TERMS_RFP

GENERAL TERMS AND CONDITIONS

Contract: Proposer agrees that if approved as a provider for the services hereinafter described ("Services"), Proposer will enter into a written contract with the Board ("Contract") for such Services prior to rendering any Services. In the event Proposer fails to enter into such Contract, Proposer's approval for award will be revoked by the Board. The Contract will contain, among other things, the General and Specific Terms and Conditions contained herein. Proposer may submit a copy of its form of contract for the Board’s General Counsel to review.

Term of Contract: The term of the contract shall be for a period [insert term and options.]

Standards of Performance: Proposer shall devote, and shall cause all of its staff and subcontractors to devote, such of their time, attention, best skill and judgment, knowledge and professional ability as is necessary to perform all Services effectively, efficiently and consistent with the best interests of the Board and to the satisfaction of the Chief ____________Officer. Proposer shall retain and utilize sufficient staff to assure the most effective and efficient performance of Services and shall utilize, as required by law or by the Contract, professionals licensed to practice in the State of Illinois in the applicable profession. Proposer shall use efficient business administration methods and perform the Services in the best way and in the most expeditious and economical manner consistent with the best interests of the Board, so as to assure, among other things, that the Services are performed at a reasonable cost to the Board and that Services performed by other entities or persons in c onnection with the Contract are efficiently and cost-effectively delivered. Proposer acknowledges and accepts a relationship of trust and confidence with the Board and agrees to cooperate with the Board, and all other persons or entities which may be retained by the Board, in performing Services to further the best interests of the Board.

Non-appropriation: Expenditures not appropriated by the Board in its current fiscal year budget are deemed to be contingent liabilities only and are subject to appropriation in subsequent fiscal year budgets. In the event sufficient funds are not appropriated in a subsequent fiscal year by the Board for performance under the Contract, the Board shall notify Proposer and the Contract shall terminate on the last day of the fiscal period for which funds were appropriated.

Favored Nation: Proposer shall furnish Services to the Board at the lowest price that Proposer charges to other similarly situated parties. If Proposer overcharges, in addition to all other remedies, the Board is entitled to a refund in the amount of the overcharge, plus interest at the rate of 1% per month from the date the overcharge was paid by the Board until the date refund is made. The Board has the right to offset any overcharge against any amounts due to Proposer under this or any other agreement between Proposer and the Board, and, at the Board's sole option, the right to declare Proposer in default under the Contract.

Audit and Document Retention: Proposer shall furnish the Board with such information as may be requested relative to the progress, execution and costs of the Services. Proposer shall maintain all records, correspondence, receipts, vouchers, memoranda and other data relating to Proposer’s Services under the Contract. All records referenced above shall be retained for five (5) years after completion of Services and shall be subject to inspection and audit by the Board. Proposer shall include in all subcontractor agreements for Services, provisions requiring subcontractors to maintain the above-described records and allowing the Board the same right to inspect and audit said records as set forth herein.

Termination:

Termination for Convenience. If at any time during the term of the Contract, the Board determines, in its sole discretion, that the Services provided by Proposer are no longer in its best interest, the Board has the option to terminate the Contract on thirty (30) calendar days written notice to Proposer.

Suspension of Services. The Board may, on thirty (30) calendar days written notice, request that Proposer suspend Services in whole or part. Proposer shall promptly resume performance of Services upon written notice from the Board and upon such equitable extension of time as may be mutually agreed upon in writing by the Chief Purchasing Officer and Proposer. Responsibility for any additional costs or expenses actually incurred by Proposer as a result of remobilization shall be determined by mutual agreement of the parties.

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

Any material misrepresentation by Proposer in the inducement of the Contract or the performance of Services.

Breach of any agreement, representation or warranty made by Proposer in the Contract.Failure of Proposer to perform in accordance with or comply with the terms and conditions of the Contract, including, but not limited to, the following:

Action or failure to act which affects the safety and/or welfare of students or Board staff;

Failure to perform in accordance with terms, conditions and specifications of the Contract;

Failure to provide any portion of the Services herein at the time fixed for performance and in the manner specified herein;

Failure to perform the Services with sufficient personnel and equipment or with sufficient material to ensure the performance of the Services due to a reason or circumstances within Proposer’s reasonable control;

Failure to perform the Services in a manner satisfactory to the Board, or inability to perform the Services satisfactorily as a result of insolvency, filing for bankruptcy or assignment for the benefit of creditors;

Failure to promptly re-perform Services within a reasonable time that were determined by the Board to be incomplete or unsatisfactory;

Discontinuance of the Services for reasons not beyond Proposer’s reasonable control; or

Failure to comply with any term of the Contract, including but not limited to, theprovisions concerning insurance and nondiscrimination, and any other acts specifically and expressly stated in the Contract constituting an even of default.

Default by Proposer under any other agreement Proposer may have with the Board.

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

Remedies. The occurrence of any Event of Default which Proposer fails to cure within thirty (30) calendar days after receipt of notice given in accordance with the terms of the Contract and specifying the Event of Default or which, if such Event of Default cannot be reasonably cured within thirty (30) calendar days after notice, Proposer fails to commence and continue diligent efforts to cure in the sole opinion of the Board, may permit the Board to declare Proposer in default. Whether to declare Proposer in default is within the sole discretion of the Chief Purchasing Officer. Written notification of an intention of the Chief Purchasing Officer to terminate the Contract, in whole or in part, shall be provided and shall be final and effective upon Proposer's receipt of such notice. Upon the giving of such notice as provided in the Contract, the Board may invoke any or all of the following remedies:

The right to take over and complete the Services or any part thereof, by contract of otherwise as agent for and at the cost of Proposer either directly or through others. The Proposer shall be liable to the Board for any excess costs incurred by the Board. Any amount due Proposer under the Contract or any other agreement Proposer may have with the Board may be offset against amounts claimed due by the Board.

The right to terminate the Contract, in whole or in part, as to any or all of the Services yet to be performed effective at a time specified by the Board.

The right to suspend Services during the thirty (30) day cure period if the default results from Proposer's action or failure to act which affects the safety and/or welfare of students or Board staff.

The right to specific performance, an injunction or any other appropriate equitable remedy.

The right to receive from Proposer any and all damages incurred as a result or in consequence of an Event of Default.

The right to money damages.

The right to withhold all or part of Proposer's compensation under the Contract.

The right to deem Proposer non-responsible in future contracts to be awarded by the Board, pursuant to the Board's Debarment Policy on Non-Responsible Persons in Procurement Transactions (96-0522-PO2), as may be amended from time to time.

If the Board considers it to be in its best interest, it may elect not to declare Proposer in default or to terminate the Contract. The parties acknowledge that this provision is solely for the benefit of the Board and that if the Board permits Proposer to continue to provide the Services despite one or more Events of Default, the Proposer shall in no way be relieved of any responsibilities, duties or obligations under the Contract nor shall the Board waive or relinquish any of its rights.

The remedies under the terms of the Contract are not intended to be exclusive of any other remedies provided, but each and every such remedy shall be cumulative and shall be in addition to any other remedies, existing now or hereafter, at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon any Event of Default shall be construed as a waiver of any Event of Default or acquiescence thereto, and every such right and power may be exercised from time to time and as often as may be deemed expedient.

Turnover of Documents and Records. Upon demand of the Board after termination of the Contract for any reason or the expiration of the Contract by its terms, Proposer shall turn over to the Board or its designee within three (3) days of demand, all materials, supplies, equipment owned or purchased by the Board, completed or partially completed work analyses, data, computer disks, documents and any other information relating in any way to the Contract or the performance or furnishing of Services, except that Proposer may keep a copy of such information for its own records.

Confidential Information, Dissemination of Information, Ownership, Survival:

Confidential Information. In performance of Services to the Board, Proposer may have access to or receive certain information that is not generally known to others (“Confidential Information”). Proposer agrees not to use or disclose any Confidential Information or any records, reports, or documents prepared or generated as a result of the Contract without the prior written consent of the Board or its designee.

Dissemination of Information. Proposer agrees not to use or disclose any Confidential Information or any records, reports or documents prepared or generated as a result of the Contract (“Work Product”) without the prior written consent of the Board. Proposer shall not issue publicity news releases or grant press interviews, except as may be required by law, during or after the performance of the Services, nor shall Proposer disseminate any information regarding Services without the prior written consent of the Board. In the event that Proposer is presented with a request for documents by any administrative agency or with a subpoena duces tucem regarding any records, data, or Work Product which may be in Proposer’s possession as a result of Services under the Contract, Proposer shall immediately give notice to the Board and its General Counsel with the understanding that the Board shall have the opportunity to contest such process by any means available to it prior to submission of any documents to a court or other third party. Proposer will not be obligated to withhold delivery of documents beyond the time ordered by a court of law or administrative agency, unless the request for production or subpoena is quashed or withdrawn, or the time to produce is otherwise extended. Proposer agrees to cause its personnel, staff and/or subcontractors, if any, to undertake the same obligations of confidentiality agreed to by Proposer under this Contract.

Ownership. All intellectual property, Work Product, and any and all other records, reports, documents, and materials prepared or generated as a result of the Contract, shall at all times be and remain the property of the Board. All of the foregoing items shall be delivered to the Board upon demand at any time and in any event, shall be promptly delivered to the Board upon expiration or termination of the Contract. In the event any of the above items are lost or damaged while in Proposer’s possession, such items shall be restored or replaced at Proposer's expense.

Survival. The provisions of this paragraph shall survive the termination or expiration of the Contract.

Representations and Warranties of Proposer: Proposer represents and warrants that the following shall be true and correct as of the effective date of the Contract and shall continue to be true and correct (as may be modified from time to time subject to Board approval) during the term of the Contract:

Contractor's Disclosure Form. The disclosures in the Contractor's Disclosure Form by Proposer to the Department of Procurement and Contracts are true and correct. Proposer shall promptly notify the Board of any material change in information set forth therein, including, but not limited to, change in ownership or control, and any such change shall be subject to Board approval which shall not be unreasonably withheld.

Licensed Professionals. Services required by law or by the Contract to be performed by professionals shall be performed by professionals licensed to practice by the State of Illinois in the applicable professional discipline.

Financially Solvent. Proposer warrants that it is financially solvent, is able to pay all debts as they mature and is possessed of sufficient working capital to complete all Services and perform all obligations under the Contract.

Technical Accuracy. Proposer warrants that all Services will be technically accurate and correct.

Compliance with Laws. Proposer is and shall remain in compliance with all local, State and Federal laws, ordinances, regulations and statutes relating to the Contract and the performance of Services, including, but not limited to, the Prevailing Wage Act, 820 ILCS 130/1 et seq., the Drug-Free Workplace and any others referenced in the Contract relating to non-discrimination. Further, Proposer is and shall remain in compliance with all Board policies and rules.

Gratuities. No payment, gratuity or offer of employment was made to Proposer, any of its members if a joint venture or, to the best of Proposer's knowledge, to any subcontractors, in relation to the Contract or as an inducement for award of the Contract. Proposer is and shall remain in compliance with all applicable anti-kickback laws and regulations.

Ethics. No officer, agent or employee of the Board is or will be employed by Proposer or has or will have a financial interest, directly or indirectly, in the Contract or the compensation to be paid thereunder except as may be permitted in writing by the Board's Ethics Policy (95-0927-RU3), adopted September 27, 1995, as may be amended from time to time, which policy is incorporated herein by reference as if fully set forth herein.

Good Standing. Proposer, each of its joint venture members if a joint venture, and each of its subcontractors, if any, are not in default or have not been deemed by the Chief Purchasing Officer to be in default under any other agreement with the Board during the five (5) year period immediately preceding the effective date of the Contract, and have not been debarred under the Board's Debarment Policy during the three (3) year period immediately preceding the effective date of the Contract.

Authorization. Proposer has taken all action necessary for the approval and execution of the Contract, and execution by the person signing on behalf of Proposer is duly authorized by Proposer and has been made with complete and full authority to commit Proposer to all terms and conditions of the Contract which shall constitute valid, binding obligations of Proposer.

Independent Contractor: It is understood and agreed that the relationship of Proposer to the Board is and shall continue to be that of an independent contractor and neither Proposer nor any of Proposer's staff, agents, employees or subcontractors shall be entitled to receive Board employee benefits. It is further understood and agreed that the Board shall not be responsible for, nor incur any liability for, any State or Federal withholding or other taxes or for FICA or State unemployment insurance for Proposer, its agents, employees or subcontractors, and the payment of any such taxes incurred or due by Proposer shall be the sole responsibility of Proposer. Proposer agrees that neither Proposer nor its staff or subcontractors shall represent themselves as employees or agents of the Board. Proposer shall provide the Board with a valid taxpayer identification number as defined by the United States Internal Revenue Code, including, but not limited to, a social security number or a federal employer identification number.

Indentification: Proposer agrees to defend, indemnify and hold harmless the Board, and its respective Board members, employees, agents, officers and officials from and against liabilities, losses, penalties, damages and, expenses, including costs and attorney fees, arising out of all claims, liens, damages, obligations, actions, suits, judgments or settlements, or causes of action, of every kind, nature and character arising or alleged to arise out of the negligent or willful acts or omissions of the Proposer, its officials, agents and employees and subcontractors in the performance of the Contract.

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

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

Non-Liability of Board Officials: Proposer agrees that no Board member, employee, agent, officer or official shall be personally charged by Proposer, its members if a joint venture, or any subcontractors with any liability or expense under the Contract or be held personally liable under the Contract to Proposer, its members if a joint venture, or any subcontractors.

Insurance: Bidder, at its own expense, shall procure and maintain insurance covering all operations under the Contract, whether performed by Selected Bidder or by subcontractors. All insurers shall be licensed by the State of Illinois and rated A-VII or better by A.M. Best or comparable rating service or be an authorized Risk Retention Group acceptable to the Board. At any time following contract award, Selected Bidder shall submit to the Board satisfactory of insurance coverage upon request. Minimum insurance requirements are:

Workers' Compensation and Employers' Liability Insurance affording compensation benefits for all employees required by law and employers liability insurance with limits of Five Hundred Thousand and 00/100 dollars ($500,000) for accident and disease.

Commercial General Liability Insurance with a combined single limit of One Million and 00/100 dollars ($1,000,000) per occurrence and Two Million and 00/100 dollars ($2,000,000) in the aggregate for personal injury and property damage liability inclusive of independent contractors, contractual liability for this insured contract and products/completed operations coverage maintained for not less than two [2] years following termination of this agreement or completion of the services.

Commercial Automobile Liability Insurance with a combined single limit of One Million and 00/100 dollars ($1,000,000) per accident for bodily injury (including wrongful death) and property damage liability arising from owned, non-owned and hired automobiles is required when any motor vehicle is used in connection with Services to be performed under this Agreement.

Additional Insureds. The Bidder shall have its general and automobile liability insurance endorsed to provide that the Board of Education of the City of Chicago, a body politic and corporate, and its members, employees and agents, and any other entity as may be designated by the Board are listed as "ADDITIONAL INSURED-OWNERS, LESSEES OR CONTRACTORS - on a primary basis, without recourse or right of contribution.

Insurance Certificate. The Bidder shall require its insurer(s) to submit insurance certificate(s) evidencing coverage maintained by the Bidder indicating that the Board, and its members, employees and agents, the Public Building Commission of Chicago and its commissioners, officers, employees and agents and such other parties as may be designated by the Board are additional insureds on the general and automobile liability insurance and must evidence sixty (60) days prior written notice of material change, cancellation, or non-renewal be given to:

Chief Purchasing Officer
Board of Education of the City of Chicago
125 South Clark Street 10th Floor
Chicago IL 60603
Attention: _____________________________________________

Bidder's failure to carry or document required insurance shall constitute a breach of this Agreement and any failure by the Board to demand or receive proof of insurance coverage shall not constitute a waiver of Bidder's obligation to obtain the required insurance. The Board will not pay the Bidder for any work if satisfactory proof of insurance is not provided before the commencement of services. The Board reserves the right to obtain copies of insurance policies and insurance records by written request at any time from the Bidder or its subcontractors and to modify, delete, alter or change insurance requirements at any time.

The Bidder shall require any subcontractors under this Agreement to maintain comparable insurance which shall name the Bidder, the Board inclusive of its members, employees and agents, and any other entity designated by the Board as Additional Insureds. The Bidder will maintain a file of subcontractor’s insurance certificates evidencing compliance with these requirements.

Non Discrimination: It shall be an unlawful employment practice for Proposer or any of its subcontractors to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, or the terms, conditions, or privileges of employment, because of such individual's race, color, ancestry, religion, sex, sexual orientation, age, handicap, marital status, parental status, military discharge status, or national origin; or to limit, segregate, or classify employees or applicants for employment from equal employment opportunities or otherwise adversely affect an individual's status as an employee because of any of the forgoing. Proposer shall comply with the Civil Rights Act of 1964 as amended, 42 U.S.C.A, Section 2000, et seq., the Age Discrimination in Employment Act, 29 U.S.C.A. §621, et seq., Section 504 of the Rehabilitation Act, 20 U.S.C.A. §701, et seq., as amended, the Americans With Disabilities Act, 42 U.S.C.A.§12101, et seq., the Illinois Human Rights Act, 775 ILCS 5/1-10, as amended, and the Chicago Human Rights Ordinance, MCC ch. 2-160.

Assignment: The Contract shall be binding on the parties and their respective successors and assigns; provided, however, Proposer may not assign the Contract or any obligations imposed hereunder without the prior written consent of the Board.

Entire Agreement; Amendments: The Contract, including all exhibits and referenced documents, constitutes the entire agreement of the parties with respect to the matters contained therein. No modification of or amendment to the Contract shall be effective unless such modification or amendment is in writing and signed by both parties.

Continuing Obligation To Perform: In the event of any dispute between Proposer and the Board, Proposer shall expeditiously and diligently proceed with the performance of all of its obligations under the Contract with a reservation of all rights and remedies it may have under or pursuant to the Contract at law or in equity.

Survival/Severability: All express representations or indemnifications made or given in the Contract shall survive the completion of Services by Proposer or the termination of the Contract for any reason. If any provision or part of the Contract is held to be unenforceable, the Contract shall be considered divisible and such provision shall be deemed inoperative to the extent it is deemed unenforceable, and in all other respects the Contract shall remain in full force and effect; provided, however, that if any such provision may be made enforceable by limitation thereof, then such provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by applicable law.

Governing Law: The Contract shall be governed by and construed in accordance with the laws of the State of Illinois without regard to any conflict of law or choice of law principles.

Waiver: No delay or omission, or series of delays or omissions, by the Board to exercise any right hereunder shall be construed as any type of waiver of any such right, and the Board reserves the right to exercise any such right from time to time as often as may be deemed expedient.

Conflict of Interest: The Contract is not legally binding on the Board if entered into in violation of the provisions of 105 ILCS 5/34-21.3 which restricts the employment of, or the letting of contracts to, former Board members during the one year period following expiration or other termination of their terms of office.

Indebtedness: Proposer agrees to comply with the Board's Indebtedness Policy adopted July 26, 1995 (95-0726-EX3), as may be amended from time to time, which policy is hereby incorporated by reference as if fully set forth herein.

Inspector General: Each party to the Contract hereby acknowledges that in accordance with 105 ILCS 5/34-13.1, the Inspector General of the Chicago Board of Education has the authority to conduct certain investigations and that the Inspector General shall have access to all information and personnel necessary to conduct those investigations.

Right of Entry: Proposer, and any of its officers, employees, or agents, performing services shall be permitted to enter upon the site in connection with the performance of its services hereunder, subject to the terms and conditions contained herein and those rules established by the Board. The Proposer shall provide advance notice to the Board whenever applicable, of any such intended entry. Consent to enter upon a site given by the Board shall not create, nor be deemed to imply, the creation of any additional responsibilities on the part of the Board. The Proposer shall use, and shall cause each of its officers, employees and agent to use, the highest degree of care when entering upon any property owned by the Board in connection with the services. In the case of any property owned by the Board, or property owned by and leased from the Board, the Proposer shall comply and shall cause each of its officers, employees and agents, to comply with any and all instructions and requirements for the use of such property, any licenses for which being hereby incorporated by reference. Any and all claims, suits or judgments, costs, or expenses, including attorneys; reasonable fees, arising from, by reason of, or in connection with any such entries shall be treated in accordance with the applicable terms and conditions of this RFP including without limitation the indemnification provisions contained in this section.

Joint and Several Liability: In the event that Proposer, or its successors or assigns, if any, is comprised of more than one individual or other legal entity (or a combination thereof, then, and in that event, each and every obligation or undertaking herein stated to be fulfilled or performed by Proposer shall be the joint and several obligation or undertaking of each such individual or other legal entity.