The following information will become the contract between the awarded vendor and Central Management Services. Instructions and requirements to submit a bid response are found in the attachment titled “Invitation for Bid Vendor Instructions and Requirements”.

State of Illinois Contract v.25.4 Central Management Services Contract JPMC Asphalt Equipment

27-416CMS-BOSS4-P

The Parties to this contract are the State of Illinois acting through the undersigned Agency (collectively the State) and the Vendor. This contract, consisting of the signature page and numbered sections listed below and any attachments referenced in this contract, constitute the entire contract between the Parties concerning the subject matter of the contract, and in signing the contract, the Vendor affirms that the Certifications and Financial Disclosures and Conflicts of Interest attached hereto are true and accurate as of the date of the Vendor’s execution of the contract. This contract supersedes all prior proposals, contracts and understandings between the Parties concerning the subject matter of the contract. This contract can be signed in multiple counterparts upon agreement of the Parties.

1. SCOPE OF WORK

1.1. OVERVIEW AND PURPOSE:

To establish a joint purchase master contract (JPMC) for asphalt equipment, options/accessories and OEM repair parts to be purchased on an as-needed basis during the contract period.

This JPMC may be utilized by all governmental units and qualified not-for-profit agencies as defined in Section 5 of this Contract.

1.2. SUPPLIES AND/OR SERVICES REQUIRED:

1.2.1. The vendor will provide asphalt equipment, options/accessories and OEM repair parts on an as-needed basis.

1.2.2. Unless otherwise indicated, all equipment shall be new, unused, and manufacturer’s current model in production at the time of order. Remanufactured or reconditioned equipment will not be accepted.

1.2.3. All standard equipment, including any optional equipment indicated, shall be original manufacturer’s equipment and shall not consist of substitute or aftermarket equipment unless the equipment is not offered by the manufacturer.

1.2.4. All equipment shall meet or exceed all specifications as identified and agreed to between the Vendor and the State as indicated in the Exhibit(s) attached in BidBuy.

1.2.5. All equipment shall be in accordance with manufacturer’s specifications. Each piece of equipment must include all items cataloged as standards or safety related appearing in the manufacturer’s regular published specifications, including all tools, parts, and/or accessories not specifically called for but required for proper operation. Any additions, deletions or variations from manufacturer standard specifications must be approved by the ordering entity.

1.2.6. All equipment must meet all applicable regulations and standards such as the Occupational Safety and Health Administration (OSHA).

1.2.7. Vendor shall provide all options, accessories, and OEM repair parts as applicable. All items shall be of proper size and design to safely withstand maximum stress imposed by a capacity load, and the manufacturer’s rated loads for all component parts shall not be exceeded when the equipment is loaded.

1.2.8. Governmental units or qualified not-for-profit agencies may require amber or clear safety and/or warning device lighting. These lights shall produce a strobe effect visible at 360 degrees around the machine. The lights shall be visible a minimum of 500 feet in normal sunlight. The lights shall be controlled by a dedicated switch in the operator’s station. A rotating beacon does not satisfy this option.

1.2.9. If an item becomes discontinued or otherwise not available during the term of the Contract, the Vendor may propose a substitution of equivalent or better product at no additional cost. This substitution is subject to the approval of the Central Management Services (CMS) Bureau of Strategic Sourcing (BOSS). The Vendor should under no circumstances make unauthorized substitutions.

1.3. MILESTONES AND DELIVERABLES:

1.3.1. Vendor shall ensure that all equipment is completely prepared for delivery in accordance with the manufacturer’s specifications and options ordered. Vendor shall ensure that all options, accessories, or factory/dealer modifications are installed and functional prior to delivery.

1.3.2. Vendor shall supply the ordering entity with the owner/operator manuals for all equipment as specified herein. The manual shall provide detailed instruction for general/scheduled maintenance as well as the repairs normally undertaken during the life of the equipment. Manual(s) may be in hard copy or electronic, at the request of the ordering entity.

1.3.3. The Vendor should provide reporting to Central Management Services, Bureau of Strategic Sourcing (CMS BOSS) if requested. Reporting may include but not limited to, annual veteran hiring, contract usage, and payments to approved subcontractors certified through the State of Illinois’ Business Enterprise Program. Information to be submitted in a format designated by CMS BOSS (e.g., Excel spreadsheet, portal). Contract usage reporting must include payments received from all State agencies, governmental units, and qualified not-for-profit agencies, as applicable, to this contract.

Vendor will submit a close-out report within 90 days of contract expiration that covers the same information since the last contract usage report.

Vendor will be expected to participate in performance monitoring that may include, but not limited to required reporting, quality, delivery and value of goods and services, and customer service.

1.4. VENDOR/STAFF SPECIFICATIONS:

1.4.1. The Vendor shall be the manufacturer, or an authorized dealer or distributor of the commodities or equipment subject to this Contract. Any dealer hereby guarantees that it is an authorized dealer of the manufacturer, and that the manufacturer has agreed to supply the dealer with all quantities of products required by the dealer in fulfillment of its obligations under this contract with the State. Vendor must submit authorized dealer letter upon request.

1.4.2. The Vendor must be capable of providing genuine parts, options, and accessories as supplied by the original equipment manufacturer (OEM). Remanufactured and/or reconditioned equipment will not be accepted.

1.4.3. At the request of the ordering entity, for each unit delivered, the Vendor must train end users in the proper, safe operation of the unit and any auxiliary items for a minimum of one hour. This training will be conducted by professional certified instructors at the facility of the using entity, at no additional cost to the ordering or using entities.

1.4.4. At the request of the ordering entity, the Vendor must provide a structured training program to service personnel. These mechanics must be trained in diagnostic and preventative maintenance procedures, general maintenance and repair, along with systems reconditioning. The training shall be conducted by professional instructors at the facility of the ordering entity, at no additional cost.

1.4.5. Vendor shall ensure that CMS BOSS receives the most current Manufacturer Suggested Retail Price (MSRP) list, available through a PDF, excel, CSV, or catalog format pursuant to Section 2.3.3 of this contract. The MSRP list shall include all options, accessories, factory modifications, and OEM repair parts available for the equipment covered under this Contract.

1.4.6. Vendor will designate a customer service representative who shall be responsible for addressing ordering and purchasing questions pertaining to this contract. This representative shall also be responsible for providing each governmental unit or qualified not-for-profit agency with a detailed quote outlining the ordering entities potential purchase including the applicable BidBuy PO line-item number cost of each piece of equipment, the MSRP for each option/part/accessory, and the extended price to the State. This quote does not guarantee an order will be placed. Orders are only confirmed upon receipt of an approved purchase order. Vendor shall notify CMS BOSS with any changes to the representative.

Representative contact information:

Name: Click here to enter text Email: Click here to enter text Phone Number: Click here to enter text

1.5. TRANSPORTATION AND DELIVERY:

1.5.1. All units will be delivered with all ordered options, accessories, and parts installed and fully functional upon delivery.

1.5.2. Delivery will be made F.O.B. Destination with all transportation and handling paid by the Vendor to any governmental unit or qualified not-for-profit agency location within the State of Illinois. Delivery locations will be identified on individual orders. Vendor should coordinate delivery location requirements with ordering entity prior to shipment. The minimum order is $500 for F.O.B. Destination. For any order less than the minimum of $500 the additional freight charge will be added to the invoice as a separate line item and a copy of the freight bill will be submitted with the invoice for payment.

1.5.3. Packing lists showing order number provided to Vendor must be furnished with each shipment and must be shown on the outside of each shipping container along with the Vendor name.

1.5.4. Deliveries made to State Agencies will be delivered between 9:00 AM and 3:00 PM (Monday through Friday), excluding State holidays, unless pre-approved by the ordering entity.

1.5.5. Deliveries made to non-State Agencies will be arranged between the ordering entity and the Vendor.

1.5.6. Vendor shall notify the contact person listed on the released purchase order at least five (5) business days prior to the actual date of delivery. No deliveries shall be made without advance notice.

1.5.7. Right to Inspect/Reject Goods:

1.5.7.1. Governmental units and qualified not-for-profit agencies reserve the right to inspect each piece of equipment after delivery to determine whether the equipment meets the contract and order specifications. If within thirty (30) days of delivery, it is determined that any of the equipment does not meet the contract specifications, the governmental unit at its sole discretion may:

1.5.7.1.1. Reject the equipment, in whole or in part, and return them to the Vendor at the Vendor’s expense, at which time the governmental unit or qualified not-for-profit agency obligations to the Vendor as to the rejected goods shall become null and void.

1.5.7.1.2. Require the Vendor to conform the equipment to contract and/or order specifications. This work shall be performed properly within the time limits established by the governmental unit or qualified not-for profit agency and at no cost to the governmental unit or qualified not-for-profit agency.

1.5.7.2 If within one (1) year after receipt of the equipment the governmental unit or qualified not-for-profit agency discovers that the equipment does not meet contract and/or order specifications, the governmental unit or qualified not-for profit agency may request that the Vendor replace the equipment or affected components to conform to the contract specifications, at no additional cost to the governmental unit or qualified not-for-profit agency. This provision applies to non-conformities discovered while repairing or maintaining the equipment and which might not be visible through the routine inspection performed upon delivery.

1.5.8. There is no guarantee of quantities for actual orders or usage. Vendor should furnish all requirements for the Contract period.

1.5.9. If Vendor is unable, or anticipates that it will not be able, to fulfill an order in accordance with the requirements of the Contract, Vendor will submit a request to delay order fulfillment to the ordering entity in writing within 72 hours of receipt of the applicable order and will include in such request its best estimate of the duration of the delay and the reasons for the delay. At the ordering entity’s discretion, the entity may choose to approve the delay or be relieved from its obligations to purchase any quantities of supplies or equipment in such order and may cancel such quantities effective upon notice to the Vendor. The ordering entity may elect to pursue alternative sources to fulfill the obligations of the canceled order. Vendor should, at its own cost, use commercially reasonable efforts to remedy any shortage of supply and resume meeting the requirements of the Contract as soon as possible.

1.6. SUBCONTRACTING:

Subcontractors are allowed.

1.6.1. Will subcontractors be utilized? |_| Yes |_| No

A subcontractor is a person or entity that enters into a contractual agreement with a total value of $100,000 or more with a person or entity who has a contract subject to the Illinois Procurement Code pursuant to which the person or entity provides some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary State contract, including subleases from a lessee of a State contract.

All contracts with subcontractors where the annual value of the subcontract is greater than $50,000 must include Illinois Standard Certifications completed by the subcontractor.

1.6.2. Please identify below subcontracts with an annual value of $100,000 or more that will be utilized in the performance of the contract, the names and addresses of the subcontractors, and a description of the work to be performed by each.

· Subcontractor Name: Click here to enter text Amount to Be Paid: Click here to enter text Address: Click here to enter text Description of Work: Click here to enter text

· Subcontractor Name: Click here to enter text Amount to Be Paid: Click here to enter text Address: Click here to enter text Description of Work: Click here to enter text If additional space is necessary to provide subcontractor information, please attach an additional page.

1.6.3. If the annual value of any subcontracts is more than $100,000, then the Vendor must provide to the State the Financial Disclosures and Conflicts of Interest for that subcontractor.

1.6.4. If at any time during the term of the Contract, Vendor adds or changes any subcontractors, Vendor is required to promptly notify, in writing, the State Purchasing Officer or the Chief Procurement Officer of the names and addresses and the expected amount of money that each new or replaced subcontractor will receive pursuant to this Contract. Any subcontracts entered prior to award of this Contract are done at the sole risk of the Vendor and subcontractor(s).

1.7. WHERE SERVICES ARE TO BE PERFORMED: Unless otherwise disclosed in this section all services should be performed in the United States. If the Vendor performs the services purchased hereunder in another country in violation of this provision, such action may be deemed by the State as a breach of the contract by Vendor.

Vendor should disclose the locations where the services required should be performed and the known or anticipated value of the services to be performed at each location. If the Vendor received additional consideration in the evaluation based on work being performed in the United States, it should be a breach of contract if the Offeror shifts any such work outside the United States.

· Location where services will be performed: Click here to enter text Value of services performed at this location: Click here to enter text

· Location where services will be performed: Click here to enter text Value of services performed at this location: Click here to enter text

2. PRICING

2.1. TYPE OF PRICING: The Illinois Office of the Comptroller requires the State to indicate whether the contract price is firm or estimated at the time it is submitted for obligation. The total price of this contract is estimated.

2.2. VENDOR’S PRICING: Vendor’s pricing is located in the Items Tab in the BidBuy Purchase Order and the associated MSRP list attached in BidBuy.

Pricing must include all costs shipped F.O.B. destination and may not include any additional costs due to taxes (federal or otherwise) unless accompanied by proof the State is subject to the tax.

2.3. ECONOMIC ADJUSTMENTS:

2.3.1. Economic Adjustment General Information:

2.3.1.1. The prices in this Contract must remain firm for the first six (6) months after the execution date of the Contract. Thereafter, one upward price adjustment may be applied no more frequently than once during any given six (6) month period.

2.3.1.2. All adjustment requests should be made in writing. Vendor should not be entitled to apply an upward price adjustment without first obtaining approval of such request from the Department of Central Management Services Bureau of Strategic Sourcing (BOSS).

2.3.1.3. In the event a downward adjustment is warranted, the State reserves the right to adjust once during any given six (6) month period for this decrease. It will be the responsibility of the vendor to notify BOSS of any such decrease.

2.3.1.4. Requested adjustments should include the contract number, item number, line number, bid price and requested price adjustment.

2.3.1.5. In all cases, the Vendor must file a claim in writing for such adjustment prior to the delivery of goods. In any event, the claim for such adjustment will not apply to release orders provided prior to the date the BOSS approved the economic adjustment request.

2.3.1.6. If the Vendor has unresolved complaints filed against it for non-delivery of or poor-quality service, its request may be denied until such time as all past complaints are resolved to the satisfaction of the State.

2.3.2. Asphalt Equipment:

2.3.2.1. In the event the Vendor’s quoted price for the asphalt equipment covered under this Contract should increase due to a manufacturer’s mandated changes in standard equipment, the contracted price may by adjusted by an amount sufficient to compensate the Vendor for such increase.

2.3.2.2. The increase will be equal or less than the manufacturer’s published dealer cost and will only be applicable to the manufacturer’s cost to the Vendor. No increase or change in the Vendor’s overhead, profit, or other factors will be approved.

2.3.2.3. In the event the price should decrease due to manufacturer’s mandated changes in standard equipment, the Vendor shall adjust the price downward to completely and precisely account for such decrease. Such decreases shall become effective upon the effective date of the manufacturer’s mandated change. It is the responsibility of the Vendor to notify BOSS of any such decrease.

2.3.3. Manufacturer’s Suggested Retail Price (MSRP)

2.3.3.1. Manufacturer's Suggested Retail Price (MSRP) adjustment may be requested from the Vendor no more than once during any six (6) month period following the execution date of this contract by submitting an updated MSRP price list to the CMS Bureau of Strategic Sourcing (BOSS). The percent discount off MSRP should remain firm for the entire contract period.

2.3.3.2. Verifiable documentation of such changes, including but not limited to, invoices, published price lists or official price bulletins, etc., from the Vendor’s supplier, will be provided with the request for economic adjustment in order to substantiate any requested change. The State reserves the right to consider various pertinent information sources to evaluate price increase requests (such as the CPI and PPI, as published by the US Department of Labor, Bureau of Labor Statistics). The State also reserves the right to consider other information related to special economic and/or industry circumstances, when evaluating a price change request. Changes may be either increases or decreases and may be requested by either party.

The claim for such adjustment must include a certification from the manufacturer/supplier verifying the actual cost at the time of the bid award and at the time of the requested increase. The increase will be allowed only on the cost to the Vendor. No increase or change in the Vendor's overhead, profit or other factors will be approved.

2.3.4 Government Actions: A price adjustment may be requested from the Vendor following the execution date of this Contract due to unforeseeable government actions including tariffs, duties or similar governmental charges that are beyond the control of either Party. Additional governmental charges should be added to the invoice as a separate line item.

2.3.4.1 Verifiable documentation of such changes, including but not limited to invoices, published price lists, official price bulletins, import documents, etc., will be provided with the request for economic adjustment to substantiate any requested change. Vendor should not be entitled to apply any governmental charges without first obtaining approval of such request from the Department of Central Management Bureau of Strategic Sourcing.

2.3.4.2 At the sole discretion of BOSS, if the government action that warranted a price adjustment granted under this Section is rescinded, the price should automatically revert to the previous contract price, without notice to the Vendor.

2.4. MAXIMUM AMOUNT: This Joint Purchase Master Contract is an indefinite quantity contract.

3. TERM AND TERMINATION

3.1. TERM OF THIS CONTRACT: The contract will have an initial term of five (5) years commencing upon March 1, 2027, or the last dated signature of the Parties, whichever is later. In no event will the maximum total term of the contract, including the initial term, any renewal terms, and any extensions, exceed ten (10) years. Vendor should not commence billable work in furtherance of the contract prior to final execution of the contract except when permitted pursuant to 30 ILCS 500/20-80.

3.2. TERMINATION FOR CAUSE: The State may terminate this contract, in whole or in part, immediately upon notice to the Vendor if: (a) the State determines that the actions or inactions of the Vendor, its agents, employees or subcontractors have caused, or reasonably could cause, jeopardy to health, safety, or property, or (b) the Vendor has notified the State that it is unable or unwilling to perform the contract.

If Vendor fails to perform to the State’s satisfaction any material requirement of this contract, is in violation of a material provision of this contract, or the State determines that the Vendor lacks the financial resources to perform the contract, the State should provide written notice to the Vendor to cure the problem identified within the period of time specified in the State’s written notice. If not cured by that date the State may either: (a) immediately terminate the contract without additional written notice or (b) enforce the terms and conditions of the contract.

For termination due to any of the causes contained in this Section, the State retains its rights to seek any available legal or equitable remedies and damages.

3.3. TERMINATION FOR CONVENIENCE: The State may, for its convenience and with thirty (30) days prior written notice to Vendor, terminate this contract in whole or in part and without payment of any penalty or incurring any further obligation to the Vendor.

Upon submission of invoices and proof of claim, the Vendor should be entitled to compensation for supplies and services provided in compliance with this contract up to and including the date of termination.

3.4. AVAILABILITY OF APPROPRIATION: This contract is contingent upon and subject to the availability of funds. The State, at its sole option, may terminate or suspend this contract, in whole or in part, without penalty or further payment being required, if (1) the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay such obligation, or if funds needed are insufficient for any reason (30 ILCS 500/20-60), (2) the Governor decreases the Agency’s funding by reserving some or all of the Agency’s appropriation(s) pursuant to power delegated to the Governor by the Illinois General Assembly, or (3) the Agency determines, in its sole discretion or as directed by the Office of the Governor, that a reduction is necessary or advisable based upon actual or projected budgetary considerations. Contractor will be notified in writing of the failure of appropriation or of a reduction or decrease.

4. STANDARD BUSINESS TERMS AND CONDITIONS

4.1. PAYMENT TERMS AND CONDITIONS:

4.1.1. LATE PAYMENT: Payments, including late payment charges, will be paid in accordance with the State Prompt Payment Act and rules when applicable. 30 ILCS 540; 74 III. Adm. Code 900. This should be Vendor’s sole remedy for late payments by the State. Payment terms contained in Vendor’s invoices should have no force or effect.

4.1.2. MINORITY CONTRACTOR INITIATIVE: Any Vendor awarded a contract of $1,000 or more under Section 20-10, 20-15, 20-25 or 20-30 of the Illinois Procurement Code (30 ILCS 500) is required to pay a fee of $15. The Comptroller should deduct the fee from the first check issued to the Vendor under the contract and deposit the fee in the Comptroller’s Administrative Fund. 15 ILCS 405/23.9.

4.1.3. EXPENSES: The State will not pay for supplies provided or services rendered, including related expenses, incurred prior to the execution of this contract by the Parties even if the effective date of the contract is prior to execution.

4.1.4. PREVAILING WAGE: As a condition of receiving payment Vendor must (i) be in compliance with the contract, (ii) pay its employees prevailing wages when required by law, (iii) pay its suppliers and subcontractors according to the terms of their respective contracts, and (iv) provide lien waivers to the State upon request. Examples of prevailing wage categories include public works, printing, janitorial, window washing, building and grounds services, site technician services, natural resource services, security guard and food services. The prevailing wages are revised by the Illinois Department of Labor (DOL) and are available on DOL’s official website, which should be deemed proper notification of any rate changes under this subsection. Vendor is responsible for contacting DOL at 217-782-6206 or (https://labor.illinois.gov) to ensure understanding of prevailing wage requirements.

4.1.5. FEDERAL FUNDING: This contract may be partially or totally funded with Federal funds. If Federal funds are expected to be used, then the percentage of the good/service paid using Federal funds and the total Federal funds expected to be used will be provided to the awarded Vendor in the notice of intent to award.

4.1.6. INVOICING: By submitting an invoice, Vendor certifies that the supplies or services provided meet all requirements of this contract, and the amount billed and expenses incurred are as allowed in this contract. Invoices for supplies purchased, services performed, and expenses incurred through June 30 of any year must be submitted to the State no later than July 31 of that year; otherwise Vendor may have to seek payment through the Illinois Court of Claims. 30 ILCS 105/25. All invoices are subject to statutory offset. 30 ILCS 210.

4.1.6.1. Vendor should not bill for any taxes unless accompanied by proof that the State is subject to the tax. If necessary, Vendor may request the applicable agency’s Illinois tax exemption number and Federal tax exemption information.

4.1.6.2. Vendor should invoice at this completion of the contract unless invoicing is tied in this contract to milestones, deliverables, or other invoicing requirements agreed to in the contract.

Send invoices to:

Agency:

Requesting Agency/Entity

Attn:

Requesting Agency/Entity

Address:

Requesting Agency/Entity

City, State Zip

Requesting Agency/Entity

For procurements conducted in BidBuy, the Agency may include in this contract the BidBuy Purchase Order as it contains the Bill To address.

4.2. ASSIGNMENT: This contract may not be assigned or transferred in whole or in part by Vendor without the prior written consent of the State.

4.3. SUBCONTRACTING: For purposes of this section, subcontractors are those with contracts with an annual value exceeding $100,000 and who are specifically hired to perform all or part of the work covered by this contract. Vendor must receive prior written approval before use of any subcontractors in the performance of this contract. Vendor should describe, in an attachment if not already provided, the names and addresses of all authorized subcontractors to be utilized by Vendor in the performance of this contract, together with a description of the work to be performed by the subcontractor and the anticipated amount of money that each subcontractor is expected to receive pursuant to this contract. If required, Vendor should provide a copy of any subcontracts within fifteen (15) days after execution of this contract. All subcontracts must include the same certifications that Vendor must make as a condition of this contract. Vendor should include in each subcontract the Standard Illinois Certification form available from the State. If at any time during the term of the Contract, Vendor adds or changes any subcontractors, then Vendor must promptly notify, by written amendment to the Contract, the State Purchasing Officer or the Chief Procurement Officer of the names and addresses, the expected amount of money that each new or replaced subcontractor will receive pursuant to the Contract, and the general type of work to be performed. 30 ILCS 500/20-120.

4.4. AUDIT/RETENTION OF RECORDS: Vendor and its subcontractors should maintain books and records relating to the performance of this contract and any subcontract necessary to support amounts charged to the State pursuant this contract or subcontract. Books and records, including information stored in databases or other computer systems, should be maintained by the Vendor for a period of three (3) years from the later of the date of final payment under the contract or completion of the contract, and by the subcontractor for a period of three (3) years from the later of final payment under the term or completion of the subcontract. If Federal funds are used to pay contract costs, the Vendor and its subcontractors must retain their respective records for five (5) years. Books and records required to be maintained under this section should be available for review or audit by representatives of the procuring Agency, the Auditor General, the Executive Inspector General, the Chief Procurement Officer, State of Illinois internal auditors or other governmental entities with monitoring authority, upon reasonable notice and during normal business hours. Vendor and its subcontractors should cooperate fully with any such audit and with any investigation conducted by any of these entities. Failure to maintain books and records required by this section should establish a presumption in favor of the State for the recovery of any funds paid by the State under this contract or any subcontract for which adequate books and records are not available to support the purported disbursement. The Vendor or subcontractors should not impose a charge for audit or examination of the Vendor’s or subcontractor’s books and records. 30 ILCS 500/20-65.

4.5. TIME IS OF THE ESSENCE: Time is of the essence with respect to Vendor’s performance of this contract. Vendor should continue to perform its obligations while any dispute concerning this contract is being resolved unless otherwise directed by the State.

4.6. NO WAIVER OF RIGHTS: Except as specifically waived in writing, failure by a Party to exercise or enforce a right does not waive that Party’s right to exercise or enforce that or other rights in the future.

4.7. FORCE MAJEURE: Failure by either Party to perform its duties and obligations will be excused by unforeseeable circumstances beyond its reasonable control and not due to its negligence, including acts of nature, acts of terrorism, riots, labor disputes, fire, flood, explosion, and governmental prohibition. The non-declaring Party may cancel this contract without penalty if performance does not resume within thirty (30) days of the declaration.

4.8. CONFIDENTIAL INFORMATION: Each Party to this contract, including its agents and subcontractors, may have or gain access to confidential data or information owned or maintained by the other Party in the course of carrying out its responsibilities under this contract. Vendor should presume all information received from the State or to which it gains access pursuant to this contract is confidential. Vendor information, unless clearly marked as confidential and exempt from disclosure under the Illinois Freedom of Information Act, should be considered public. No confidential data collected, maintained, or used in the course of performance of this contract should be disseminated except as authorized by law and with the written consent of the disclosing Party, either during the period of this contract or thereafter. The receiving Party must return any and all data collected, maintained, created or used in the course of the performance of this contract, in whatever form it is maintained, promptly at the end of this contract, or earlier at the request of the disclosing Party, or notify the disclosing Party in writing of its destruction. The foregoing obligations should not apply to confidential data or information lawfully in the receiving Party’s possession prior to its acquisition from the disclosing Party; received in good faith from a third Party not subject to any confidentiality obligation to the disclosing Party; now is or later becomes publicly known through no breach of confidentiality obligation by the receiving Party; or that is independently developed by the receiving Party without the use or benefit of the disclosing Party’s confidential information.

4.9. USE AND OWNERSHIP: All work performed or supplies created by Vendor under this contract, whether written documents or data, goods or deliverables of any kind, should be deemed work for hire under copyright law and all intellectual property and other laws, and the State of Illinois is granted sole and exclusive ownership to all such work, unless otherwise agreed in writing. Vendor hereby assigns to the State all right, title, and interest in and to such work including any related intellectual property rights, and/or waives any and all claims that Vendor may have to such work including any so-called "moral rights" in connection with the work. Vendor acknowledges the State may use the work product for any purpose. Confidential data or information contained in such work should be subject to the confidentiality provisions of this contract.

4.10. INDEMNIFICATION AND LIABILITY: The Vendor should indemnify and hold harmless the State of Illinois, its agencies, officers, employees, agents and volunteers from any and all costs, demands, expenses, losses, claims, damages, liabilities, settlements and judgments, including in-house and contracted attorneys’ fees and expenses, arising out of: (a) any breach or violation by Vendor of any of its certifications, representations, warranties, covenants or agreements; (b) any actual or alleged death or injury to any person, damage to any real or personal property, or any other damage or loss claimed to result in whole or in part from Vendor’s negligent performance; (c) any act, activity or omission of Vendor or any of its employees, representatives, subcontractors or agents; or (d) any actual or alleged claim that the services or goods provided under this contract infringe, misappropriate, or otherwise violate any intellectual property (patent, copyright, trade secret, or trademark) rights of a third party. In accordance with Article VIII, Section 1(a),(b) of the Constitution of the State of Illinois and 1973 Illinois Attorney General Opinion 78, the State may not indemnify private parties absent express statutory authority permitting the indemnification. Neither Party should be liable for incidental, special, consequential, or punitive damages.

4.11. INSURANCE: Vendor should, at all times during the term of this contract and any renewals or extensions, maintain and provide a Certificate of Insurance naming the State as an additionally insured for all required bonds and insurance. Certificates may not be modified or canceled until at least thirty (30) days’ notice has been provided to the State. Vendor should provide: (a) General Commercial Liability insurance in the amount of $1,000,000 per occurrence (Combined Single Limit Bodily Injury and Property Damage) and $2,000,000 Annual Aggregate; (b) Auto Liability, including Hired Auto and Non-owned Auto (Combined Single Limit Bodily Injury and Property Damage), in amount of $1,000,000 per occurrence; and (c) Worker’s Compensation Insurance in the amount required by law. Insurance should not limit Vendor’s obligation to indemnify, defend, or settle any claims.

4.12. INDEPENDENT CONTRACTOR: Vendor should act as an independent contractor and not an agent or employee of, or joint venturer with the State. All payments by the State should be made on that basis.

4.13. SOLICITATION AND EMPLOYMENT: Vendor should not employ any person employed by the State during the term of this contract to perform any work under this contract. Vendor should give notice immediately to the Agency’s director if Vendor solicits or intends to solicit State employees to perform any work under this contract.

4.14. COMPLIANCE WITH THE LAW: The Vendor, its employees, agents, and subcontractors should comply with all applicable Federal, State, and local laws, rules, ordinances, regulations, orders, Federal circulars and all license and permit requirements in the performance of this contract. Vendor should be in compliance with applicable tax requirements and should be current in payment of such taxes. Vendor should obtain at its own expense, all licenses and permissions necessary for the performance of this contract.

4.15. BACKGROUND CHECK: Whenever the State deems it reasonably necessary for security reasons, the State may conduct, at its expense, criminal and driver history background checks of Vendor’s and subcontractor’s officers, employees or agents. Vendor or subcontractor should immediately reassign any individual who, in the opinion of the State, does not pass the background check.

4.16. APPLICABLE LAW:

4.16.1. PREVAILING LAW: This contract should be construed in accordance with and is subject to the laws and rules of the State of Illinois.

4.16.2. EQUAL OPPORTUNITY: The Department of Human Rights’ Equal Opportunity requirements are incorporated by reference. 44 Ill. Adm. Code 750.

4.16.3. COURT OF CLAIMS; ARBITRATION; SOVEREIGN IMMUNITY: Any claim against the State arising out of this contract must be filed exclusively with the Illinois Court of Claims. 705 ILCS 505. The State should not enter into binding arbitration to resolve any dispute arising out of this contract. The State of Illinois does not waive sovereign immunity by entering into this contract.

4.16.4. OFFICIAL TEXT: The official text of the statutes cited herein is incorporated by reference. An unofficial version can be viewed at (www.ilga.gov/legislation/ilcs/ilcs.asp).

4.17. ANTI-TRUST ASSIGNMENT: If Vendor does not pursue any claim or cause of action it has arising under Federal or State antitrust laws relating to the subject matter of this contract, then upon request of the Illinois Attorney General, Vendor should assign to the State all of Vendor’s rights, title and interest to the claim or cause of action.

4.18. CONTRACTUAL AUTHORITY: The Agency that signs this contract on behalf of the State of Illinois should be the only State entity responsible for performance and payment under this contract. When the Chief Procurement Officer or authorized designee or State Purchasing Officer signs in addition to an Agency, he/she does so as approving officer and should have no liability to Vendor. When the Chief Procurement Officer or authorized designee or State Purchasing Officer signs a master contract on behalf of State agencies, only the Agency that places an order or orders with the Vendor should have any liability to the Vendor for that order or orders.

4.19. EXPATRIATED ENTITIES: Except in limited circumstances, no business or member of a unitary business group, as defined in the Illinois Income Tax Act, should submit a bid for or enter into a contract with a State agency if that business or any member of the unitary business group is an expatriated entity.

4.20. NOTICES: Notices and other communications provided for herein should be given in writing via electronic mail whenever possible. If transmission via electronic mail is not possible, then notices and other communications should be given in writing via registered or certified mail with return receipt requested, via receipted hand delivery, via courier (UPS, Federal Express or other similar and reliable carrier), or via facsimile showing the date and time of successful receipt. Notices should be sent to the individuals who signed this contract using the contact information following the signatures. Each such notice should be deemed to have been provided at the time it is actually received. By giving notice, either Party may change its contact information.

4.21. MODIFICATIONS AND SURVIVAL: Amendments, modifications and waivers must be in writing and signed by authorized representatives of the Parties. Any provision of this contract officially declared void, unenforceable, or against public policy, should be ignored and the remaining provisions should be interpreted, as far as possible, to give effect to the Parties’ intent. All provisions that by their nature would be expected to survive, should survive termination. In the event of a conflict between the State’s and the Vendor’s terms, conditions and attachments, the State’s terms, conditions and attachments should prevail.

4.22. PERFORMANCE RECORD/SUSPENSION: Upon request of the State, Vendor should meet to discuss performance or provide contract performance updates to help ensure proper performance of this contract. The State may consider Vendor’s performance under this contract and compliance with law and rule to determine whether to continue this contract, suspend Vendor from doing future business with the State for a specified period of time, or whether Vendor can be considered responsible on specific future contract opportunities.

4.23. FREEDOM OF INFORMATION ACT: This contract and all related public records maintained by, provided to, or required to be provided to the State are subject to the Illinois Freedom of Information Act (FOIA) notwithstanding any provision to the contrary that may be found in this contract. 5 ILCS 140.

4.24. SCHEDULE OF WORK: Any work performed on State premises should be performed during the hours designated by the State and performed in a manner that does not interfere with the State and its personnel.

4.25. WARRANTIES FOR SUPPLIES AND SERVICES:

4.25.1. Vendor warrants that the supplies furnished under this contract will: (a) conform to the standards, specifications, drawing, samples or descriptions furnished by the State or furnished by the Vendor and agreed to by the State, including but not limited to all specifications attached as exhibits hereto; (b) be merchantable, of good quality and workmanship, and free from defects for a period of twelve months or longer if so specified in writing, and fit and sufficient for the intended use; (c) comply with all federal and state laws, regulations and ordinances pertaining to the manufacturing, packing, labeling, sale and delivery of the supplies; (d) be of good title and be free and clear of all liens and encumbrances and; (e) not infringe any patent, copyright or other intellectual property rights of any third party. Vendor agrees to reimburse the State for any losses, costs, damages or expenses, including without limitations, reasonable attorney’s fees and expenses, arising from failure of the supplies to meet such warranties.

4.25.2. Vendor should ensure that all manufacturers’ warranties are transferred to the State and should provide to the State copies of such warranties. These warranties should be in addition to all other warranties, express, implied or statutory, and should survive the State’s payment, acceptance, inspection or failure to inspect the supplies.

4.25.3. Vendor warrants that all services will be performed to meet the requirements of this contract in an efficient and effective manner by trained and competent personnel. Vendor should monitor performances of each individual and should immediately reassign any individual who does not perform in accordance with this contract, who is disruptive or not respectful of others in the workplace, or who in any way violates the contract or State policies.

4.26. REPORTING, STATUS AND MONITORING SPECIFICATIONS: Vendor should immediately notify the State of any event that may have a material impact on Vendor’s ability to perform this contract.

4.27. EMPLOYEMENT TAX CREDIT: Vendors who hire qualified veterans and certain ex-offenders may be eligible for tax credits. 35 ILCS 5/216, 5/217. Please contact the Illinois Department of Revenue (telephone #: 217-524-4772) for information about tax credits.

5. STATE SUPPLEMENTAL PROVISIONS

5.2 “Governmental unit” means State of Illinois, any State agency as defined in Section 1-15.100 of the Illinois Procurement Code, officers of the State of Illinois, any public authority which has the power to tax, or any other public entity created by statute.

5.3 “Qualified not-for-profit agency” means any not-for-profit agency that qualifies under Section 45-35 of the Illinois Procurement Code and that either (1) acts pursuant to a board established by or controlled by a unit of local government or (2) receives grant funds from the State or from a unit of local government.

5.5. Vendor agrees to extend all terms and conditions, specifications, and pricing or discounts specified in this contract for the items in this contract to all governmental units and qualified not-for-profit agencies.

5.6. The supplies or services subject to this Contract should be distributed or rendered directly to each governmental unit or qualified not-for-profit agency.

5.9. Disputes between vendors and governmental units or qualified not-for-profit agencies should be resolved between the affected parties.

5.10. All terms and conditions in this Contract apply with full force and effect to all purchase orders.

|_| Other (describe)

6. ATTACHMENTS

6.1. Financial Disclosures (including Illinois Procurement Gateway print-off if applicable)

6.2. Business Enterprise Program Utilization Plan

Central Management Services JPMC Asphalt Equipment

27-416CMS-BOSS4-P

VENDOR

Phone: Click here to enter text.

Signature:

STATE OF ILLINOIS

Street Address: 300 West Jefferson Street

City, State ZIP: Springfield, IL 62702

Printed Name: Raven DeVaughn by David W. Thomas

Official’s Title: Director by Agency Purchasing Officer

State of Illinois Contract v.25.4

AGENCY USE ONLY NOT PART OF CONTRACTUAL PROVISIONS

· Agency Reference #: 27-416CMS-BOSS4-R-321480

· Project Title: JPMC Asphalt Equipment

· Contract #: 27-416CMS-BOSS4-P

· Procurement Method (IFB, RFP, Small Purchase, etc.): IFB

· BidBuy / Bulletin Reference #: 27-416CMS-BOSS4-B-52918

· BidBuy / Bulletin Publication Date:

· Award Code: A

· Subcontractor Utilization? |_| Yes |_|No Subcontractor Disclosure? |_| Yes |_|No

· Funding Source:

· Obligation #:

· Other Preferences?