Contract RWIS B47475 Revised.docx

The following information will become the contract between the awarded vendor and the Illinois Department of Transportation 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

Illinois Department of Transportation Contract Roadway Weather Information System B-47475

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:

The goal of this contract is to ensure the continuous, accurate operation of Roadway Weather Information System (RWIS) equipment and sensors to support effective winter maintenance operations and enhance roadway safety during inclement weather.

The purpose of this contract is to acquire routine maintenance and repair services for RWIS equipment and sensors, which supply critical weather data used by forecast vendors. This data enables timely and informed decisions regarding the deployment of anti-icing treatments and maintenance personnel, ultimately improving winter response efforts, optimizing resource allocation, and promoting the safety of both the traveling public and Illinois Department of Transportation (IDOT) maintenance staff.

1.2. SUPPLIES AND/OR SERVICES REQUIRED:

1.2.1. Maintenance and support shall include but not be limited to providing:

· Annual preventative maintenance,

· Repair services including the support and replacement of existing RWIS sensors and cameras as well as sensor upgrades and additions,

· Installation of new RWIS locations,

· Communications system service and Support of the RWIS throughout the state of Illinois,

· Database/Web Interface,

· RWIS Server Hosting,

· The ability to provide data collected from the RWIS sites to IDOT to display on the Getting Around Illinois website, and

· The ability to exchange collected weather data between neighboring states, municipalities, cities, and public resources in accordance with the guidelines of MADIS. http://madis.noaa.gov/ IDOT has both Vaisala and Boschung brand RWIS in place. The Vendor must be able to fully support both systems as well as any additional systems added over the course of the contract. Additions may also consist of partial sensors locations (mini‐RWIS) or mobile RWIS sensors.

Upon execution of this contract, the failure of the Vendor to timely, completely and accurately perform its duties enumerated herein, may result in endangerment of the general public and incalculable costs to the Agency in additional to personnel expenses, supplies and possible damages related to road conditions. Therefore, the Vendor and Agency agree that liquidated damages are appropriate. Said liquidated damages shall be assessed in the amount of $350.00 per day, per site involved in a failure to provide maintenance, installations, repairs or other specified supplies and services, in accordance with the timeframes and terms specified herein.

1.2.2. Annual Preventive Maintenance:

The Vendor shall perform an all‐inclusive preventive maintenance service of the state’s Roadway and Weather Information System (RWIS) facilities and its system components including but not limited to:

1.2.2.1. The inspection, calibration, lubrications, cleaning, and evaluation of the atmospheric, pavement, traffic sensors and video camera equipment.

1.2.2.2. Each RWIS site is equipped with a remote processing unit (RPU) and the following atmospheric and pavement sensors:

· Wind speed/wind direction,

· Relative humidity/air temperature,

· Barometric pressure,

· Weather intensity and visibility,

· Pavement surface temperatures, and

· Pavement subsurface temperatures.

Pavement sensors are comprised of a combination of invasive and non‐invasive sensors. The ability to troubleshoot and support both types along with the varying data provided is required.

The Vendor shall provide support for any additional RWIS sensors that may be installed.

1.2.2.3. Some sites are equipped with video camera equipment and traffic detection equipment which shall be maintained by the Vendor. Video camera lenses will be cleaned as part of the annual maintenance and additionally as necessary.

The Vendor shall be responsible for the accurate function and service of all components in compliance with the manufacturer’s specified preventative maintenance specifications.

This all‐inclusive preventive maintenance service shall be provided at a minimum, once annually between September 1st and October 15th, of each contract year for each RWIS location. The goal is to address any high priority needs found during the inspection prior to the winter. There are currently fifty-three (53) RWIS RPU locations within the State. There is also the potential of making significant repairs to several currently out of commission locations as well as constructing several new locations.

The Agency reserves the right to add or decommission some sites during the life of this contract.

1.2.2.4. Service locations are:

RWIS

Number

1.2.2.5. A concise facility service report shall be submitted to the Winter Operations Engineer for each RWIS site within one (1) week of completion of the annual preventive maintenance services and sensor evaluations. The Vendor shall submit a draft report format for review and approval by the Winter Operations Engineer before award. The form shall include:

a.

b.

· Time, date, duration of visit, and location of the preventative maintenance inspection,

· A site inventory list of all RWIS sensors and cameras present at the site along with support documentation of any repairs that were made in conjunction with the preventative maintenance inspection, and

· A list of concerns or items recommended for service for each RWIS site.

Compensation shall be based on the completion of an all‐inclusive preventive maintenance service (excluding parts) on all sites with submittal and acceptance of all associated facility service reports.

An action plan shall be determined and approved by the IDOT’s Winter Operations Engineer prior to beginning the annual preventive maintenance service to address part replacement activities to be performed during the preventive maintenance service. Part replacement may be needed based on preventive maintenance service inspection findings or known Agency needs. The Vendor shall be compensated for the part at the rate specified herein.

1.2.3. Repair Services:

1.2.3.1. In addition to the all‐inclusive annual preventive maintenance, the Vendor shall provide all labor, equipment, parts, and supplies necessary to repair and maintain all RWIS components in proper working order. Anticipated repair services include:

· The replacement and calibration of the failed or faulty RWIS components on‐site with newly manufactured components. Rebuilt or used parts and components may be utilized only upon approval by the IDOT’s Winter Operations Engineer. The transportation and installation of all RWIS components shall be the responsibility of the Vendor. All replacement parts shall be guaranteed against defective materials and for workmanship in accordance with the original manufacturer’s warranty from the time they are installed at a specific RWIS site. Should a replaced component fail during that period, prompt (within five (5) days of failure unless alternative time period is authorized by the Agency) replacement shall be made by the Vendor at no cost (time, replacement, calibration, etc.) to the Agency.

1.2.3.2. All repair materials and components shall be of the most current technology that is both compatible with the system and functionally equal to the component being replaced.

· The provision of any supplemental (non‐routine) preventive maintenance services identified by Agency. Such repair shall involve the same tasks as the all‐inclusive preventive maintenance, specified herein.

· The continuous protection of the Agency’s property and any adjacent privately owned property from damage arising in connection with the contract. The Vendor shall repair any such damage without delay. Any damage or personal injury caused by the Vendor in performance of the repair service shall be brought to the attention of the IDOT’s Winter Operations Engineer and shall be the responsibility of the Vendor.

1.2.3.3. When repairs are needed under this contract, the Agency will issue a “Repair Call Request” by e‐mail. The Vendor shall respond to the Agency within forty-eight (48) hours of receiving the notice; said response shall include:

· The acknowledgement of the request of repair services,

· A schedule that allows for service to be provided within the next five (5) working days weather permitting. Intrusive pavement sensor replacement requires pavement temperatures above 40° F and IDOT provided traffic control, and

· An estimate of repair requirements and cost under the terms and costs stated in this contract.

1.2.3.4. The response shall indicate if more than one site will be impacted. In such case, the first site accessed will be estimated with the call out rate. Any additional sites reached within a 4‐hour period after arrival at the initial site shall be estimated without the call out rate.

1.2.3.5. Upon receipt of the Vendor’s response, the Agency will issue a work order for the approved repairs and work items. The Vendor shall Contact the Agency’s Central Bureau of Operations Communications Center at (217) 782‐2937 upon:

· Accessing the RWIS site,

· Completing the repairs, and/or

· Departing the site.

Upon completion and acceptance of the repairs, the Vendor shall submit the invoices for the work performed showing the repair call, parts and materials, and labor costs (labor cost determined by time spent on site).

The cost of replacing an RWIS system component shall be comprised only of a repair call, parts and materials used, and labor provided on site.

1.2.4. Installation of New RPU Locations:

The Agency may request pricing for installation and support of new RWIS locations with associated sensors, cameras, and communications services on an as‐needed basis. The Agency may request a quote for either an intrusive or non‐intrusive sensor configuration on a labor and material basis.

1.

1.1.

1.2.

1.2.1.

1.2.2.

1.2.3.

1.2.4.

1.2.5. Communications System Service and Support:

1.2.5.1. The Vendor shall be responsible for provisioning, configuring and providing residual service charges for all Code Division Multiple Access (CDMA) communication needed between RPU locations and the hosted server facility. The cost for this service shall be billed per the rate contained within this contract. The Vendor shall support any CDMA communications for RPU locations that have been pre-negotiated or paid under construction installation contracts at no charge to the Agency and shall prorate any service assumed after the pre-negotiated period at 1/12th the contained contact price on a monthly basis. RWIS sites communicate via a 4G modem. All new and existing sites must be maintained with 4G or newer technology modems.

1.2.6. Database/Web Interface:

1.2.6.1. The Vendor shall:

· Provide database software for the collection, manipulation, and distribution of collected weather sensor data. This software shall contain data collected from CDMA wireless communications sites every five (5) minutes.

· Ensure all historical sensor data is maintained for a minimum of five (5) years; the database is backed‐up at an interval of once daily and loss of data can be no greater than one (1) hour each day.

· Provide any time, all year round (twenty-four (24) hours a day, seven (7) days a week, three hundred sixty-five (365) days a year) support of the database/server hosting function, including on‐site support as needed to ensure proper functioning of the system.

· Maintain a backup power source at a secure facility.

· Provide the Agency with a disaster recovery plan covering these functions, after award but before the start of the contract.

· Provide weekly data quality report containing a summary of station errors, data loss and delays in sensor reporting. The Vendor shall submit a draft report format for review and approval by the IDOT’s Winter Operations Engineer prior to award.

1.2.6.2. The database shall have the ability to display data in text and graphical format and shall contain at the minimum the following data elements from each weather RPU location:

· Site ID

· Site Name and Location

· Surface Sensor Name

· Data Collection Time

· Air Temperature, Dew Point, Relative Humidity

· Wind Gust and Speed

· Average Wind Direction

· Barometric Pressure

· Visibility Distance

· Precipitation Occurrence, Type, and Intensity, or Rate, and Accumulation

· Pavement Sensor Surface Condition, Friction, Temperature, Salinity, Freeze Point (as applicable by sensor type and ability)

· Pavement Friction (displayed as a value)

· Pavement Subsurface Sensor Temperatures

· ability to display video images from remote cameras

· ability to record traffic counting data

1.2.6.3. The database shall contain the following summary data for each surface sensor at an RPU location:

· Site ID

· Surface Sensor Name and Inventory Number

· Precipitation Detection

· Air Temperature and Dew Point

· Pavement Condition

· Pavement Temperature

· Subsurface Temperature

· Wind Gust and Speed

· Wind Direction

· Friction

1.2.6.4. The database shall also contain the ability for the Agency to take over control of installed RPU video cameras to mitigate traffic safety needs or for other disaster management needs.

1.2.6.5. Up to one hundred fifty (150) user accounts shall be provided for database access. These accounts shall allow real‐time and historical access to the data hosted in the database. The accounts shall have the ability to allow users to configure alerts when specific sensor thresholds defined by the users are met. These thresholds shall trigger e‐mail notifications to support staff via their selected e‐mail addresses.

1.2.7. The database shall have the ability to display data in text and graphical format and shall contain at the minimum the following data elements from each weather RPU location:

· Site ID

· Site Name and Location

· Surface Sensor Name

· Data Collection Time

· Air Temperature, Dew Point, Relative Humidity

· Wind Gust and Speed

· Average Wind Direction

· Barometric Pressure

· Visibility Distance

· Precipitation Occurrence, Type, and Intensity, or Rate, and Accumulation

· Pavement Sensor Surface Condition, Friction, Temperature, Salinity, Freeze Point (as applicable by sensor type and ability)

· Pavement Friction (displayed as a value)

· Pavement Subsurface Sensor Temperatures

· ability to display video images from remote cameras

· ability to record traffic counting data

1.2.8. The database shall contain the following summary data for each surface sensor at an RPU location:

· Site ID

· Surface Sensor Name and Inventory Number

· Precipitation Detection

· Air Temperature and Dew Point

· Pavement Condition

· Pavement Temperature

· Subsurface Temperature

· Wind Gust and Speed

· Wind Direction

· Friction The database shall also contain the ability for the Agency to take over control of installed RPU video cameras to mitigate traffic safety needs or for other disaster management needs.

Up to one hundred fifty (150) user accounts shall be provided for database access. These accounts shall allow real‐time and historical access to the data hosted in the database. The accounts shall have the ability to allow users to configure alerts when specific sensor thresholds defined by the users are met. These thresholds shall trigger e‐mail notifications to support staff via their selected e‐mail addresses.

1.2.9. RWIS Server Hosting:

1.2.9.1. The Vendor shall:

· Host servers for the collection and distribution of weather sensor data to the Agency.

· This service shall include necessary communication circuits to communicate to existing RWIS sites which consist of CDMA wireless modems throughout the State. It also includes transmission of File Transfer Protocol (FTP) server data to the Agency server location, transmission of data to MADIS, and transmission of data via the Vendor provided web portal which shall allow review and sharing of data with other municipal/public customers that agree to share data and preserve the ownership of data for public interest in a secure internet browser in a map view format. The fee for this service shall be billed monthly as contained within this contract.

· Make all hardware configurations and support changes to the servers

· Purchase, install, and maintain all server equipment.

· Historical data on the server shall be transferred to the Agency as directed upon the completion of the contract.

· For procurements conducted in BidBuy, the State may include in this contract the BidBuy Purchase Order as it contains the agreed Supplies and/or Services.

1.3. MILESTONES AND DELIVERABLES:

1.3.1. Repair service requests shall receive a response from the Vendor within forty-eight (48) hours and they shall be scheduled and completed within five (5) working days. Documentation of all service requests shall be provided with the invoice for service.

1.3.2. Communication services and server hosting shall be provided twenty-four (24) hours per day, seven (7) days per week throughout the contract period.

1.3.3. Annual preventive maintenance service shall be provided at a minimum, once annually between September 1 and October 15. A report on the system shall be provided within one (1) week of completion of the annual preventative maintenance inspection.

1.3.4. An action plan for replacing parts during the annual preventive maintenance service shall be submitted and approved prior to beginning any preventive maintenance services.

1.3.5. All RWIS sites shall have a 4G modem at a minimum. All new sites and repairs must be 4G or better.

1.3.6. Weekly quality reports shall be submitted to the IDOT’s Winter Operations Engineer.

1.4. VENDOR/STAFF SPECIFICATIONS:

1.4.1. The Vendor shall have staff members that:

1.4.1.1. Are trained in safe, efficient, and effective troubleshooting, maintenance, and repair of RWIS systems.

1.4.1.2. Can support the server hosting, database/web interface and communications requirements of the contract.

1.5. TRANSPORTATION AND DELIVERY:

Pricing is fully loaded, i.e. there shall be no additional payment for transportation or delivery of parts or systems.

1.6. SUBCONTRACTING:

Subcontractors are not allowed.

1.6.1. Will subcontractors be utilized? |_| Yes |X| 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.

1.7. WHERE SERVICES ARE TO BE PERFORMED: Unless otherwise disclosed in this section all services shall 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 shall disclose the locations where the services required shall 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 shall be a breach of contract if the Offeror shifts any such work outside the United States.

· Location where services will be performed: See Section 1.2.2.4 Value of services performed at this location: 100%

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. The State includes in this contract the BidBuy Purchase Order as it contains the agreed pricing.

2.2.1.1. Annual Preventative Maintenance:

Annual preventative maintenance shall include the show-up fee and all labor included to provide the inspection, calibration, lubrication, cleaning and evaluation of all RWIS sensors and equipment. The annual inspection shall also include collecting the needed information to provide a detailed inventory of sensor and equipment, make and model to be included, in the concise facility service report.

The Vendor shall supply a unit cost per annual inspection at each RWIS location.

2.2.1.2. Service Calls:

Service calls are for callouts beyond the annual preventative maintenance. The initial service call price shall be a lump sum that includes the show-up fee which includes travel to and from the site and the first hour of labor at the site. Labor beyond the first hour at the site will be paid for at the appropriate hourly rate designated in table A for each site.

Additional RWlS locations added to the system shall be priced the same as the closest site listed in listed in Section 1.2.2.4.

2.2.1.3. Replacement Parts:

Parts and materials shall be at Vendor cost. The Vendor shall not markup any parts or materials. Estimated parts to include but not limited to the following:

· Mobile Weather Equipment

· Full RWIS Stations

· Mini RWIS Stations

· Remote Processing Unit

· Enclosures

· Poles/Fold-Over Towers

· Replacement Sensors, Cables, Brackets,

· Modem

· Modem Card

· RWS200 Spare Parts

· LX-RPU Spare Parts

· MD30 Equipment:

· MD30 Mobile Spare Parts

· Surface Patrol Equipment:

· Surface Patrol Spare Parts

· Processors

· Invasive Pavement Sensors

· Non-Invasive Pavement Sensors

· Pavement Sensor Epoxy The service call lump sum will not be allowed when parts are replaced during an annual preventative maintenance visit.

2.2.1.4. Services:

The Vendor shall supply a monthly rate for:

· Database/Web Interface Service and Support,

· RWIS Server Hosting, and

· CDMA communication system service for each RWIS location.

2.3. MAXIMUM AMOUNT: The total payments under the initial term of this contract shall not exceed $Click here to enter text without a formal amendment. The maximum amount will be entered by the State prior to execution of the contract.

3. TERM AND TERMINATION

3.1. TERM:

3.1.1. TERM OF THIS CONTRACT: The contract will have an initial term commencing upon the last dated signature of the Parties and ending on 06/30/2029. 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 shall 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 shall 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 shall 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 shall be Vendor’s sole remedy for late payments by the State. Payment terms contained in Vendor’s invoices shall 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 shall 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 shall 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 shall 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 shall 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:

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 shall 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 shall 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 shall 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 shall 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, shall 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 shall 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 shall 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 shall 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 shall 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 shall 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 shall 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, shall be considered public. No confidential data collected, maintained, or used in the course of performance of this contract shall 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 shall 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, shall 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 shall be subject to the confidentiality provisions of this contract.

4.10. INDEMNIFICATION AND LIABILITY: The Vendor shall 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 shall be liable for incidental, special, consequential, or punitive damages.

4.11. INSURANCE: Vendor shall, 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 shall 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 shall not limit Vendor’s obligation to indemnify, defend, or settle any claims.

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

4.13. SOLICITATION AND EMPLOYMENT: Vendor shall not employ any person employed by the State during the term of this contract to perform any work under this contract. Vendor shall 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 shall 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 shall be in compliance with applicable tax requirements and shall be current in payment of such taxes. Vendor shall 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 shall 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 shall 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 shall 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 shall 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 shall 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 shall 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 shall 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, shall 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 shall be given in writing via electronic mail whenever possible. If transmission via electronic mail is not possible, then notices and other communications shall 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 shall be sent to the individuals who signed this contract using the contact information following the signatures. Each such notice shall 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, shall be ignored and the remaining provisions shall be interpreted, as far as possible, to give effect to the Parties’ intent. All provisions that by their nature would be expected to survive, shall 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 shall prevail.

4.22. PERFORMANCE RECORD/SUSPENSION: Upon request of the State, Vendor shall 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 shall 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 shall ensure that all manufacturers’ warranties are transferred to the State and shall provide to the State copies of such warranties.