Dixon Springs Swimming Pool Concession Contract.docx

The following information will become the contract between the awarded vendor and the Illinois Department of natural Resources. Instructions and requirements to submit a bid response are found in the attachment titled “Invitation for Bid Vendor Instructions and Requirements”.

Illinois Department of Natural Resources Contract 8475-3 Dixon Springs State Park Swimming Pool Concession

25-422DNR-DIREC-B-47428

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:

Vendor shall operate the Dixon Springs State Park Swimming Pool Concession located in Golconda, IL. Through IDNR programs, and in conjunction with the Vendor, the Department of Natural Resources seeks to improve overall visitor satisfaction by ensuring high quality visitor services while broadening the economic base of the region and the communities of the surrounding parks.

1.2. SUPPLIES AND/OR SERVICES REQUIRED:

1 Daily Admission to the Pool 2 Rental of the Pool for groups 3 Cleaning and maintenance of the Pool and shower building 4 Serving pre-packed food, frozen confections, and non-alcoholic beverages

1.2.1 DATES OF OPERATION: Vendor shall be required to have the concession operation open to the public for the purpose of serving guests at Dixon Springs Pool located in Golconda, Illinois, on the Saturday of Fourth of July Weekend through the Monday of Labor Day Weekend for year one of the contract. For all subsequent years , the pool shall be open on the Saturday of Memorial Day Weekend through the Monday of Labor Day Weekend. The Site Superintendent shall have the final decision to close and reopen the concession in the event of inclement weather.

1.2.2 REQUIRED HOURS OF OPERATION: Vendor shall be open daily from 11:00 AM to 6:00 PM. Vendor may not close early without prior permission from the Site Superintendent.

1.2.3. OPTIONAL HOURS OF OPERATION: Vendor has the option to be open additional hours as listed below with the exception of unforeseen days when the Park is closed.

1.2.3.1 Vendor may choose to open as early as 8:00 AM and stay open as late as 9:00 PM with approval from the Site Superintendent.

1.2.3.2 Vendor must receive prior written approval from the Site Superintendent to open prior to 8:00 AM or to stay open later than 9:00 PM.

1.3. MILESTONES AND DELIVERABLES:

1.3.1. Vendor shall submit monthly documentation reporting gross receipts and vendor shall pay the percentage due for the monthly reserve payment for each month the concession is in operation to IDNR on or before the 25th of the following month. Reserve payments are to be paid in accordance with Section 5.3 of this contract. Nonpayment of monthly reserve payment shall be considered cause for cancellation of the Lease if the Vendor has not paid within thirty (30) days after due date.

The term “gross receipts” includes the total of all sales and rentals made by Vendor from the operation of the Concession except as herein otherwise stipulated.

The following shall not be considered as gross receipts:

1. Sales tax collected from customers for direct remittance to a taxing authority.

2. Income derived from the sale of Vendor-owned equipment not ordinarily held for sale to the general public.

3. Refunds.

4. Lottery sales commissions.

5. Hunting/Fishing License sales.

6. Amounts paid for credit card fees.

It is further understood that Federal or State Income Tax is not a deduction from gross receipts for rental purposes.

Each sale, charge, or business transaction upon installments of a contract shall be treated as a gross receipt for the full price or charge in the month during which such sale, business transaction or contract for services is performed.

Using forms furnished by IDNR, a report of sales and rentals, as well as proof of required reserve payment deposit, must be forwarded to IDNR no later than the 25th day of the month following the previous month’s operation. Paperwork may be either emailed to jason.s.buckhold@illinois.gov or mailed to the following address:

Attn: Jason Buckhold, ORCP Department of Natural Resources One Natural Resources Way, 2nd Floor Springfield, IL 62702

1.3.2. Vendor shall submit to the Site Superintendent and Concession Manager the selling price of all goods sold and services rendered at the concession in writing within 30 days of execution and by May 15ᵗʰ of each following year of the contract. The approved price list shall be posted in clearly visible places about the premises and accessible to the public. All prices charged to the public by the Vendor must be competitive with comparable facilities in the area. IDNR shall determine whether the prices charged to the public are competitive with comparable facilities in the area and may determine that prices need to be reduced and/or altered.

Any proposed increase in prices during the term of the Contract and all renewals must be submitted to the Concession Manager in writing for prior approval. Vendor shall receive approvals in writing prior to any increase—approvals shall not be unreasonably withheld.

1.3.3. Vendor shall provide DNR with a Profit and Loss Statement for the preceding calendar year no later than May 1ˢᵗ of the following year for each year the Contract is in effect. This document shall reflect all business transactions (gross receipts) on or from the leased premises during the year.

1.3.4. Vendor shall submit all required licenses to the Site Superintendent and Concession Manager prior to opening for the first season and no later than May 15th for each year of the contract.

1.3.5. All property/equipment left by Vendor two weeks after conclusion of the Contract shall be considered abandoned and shall be considered State Property from that moment forward.

1.3.6. Vendor shall take all reasonable precautions for safety of, and shall provide all reasonable protection to prevent damage, injury or loss to: (i) persons performing services and obligations on behalf of the Vendor; (ii) anyone rightfully within the Premises, including, without limitation, members of the public and employees of IDNR; (iii) members of the public receiving goods or services offered by Vendor; or (iv) the property of IDNR, members of the public, or Vendors on or adjacent to the Premises.

1.3.6 Vendor shall notify IDNR of any incidents and/or accidents that occur at the concession no later than 24 hours after the incident/accident occurred. Vendor shall supply IDNR the name and contact information of the person(s) involved; IDNR shall then write up an incident report.

1.3.7 Vendor must provide copies of all County health inspections to the IDNR contact on the day of inspection. Vendor shall comply with any recommendations made, failure of the Vendor to comply with such recommendations may result in the termination of the lease.

1.3.8 Vendor shall provide monthly sales figure reports and copies of all bank validated deposit slips and statements to IDNR by the 25th of the following month (summary report of sales, expenses and profitability of the concession).

1.3.9 Vendor shall furnish IDNR with a Profit & Loss Statement covering the term of the lease. This document shall reflect all business transactions on or from the leased premises during this year and shall be furnished no later than May 1 of the following year.

1.3.10 Upon conclusion of Contract, Vendor shall be responsible for any and all missing equipment State Property that was provided for their use during the contracted period.

1.3.11 The Vendor shall be required to accept Visa, MasterCard, American Express, and debit card payments from patrons. The Vendor shall provide a Point-of-Sale (POS) system to ensure payments for goods and service can be made timely and securely.

1.4. VENDOR/STAFF SPECIFICATIONS:

1.4.1. VENDOR OPERATIONS

1.4.1.1. Vendor is required to post hours of operation for the concession in clearly visible places for the benefit of the visitors to the area within 100’ of the main concession building. All patrons shall be permitted to enter the public portion of the premises freely, and to enjoy the convenience and privileges accorded to the patrons of the concession.

1.4.1.2. Vendor must operate in accordance with Swimming Facility Code 77 ILL Adm. Code 820. – to include providing certified lifeguards during all hours of operation.

1.4.1.3. Vendor shall have prior approval in writing by the Site Superintendent prior to placing any sign or advertisement upon any location of property. The Site Superintendent shall have the right to remove any sign or signs that have been erected which did not receive prior written approval at the expense of the Vendor and without notification to the Vendor. Vendor will submit to IDNR samples of any signs, advertisements, slogans or logos for the concession and receive the Site Superintendent and Concession Manager’s approval prior to their erection. All signs erected by Vendor shall be the responsibility of Vendor and will be kept in good condition by Vendor. Good condition means that the signs will not be peeling, fading, and torn/broken.

1.4.1.4. Vendor shall provide all supplies, labor, supervision, maintenance, equipment, tools, materials, and incidentals necessary to operate and maintain the concession.

1.4.1.5. Vendor agrees to operate the concession as a non-smoking facility. Outdoor events must receive prior approval from the Site Superintendent to allow smoking at outdoor events. Outdoor smoking must be within a designated smoking area and is prohibited within 15 feet of any entrance, exit, windows that open, or ventilation intake of a public place or place of employment as per Public Act 95-0017.

1.4.1.6. Vendor may use any existing equipment in the concession building; subject to the regulations found in Section 1.5.1.4 of this contract.

1.4.1.7. Vendor will not serve anything contained in individual glass containers. Vendor shall only offer compostable food ware or recyclable food ware for use at State Parks. Vendor shall not use single-use plastic disposable food ware as per 30 ILCS 500/45-23.

1.4.1.8. Vendor shall ensure that the on-site manager shall possess a current Food Service Sanitation Manager Certification (FSSMC) from the Illinois Department of Public Health and mandates that the Vendor abide by Food Service Sanitation Code 77 ILL Adm Code 750. Proof shall be provided to the Site Superintendent or Concession Manager upon request.

1.4.1.9. Vendor shall be responsible for electricity, propane, internet, and all other utility services necessary for the proper operation of the concession operation at this facility or on the premises during the time the concession is open to the public.

1.4.1.10. Vendor shall be required to advertise through social media and/or with a website within 30 days of contract execution and for the duration of the contract. This advertisement shall include, but not limited to, the services offered by the concession operation as well as the hours of operation.

If Vendor chooses to advertise through social media, the Vendor shall request account(s) through the Concession Manager. The account(s) will be issued by the IDNR Communications Office, and the Vendor shall be granted administrative access to the account(s).

1.4.1.11. Per 20 ILCS 835/4b gift shops and concession areas within State parks and parkways shall set aside a booth or section for the sale of products manufactured in the United States. The booth or section shall be labeled “Made in the USA.” As used in this Section, "products manufactured in the United States" means assembled articles, materials, or supplies for which design, final assembly, processing, packaging, testing, or other process that adds value, quality, or reliability occurred in the United States.

Vendor shall submit within 30 days of opening for the first season and by March 15th of each following year of the contract a list of item(s) Made in the USA along with a photo of the area the item(s) are for sale to the concession manager.

1.4.1.12. IDNR will allow Vendor to host activities on the premises and will be exempt from any Activity Permit Fees required (Title 17, Part 110, Section 110.4) and exempt from any Permit-to-Sell fees for said events. The Vendor is required to request permission from the Site Superintendent at a minimum 30-days in advance of plans to host events to ensure there isn’t a conflict with an IDNR site event and to ensure that it is in the park’s best interest. The insurance and liability for the event(s) will be assumed under the general liability and insurance mandated by Section 4.11 of this agreement.

1.4.2. VENDOR MAINTENANCE

1.4.2.1. Vendor shall provide all janitorial supplies, services and pest control (to include pesticides and rodent treatment) required to properly clean and operate the leased facilities. Disinfectants are to be EPA-approved disinfectants. A list of EPA approved disinfectants and the proper ways to use them can be found at:

https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2-covid-19 .

1.4.2.2. Vendor shall always keep the premises in a sanitary condition with an EPA-approved disinfectant, to include counters, surfaces and floors in conformity with applicable Federal, State and local laws. Clean and sanitary condition means free of dirt, dust, mud, spillage, and refuse.

1.4.2.3. The floors shall be swept and mopped with an EPA-approved disinfectant at a minimum daily and additionally as needed.

1.4.2.4. Empty and disinfect waste receptacles with an EPA-approved disinfectant monthly and additionally as needed. Place new liner in waste receptacles daily and additionally as needed.

1.4.2.5. Clean doors, jambs, knobs, walls, push plates, and light switches of cobwebs, fingerprints, scuff prints and marks with an EPA-approved disinfectant monthly and additionally as needed.

1.4.2.6. Clean light fixtures monthly and additionally as needed.

1.4.2.7. Any IDNR property or equipment needing replaced as a result of improper or negligent use by Vendor or any of its employees, contractors or agents will be replaced at Vendor’s own expense and will become property of IDNR.

1.4.2.8. Vendor is to submit a complete list of vendor-owned equipment to the Site Superintendent and Concession Manager within 30 days of contract execution and by March 15 of each following year of the contract. Site Superintendent shall provide vendor with an annual inventory of the equipment for which vendor is accountable to IDNR.

1.4.2.9. Restroom Cleaning:

Floors of sealed concrete shall be swept then mopped with an EPA-approved disinfectant at a minimum on a daily basis and additionally as needed. Tile floors shall be swept and mopped with an EPA-approved disinfectant at a minimum on a daily basis and additionally as needed.

Wall tile shall be cleaned free of hand marks, dust and smudges on a weekly basis and additionally as needed. All stainless steel shall be disinfected with an EPA-approved disinfect and then polished with stainless steel cleaner on a weekly basis and additionally as needed.

Clean and disinfect partitions, doors, stools, urinals, wash basins, towel holders, soap dispensers, door handles, sanitary napkin receptacle and dispensers, and baby changing stations with an EPA-approved disinfectant on a daily basis and additionally as needed.

Clean mirrors on a daily basis. Empty and disinfect waste receptacles with an EPA-approved disinfectant on a monthly basis and additionally as needed. Place new liner in waste receptacles daily and additionally as needed.

Restock soap, toilet paper and toweling on a daily basis or as needed.

1.4.2.10 Vendor shall clean and prepare pool for the opening of the concession season and maintain the pool throughout the season per Facility Swimming Code 77 ILL Adm. Code 820.

1.4.2.11 Vendor shall be responsible for the cost of replacement of water if the vendor wants the water drained or replaced. Pool is not drained when concession is closed.

1.4.2.12 Vendor shall remove the pool cover and insert ladders prior to opening for the concession season and remove ladders and replace pool cover at the closure of the concession season.

1.4.2.13 Vendor shall be responsible, at Vendor's own expense (not reserve account funds), for all chemicals and supplies needed to operate the swimming pool in accordance with state and local public health codes. The Site Superintendent will provide the specifications for all chemicals and other supplies needed to treat the water.

1.4.3. FISCAL RESPONSIBILITIES

1.4.3.1. Vendor shall pay all taxes levied or assessed on the Premises including property taxes, and all taxes and license fees growing out of or in connection with the operation of the Concession, whether or not measured by gross revenue from such business. This concession is under one (1) acre and not applicable to property taxes pursuant to 35 ILCS 200/15-55.

1.4.3.2. Vendor shall provide proof of insurance during all months of operation and will name IDNR as additional insured as stated in Section 4.11 of this contract.

1.4.3.3. Vendor shall agree to accept cash, debit, or credit cards for all concession transactions. It shall be the Vendor’s responsibility to install the equipment to be used for these forms of payments.

1.4.3.4. Vendor hereby agrees that a full, true, and correct account shall be kept of all financial transactions in the operation of all Concession activities conducted pursuant to the Contract. All records shall be kept in accordance with Generally Accepted Accounting Principles; all records must be supported by source documents such as sales slips, cash register tapes, purchase invoices, or such other documents IDNR may deem necessary. Duplicate deposit slips will be kept on file, and all accounts resulting from the Contract shall be paid by check, cash, money order or credit card.

1.5. IDNR RESPONSIBILITIES:

1.5.1. OPERATION

1.5.1.1. IDNR shall provide water to the concession at all times, except for refiling of the pool.

1.5.1.2. IDNR shall be responsible for electricity and propane during the months that the concession is not operating.

1.5.1.3. IDNR shall be allowed to read water meter prior to draining of the pool and again after pool is filled to figure out the cost of water replacement.

1.5.1.4. IDNR shall supply the equipment listed below. The Vendor may use any or all the equipment provided, subject to the requirements in Section 1.3.11 of this contract.

1.5.2. MAINTENANCE

1.5.2.1. IDNR shall be responsible for the maintenance and repair of the concession building, including the mechanical, plumbing, electrical, and HVAC (heating, ventilation, and air conditioning) systems.

1.5.2.2. IDNR shall be responsible for maintenance of parking lots, sidewalks and roads for uninterrupted ingress and egress to the Premises; except, when necessary to close an area or road due to construction in the park, repair of roads, flooding, or other conditions beyond the anticipation or control of IDNR.

1.5.2.3. IDNR agrees to provide refuse containers and removal of refuse from the Premises.

1.6. VENDOR QUALIFICATIONS

1.6.1. Any utilized subcontractor must fulfill a distinct element of the work of the contract, which is carried out by actually performing, managing and supervising the work involved in the contract. To comply with this requirement, any utilized subcontractors must have an office within 100 miles radius of the Concession location.

1.7. SUBCONTRACTING:

Subcontractors are not allowed.

1.8. 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.

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 firm.

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 FORMAT OF PRICING:

2.1.1 Vendor shall submit pricing on BidBuy Line Items. The Unit of Measure that the Vendor shall submit in BidBuy is the percentage (%) of gross receipts that the Vendor will pay into the Reserve Account for each year of the contract (all years) and renewal terms (all years). BidBuy will show the line item “Net Unit Cost” and “Total Cost” in dollars ($), but the actual Unit of Measurement is percentage (%).

2.1.2 The percentage of gross receipts for each year will be entered by the State into the contract prior to execution of the contract. Percentage will be taken from Line Items in BidBuy.

IDNR will accept a percentage of Gross Receipts to be deposited into the Reserve Account. IDNR anticipates that a fair reserve payment percentage shall be no less than 4% of gross receipts for the first two years of the lease contract, and no less than 5% of the remaining years of the lease contract.

2.3. RENEWAL COMPENSATION: If the contract is renewed, the price shall be at the same rate as for the initial contract term, unless a different compensation or formula for determining the renewal compensation is stated in this section.

2.3.1. Vendor’s Percentage for Renewal(s): Submit renewal Percentages per BidBuy line items.

3. TERM AND TERMINATION

3.1. TERM OF THIS CONTRACT: The contract will have an initial term commencing upon the last dated signature of the Parties and ending on Dec 31, 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. RENEWAL: Subject to the maximum total term identified above, the State has the option to renew for the following term(s): A total of ten (10) years in any one of the following manners:

3.2.1. One renewal covering the entire renewal allowance;

3.2.2. Individual one-year renewals up to and including the entire renewal allowance;

3.2.3. Any combination of full or partial year renewals up to and including the entire renewal allowance.

Any renewal of the resulting contract is subject to the same terms and conditions that apply to the initial term of the contract unless otherwise provided. The State may renew the contract for any or all of the option periods specified, may exercise any of the renewal options early, and may exercise more than one option at a time based on continuing need and favorable market conditions, when in the best interest of the State. The contract may neither renew automatically nor renew solely at the Vendor’s option.

3.3. 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.

3.4. 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.

3.5. 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. Vendor 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.

4.2. 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. These warranties shall be in addition to all other warranties, express, implied or statutory, and shall 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 shall monitor performances of each individual and shall 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 shall 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

|X| Agency Definitions Wherever used or referred to in this Contract unless a different meaning clearly appears from the context: “Concession operation” means the business operation of Vendor within the building and land owned by IDNR. “Premises” means the buildings, together with land occupied by the Vendor and owned by IDNR, to be used for a business operation. “Site Superintendent” means the manager of the Complex who is IDNR’s on-scene representative authorized to protect IDNR’s interest in the Premises and to supervise Vendor’s operations.

PREMISES: IDNR shall enter into a Contract with the Vendor upon the terms and conditions contained in the Contract, the “Premises” shall refer to the following:

An area which includes the swimming pool, surrounding fence, one concession building, including dressing rooms, toilets, shower rooms and physical plant, located in Dixon Springs State Park, Section 16, Township 13 South, Range OS East, Third Principal Meridian, in the County of Pope, State of Illinois.

VACATING THE PREMISES: Unless renewal is arranged within thirty (30) days prior to the expiration of the Contract, Vendor shall, immediately upon such expiration, vacate the premises and remove all property to which Vendor holds proper title, except that Vendor shall not remove any property that is permanently attached to the structure regardless of whether Vendor holds proper title.

In the event of cancellation of the Contract, Vendor shall within Fifteen (15) days after the effective date of the cancellation vacate the premises and remove all property to which Vendor holds proper title, except that Vendor shall not remove any property that is permanently attached to the structure regardless of whether Vendor holds proper title. Should Vendor fail to remove or dispose of Vendor's property as herein provided, DNR may consider such property abandoned and may claim proper title to such property or dispose of same at Vendor's expense.

CONDITION OF PREMISES: Vendor has examined the Premises prior to, and as a condition precedent to, Vendor's acceptance hereof, and is satisfied with the physical condition. Vendor's taking of possession shall be conclusive evidence of Vendor's receipt of the Premises in condition suitable for the Concession.