Giant City Post Oak Trail Repairs 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”.

State of Illinois Contract v.25.4

Illinois Department of Natural Resources Contract Giant City – Post Oak Trail Repairs

26-422DNR-REALT-B-50211

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 Department of Natural Resources (DNR) requires repairs to the Post Oak hiking trail within Giant City State Park in Jackson and Union Counties, Illinois. Three (3) wooden bridges and one (1) wooden viewing deck need replaces on this trail. Parking lot improvements are also to be considered as part of this project.

1.2. SCOPE OF WORK: The Work will be split into a Base Bid and an Alternate Bid No. 1 as follows:

1.2.1. Base Bid - Post Oak Trail

Vendor shall provide all labor, equipment and materials required construct three (3) wooden footbridges and one (1) wooden viewing deck. This project consists of the following:

By alternate bid, improvements to the existing parking area will consist of existing pavement removal, subgrade preparation, new aggregate base, hot mix asphalt surfacing and striping/signing. The project consists of the following elements:

1.2.2.1 Demolition: Demolition of the existing parking lot area including approximately 1,465 square feet of flagstone, approximately concrete walks 245 square feet and approximately oil and chip or asphalt 1,005 square feet Note that the Vendor is to neatly saw cut the existing pavements as depicted on Plan Sheet C-101. All material is to be disposed of off-site by the Vendor.

1.2.2.2 Sub-base: Excavate area of new parking lot to a minimum of nine (9) inch depth or as needed to remove soft or unconsolidated material. Prepare subbase in accordance with IDOT Standard Specification Section 301. The subgrade will be prepared such that after compaction, it will be smooth and conform to the alignment, grade and cross sections shown on the plans. Subbase must be approved by the IDNR Engineer before commencing with additional work.

1.2.2.3 Base Course: Construct Compacted Aggregate Base Course in accordance with IDOT Standard Specification 351 – Type B.

1.2.2.4 Hot Mix Asphalt Surfacing: Bituminous mixtures shall be in accordance with Section 406 of the IDOT Standard Specifications. This work will include application of a prime coat, base course, tack coat and surface course in accordance with the attached plans.

1.2.2.5 Striping, Car Stops and Signs: Install striping, ADA parking signs and post, and seven (7) precast concrete parking blocks in accordance with the attached plans.

1.2.2.6 Parking Lot Edges/Shoulders: Install earthen shoulders as a transition to the surrounding grades. Seed, fertilize, and mulch in accordance with IDOT Stand Specification Section 250.

1.3. SPECIAL PROVISIONS

1.3.1 All wood decking material for bridges and the viewing deck are to be rough sawn 3 x 12 treated lumber. S4S lumber will not be permitted, although, if required the bottom and sides of the lumber can be planed provided the rough sawn side is upward facing.

1.3.2 Treatment of all field cuts and abrasions for all treated lumber requires three (3) coats of Copper Naphthenate (2%) solution. Failure to apply this treatment will require disassembly and reconstruction by the Vendor with no additional compensation provided.

1.3.3 Below are estimated quantities for Base Bid in accordance with Attachment A (plans) and Attachment B (specifications). Vendor is responsible for independently verifying items are required and supplying all needed items even if they are a higher quantity than listed here.

Excavations required for footings inclusive of concrete structures

1.3.4 Below are estimated quantities for Alternate Bid No. 1 in accordance with Attachment A (plans) and Attachment B (specifications). Vendor is responsible for independently verifying items are required and supplying all needed items even if they are a higher quantity than listed here.

Demolition of existing parking lot

1.4. ATTACHMENTS:

1.4.1. Attachment A – Project Plan Sheets

G-102: General Site Plan and Notes – shows the overall site plan with General Notes and Control Points C-101: Parking Lot Demolition Plan – for parking lot improvements (by Alternate Bid - 1) C-102: Proposed Conditions and Grading – for parking lot improvements (by Alternate Bid-1) C-103: Parking Lot Details – (by Alternate Bid - 1) S-01: General Notes and Specifications – concrete, reinforcement, structural steel and timbers S-02: Viewing Deck Foundation Plan – layout and dimensions for viewing deck construction

S-07: Framing Details

1.4.2. Attachment B – Project Manual

1.5. LINE-ITEM BIDDING: The State reserves the right to not contract Item 1 or Item 2 based on available funding. Awarded Vendor shall be lowest price for Item 1. If funding allows, Item 2 will be included in award.

1.6. MILESTONES AND DELIVERABLES:

1.6.1. Special attention is brought to the prior completed phases of work on the Post Oak Trail that installed new concrete paving in the past 5 years. Vendor is responsible for the protection and proper repair of any damage to these sidewalks during this project. Prior to commencing work, the Vendor is required to document any pre-existing damaged concrete and submit it to the Engineer for reference purposes.

1.6.2. Construction Bond - Pursuant to the Public Construction Bond Act (30 ILCS 550/), Sec. 1. Except as otherwise provided by this Act, until January 1, 2029, all officials, boards, commissions, or agents of this State, or of any political subdivision thereof, in making contracts for public work of any kind costing over $150,000 to be performed for the State, or of any political subdivision thereof, shall require every contractor for the work to furnish, supply and deliver a bond to the State, or to the political subdivision thereof entering into the contract, as the case may be, with good and sufficient sureties. The surety on the bond shall be a company that is licensed by the Department of Insurance authorizing it to execute surety bonds and the company shall have a financial strength rating of at least A- as rated by A.M. Best Company, Inc., Moody's Investors Service, Standard & Poor's Corporation, or a similar rating agency. The amount of the bond shall be fixed by the officials, boards, commissions, commissioners or agents, and the bond, among other conditions, shall be conditioned for the completion of the contract, for the payment of material, apparatus, fixtures, and machinery used in the work and for all labor performed in the work, whether by subcontractor or otherwise.

1.6.3. Vendor shall submit for the approval of the DNR Project Architect/Engineer, shop drawings and product data for the following items:

1.6.3.1. Mesh Steel Panels for Viewing Deck Railings to include shop drawings, sample submittals or mock-up.

1.6.3.2. Stainless Steel Handrail and Brackets to include shop drawings and sample submittals.

1.6.3.3. Treated Wood Decking – rough sawn 3 x 12 sample.

1.6.4. Vendor shall provide to the DNR Project Architect/Engineer, a cost breakdown of each item of work required to fulfill the contract. The breakdown shall be identified on a Contractor’s Schedule of Values (CSV) form.

1.6.5. Vendor shall hand mark one set of drawings with corrections, dimensions, and "As-Built" notes. These Drawings shall be delivered to the DNR Project Architect/Engineer upon construction completion and prior to final payment request.

1.7. VENDOR/STAFF SPECIFICATIONS:

1.7.1. Awarded Vendor must have a minimum of 3 years of experience in commercial public works, specifically public park construction, and be able to provide documentation of completion of at least 5 projects similar in size and scope to this one.

1.7.2. Vendor shall abide by all site regulations and coordinate with the Site Superintendent and site staff regarding specific working hours, staging areas, securing the work site and coordinate with the Project Manager on all other work-related items.

1.7.3. Vendor shall be responsible for compliance with all applicable contractor and trades person licensing with the appropriate State agency including but not limited to IDOT Standard Specifications for Road and Bridge Construction.

1.8. WARRANTIES:

1.8.1. Workmanship, materials and equipment subject to seasonal loads will be in conformance with the contract and free from defects for a period of two years, commencing from the goods acceptance date. This includes, but is not limited to, heating, ventilating, air conditioning, temperature control and test and balance work, as specified.

1.8.2. Seeded areas shall be warranted for a period of one year plus one growing season.

1.9. FEDERAL ASSISTANCE PROVISIONS and ASSURANCES:

This project is wholly or partially funded by the federal government and is subject to all federal laws and regulations pertaining to federally assisted construction projects. As such, these special provisions hereinafter amended are expressly incorporated by reference into the Contract and all rights, duties and liabilities set forth therein shall be deemed to specifically apply to the Contractor and his employees. In the event of a conflict caused by these provisions, the more restrictive requirements will govern.

1.9.1. INSPECTION AND AUDIT. The authorized representatives of the Federal Government and the State of Illinois shall be permitted to inspect all work, material, payrolls, personnel records, invoices for materials and other data and records relevant to the Contract.

1.9.2. Whereas Federal grants-in-aid funds have been granted for execution of this contract, the Contractor hereby assures and certifies that he will comply with applicable regulations, policies, guidelines, and requirements of Office of Management and Budget Circular A-102: Uniform Administrative Requirements for Grants-in-Aid to State and Local Government. Also, the Contractor gives assurance and certifies with respect to the Federal grant that:

1.9.2.1. He and all Subcontractors will comply with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act 42 U.S.C. 1857 (h), section 508 of the Clean Air Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15), and Executive Order 11738 implementing provisions of the Clean Air Act (P.O. 91-604) and the Federal Water Pollution Control Act (P.L. 92-500).

1.9.2.2. He and all Subcontractors will comply with the Copeland Anti-Kick Back@ Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3).

1.9.2.3. He and all Subcontractors awarded subcontracts for construction having a value of more than $10,000 will comply with Executive Order 11246, entitled Equal Employment Opportunity as amended by Executive Order 11375, and as supplemented in Department of Labor regulations (41 CFR Part 60).

1.9.2.4. He and all Subcontractors awarded subcontracts which involve employment of mechanics or laborers in excess of $2,500 or subcontracts for construction in excess of $2,000, will comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department of Labor regulations (29 CRF Part 5).

1.9.2.5. He and all subcontractors, materialmen, and suppliers agree that only domestic construction material will be used, in the performance of this contract, except for foreign construction materials, if any, listed in this contract, as provided by the Buy American Act (41 U.S.C 10). The Buy American Act provides that the Government give preference to domestic construction material defined as components, construction material and domestic construction material.

1.9.2.5.1. Components, as used in this clause, means those articles, materials, and supplies incorporated directly into construction materials.

1.9.2.5.2. Construction material, as used in this clause, means an article, material, and supply brought to the construction site for incorporation into the building or work. Construction material also includes an item brought to the site pre-assembled from articles, materials and supplies.

However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, which are discrete systems incorporated into a public building or work and which are produced as a complete system, shall be evaluated as a single and distinct construction material regardless of when or how the individual parts or components of such systems are delivered to the construction site.

1.9.2.5.3. Domestic construction material, as used in this clause, means:

(i) an unmanufactured construction material mined or produced in the United States, or (ii) a construction material manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as the construction materials determined to be unavailable pursuant to 12.810(a)(3) of 43 CFR part 12, subpart E shall be treated as domestic.

1.9.3. Section 10 of the River and Harbor Act of 1899

1.9.4. Copeland AAnti-Kick Back@ Act; 18 USC 874 as supplemented in the Department of Labor Regulations, (29 CFR Part 3)

1.9.5. The Civil Rights Act of 1964, Title VI (nondiscrimination of federally assisted programs), P.L. 88-352, as amended; as well as 43 CFR 17, and Part 506 of the Department of the Interior Manual

1.9.6. The Anadromous Fish Conservation Act of 1965, P.L. 89-304 as amended

1.9.7. Land and Water Conservation Fund Act of 1965, P.L. 88-578, as amended

1.9.8. National Historic Preservation Act of 1966 (P.L. 89-665)

1.9.9. Department of Transportation Act of 1966, Section 4 (f) (P.L. 89-670) as amended

1.9.10. Architectural Barriers (denying use by the physically handicapped) Act of 1968, P.L. 90-480, as amended

1.9.11. National Environmental Policy Act of 1969 (P.L. 91-190) as amended

1.9.12. Occupational Safety and Health Act of 1970 (P.L. 91-596)

1.9.13. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646)

1.9.14. Section 401 of the Federal Water Pollution Control Act (P.L. 92-500)

1.9.15. Section 402 (Other Pollutants) and 405 (Sewage Sludge) of the Federal Water Pollution Control Act (P.L. 92-500)

1.9.16. Section 404 of the Federal Water Pollution Control Act (P.L. 92-500)

1.9.17. Federal Environmental Pesticide Control Act of 1972 (P.L. 92-516)

1.9.18. Endangered Species Act of 1973 (P.L. 93-205)

1.9.19. Flood Disaster Protection Act of 1973 (P.L. 93-234)

1.9.20. Archaeological and Historic Preservation Act of 1974 (P.L. 93-291)

1.9.21. Hatch Act Amendments of 1974, 5 CFR 151, 5 USC 1501 et. seq.

1.9.22. Contract Compliance for Equal Employment Opportunity Executive Orders 11246, 11375 and Department of Labor Regulations 41 CFR 60

1.9.23. Executive Order 11296 of August 10, 1966; Evaluation of Flood Hazard in Locating Federally Owned or Financed Buildings, Roads and Other Facilities; also see 24 CFR 1909-15

1.9.24. Executive Order 11644 of February 8, 1972; Use of Off-Road Vehicles on Public Lands

1.9.25. Executive Order 11738 of September 10, 1974; Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans

1.9.26. OMB Circular A-21; Principles for Determining Costs Applicable to Research and Development under Grants and Contracts with Educational Institutions

1.9.27. OMB Circular A-84; Reporting of Federal Outlays by Geographic Location

1.9.28. OMB Circular A-87; Cost Principles Applicable to Grants and Contracts with State and Local Governments

1.9.29. OMB Circular A-102; Uniform Administrative Requirements for Grants-In-Aid to State and Local Governments

1.9.30. Buy American Act (41 U.S.C 10)

1.10. SUBCONTRACTING:

Subcontractors are allowed.

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

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

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

1.10.2. A minimum of fifty-one percent (51%) of the work shall be completed by the Prime Contractor on this project. Pursuant to (30 ILCS 500/1-15.17) the Contractor is the person having a contract with the Illinois Department of Natural Resources.

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

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

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

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

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

1.11. 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: Giant City State Park Value of services performed at this location: 100%

2. PRICING

2.1. FORMAT OF PRICING:

2.1.1. Vendor shall submit pricing in the line items on BidBuy, based on the terms and conditions set forth in Section 1 of this Contract.

2.1.2. The pricing will be entered by the State prior to execution of the contract. Pricing will be taken from the Line Item total in Bid Buy.

2.2. 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.

2.3. VENDOR’S PRICING: Vendor’s pricing is located in the Items Tab in the BidBuy Purchase Order. The State may include in this contract the BidBuy Purchase Order as it contains the agreed pricing.

2.4. 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 last signature of the parties and ending on July 30, 2026. 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: n/a

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. 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. 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

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Prevailing Wage Rates