4-General Terms and Conditions.docx (1).pdf

General Terms and Conditions

Contractor Relations: School District U-46 will seek business and bids from all eligible vendors, regardless of race, creed, color, gender, national origin, age or handicap. If all other considerations are equal, each order will be placed on the basis of quality, price, delivery, and past service. No person officially connected with or employed by the School District will be an agent for, or have any monetary or beneficial interest in, or receive any compensation or reward of any kind from any vendor for sale of supplies, materials, equipment or services.

LEGAL REF.: Illinois School Code: 105 ILCS 5/10-9, -20.21 CROSS REF.: 4.164 - Construction, Contracts, Bidding, Awards and Payments.

Agreement: If selected to provide the Products and Services specified in this solicitation, the Contractor shall adhere to the terms and conditions contained in this solicitation (“Solicitation”). The term “Agreement” hereinafter refers collectively to this Solicitation, all exhibits attached hereto and/or incorporated herein by reference, all addenda, the Contractor’s response to this Solicitation, and acceptance by School District U-46 (“District”) of any submitted bid or proposal. In case of any conflict between the terms and conditions of this Solicitation and the Contractor’s response, the terms and conditions of this Solicitation shall govern and control for all purposes.

These terms and conditions supplement the U-46 Board of Education’s policies, and nothing in this Solicitation shall be construed to contravene those policies as applicable to the parties involved in the creation of this Agreement.

TERM OF AGREEMENT

The term of this Agreement shall commence on the date of the Board of Education award of contract and end one (1) year thereafter (“Term”), unless terminated sooner as provided herein.

Quantity, Purchase Orders, Delivery of Products, Inspection

A. Quantity: The District assumes no obligation hereunder to purchase any quantity of Products or Services other than those identified on a purchase order issued by the District.

B. Purchase Orders: Orders must be on the District’s Standard Purchase Order Form. The pre- printed terms and conditions found on the District’s Purchase Order shall apply to the extent that such terms supplement and are not inconsistent with the terms and conditions contained in this Agreement.

C. Quantity: The District assumes no obligation hereunder to purchase any quantity of Products other than those identified on a Purchase Order issued by the District.

D. Packaging, Shipment and Risk of Loss: Contractor shall package and ship all in a commercially reasonable manner. All shipments shall be F.O.B. destination (as indicated on the District’s Purchase Order or some other written notification from the District) with freight and insurance prepaid. The District may request that shipment be made to any location that the District designates as a District U-46 School or Facility. Any and all deliveries made to a District U-46 School shall occur between the hours of 8:00 a.m. – 3:00 p.m. Central Standard Time and Contractor shall advise the carrier of this restriction. It is understood and agreed that the Board shall have no liability for any insurance charges not incorporated in the prices quoted, and that freight charges shall be limited to those specified in this Agreement. The District may adjust the Purchase Order shipping destination any time up to ten (10) business days prior to shipment. The risk of loss and damage to Products ordered by the District shall pass to the Board only after delivery to the destination designated by the District. Time is of the essence to the delivery of all Products ordered hereunder. All requests for extensions beyond the original delivery date must be directed to the District department placing the order. The District reserves the right to cancel orders, or any part thereof, without obligation if delivery is not made within the time specified or within 60 days of the order date, if no date is specified. Partial deliveries are not satisfactory unless a written request from the Contractor is received and approved prior to the delivery date.

E. Inspection and Out-of-Box Failures: The District reserves the right to inspect all Products upon delivery and to perform any review the District deems necessary to adequately demonstrate that the Products meet all of the specifications required by the District (“Specifications”). Final inspection resulting in acceptance or rejection of the Products will be made as soon as practicable, but failure to inspect shall not be construed as a waiver by the District of its right to reject Products or to claim reimbursement or damages for such Products that are later found to be defective or not in conformance with the

Specifications. Products that do not conform to the Specifications or that are otherwise damaged must either, at the District’s discretion, be retrieved by the Contractor (at Contractor’s expense) for replacement at no charge to the District, or the District may cancel that portion of the Purchase Order relating to nonconforming Products at no charge to the District. For any such returned Products, the District shall either debit or offset from Contractor the cost of such Products plus shipping costs, or receive a refund for such, at the District’s discretion. Failure to meet Specification requirements or failure to correct or replace unacceptable work at the Contractor’s expense will be considered an Event of Default (as defined below) and the District, at its discretion, may terminate this Agreement.

F. Installed Equipment: The District will bear no risk of loss or damage during the period of transportation and installation, or during the entire time any equipment is in the possession of the District except when loss or damage is due to fault or negligence by the District. If damage or loss occurs to the installed equipment caused by U-46 negligence, the Contractor will submit an invoice and a written damage evaluation to U-46. If the damaged equipment can be repaired, the Contractor will invoice U-46 at the Contractor’s lowest current price for parts and labor. If the equipment needs to be replaced, the U-46 Purchasing Department will negotiate with the Contractor to arrive at the depreciated value of the replacement equipment.

In the event that any product, equipment, or device provided by the Contractor exhibits a tendency toward continuous breakdown or produces poor quality output for a period of 4 consecutive weeks, the District reserves the right to require the Contractor to replace the item with a substitute that is acceptable to the District.

G. Uniform Commercial Code: In the absence of a governing provision under this Agreement or should any provision of this Agreement be construed by a court of competent jurisdiction as vague, the corresponding provision of the Uniform Commercial Code, Article 2, shall apply.

H. Survival: The provisions of this Section shall survive the expiration or termination of this Agreement.

Installation/Return to Order

Contractor will provide and pay for all material, labor, tools, transportation, and handling necessary for the furnishing, delivery, assembly of, and installation of any equipment related to this purchase order. Contractor will complete inspection before, during, and after installation of equipment. Contractor will be responsible for any damage to the premises of any site as the result of equipment installation and shall repair and restore any area damaged to its original condition in a time frame designated by the District. Contractor will keep the premises and areas in which work is performed free from accumulated waste, tools, installation equipment, machinery, and surplus materials. Contractor will remove all installation related trash from the premises. Contractor will comply with all District building rules and regulations.

Billing and Payment

Unless otherwise noted, all invoices are to be billed to the U-46 Accounts Payable Department and mailed to Educational Services Center, 355 E. Chicago St., Elgin, IL 60120.

Invoices shall be submitted in a timely manner. Incorrect invoices will be returned for correction and the discount period will not commence until a corrected invoice is received.

The final invoice shall be submitted to the District no later than sixty (60) days after the expiration or termination of this Agreement. If a Contractor has more than one contract with the District, separate invoices must be submitted for each contract. The District shall process payments in accordance with the Local Government Prompt Payment Act [50 ILCS 505/1 et seq.]. The District shall make payment on all approved invoices within thirty (30) days of being informed of the approval by the department or school. The District reserves the right to request additional information and supporting documentation necessary for the District to verify Products or Services were provided in accordance with this Agreement.

Non-appropriation

Expenditures not appropriated by the District in its current fiscal year budget are deemed to be contingent liabilities only and are subject to appropriation in subsequent fiscal year budgets. In the event the District does not receive grant funds or no funds or insufficient funds are appropriated and budgeted in any subsequent fiscal period by the District for performance under this Agreement, the District shall notify Contractor and this Agreement shall terminate on the earlier of the last day of the fiscal period for which sufficient appropriation was made or whenever the funds appropriated for payment under this Agreement are exhausted. Payments for Services completed to the date of notification shall be made to Contractor except that no payment shall be made or due to Contractor under this Agreement beyond those amounts appropriated and budgeted by the District to fund payments under this Agreement.

Standards of Performance

Contractor shall devote, and shall cause all of its staff, agents and subcontractors to devote, such of their time, attention, best skill and judgment, knowledge and professional ability as is necessary to perform all Services effectively and efficiently and to the satisfaction of the District. Contractor acknowledges that, if in the course of providing Services hereunder, it is entrusted with or has access to valuable and confidential information and records of the Board, that with respect to that information, Contractor agrees to be held to the standard of care of a fiduciary. Contractor shall be responsible for the professional and technical accuracy of all Services, including any deliverables furnished, whether by Contractor or its subcontractors or others on its behalf.

Personnel

The Contractor must assign and maintain during the Term of this Agreement an adequate staff of competent personnel that is fully equipped, licensed as appropriate, available as needed, qualified and assigned to perform the Services. If the District determines, in its sole discretion, that any employee, subcontractor or other person providing Services hereunder for the Contractor is not performing in accordance with the performance standards or other requirements of this Agreement, the District shall have the right to direct the Contractor to remove that person from performing Services under this Agreement. Contractor must immediately remove any of its employees or subcontractor employees, if any, from performing Services if the District, in its sole discretion, believes that the person is not performing acceptably or is endangering the safety or welfare of any District student. Contractor further agrees to bear any costs associated with the removal of any such person.

Termination, Events of Default, Remedies

Early Termination: The District may terminate this Agreement in whole or in part, without cause, at any time, by a notice in writing from the District to Contractor in accordance with the notice provisions herein. The effective date of termination shall be thirty (30) calendar days from the date the notice is received or the date stated in the notice, whichever is later.

After notice is received, the Contractor must restrict its activities and those of its subcontractors, to winding down any reports, analyses, or other activities previously begun. No costs incurred after the effective date of the termination are allowed. Payment for any Services actually and satisfactorily performed before the effective date of the termination is on the same basis as set forth herein in the provision regarding compensation and payment.

Contractor must include in its contracts with subcontractors an early termination provision in form and substance equivalent to this early termination provision to prevent claims against the Board arising from termination of subcontracts after the early termination of this Agreement.

Contractor shall not be entitled to make any early termination claims against the District resulting from any subcontractor’s claims against Contractor or the District to the extent inconsistent with this provision.

Contractor Events of Default: Events of default (“Events of Default”) include, but are not limited to, the following:

(1) Any material misrepresentation by Contractor in the inducement or the performance of this Agreement.

(2) Breach of any term, condition, representation or warranty made by Contractor in this Agreement.

(3) Failure of Contractor to perform any of its obligations under this Agreement including, but not limited to, the following:

(a) Failure to timely perform any portion of the Services in the manner specified herein;

(b) Failure to perform the Services with sufficient personnel and equipment or with sufficient material to ensure the timely performance of the Services;

(c) Failure to perform the Services in a manner reasonably satisfactory to the District;

(d) Failure to promptly re-perform within a reasonable time and at no cost to the District, Services that were determined by the District to be incomplete or unsatisfactory;

(e) Discontinuance of the Services for reasons within Contractor’s reasonable control; or

(f) Failure to comply with any term of this Agreement including, but not limited to, the provisions concerning Records Check, insurance and non-discrimination, and any other acts specifically and expressly stated in this Agreement constituting an Event of Default; or

(g) Default by Contractor under any other agreement Contractor may presently have or may enter into with the District; or

(h) Any action or failure to act by Contractor which affects the safety and/or welfare of students or District employees, staff, or personnel; and

(i) Assignment by Contractor for the benefit of creditors or consent by Contractor to the appointment of a trustee or receiver or the filing by or against Contractor of any petition or proceeding under any bankruptcy, insolvency or similar law.

Remedies: The District, in its sole discretion, may declare Contractor in default, in whole or in part, if District commits an Event of Default. The District may give Contractor an opportunity to cure the default within a certain period of time (“Cure Period”). The District will provide Contractor written notice of default, either in the form of a cure notice (“Cure Notice”) or, if no opportunity to cure is granted, a default notice (“Default Notice”). The District may provide a Default Notice after a Cure Notice if: (1) Contractor fails to effect a cure within the Cure Period given in the applicable Cure Notice; or (2) if the Event of Default cannot be reasonably cured within the Cure Period, Contractor fails to commence and continue diligent efforts to cure in the sole opinion of the District. A written Default Notice shall be final and effective termination of this Agreement effective on Contractor’s receipt of such notice or on the date set forth in the notice, whichever is later. When a Default Notice is given, Contractor must discontinue all Services, unless otherwise specifically directed in the notice, and must deliver to the District all materials prepared or created in the performance of this Agreement, whether completed or in-process.

Bond Requirement: If the amount of this solicitation exceeds $25,000 and includes building, repairing, enlarging, improving, or demolishing any school building, the Contractor shall provide and pay for a bond in compliance with all applicable laws covering the payment and performance of the work required by this solicitation.

Price Increases: No increase in the prices specified in this solicitation will be accepted unless written authority for such an increase is given by the Director of Purchasing of U-46. Reasonable quantities in excess of the amount specified on this solicitation may be accepted, but U-46 reserves the right to return excess overage at Contractor’s expense.

Substitutions: Contractor shall make no substitutions or changes in their response without written authority executed in the same manner as the original solicitation.

Price Reduction Pass On: In the event the Contractor’s price at the time of shipment under this order is lower than indicated, such reduction in price will be passed on to District U-46.

Debarment: Contractor must not appear on the federal vendor debarment listing. If the Contractor appears on the list, the Contractor is disqualified from doing business with U-46 and this Agreement is void. Contractor will complete the Certification which is part of this Solicitation certifying that its principals, or its subcontractors providing Services under the Agreement are not barred from contracting with any unit of state or local government as a result of violation of either Section 33E-3 (bid-rigging) or 33E-4 (bid rotating) [720 ILCS 5/33E];

Recovery Finding: By entering into this Agreement, Contractor certifies that no findings for recovery against the Contractor remain unresolved. Contractor must reconcile such a finding with any Illinois state agency or auditor within 60 days or be disqualified from fulfilling the terms of this Agreement.

Safety Standards/Utility Notification: Contractor shall be solely responsible for initiating, maintaining and supervising safety precautions and programs in connection with its performance and provision of Services or Products. Contractor shall comply with all applicable laws and regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of underground facilities and utility owners when prosecution of the work may affect them and shall cooperate with them in the protection, removal, relocation, and replacement of their property.

Responsibility for Damages: All damage, injury or loss to any property caused directly or indirectly, in whole or in part, by Contractor, any subcontractor, supplier or any other person or organization directly or indirectly employed by any of them to perform or furnish any of the work or anyone for whose acts any of them may be liable, shall be remedied by Contractor.

ASBESTOS NOTICE

NOTE: ASBESTOS CONTAINING MATERIALS EXIST IN SOME SCHOOL BUILDINGS. The Contractor shall familiarize itself with the information available from the relevant U-46 administrative office, or the specific school building’s administrative office as to the location of asbestos containing materials or suspected asbestos containing materials to all persons employed by the Contractor and any subcontractor, supplier or any other person or organization directly or indirectly employed by any of them to perform or furnish any of the work.

No asbestos containing materials shall be utilized by the Contractor and the Contractor shall be required to certify in writing that the materials utilized do not contain asbestos. In addition, no known or suspected toxic or hazardous material shall be utilized by the Contractor if a substitute product is available and equal to the known or suspected toxic or hazardous product. Any time a known or suspected toxic or hazardous material is to be used, written permission must be received in advance from U-46.

Change Orders: Contractor will not comply with any order, directive, or request that changes or modifies the requirements of this Solicitation unless issued in writing and signed by an authorized District representative. Any verbal communications will be considered unofficial and non-binding on the District. Questions directed to anyone other than the authorized District representative or statements made by anyone other than the authorized District representative shall be deemed to be unofficial and non-binding on the District. The authorized District representative is solely responsible for all written clarification.

Strict Performance: If a party to this purchase order does not demand strict performance of any clause in this purchase order, that party has not waived or relinquished any of its rights and the party may at any later time demand strict and complete performance of the purchase order.

Warranty: Payment will not constitute an acceptance of work, materials, or equipment not provided in accordance with purchase order documents. Payment also does not relieve the Contractor of liability for any express or implied warranties or responsibility for faulty materials, workmanship, or service. The Contractor shall remedy any defects in the work, materials, or equipment and pay for any other resulting damage to other work, materials, or equipment which appears within one (1) year of final acceptance. Nothing stated herein will relieve the Contractor of common law liability for latent defects, which may appear after the expiration of the warranty period.

Non-Discrimination: Contractor certifies that: (1) in the hiring of employees for the performance of work under this Agreement or any subcontract, neither it nor any of its subcontractors, by reason of race, color, religion, sex, age, disability, national origin, or ancestry, as described in all applicable state and federal laws, shall discriminate against any citizen of this state in the employment of a person qualified and available to perform the work to which the contract relates, and (2) neither it, its subcontractors, or persons acting on its behalf or the behalf of any subcontractor shall, in any manner, discriminate against, intimidate, or retaliate against any employee hired for the performance of work under the contract on account of race, color, religion, sex, age, disability, national origin, or ancestry.

Harassment: Contractor, its employees, and subcontractors will not engage in harassment against any District staff member or student on the basis of sex, race, color, national origin, religion, age, disability, or sexual orientation, as prohibited by all applicable federal, state, and local laws, and any applicable District U-46 Board Policy.

Compliance with Laws: Contractor will comply with all applicable federal, state, and local laws in the conduct of the work specified in this Agreement, including applicable state and federal laws regarding drug-free workplaces.

Assignment: This Agreement may not be assigned or otherwise transferred to others by the Contractor without the prior written consent of the District.

Criminal Background Check Requirement: Contractor will be required to conduct criminal background checks on all employees who will be working on school property and will not permit any employee to enter the premises of the U-46 who is not in conformity with the requirements of 105 ILCS 5/10-21.9 of the Illinois School Code. Contractor must provide written certification that no employee who enters District property is in violation of the provisions therein.

Indemnification: Contractor will protect, defend, indemnify, and hold U-46 harmless from and against any damage, cost, or liability, including attorneys’ fees and costs, resulting from claims by third parties for injury or damage to persons or property arising from the acts or omissions of the Contractor, its officers, employees, agents, or subcontract in providing products or services under the terms and conditions of this Agreement. The Contractor agrees to protect, defend, indemnify, and hold harmless the U-46 from any claim involving patent or copyright infringement on products and services provided.

Contractor shall, at its own expense, appear, defend and pay all attorney fees and other costs and expenses arising hereunder. In addition, if any judgment shall be rendered against the District in any such action, Contractor shall, at its own expense, satisfy and discharge such obligation of the District. The District shall have the right, at its own expense, to participate in the defense of any suit, without relieving Contractor of any of its obligations hereunder. The District retains final approval of any and all settlements or legal strategies which involve the interest of the District.

Nothing in the Agreement shall be construed as an express or implied waiver, relinquishment or release of any common law or statutory privileges and/or immunities of District or any of its trustees, officers, employees, attorneys, volunteers or agents, including without limitation those privileges and immunities existing under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et. seq.

The indemnities set forth herein shall survive the expiration or termination of this Agreement.

Insurance: Contractor, at its own expense, shall procure and maintain insurance covering all operations under this Agreement, whether performed by Contractor or by subcontractors. All insurers shall be licensed by the State of Illinois and rated A-VII or better by A.M. Best or a comparable rating service. Contractor shall submit to the District satisfactory evidence of insurance coverage and upon request, shall promptly provide a certified copy of any applicable policy of insurance. Minimum insurance requirements include the following: (i) Workers’ Compensation and Employers’ Liability Insurance for all employees who are to provide services under this Agreement with limits of not less than Five Hundred Thousand Dollars ($500,000.00) per occurrence, (ii) Comprehensive Professional Liability Insurance with limits of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate, (iii) Commercial General Liability Insurance with limits of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate for bodily injury, personal injury and property damage liability, (iv) Automobile Liability Insurance when any motor vehicle is used in connection with Services with limits of not less than One Million Dollars ($1,000,000.00) per occurrence for bodily injury and property damage, (v) Umbrella/Excess Liability Insurance with limits not less than Five Million and 00/100 ($5,000,000.00) per occurrence, which will provide additional limits for Employers’, Commercial General, and Automobile Liability insurance. Contractor shall have its liability insurance policies endorsed to provide that “Board of Education of School District U-46 and its employees and agents, are named as additional insured on a primary basis without recourse or right of contribution from the District.

Independent Contractor: Contractor will perform its duties as an independent contractor and not as an employee of the U-46. Neither the Contractor nor any agent or employee of the Contractor will be, or will be deemed to be, an agent or employee of the District.

Confidentiality: In the event that the District shares education records with the Contractor, the Contractor is subject to the provisions of the Family Educational and Privacy Act regarding the use and re-disclosure of personally identifiable information from educational records included in 34 C.F.R. § 99.33 as well as other requirements established by the District. The Contractor agrees to protect, defend, indemnify, and hold harmless the District and its respective officials, employees, agents and representatives, against loss, claim, liability in tort or by statute imposed, charge, cost or expense, including without limitation, attorneys’ fees which may be incurred in connection with, or in any manner of any damage or loss arising from disclosure of confidential or proprietary information.

Ownership: All right, title, and interest in all intellectual property conceived or developed in the course of Contractor’s work for the District under this Agreement shall be the property of the District.

Use of District U-46 Name/Logo: Contractor agrees to submit to the District for approval all advertising, sales promotion, and other matters relating to the purchase order wherein the U-46 name or log is mentioned or language is used from which the District’s name or logo, in the District’s judgment, may be implied. Contractor further agrees not to publish, use such advertising, or sales promotion without the prior written consent of the U-46 except that may be required by law.

Force Majeure: Neither party shall be liable for failure or delay in performance under any purchase order due in whole or in part to an act of God, strike, war, civil commotion, sabotage, fire, flood, explosion, acts of any government, or any other causes which are not within such party’s reasonable control. During any period of Contractor’s inability to perform, the District may acquire from others, without incurring liability to the Contractor, said goods or services.

Governing Law: This Agreement shall be governed by Illinois law. The validity, construction, and effect of this Agreement and any claims arising under it shall also be governed by Illinois law. Any provision of this Agreement prohibited by Illinois law shall be deemed void and of no effect. Litigation arising out of or relating in any way to this Agreement or performance hereunder shall be brought in a court of competent and valid jurisdiction in Kane County in the State of Illinois or as selected by counsel for the District.

Restriction on Lien: Contractor shall not file a lien or encumbrance against any items purchased as a result of this purchase order or against property owned by the District.

Recordkeeping: During the Agreement Term, the Contractor will keep all financial records consistent with appropriate accounting principles and is required to provide U-46 or its agents, access to any and all records related to the Agreement.

Taxes: Contractor will be solely responsible for all federal, state, and local taxes, fees, and payments including, but not limited to; property tax, Unemployment Compensation insurance premiums, Workers’ Compensation payments, all income tax deductions, Social Security deductions, and any other taxes or payroll deductions required for all employees engaged by Contractor in the performance of the work specified. Contractor will hold the District harmless for all claims arising from payment of such taxes and fees.

Fuel Surcharges: The District does not pay local, state, or Federal transportation or fuel surcharges.

Licensure: Contractor will obtain and post all licenses and permits as required by federal, state, and local law.

Severability: If any of the terms, covenants, provisions, or agreements contained herein is held invalid, illegal, or unenforceable by a competent court or arbitrator, this Agreement shall be interpreted as if such invalid terms, covenants, provisions, or agreements were not contained herein and the remaining provisions shall be valid and enforceable.

Entire Agreement: This Agreement contains the entire agreement. The parties have made no agreements or representations either written or verbal relating to the subject matter hereof which are not set forth h