PHYSICAL ADDRESS MAILING ADDRESS, IF DIFFERENT PHONE, CELL PHONE, & ADDRESS SIGNATURE OF REPRESENTATIVE TITLE OF REPRESENTATIVE.

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1 DATE: December 10, 2013 REQUEST FOR PROPOSALS RFP# , ELECTRICITY SERVICES Website: CONTACT PERSON: Alan Hagy, at , or Request for Proposal submittals are due on or before TUESDAY, JANUARY 14, 2014 at 10:30 a.m. All submittals must be signed and ed to Hard copies are not to be submitted. NOTES TO ALL VENDORS: 1. Vendor must keep Dallas County Schools ( DCS ) advised of any changes in status. 2. All questions regarding this Request for Proposals must be in writing and be ed to Alan Hagy, at ahagy@dcschools.com. Questions by phone or ed to anyone else will not be considered. 3. All items purchased from this solicitation must meet all applicable local, state, and federal rules and regulations. 4. Proposers must make entire submittal in , including any attachments, to RFPSubmittals@dcschools.com. 5. RFP, Addendums, and other specifications will be posted on 6. Dallas County Schools is requesting proposals for unbundled electricity service. 7. Attachment A (ESI ID s, facility addresses, and required billing addresses). All addresses on Attachment A are to have the same rates, etc. 8. Submittals may include one or more options for rates, and may include programs that may benefit Dallas County Schools and other related entities. 9. Programs such as, but not limited to including wind produced electricity are also requested to be submitted as potential best value options. 10. The RFP process may include a formal presentation from selected Retail Page 1

2 Electricity Provider (REP) s. 11. Tentative contract date is from June 1, 2014 through May 31, 2015 with the option to renew with same terms and conditions for two additional 1 year terms. Beginning date may begin before June 1, Submission of this proposal shall serve as evidence that the offeror understands and agrees to all conditions of the Request for Proposals. Faxed proposals will not be considered. All offerors must complete all attached forms. Failure to submit all required forms may result in disqualification of your proposal. NAME OF VENDOR PRINTED NAME OF REPRESENTATIVE PHYSICAL ADDRESS MAILING ADDRESS, IF DIFFERENT PHONE, CELL PHONE, & ADDRESS SIGNATURE OF REPRESENTATIVE DATE TITLE OF REPRESENTATIVE Page 2

3 1. Contract Documents: INSTRUCTIONS/ GENERAL INFORMATION a. DCS expectations with respect to the performance by each Vendor in connection with this purchase are set out in the Contract Documents, which consist of this Request for Proposal ( RFP ), any award letter(s), any purchase order(s), and any final contract to be negotiated by the parties. Vendors who fail to examine the Contract Documents do so at their own risk. 2. Preparation and Submission of Proposals: a. Any explanation desired by a vendor regarding the meaning or interpretation of any portion of the Contract Documents must be requested in writing to the Purchasing Department in a timely manner to allow for a reply to reach vendors before the submission of their proposals. Oral explanations or instructions given before the award of the contract will not be binding. Any information given to one prospective vendor will be furnished to all prospective vendors as a Proposal Addendum, if such information is necessary to vendors in submitting their proposals or if the lack of such information would be prejudicial to an uninformed vendor. b. Proposals must be delivered by only. The address is RFPSubmittals@dcschools.com. Proposals are due on or before: TUESDAY, JANUARY 14, 2014 at 10:30 a.m. Proposals received after the time and date of the opening may not be considered and may be returned. c. Proposals may be modified or withdrawn by received by DCS prior to the exact hour and date specified for receipt of proposals. A proposal may also be withdrawn in person by a vendor or an authorized representative, provided his/her identity is made known and he/she signs a receipt for the proposal, but only if the withdrawal is made prior to the exact hour and date set for the receipt of proposals. 3. Vendor Information: a. Each vendor shall furnish the information required by the Contract Documents. b. The vendor shall sign the proposal, all addenda, and the proposal sheet. The person signing the proposal must initial erasures or other changes. Proposals signed by an agent must be accompanied by evidence of the agent s authority unless such evidence has been previously furnished to DCS. Page 3

4 c. Deliveries shall be FOB Destination to DCS destination sites. Freight prepaid and assumed by the vendor. DCS reserves the right to pick up items in lieu of delivery from local vendors. d. The vendor may offer an equal product or product exceeding specifications as an alternate proposal. Final determination of whether or not an item is an approved equal remains with DCS. e. All data and material safety data sheets (MSDS), if applicable, must accompany proposal. f. Proposals submitted on forms other than the DCS forms or with different terms or provisions may be considered as non-responsive proposals. g. DCS expects that all proposals will remain valid for the term of this proposal. h. The vendor shall certify that no federal or state suspension or debarment is in place, which would preclude receiving a state or federally funded award. i. Reservations - DCS expressly reserves the right to: i. Waive minor deviations from the specifications when it is determined that the total cost to DCS of the deviating proposal is lower than the lowest conforming proposal which meets all aspects of the specifications, and the overall function of the goods or services, or both, specified in the deviating proposal is equal to or greater than that of the conforming proposal. ii. Waive any defect, irregularity or informality in any proposal procedure. iii. Reject any or all proposals. iv. Amend a proposal prior to proposal opening date to extend or make changes to specification. v. Procure any item by other means. vi. Increase or decrease the quantity specified in the proposal, unless the offeror specifies otherwise. vii. Consider and accept an alternate proposal as provided herein when most advantageous to DCS. Page 4

5 4. Evaluation Criteria: DCS shall evaluate responsive proposals in accordance with Texas Education Code Section (b) and the following factors: a) The purchase price. b) The reputation of the Vendor and of the Vendor s goods and services. c) The quality of the Vendor s goods or services. d) The extent to which the goods or services meet the Buyer s needs. e) The Vendor s past relationship with the Buyer. f) The impact on the ability of the Buyer to comply with laws and rules relating to Historically Underutilized Businesses. g) The total long-term cost to the Buyer to acquire the Vendor s goods or services. h) Vendor s service and delivery capabilities. i) Warranty and warranty service history. j) Probability of continuous availability. k) Any other relevant factor specifically listed in the request for bids or proposals. 5. Scope of Work and Specifications: a) Dallas County Schools is requesting proposals for unbundled electricity service to meet the requirements for their Texas deregulated facilities, as shown in Attachment A. To obtain load data from the TDSP please submit an ERCOT approved Letter of Authorization to the following address: ahagy@dcschools.com. b) Company information should include PUC certification, Standard and Poor s or Moody s rating, or equivalent from the proposer and/or parent company. Also included should be the most recent financial statement listing annual revenue, assets and liabilities. Years of service in a deregulated market, particularly Texas is also requested. 6. Specific Information that may be considered: a) Financial robustness: 1. Supplier or parent company shall meet the following minimum Investment credit rating of BBB- from Standard and Poor s or Baa3 from Moody s Investment Service or their financial equivalent. Page 5

6 2. Supplier or parent company must have annual revenues in excess of $1,000, Minimum of two years of experience serving large government and education customers in deregulated electric markets, and a minimum of one year experience serving customers in Texas s deregulated market. 4. General quality and adequacy of response: Completeness of RFP response. Responsiveness to Terms and Conditions. b) Resolution Process: DCS may consider the most flexible plan which describes in specific detail, the manner in which differences between the contracted benchmark quantities and the quantities actually used and delivered will be determined, accounted for, and charged or credited. c) Additional Contract Provisions: The REP should be aware that DCS is interested in proposals which can be evaluated as most advantageous in the context of the new energy services opportunities now becoming available to large institutional energy users in Texas. Additional criteria, which will be evaluated, should expand upon the energy marketplace participation capabilities offered the Owner by a REP s proposal. Criterion which may be considered responsive to these opportunities include (but are not limited to) the ability to reduce either price or supply reliability risk profiles (e.g., hedging strategies, additional value-added service offerings (e.g., consolidated billing), or capital infrastructure investment commitments (e.g., improved metering). The commodities and services offered and evaluated under this criteria will be based on assessed benefits, avoided costs, and enhancement of market participation opportunities. A REP shall not be required to offer these additional contract provisions, but is given the opportunity to enhance its proposal through demonstration of the value that such additional commodity or services provisions may provide to DCS. Page 6

7 7. PERMITS, LICENSES, TAXES, AND CERTIFICATE OF AUTHORITY a) The REP shall procure all necessary permits and licenses and abide by all applicable laws, regulations, and ordinances of all federal, state, and local governments under which the contract will be performed. b) The REP shall be responsible for any and all taxes and assessments arising out of the operation of the program including, but not limited to, payroll and personal property taxes, franchise taxes, and income taxes. c) Billing 1. Electric Energy: The School District requires Electric Energy to be billed on an individual account basis rendered on a single bill per electric delivery/metering point. 2. Provide sample of actual bill proposed to be used for all Owner s accounts as it will be delivered to Owner during contract term. 3. Indicate billing options, if any. d) Pricing 1. REP s Proposal shall reflect current market forces in effect at the time of Proposal submittal and shall indicate unit pricing valid on the day of proposal submittal. REP shall clearly explain the pricing and breakdown of the component costs of the pricing under the Proposal so that Owner and its consultant can evaluate the total price of power and energy under the terms of the Proposal. Owner desires a fixed price full requirements pricing for energy. Pass-through charges are limited to TDSP. PUCA and GRT until such time that ERCOT implements or adjusts fees related to congestion, line losses, renewable energy, and ERCOT ISO fees. All pass-through charges shall be identified and where possible estimated. Note: Bid Summary Form must be completed and included with Proposal. Page 7

8 8. Metering 1. Provide sample contract with options (if available) for electric power and energy. 2. Provide contract pricing details for One, Two, Three, Four, and Five Year supply terms commencing the first meter read date. Optional term lengths that provide savings opportunities are also welcome. Cancellations: Indicate any restrictions on Owner s ability to cancel this contract: 1. Additional meter reading activities required by REP s proposal above those provided by ONCOR delivery are the responsibility of the REP. 2. If required by this REP, additional or upgraded meters above those currently existing are the responsibility of the REP. Page 8

9 9. Please complete the following with answers in the right column: Please identify best estimation how many residential and commercial customers you currently serve in ERCOT? Number of years of serving customers in the Texas electric market and number of years serving customers in the de-regulated ERCOT market List the number of employees in the office that will serve DCS Number of years of serving customers in the Texas electric market and number of years serving customers in the de-regulated ERCOT market Please provide specific examples of experience serving independent school districts in Texas Have any school districts or government entities in Texas ever filed a complaint with the PUC or filed litigation against your company? (if yes, please detail). Page 9

10 Billing Systems and Quality Control Describe how your company will receive, process and apply payments using EDI, and electronic presentation & billing. Also identify how DCS can utilize online invoicing to include the following below: Online Capabilities Can access up to 6 months invoices online? YES / NO Y/N Can access up to 6 months payment history online? Can download invoice details into XLS or other spreadsheet? Can search for invoice details or history by ESI or location? Can review Advanced Metering interval data (when available) online? Can make payments through EDI? Contract Provisions Please identify any Material Change provisions that could allow a change in the contracted commodity rate during the term of the agreement based on the following: Material Change Provisions Vendor may make Material Changes at their discretion? YES / NO Y/N Due to changes in expected consumption? Due to changes in legislative, regulatory, or governmental rules or laws? The indicative pricing should be representative of market conditions at the time the submittal/ quote is supplied on the RFP/ Quote due date and/ or when contract is signed, whichever is better for DCS. 10. Value Added Services Mark yes or no in the spreadsheet for each added service that your company will or will not directly offer DCS, for example, energy audits, energy efficiency products or rebate funding, load management or curtailment products or offerings, programs around onsite renewable power for DCS including solar and electric vehicles. Page 10

11 Value Added Services Service Offered Cost to DCS Energy Audit Y/N Y/N 4CP notification Services Community Education Seminars and Education Energy Curtailment Products Funding for Energy Efficiency Improvements Climate Control Systems or EMS On-site solar generation Electric Vehicle Charging Station Installations Educational Programs focused on energy applicable to grades K-12. Comments: The indicative pricing should be representative of market conditions at the time the submittal/ quote is supplied on the RFP/ Quote due date and/ or when contract is signed, whichever is better for DCS. Page 11

12 PROPOSAL SHEET RFP# , ELECTRICITY SERVICES Product Offerings: Please provide pricing for the conditions below: Pricing submitted must be fixed for the terms shown below. Start Date xx-xx-xxxx Term 12 months 24 months 36 months Product Structure Fixed Usage Tolerance +/- 15 % kwh Rate Identify Hub/Nodal Basis Differential in cost/mwh $0.XXXX $X.XX % Renewable (if any) X% List any 3rd Party or aggregation fees (bundled or unbundled) in the kwh price per MWh $X.XX Payment Terms Net 30 Net 30 Net 30 Net 30 Pricing Inclusion Form Commodity: Wholesale price of energy Capacity / Demand charges Fuel Costs Transmission and Distribution Service Provider (TDSP) line losses Unaccounted for Energy (UFE) Retail Fees: REP Billing & Customer Care Services Net 30 Billing Terms Included / Pass Through Page 12

13 Qualified Scheduling Entity (QSE) Fees: Schedule Coordination Service System Control Service Cost for nominating required volumes Dispatching Service Independent System Operator (ISO) Ancillary Service & Fees: Regulation Service (Reg Up, Reg Down) Responsive Reserve Service Non-Spinning Reserve Service Reliability Must Run (RMR) ERCOT Fees Reliability Unit Commitment (RUC) Black Start Service ERCOT Administration Fee ERCOT ISO Fee ERCOT Other Charges ERCOT Reliability Charge Renewable Energy Surcharge Out-of-Merit Energy (OOME) Out-of Merit ADR Settlement Mismatch Schedule Fee Real Time Revenue Neutrality (RTRN) Voltage Support Service Emergency Energy Emergency Interruptible Load Service Charge (EILS) Congestion Management: Hub to Load Zone Basis Differential Stranded Costs (TDSP): Transmission charges Distribution charges System Benefit Fund Nuclear decommissioning charge Regulated Delivery Charges Page 13

14 Customer charge Metering charge Discretionary Service Fee Competitive Transition Charge (CTC) Excess mitigation credit (EMC) Transition Charge (TC1) Transition Charge (TC2) Taxes and Miscellaneous Fees: Sales Tax (if applicable) Gross Receipts tax (if applicable) TOTAL COST OF ONE (1) KILO WATT HOUR $ Comments: COMPANY: SIGNATURE OF REPRESENTATIVE: PRINTED NAME OF REPRESENTATIVE: TITLE: ADDRESS: ADDRESS: CITY & STATE: ZIP PHONE: DATE: Bidders are expected to submit a proposal that considers and is responsive to the conditions, specifications, etc., as well as the evaluation criteria set out in the previous section. 11. Contract Term: at time of award for 1-3 years. 12. Price Increases: Prices for this type of contract are firm for the term of the negotiated contract. Prices may be decreased at any time after award. Throughout the term of the Page 14

15 contract, charges shall not exceed the contract prices. If prices are affected by statute, regulation, administrative or judicial order, vendors may not include additional costs in billing to the end user. Vendors must first provide DCS written justification for increase and DCS must make a determination of applicability of the increase to the contract. In the event a vendor offers or provides a decrease in rates to its customers or potential customers for the same services provided for DCS pursuant to its contract, the vendor must provide the same decrease in rates for DCS. It is recommended that the vendor provide said rate decreases voluntarily. If DCS learns of a decrease in rates from a source other than the vendor, the vendor shall credit DCS with the difference between DCS' contracted rate and the decreased rate from the date of said decrease or the vendor's contract will be subject to cancellation at the discretion of DCS. Any charges not proposed but required to make this service viable will be considered a hidden cost and will be provided by the vendor at no additional cost to DCS for the term of the contract. 13. General Information: Name of company: Address of principal location: Phone: Fax: Form of Business Organization: Responsible contact personnel: Name Phone: Name Phone: Name Phone: How many years has your company been in business in its current capacity? How many years has your organization been in business under its present name? Under what other or former names has your company operated? Claims and lawsuits (if the answer to any of the questions below is yes, please attach details). Has your company ever failed to complete any work awarded to it? Page 15

16 Are there any judgments, claims, arbitration proceedings or suits pending or outstanding against your management or company? Has your company filed any lawsuits or requested arbitration or mediation with regard to contracts or awards within the last fifteen years? Within the last fifteen years, has any manager or principal of your company ever been a manager or principal of another organization when it failed to complete a contract or award? Are there any judgments, claims, arbitration proceedings or suits pending or outstanding against your company? 14. Experience: Vendor shall provide a list of five (5) projects of similar type, size and complexity. State the project (customer) name, description of work, dollar value, public entity, yes or no, and date using the format below. Projects listed must have been performed within the last five (5) years. Please include additional information with proposal if available. Project Name Description of Work Dollar Value Public Entity Yes or No Date 15. References: Proposal shall provide up to ten (10) references from company owners or management personnel from projects listed above. There must be at least one (1) reference for each project listed. 16. Certifications: Employees certifications pertaining to work are to be included in submittal. Page 16

17 17. Minimum Insurance Requirements: Prior to performing any services, vendor shall procure, maintain and provide any applicable insurance certificates, policies and endorsements, in at least the following amounts, to protect vendor and DCS from claims arising out of the performance of the services under this RFP and caused by any error, omission, negligent act or omission, or design defect by vendor, such insurance to be in a form approved by DCS, with an effective date prior to the beginning date of services. Such insurance shall be written on an occurrence basis, if available, and on a claims-made basis, if occurrence basis insurance is not available. Vendor shall maintain its insurance in full force and effect and uninterrupted during the term of the agreement and after the completion of services until the completion of any applicable statute of limitations. Vendor shall furnish to DCS insurance certificates, policies and endorsements upon request at any time. Vendor shall name DCS as an additional insured under his policies for comprehensive general liability and comprehensive automotive liability. Insurance shall be obtained from companies licensed to do business in the State of Texas by the Texas Department of Insurance. The policies shall include a waiver of subrogation in favor of DCS. Any deviation from these requirements can only be approved by DCS. Any nonconformity may be grounds for termination or modification of the agreement. To the extent that vendor is unable to procure the insurance designated herein because the insurance is not reasonably available or is cost-prohibitive, then vendor shall provide written notice to DCS. Said lack of insurance may then be grounds for termination or modification of this agreement. a. Worker s Compensation Statutory Limits Employer s Liability $ 1 Million b. Comprehensive General Liability Bodily Injury Property damage $ 1 Million each occurrence $ 2 Million aggregate $ 1 Million each occurrence c. Automobile Liability Bodily injury Property Damage $ 100,000 per person $ 300,000 per occurrence $100,000 per occurrence d. Errors and Omissions Insurance $ 1 Million e. Umbrella Excess Liability Coverage $ 1 Million per occurrence Page 17

18 18. Texas Workers Compensation Insurance: If vendor will be performing services on-site, a copy of a certificate of insurance, a certificate of authority to self-insure issued by the Texas Department of Insurance (TDI), or a coverage agreement (DWC-81, DWC-82, DWC-83, or DWC-84), showing statutory workers compensation insurance coverage for the vendor or his employees providing services on the project is required for the duration of the project. 19. Background information and Objectives: DCS has one of the largest transportation fleets in the United States. With a fleet of approximately 1,700 buses, DCS transports over 60,000 students to and from school every day, as well as providing transportation for school events, field trips, and special programs. DCS objective is for the request of proposals for unbundled electricity service. Page 18

19 STANDARD TERMS AND CONDITIONS These standard terms and conditions are requirements that are binding upon the Vendor awarded the proposal and form a part of all contract documents and/or purchase orders for items included in the specifications and proposal forms issued herewith. They communicate Dallas County Schools ( DCS or Buyer ) expectations in regards to the Vendor s performance in connection with any DCS purchase. To the extent any terms and conditions in this Request for Proposal conflict with DCS Policy Chapter 21 - Purchasing and Acquisition, or state or federal law, including but not limited to Texas Education Code Chapter 44, DCS Policy Chapter 21 and state and federal law supersedes these terms and conditions. In accordance with Texas Education Code and DCS Policy Chapter 21, all authority of the Board of Trustees with respect to procurement matters is delegated to the Superintendent or his designee. I. CONTRACT/INVOICES 1. Final Contract: The final terms and conditions for this project may be set forth in a contract signed by the Vendor and the DCS Superintendent. Any such contract expressly incorporates all terms and conditions set forth in this RFP. Any deviations from this must be in writing signed by the DCS Superintendent. 2. Invoices and Payments: a. Successful responsive bidder shall submit invoices, in duplicate, as specified in the final contract. Invoices shall not be due before thirty (30) days. b. Mail to: Dallas County Schools, Attn: Accounts Payable, P.O. Box , Dallas, Texas Payment shall not be due until the above instruments are submitted after delivery. Suppliers should keep the Purchasing Department advised of any changes in remittance address c. Do not include Federal Excise, State or City Sales Tax. Buyer shall furnish tax exemption certificate, if required. If it is determined that tax is included in Proposal, it will disqualify the Vendor. II. PROPOSALS, PRICING & VENDOR REQUIREMENTS 3. Special Tools and Test Equipment: If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Vendor for the purpose of fulfilling this contract, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Vendor as such Page 19

20 4. Warranty Price: a. Please include written explanation of warranty terms. This must include any and all time lengths, any extension at no-charge, when the warranty period begins and ends. Please include any programs advantageous for Buyer. b. The price to be paid by the Buyer shall be that contained in Vendor's proposal. The Vendor warrants to be no higher than Vendor's current prices on orders by others for products and services of the kind and specification covered by this agreement for similar quantities under similar or like conditions and methods of purchase. In the event Vendor breaches this warranty, owner shall reduce the prices of the items to the Vendor s current prices on orders, or in the alternative, Buyer may cancel this contract without liability to Vendor for breach or Vendor's actual expense. c. The Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. For breach or violation of this warranty, the Buyer shall have the right in addition to any other right or rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, and brokerage or contingent fee. 5. Warranty Products: Vendor warrants that the goods furnished will conform to the specifications, drawings and descriptions listed in the Request for Proposal and to the sample(s) furnished by Vendor, if any. In the event of a conflict between the specifications, drawings and/or descriptions, the specifications shall govern. VENDOR SHALL NOT LIMIT OR EXCLUDE ANY IMPLIED WARRANTIES AND ANY ATTEMPT TO DO SO SHALL RENDER THIS CONTRACT VOID AT THE OPTION OF THE BUYER. 6. Safety Warranty: Vendor warrants that any products sold to Buyer shall conform to the standards promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act (OSHA) of In the event a product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Vendor's expense. In the event Vendor fails to make the appropriate correction within five (5) business days, correction made by Buyer will be at Vendor's expense. 7. Warranty Against Infringements: As part of this contract, Vendor agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person Page 20

21 by way of infringement or the like. Buyer makes no warranty that the production of goods according to the specifications will not give rise to such a claim, and in no event shall Buyer be liable to Vendor for indemnification in the event that Vendor is sued on the grounds of infringement or the like. If Vendor is of the opinion that an infringement or the like will result, the Vendor shall immediately notify Buyer to this effect in writing. If Buyer is subsequently held liable for the infringement or the like, Vendor will indemnify and hold Buyer harmless. 8. Advertising: Vendor shall not advertise or publish, without Buyer's prior written consent, the fact that Buyer has entered into this contract, except to the extent necessary to comply with proper requests for information from an authorized representative of the federal, state or local government. Written requests from Vendor must be sent to the Purchasing Department for approval or disapproval. 9. Insurance: Vendor shall maintain insurance in the types and amounts set forth above, as applicable. Buyer shall be listed as an additional insured under each such policy, and Vendor shall forward to Buyer a certificate of insurance verifying such insurance upon request. 10. No Liens: The parties agree that no architect, engineer, mechanic, contractor, materialman, artisan, laborer or subcontractor, whether skilled or unskilled, shall ever, in any manner have, claim or acquire any lien upon this project of whatever nature or kind so erected or to be erected by virtue of this agreement, nor upon any of the land upon which said improvements are so erected, built, or situated, such property being public property belonging to a political subdivision of the State of Texas, or upon any funds of Owner. 11. Indemnity: The Vendor shall, in connection with any contract awarded under this Request for Proposal and all purchases thereunder, hold harmless and indemnify Buyer, its Board of Trustees officers, employees, and agents from and against any and all claims, liabilities, losses, judgments, expenses, and/or damages resulting from or attributable to any act or omission of the Vendor and its agents and employees, including for any acts constituting negligence. 12. Compliance with Law: Vendor shall, and shall cause its representatives and agents to, follow and abide by all applicable federal, state and local ordinances and laws relating to or regulating the goods and services to be provided under this Request for Proposal. 13. Right to Audit: Vendor shall establish a reasonable accounting system, which enables ready identification of Vendor s cost of goods and use of funds. Buyer may audit Vendor s records anytime throughout the term of this contract and for a period of three years after final payment to verify Buyer s payment obligation and use of Buyer s funds. Buyer also has the right to examine the books and records of the Vendor to assure that the Vendor has complied with the contract and that no employee of the Buyer received any funds either directly or indirectly. This Page 21

22 right to audit shall include subcontractors in which goods or services are subcontracted by Vendor. Vendor shall insure Buyer has these rights with subcontractor(s). Vendor warrants that no gifts or gratuities were or will be given to any of Buyer s employees either directly or indirectly to obtain this contract. 14. Vendor Qualifications: Vendors not on DCS current vendor list, shall be required to prove their qualifications concerning the following criteria: a. Financial capabilities. b. Bonding status. c. Ability to fulfill and abide by the terms and specifications. d. Quality and stability of product and sources. e. Vendor must provide copies of current certification and/or licenses, when applicable with proposal. 15. Proposal Evaluations: Proposals shall be evaluated in accordance with Texas Education Code (b) and the factors set forth above. 16. Proposal Forms: a. Proposals included in this packet must be completed in their entirety and returned along with any and all other information requested. b. Proposals must show the full name and address of the Vendor. Failure to manually sign proposal will disqualify it. III. TERMINATION & DEFAULT 17. Gratuities: The Buyer may, by written notice to the Vendor, cancel this contract without liability to Vendor if it is determined by Buyer that gratuities of pecuniary value, in the form of entertainment, gifts, economic opportunity, future employment, loan, gratuity. special discount, trips, favor, service or otherwise, were offered or given by the Vendor, or any agent, or representative of the Vendor, to any officer or employee of Buyer with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending or the making or any determinations with respect to the performing of such a contract. In the event Buyer cancels this contract pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Vendor in providing such gratuities. Page 22

23 18. Cancellation: Buyer shall have the right to cancel for default, all or any part of the undelivered portion of the contract if Vendor breaches any of the terms hereof, including warranties of Vendor or if the Vendor becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies, which Buyer may have in law or equity. 19. Termination: The performance of work under this contract may be terminated in whole or in part by the Buyer for any reason upon thirty (30) days advance notice. Termination of work hereunder shall be effected by the delivery to the Vendor of a "Notice of Termination" specifying the extent to which performance of work under the contract is terminated and the date upon which such termination becomes effective. Such right of termination is in addition to and not in lieu of Buyer s other rights of cancellation set forth herein. 20. Force Majeure: Neither party shall be deemed in violation of the contract if either is prevented from performing any of the obligations hereunder by reason of, for or through strikes, stoppage of labor, riot, flood, storm, invasion, insurrection, accident, order of court, judge or civil authority, government regulation, an act of God, or any cause reasonably beyond the party s control and not attributable to its neglect. In the event of such an occurrence, the time for performance of such obligations or duty shall be suspended until such time that such disability to perform, for which the party is not responsible or circumstance beyond its control, shall be removed. The party claiming the suspension shall give written notice of such impediment or delay in performance to the other party within ten (10) days of the knowledge of such occurrence. Each party shall make all reasonable efforts to mitigate the effects of any suspension. 21. Right to Assurance: Whenever one party to this contract in good faith has reason to question the other party's intent to perform he/she may demand that the other party give written assurance of his/her business intent to perform. In the event that a demand is made and no assurance is given within five (5) business days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 22. Penalties for Non-Performance: If, at any time, the Vendor fails to fulfill or abide by the terms, conditions, or specifications of the contract, Buyer reserves the right to: a. Purchase on the open market and charge the Vendor the difference between contract and actual purchase price; b. Charge the Vendor for compensatory or consequential damages ; c. Deduct such charges from existing invoice totals due at the time; Page 23

24 d. Cancel the contract within thirty (30) days written notification of intent; or e. Re-propose the contract due to price increase(s) or any variation from specifications. IV. MISCELLANEOUS CONTRACT TERMS 23. Assignment & Binding Effect: No right or interest in this contract may be assigned or delegation of any obligation made by Vendor without the written permission of the Buyer. Any attempted assignment or delegation by Vendor shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph. Vendor understands and agrees that in the event that all or substantially all of its assets are acquired by another entity, that it or its successor in interest will remain obligated to fulfill the terms and conditions of this agreement. 24. Waiver: No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved. 25. Modifications: This contract can be modified or rescinded only by a writing signed by both parties to the contract or their duly authorized agents. Any and/or all contract changes must be made through the Purchasing Department and signed by the DCS Superintendent. 26. Applicable Law: This agreement shall be governed by Texas law and any applicable provisions of the Uniform Commercial Code. Wherever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas, effective and in force on the date of this agreement. 27. Venue: Both parties agree that venue for any litigation arising from this contract shall lie in a state or federal court in Dallas County, Texas. 28. Prohibition Against Personal Interest in Contracts: Vendors and applicable DCS officials and employees shall comply with Texas Local Government Code Chapters 171 and 176, as applicable. 29. Governmental Immunity: This Agreement and all purchases are expressly made subject to Buyer s governmental immunity under the Texas Civil Practice and Remedies Code and all applicable state and federal law. The parties hereto expressly agree that no provision of this Agreement is in any way intended to Page 24

25 constitute a waiver of any immunities from suit or from liability that Buyer has by operation of law. 30. Fiscal Funding: Notwithstanding any provision contained herein to the contrary, the obligations of the Buyer under this agreement are expressly contingent upon the availability of funding for each item and obligation contained herein. The Buyer shall make any payments required under this agreement from current revenue available to the Buyer. The Vendor shall not have a right of action against the Buyer in the event Buyer is unable to fulfill its obligations under this agreement as a result of lack of sufficient funding to pay for its obligations hereunder from any source utilized to fund this agreement or from failure to budget or authorize for this agreement during the current or any future fiscal year. In the event Buyer is unable to fulfill its obligations under this agreement as a result of lack of sufficient funding, or if funds become unavailable, Buyer, at its sole discretion, may provide funds from a separate source or may otherwise terminate this agreement by written notice to the Vendor at the earliest possible time prior to the end of the fiscal year; provided, however, Buyer shall be required to pay any expenses already incurred pursuant to this agreement as of the time Buyer provides such notice. In the event that Buyer is unable to fulfill its obligations under this agreement as a result of lack of sufficient funding, Vendor may immediately terminate this Agreement. 31. Prompt Payment Act: Vendor agrees that a temporary delay by the Buyer in making payments under this agreement due to the Buyer s accounting disbursement procedures shall not place the Buyer in default of this agreement and shall not render the Buyer liable for interest or penalties, provided such delay does not exceed thirty (30) days after receipt of an invoice. Any undisputed payment not made by the Buyer within thirty (30) days after receipt of the invoice shall not bear interest in excess of that permitted in Chapter 2251 of the Texas Government Code, as amended. Page 25

26 NO PROPOSAL FORM (TO BE RETURNED TO DCS IF APPLICABLE) No Proposal Acknowledgement Form: The undersigned affirms that they are an authorized representative of the company, corporation, firm or partnership stated below and wishes not to submit a proposal at this time, but wishes to remain on the potential vendors list: Vendor Street Address City, State, ZIP Phone Fax Number Signature of Company Official Authorizing This No Proposal Name of Company Official (Please Print) Title Date Area(s) of Interest Note: This form must be submitted by the due date for this Request for Proposal. Page 26

27 PROPOSAL FORMS MUST BE RETURNED TO DCS WITH PROPOSAL TO BE CONSIDERED. PROPOSALS SUBMITTED WITHOUT THIS FORM WILL BE CONSIDERED NULL AND VOID, AND THEREFORE UNACCEPTABLE PROPOSAL ACKNOWLEDGMENT FORM: "The undersigned affirms that they are duly authorized to execute this contract, that this company, corporation, firm, partnership or individual has not prepared this proposal in collusion with any other vendor, and that the contents of this proposal as to prices, terms or conditions of said proposal have not been communicated by the undersigned nor by any employee or agent to any other person engaged in this type of business prior to the official opening of this proposal." Vendor Street Address City, State, ZIP Phone Fax Number Signature of Company Official Authorizing This Proposal Name of Company Official (Please Print) Title Date Page 27

28 MUST BE RETURNED TO DCS WITH PROPOSAL TO BE CONSIDERED. PROPOSALS SUBMITTED WITHOUT THIS FORM WILL BE CONSIDERED NULL AND VOID AND THEREFORE UNACCEPTABLE. Felony Conviction Notification State of Texas Legislative Senate Bill No. 1, Section , Notification of Criminal History, Subsection (a), states a person or business entity that enters into a contract with a school district must give advance notice to the district if the person or an owner or operator of the business entity has been convicted of a felony. The notice must include a general description of the conduct resulting in the conviction of a felony. Subsection (b) states a school district may terminate a contract with a person or business entity if the district determines that the person or business entity failed to give notice as required by Subsection (a) or misrepresented the conduct resulting in the conviction. The district must compensate the person or business entity for services performed before the termination of the contract. This Notice Is Not Required of a Publicly Held Corporation I, the undersigned agent for the firm named below, certify that the information concerning notification of felony convictions has been reviewed by me and the following information furnished is true to the best of my knowledge. Vendor s Name Authorized Company Official s Name (Printed) Signature of Company Official Select One: My firm is a publicly held corporation; therefore, this reporting requirement is not applicable. My firm is not owned or operated by anyone who has been convicted of a felony. Page 28

29 My firm is owned or operated by the following individual(s) who has/have been convicted of a felony: Name of Felon(s): Details of Conviction(s): (additional sheets may be attached) Signature of Company Official: Page 29

30 SUSPENSION OR DEBARMENT CERTIFICATE Non-Federal entitles are prohibited from contracting with or making sub-awards under covered transaction to parties that are suspended or debarred or whose principals are suspended or debarred. Covered transactions include procurement for goods or services equal to or in excess of $100,000. Vendors receiving individual awards for $100,000 or more and all sub-recipients must certify that the organization and its principals are not suspended or debarred. By submitting this offer and signing this certificate, this vendor: Certifies that they are not debarred or suspended, or otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order See OMB Circular A-102. NON-COLLUSION DISCLOSURE I am an authorized agent or officer of the vendor submitting this proposal, and I have full knowledge of the relations of the vendor with the other firms in this same line of business, and the vendor is not a member of any trust, pool, or combination to control the price of supplies, materials and/or services bid on, or to influence any person to bid or not to bid thereon. I further affirm that the vendor 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 proposal. Vendor s Name Authorized Company Official s Name and Title (Printed) Signature of Company Official Date: Page 30

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