include in the Response the names and social security numbers of each person with at least 25% ownership of the business entity submitting the Response.

3.6 DEBTS OR DELINQUENCIES TO STATE. Pursuant to Texas Government Code Section 403.055, Respondent understands and agrees that any payment due under this Purchase Order may be applied toward payment of any debt or delinquency that is owed to the State of Texas including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support.

3.7 ANTITRUST AND ASSIGNMENT OF CLAIMS. (a) Respondent represents and warrants that neither Respondent nor any firm, corporation, partnership or institution represented by Respondent, or anyone acting for such firm, corporation, or institution has: (i) violated the antitrust laws of the State of Texas under the Texas Business and Commerce Code, Chapter 15, or the federal antitrust laws; nor (ii) communicated directly or indirectly the solicitation made to any competitor or any other person engaged in such line of business.

(b) Respondent hereby assigns to the State of Texas all of Vendor’s rights, title and interest in and to all claims and causes of action Respondent may have under the antitrust laws of Texas or the United States for overcharges associated with this Purchase Order.

3.8 DECEPTIVE TRADE PRACTICE; UNFAIR BUSINESS PRACTICES. Respondent represents and warrants that it has not been the subject of allegations of Deceptive Trade Practices violations under the Texas Business and Commerce Code, Chapter 17, or 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 allegations of Deceptive Trade Practices violations or allegations of any unfair business practices in an administrative hearing or court suit and that such officers have not been found to be liable for such practices in such proceedings.

3.9 AGENCY EXECUTIVE HEAD. Under Texas Government Code Section 669.003 relating to contracting with an executive of a state agency, Respondent represents that no person who, in the past four (4) years, served as an executive of TFC or any other state agency, was involved with or has any interest in this Purchase Order or contract resulting from this solicitation. If Respondent employs or has used the services of a former executive head of TFC or any other state agency, then Respondent shall provide the following information: the name of the former executive, the name of the state agency, the date of separation from the state agency, the position held with Respondent, and the date of employment with Respondent.

3.10 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.

3.11 PROHIBITION ON CERTAIN BIDS AND CONTRACTS. Under Texas Government Code, Section 2155.006, relating to the prohibition of certain bids and contracts, Respondent certifies that the individual or business entity named in this Purchase Order is not ineligible to receive the specified Purchase Order and acknowledges that this Purchase Order may be terminated and payment withheld if this certification is inaccurate. Respondent represents and warrants that during the five (5) year period preceding the date of this Purchase Order, Respondent has not been: (i) convicted of violating a federal law in connection with a contract awarded by the federal government for relief, recovery, or reconstruction efforts as a result of Hurricane Rita, as defined by Texas Utilities Code, Section 39.459, Hurricane Katrina, or any other disaster occurring after September 24, 2005; or (ii) assessed a penalty in a federal civil or administrative enforcement action in connection with a contract awarded by the federal government for relief, recovery, or reconstruction efforts as a result of Hurricane Rita, as defined by Texas Utilities Code, Section 39.459, Hurricane Katrina, or any other disaster occurring after September 24, 2005.

3.12 PRIOR EMPLOYMENT. Vendor certifies that Vendor shall comply with all applicable Texas and federal laws and regulations relating to the hiring of former state employees including “revolving door” provisions. Furthermore, Vendor certifies that if it employs any former employee of TFC, such employee will perform no work in connection with this Purchase Order during the twelve (12) month period immediately following the employee’s last date of employment at TFC.

3.13 PROHIBITION AGAINST BOYCOTTING ISRAEL. Pursuant to Section 2271.002 of the Texas Government Code, Respondent certifies that either (i) it meets an exemption criteria under Section 2271.002; or (ii) it does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. Respondent shall state any facts that make it exempt from the boycott certification in its Response.

3.14. PROHIBITION AGAINST CONTRACTING WITH COMPANIES ENGAGED IN BUSINESS WITH IRAN, SUDAN, OR FOREIGN TERRORIST ORGANIZATIONS. In accordance with Section 2251.152 of the Texas Government Code, TFC is prohibited from entering into a governmental contract (as defined in Texas Government Code Section 2252.151(3)) with a company that is identified on a list prepared and maintained under Texas Government Code Section 806.051, 807.051, or 2252.153. If contractor is on the above-referenced list the Contract will be considered void or voidable and TFC will not be responsible to pay Contractor for any work performed.

3.15. COMPUTER EQUIPMENT RECYCLING PROGRAM. If Respondent is submitting a Response for the purchase or lease of computer equipment, then Respondent certifies that it is in compliance with Subchapter Y, Chapter 361 of the Texas Health and Safety Code related to the Computer Equipment Recycling Program and the Texas Commission on Environmental Quality rules in 30 TAC Chapter 328.

3.16 EXCLUDED PARTIES. Respondent certifies that it 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.

3.17 HUMAN TRAFFICKING PROHIBITION. Under Section 2155.0061 of the Texas Government Code, the Respondent certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate

3.18 SUSPENSION AND DEBARMENT. Respondent certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services Administration.

3.19 TELEVISION EQUIPMENT RECYCLING PROGRAM. Respondent certifies its compliance with Subchapter Z, Chapter 361 of the Texas Health and Safety Code, related to the Television Equipment Recycling Program.

3.20 ENTITIES THAT BOYCOTT ENERGY COMPANIES. Contractor represents and warrants that: (1) it does not, and will not for the duration of the Contract, boycott energy companies or (2) the verification required by Section 2274.002 of the Texas Government Code (as added by SB 13, Acts of the 87th Legislature, Regular Session, 2021) does not apply to the Contract. If circumstances relevant to this provision change during the course of the Contract, Contractor shall promptly notify TFC.

3.21 ENTITIES THAT BOYCOTT FIREARM ENTITIES OR FIREARM TRADE ASSOCIATIONS. Contractor verifies that: (1) it does not, and will not for the duration of the Contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Section 2274.002 of the Texas Government Code (as added by SB 19, Acts of the 87th Legislature, Regular Session, 2021), does not apply to the Contract. If circumstances relevant to this provision change during the course of the Contract, Contractor shall promptly notify TFC.

3.22 COVID-19 VACCINE PASSPORT PROHIBITION. Under Section 161.0085 of the Texas Health and Safety Code, Contractor certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Contractor’s business. Contractor acknowledges that such a vaccine or recovery requirement would make Contractor ineligible for a state-funded contract.

IV. PAYMENT.

4.1 PAYMENT. Payment for goods and services purchased with state-appropriated funds is made by warrants or by direct deposit from the State Treasury. No penalty for late payment will be incurred by TFC if payment is made in thirty (30) days or less from receipt of goods, services or a correct invoice, whichever is later. Payment under this Purchase Order are subject to the availability of appropriated funds. Payment will be made in accordance with Chapter 2251 of the Texas Government Code.

(b) If, at any time during the term of this Purchase Order, Vendor reduces the comparable price of any article or service covered by the Purchase Order to customers other than TFC, the prices charged to TFC for such articles or services shall also be reduced proportionately. Such reduction shall be effective at the same time and in the same manner as the reduction in price to customers other than TFC. In addition to invoicing at the reduced prices, Vendor shall furnish promptly to TFC complete information regarding the reduction.

4.2 PAYMENTS TO VENDOR FOR GOODS. (a) To facilitate payments for goods provided by Vendor to TFC, Vendor’s invoice shall include, but not be limited to, the following:

(i) the Vendor’s mailing and e-mail address, if applicable;

(ii) the Vendor’s telephone number;

(iii) the name and telephone number of a person designated by the vendor to answer questions regarding the invoice;

(iv) the TFC Purchase Order number;

(v) TFC’s name, and delivery address;

(vi) the TFC requisition number, if applicable;

(vii) the TFC contract number or other reference number, if applicable;

(viii) a valid Texas Identification Number (TIN) issued by the CPA;

(ix) a description of the goods or services, in sufficient detail to identify the order which relates to the invoice;

(x) unit numbers corresponding to the original order; and

(xi) other relevant information supporting and explaining the payment requested or identifying a successor organization to an original vendor, if necessary.

(b) Address for submission is: Texas Facilities Commission, Accounts Payable, P.O. Box 13047, Austin, Texas 78711-3047 or by e-mail to accountspayable@tfc.state.tx.us.

4.3 PAYMENTS TO VENDOR FOR SERVICES. (a) Payments for services provided by Vendor will be made on a monthly basis and within thirty (30) days from receipt of a correct invoice or billing statement in accordance with the Texas Government Code, Chapter 2251, Texas Prompt Payment Act. An invoice is considered received on the date it is date stamped by TFC. Vendor will be paid for completion of work accepted and approved by TFC. For large projects, partial payment may be allowed once per month on completed work with acceptance and approval of TFC.

(b) Vendor shall invoice TFC for services performed by vendor identification number, building, if applicable, and purchase order number. Invoices must include the purchase order number, the number of employees that worked on the job and the number of hours. Additionally, invoices for any materials purchased for each project must be provided. Address for submission is: Texas Facilities Commission, Accounts Payable, P.O. Box 13047, Austin, Texas 78711-3047 or by e-mail to accountspayable@tfc.state.tx.us.

4.4 STATE FUNDING. (a) The contract shall not be construed as creating a debt on behalf of Agency in violation of Article III, Section 49a of the Texas Constitution. Respondent understands that all obligations of Agency under the contract are subject to the availability of state funds. If such funds are not appropriated or become unavailable, this Purchase Order may be terminated. In that event, the parties shall be discharged from further obligations, subject to the equitable settlement of their respective interests accrued up to the date of termination.

(b) Furthermore, any damages due under this Purchase Order should not exceed the amount of funds appropriated for payment under this Purchase Order, but not yet paid to Vendor, for the fiscal year budget in existence at the time of the breach; provided, however, the foregoing shall not be construed as a waiver of sovereign immunity.

4.5 TRAVEL. Any travel or per diem required by Vendor to perform its obligations under the Purchase Order will be at Vendor’s expense. All travel and per diem that TFC requests in addition to what the Purchase Order requires Vendor to provide at the Vendor’s expense will be paid at rates not to exceed State of Texas travel laws, rules and regulations. Vendor must obtain prior written approval by TFC prior to incurring travel expenses.

V. TERMINATION AND DEFAULT.

5.1 TERMINATION. (a) TFC may terminate this Purchase Order immediately for default by providing written notice to Vendor of such termination if the Vendor fails to execute the work properly, performs work in an unsatisfactory manner, or fails to perform any provision of the Purchase Order. In the event of abandonment or default, Vendor will be responsible for paying damages to TFC, including but not limited to, the cost to re-solicit this Purchase Order and any consequential damages to the State of Texas or TFC resulting from Vendor’s non-performance. The defaulting Vendor will not be considered in the re-solicitation and may not be considered in future solicitations for the same type of work, unless the scope of work is significantly changed.

(b) TFC may, at its sole option and discretion, terminate this Purchase Order at any time, for any reason whatsoever, in whole or in part, by giving written notice (hereinafter referred to as the “Notice of Termination”) to Vendor at least thirty (30) days prior to the effective date of termination or reduction in the scope of work. In the event of termination by TFC under this subsection, Vendor shall be governed by the terms and conditions, and shall perform the acts outlined in the following Section 5.1(c).

(c) Vendor shall terminate all work under the Purchase Order to the extent and on the date specified in the Notice of Termination and until such date shall, to the extent stated in the Notice of Termination, do such work as may be necessary and be compensated only for such work as may be necessary as determined by TFC preserve the work in progress and to protect materials, properties, and equipment. In the event of termination by TFC, TFC shall pay Vendor for all work satisfactorily performed up to the effective date of termination or reduction in the scope of work in accordance with the prices included in the scope of work.

(d) Vendor may terminate the Purchase Order upon providing sixty (60) days’ written notice to TFC. In the event of termination by Vendor, Vendor shall be governed by the terms and conditions of this Purchase Order, and shall perform the acts outlined in Section 5.1(c) above. Vendor will be held responsible for additional cost incurred from the termination of this Purchase Order.

5.2. CHANGE IN FEDERAL OR STATE REQUIREMENTS. If federal or state laws, rules, regulations or requirements applicable to this Purchase Order are amended, performance under this Purchase Order will be subject to the laws, rules, regulations or requirements applicable at the time of performance under the Purchase Order. If federal or state laws or regulations or other federal or state requirements are amended or judicially interpreted so that either TFC or Vendor cannot reasonable fulfill the Purchase Order and if the parties cannot agree to an amendment that would enable substantial continuation of the Purchase Order, the parties shall be discharged from any further obligations under the Purchase Order.

5.3. RIGHTS UPON TERMINATION OR EXPIRATION OF PURCHASE ORDER. In the event that the Purchase Order is terminated for any reason, or upon is expiration, TFC shall retain ownership of all associated work products and documentation obtained from Vendor under the Purchase Order.

5.4 NO LIABILITY UPON TERMINATION. If this Purchase Order is terminated for any reason, TFC and the State of Texas shall not be liable to Vendor for any damages, claims, losses, or any other amounts arising from or related to any such termination absent an award of damages pursuant to Texas Government Code, Chapter 2260.

5.5 SURVIVAL OF TERMS. Termination of the Purchase Order for any reason shall not release Vendor from any liability of obligation set forth in the Purchase Order that is expressly stated to survive any such termination or by its nature would be intended to be applicable following any such termination, including the provisions regarding confidentiality, indemnification, transition, records, audit, property rights, dispute resolution and invoice and verification.

VI. CRIMINAL BACKGROUND CHECK AND E-VERIFY.

6.1 GENERAL AND CRIMINAL BACKGROUND CHECKS. (a) Vendor represents and warrants that Vendor and Vendor’s employees have not been convicted of a felony criminal offense, or that, if such a conviction has occurred, Vendor has fully advised TFC as to the facts and circumstances surrounding the conviction.

(b) Vendor’s employees and subcontractors that will complete any work on-site at a state-owned property may be subject to a criminal background check. Any expense associated with such criminal background check shall be borne by Vendor. A complete criminal background check shall be completed before any employee performs services at the site, and may be requested at any time thereafter. Criminal background checks must be accomplished by the Texas Department of Public Safety (“DPS”), which includes fingerprint processing by an independent third-party company selected by DPS. Upon receipt of the fingerprints of Vendor’s employees and/or subcontractors, DPS or TFC, will adjudicate the results of the criminal background searches in accordance with the criteria set forth in the TFC Criminal Background Checks and Application Guidelines as posted as Document 5E on TFC’s website: https://www.tfc.texas.gov/divisions/facilities/prog/construct/formsindex/.

6.2 E-VERIFY. (a) By entering into this Purchase Order, Respondent certifies that for contracts for services, Respondent shall utilize the U.S. Department of Homeland Security’s E-Verify system during the term of the contract to determine the eligibility of:

(i). all persons employed by Respondent to perform duties within Texas; and

(ii) all persons, including subcontractors, assigned by Respondent to perform work pursuant the contract within the United States of America.

(b) Vendor shall provide, upon request of TFC and if available, an electronic or hardcopy screenshot of the confirmation or tentative non-confirmation screen containing the E-Verify case verification number for attachment to the Form I-9 for the three (3) most recent hires that match the criteria above, by the Vendor, and Vendor’s subcontractors, as proof that this provision is being followed. If this certification is falsely made, the Purchase Order may be immediately terminated, at the discretion of TFC, and at no fault to TFC, with no prior notification. Vendor shall also be responsible for the costs of any re-solicitation that TFC must undertake to replace the terminated Purchase Order.

VII. RECORDS, AUDIT, PROPRIETARY INFORMATION, AND PUBLIC DISCLOSURE.

7.1 SUPPORTING DOCUMENTS, RETENTION; RIGHT TO AUDIT; INDEPENDENT AUDITS.

(a) Vendor shall maintain and retain supporting fiscal and any other documents relevant to showing that any payments under this Purchase Order were expended in accordance with the laws and regulations of the State of Texas including, but not limited to, requirements of the Comptroller of the State of Texas and the State Auditor. Vendor shall maintain all such documents and other records relating to this Purchase Order and the State’s property for a period of seven (7) years after the date of submission of the final invoices or until a resolution of all billing questions, whichever is later. Vendor shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to the Purchase Order. Vendor and any subcontractors shall provide the State Auditor with any information that the State Auditor deems relevant to any investigation or audit. Vendor must retain all work and other supporting documents pertaining to this Purchase Order, for purposes of inspecting, monitoring, auditing, or evaluating by TFC and any authorized agency of the State of Texas, including an investigation or audit by the State Auditor.

(b) Vendor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all of such State’s work as requested. The acceptance of funds by Vendor or any other entity or person directly under this Purchase Order, or indirectly through a subcontractor under this Purchase Order, shall constitute acceptance of the authority of the State Auditor to conduct an audit or investigation in connection with those funds. Vendor acknowledges and understands that the acceptance of funds under this Purchase Order shall constitute consent to an audit by the State Auditor, Comptroller or other agency of the State of Texas. Vendor shall ensure that this paragraph concerning the State’s authority to audit funds received indirectly by subcontractor through Vendor and the requirement to cooperate is included in any subcontractor it awards. Furthermore, under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the State Auditor must provide the State Auditor with access to any information the State Auditor considers relevant to the investigation or audit.

7.2 CONFIDENTIALITY. Vendor shall keep confidential all information, in whatever form, produced, prepared, observed or received by Vendor to the extent that such information is:

(a) confidential by law;

(b) marked or designated “confidential” (or words to that effect) by TFC; or

(c) information that Vendor is otherwise required to keep confidential by this Purchase Order.

7.3 PUBLIC RECORDS. (a) Notwithstanding any provisions of this Purchase Order to the contrary, Vendor understands that TFC will comply with the Texas Public Information Act, Texas Government Code, Chapter 552. If contacted by TFC, Vendor will cooperate with TFC in the production of documents responsive to the request. Vendor agrees to provide the documents responsive to the request in the format and within the time frame specified by TFC. Vendor may request that TFC seek an opinion from the Office of the Texas Attorney General. However, the final decision whether to seek a ruling from the Office of the Texas Attorney General will be made by TFC in its sole discretion to comply with the legal requirements of the Texas Public Information Act. Additionally, Vendor will notify TFC’s general counsel within twenty-four (24) hours of receipt of any third-party requests for information written, produced, collected, assembled, or maintained in connection with this Purchase Order and/or any amendment to this Purchase Order. This Purchase Order and/or any amendment to this Purchase Order and all data and other information generated or otherwise obtained in its performance is subject to the Texas Public Information Act. Vendor agrees to maintain the confidentiality of information received from the State of Texas during the performance of this Purchase Order, including information which discloses confidential personal information particularly, but not limited to, social security numbers. Furthermore, Vendor is required to make any information created or exchanged with the State pursuant to this Purchase Order, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public as specified by TFC at no additional charge to the State.

(b) In accordance with Section 552.372 of the Texas Government Code, Respondent agrees to (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the Agency for the duration of the contract, (2) promptly provide to the Agency any contracting information related to the contract that is in the custody or possession of the Respondent on request of the Agency, and (3) on termination or expiration of the contract, either provide at no cost to the Agency all contracting information related to the contract that is in the custody or possession of the Respondent or preserve the contracting information related to the contract as provided by the records retention requirements applicable to the Agency. Except as provided by Section 552.374(c) of the Texas Government Code, the requirements of Subchapter J, Chapter 552, Government Code, may apply to the contract and the Respondent agrees that the contract can be terminated if the Respondent knowingly or intentionally fails to comply with a requirement of that subchapter.

7.4 PUBLIC DISCLOSURE. No public disclosures or news releases pertaining to this Purchase Order shall be made without prior written approval of TFC.

VIII. BONDS AND INSURANCE.

8.1 BONDS. (a) Prior to commencement of public work contract as defined by Texas Government Code, Chapter 2253, or as otherwise specified as required in the solicitation, Vendor is required to tender payment and performance bonds to TFC, when the following circumstances apply:

(i) A performance bond is required if the Purchase Order amount is in excess of $100,000.00. The performance bond is solely for the protection of TFC. The performance bond is to be for the sum of the Purchase Order to guarantee the faithful performance of the work in accordance with the Purchase Order. The performance bond shall be effective through Contractor’s warranty period.

(ii) A payment bond is required if the Purchase Order amount is in excess of $25,000.00. The payment bond is to be for the sum of the Purchase Order and is payable to TFC solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with Vendor or a subcontractor.

(b) Each bond shall be executed by a corporate surety or sureties authorized to do business in the State of Texas and acceptable to TFC, on TFC’s form (a copy of which can be provided by TFC upon request), and in compliance with the relevant provisions of the Texas Insurance Code. If any bond is for more than ten (10) percent of the surety’s capital and surplus, TFC may require certification that the company has reinsured the excess portion with one or more reinsurers authorized to do business in the State. A reinsurer may not reinsure for more than ten (10) percent of its capital and surplus. If a surety upon a bond loses its authority to do business in the State, Vendor shall, within thirty (30) days after such loss, furnish a replacement bond at no added cost to TFC.

(c) Each bond shall be accompanied by a valid power of attorney (issued by the surety company and attached, signed and sealed with the corporate embosses seal, to the bond) authorizing the attorney in fact who signs the bond to commit the company to the terms of the bond, and stating any limit in the amount for which the attorney can issue a single bond.

(d) The process of requiring and accepting bonds and making claims thereunder shall be conducted in compliance with Texas Government Code, Chapter 2253. IF FOR ANY REASON A STATUTORY PAYMENT OF PERFORMANCE BOND IS NOT HONORED BY THE SURETY, VENDOR SHALL FULLY INDEMNIFY AND HOLD OWNER HARMLESS OF AND FROM ANY COSTS, LOSSES, OBLIGATIONS OR LIABILITIES IT INCURS AS A RESULT.

(e) TFC shall furnish certified copies of the payment bond and the related Purchase Order to any qualified person seeking copies who complies with Texas Government Code, Section 2253.026.

(f) Claims on payment bonds must be sent directly to Vendor and its surety in accordance with Texas Government Code, Section 2253.041. All payment bond claimants are cautioned that no lien exists on the funds unpaid to Vendor on such contract, and that reliance on notices sent to TFC may result in loss of their rights against Vendor and/or its surety. TFC is not responsible in any manner to a claimant for collection of unpaid bills, and accepts no such responsibility because of any representation by any agent or employee.

(g) The rights of subcontractors regarding payment are governed by Texas Property Code, Sections 53.231–53.239 when the value of a Purchase Order is less than $25,000.00. These provisions set out the requirements for filing a valid lien on funds unpaid to Vendor as of the time of filing the claim, actions necessary to release the lien and satisfaction of such claim.

(h) Sureties shall be listed on the US Department of the Treasury’s Listing Approved Sureties stating companies holding Certificates of Authority as acceptable sureties on federal bonds and acceptable reinsuring companies (Department Circular 570).

8.2 INSURANCE. Prior to the commencement of work under this Purchase Order, Vendor agrees to carry and maintain insurance in the following types and amounts for the duration of this Purchase Order, to furnish certificates of insurance including corresponding policy endorsements, and make available, at no cost to TFC, copies of policy declaration pages as evidence thereof:

(a) Workers’ Compensation and Employers’ Liability coverage with minimum policy limits for employers’ liability of $100,000.00 bodily injury per accident, $100,000.00 bodily injury disease policy limit and $500,000.00 per disease, per employee. Workers’ compensation insurance coverage must meet the statutory requirements of Texas Labor Code, Section 401.011(46). Certification in writing from Vendor and subcontractor shall be provided to TFC in accordance with Texas Labor Code, Section 406.096. A Waiver of Transfer Right of Recovery Against Others in favor of TFC shall be included.

(b) Commercial General Liability with a combined single limit of $500,000.00 per occurrence for coverage A and B including products/completed operations, where appropriate, with a separate aggregate of $1,000,000.00 for bodily injury and for property damages. The general aggregate limit shall apply on a per Project basis. The policy shall contain the following provisions:

(i) blanket contractual liability coverage for liability assumed under the Purchase Order;

(ii) independent Vendors’ coverage;

(iii) State of Texas, TFC, its officials, directors, employees, representatives and volunteers must be listed as additional insureds;

(iv) thirty (30) day Notice of Cancellation in favor of TFC; and

(v) Waiver of Transfer Right of Recovery Against Others in favor of TFC.

(c) Business Automobile Liability Insurance for all owned, non-owned and hired vehicles with a minimum combined single limit of $500,000.00 per accident for bodily injury and property damage. Alternate acceptable limits are $500,000.00 bodily injury per person, $500,000.00 bodily injury per occurrence and at least $500,000.00 property damage liability per accident. The policy shall contain the following endorsements in favor of TFC:

(i) Waiver of Subrogation endorsement;

(ii) Thirty (30) day Notice of Cancellation endorsement; and

(iii) Additional Insured endorsement.

(d) For renovation projects or projects that involve portions of work contained within an existing structure, the policy must also include Existing Property coverage in an amount equivalent to the Total Purchase Order Sum. For purposes herein, “Existing Property” means existing buildings or structures as well as, all personal property contained therein. “Existing Property” does not include personal property owned or operated by Vendor or any subcontractors.

(e) For TFC furnished equipment or materials that will be in care, custody or control of Vendor, Vendor shall be responsible for any and all damages and losses thereto.

(f) The policy must be written jointly in the names of TFC and Vendor. Subcontractors must be named as additional insureds. The policy shall have endorsements as follows:

(i) this insurance shall be specific as to coverage and not contributing insurance with any insurance or self-insurance carried by TFC, if any;

(ii) this insurance shall not contain an occupancy clause suspending or reducing coverage should Owner partially occupy the Site and before the parties have determined Substantial Completion; and

(iii) loss, if any, shall be adjusted with and made payable to TFC as trustee for the insureds as their interests may appear. TFC shall be named as loss payee.

(g) Valuation of any loss for the renovation and any existing property (exclusive of building and existing structures) shall be at replacement cost.

(h) Policy shall remain in effect until Substantial Completion is achieved as to all phases of the Project.

8.3 GENERAL REQUIREMENTS FOR INSURANCE. (a) Vendor shall be responsible for deductibles and self-insured retention, if any, stated in policies. All deductibles or self-insured retention shall be disclosed on the certificate of insurance required above. If coverage is underwritten on a claims-made basis, the retroactive date shall be coincident with the date of this Purchase Order and the certificate of insurance shall state that the coverage is claims made and the retroactive date.

(b) Vendor shall maintain coverage for the duration of this Purchase Order. Coverage, including any renewals, shall have the same retroactive date as the original policy applicable to the Purchase Order. Vendor shall, on at least an annual basis, provide TFC with an insurance certificate as evidence of such insurance. The premium for this extended reporting period shall be paid by Vendor.

(c) Vendor shall not commence work under this Purchase Order until they have obtained the required…