GSPD-401Non-IT Commodities (REVISED AND EFFECTIVE 04/12/2007)
GENERAL PROVISIONS
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1. DEFINITIONS: The following terms shall be given the meaning
shown, unless context requires otherwise or a unique meaning is
otherwise specified.
a) “Business entity” means any individual, business,
partnership, joint venture, corporation, S-corporation, limited
liability corporation, limited liability partnership, sole
proprietorship, joint stock company, consortium, or other
private legal entity recognized by statute.
b) “Buyer” means the State’s authorized contracting official.
c) “Contract” means this Contract or agreement (including any
purchase order), by whatever name known or in whatever
format used.
d) “Contractor” means the Business Entity with whom the
State enters into this contract. Contractor shall be
synonymous with “supplier”, “vendor” or other similar term.
e) “Goods” (commodities) means all types of tangible personal
property, including but not limited to materials, supplies, and
equipment (including computer equipment and
telecommunications).
f)
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2. CONTRACT FORMATION:
a) If this contract results from a sealed bid offered in response
to a solicitation conducted pursuant to Chapters 2
(commencing with Section 10290), 3 (commencing with
Section 12100), and 3.6 (commencing with Section 12125)
of Part 2 of Division 2 of the Public Contract Code (PCC),
then contractor's bid is a firm offer to the State which is
accepted by the issuance of this contract and no further
action is required by either party.
b) If this contract results from a solicitation other than described
in paragraph a), above, contractor's quotation or proposal is
deemed a firm offer and this contract document is the State's
acceptance of that offer.
c) If this contract resulted from a joint bid, it shall be deemed
one indivisible contract. Each such joint contractor will be
jointly and severally liable for the performance of the entire
contract. The State assumes no responsibility or obligation
for the division of orders or purchases among joint
contractors.
3. COMPLETE INTEGRATION: This contract, including any
documents incorporated herein by express reference, is intended
to be a complete integration and there are no prior or
contemporaneous different or additional agreements pertaining to
the subject matter of the contract.
4. SEVERABILITY: The contractor and the State agree that if any
provision of this contract is found to be illegal or unenforceable,
such term or provision shall be deemed stricken and the
remainder of the contract shall remain in full force and effect.
Either party having knowledge of such term or provision shall
promptly inform the other of the presumed non-applicability of
such provision.
5. INDEPENDENT CONTRACTOR: Contractor and the agents and
employees of contractor, in the performance of this contract, shall
act in an independent capacity and not as officers or employees
or agents of the State.
6. APPLICABLE LAW: This contract shall be governed by and shall
be interpreted in accordance with the laws of the State of
California; venue of any action brought with regard to this contract
shall be in Sacramento County, Sacramento, California. The
United Nations Convention on Contracts for the International Sale
of Goods shall not apply to this contract.
7. COMPLIANCE WITH STATUTES AND REGULATIONS:
a) Contractor warrants and certifies that in the performance of
this contract, it will comply with all applicable statutes, rules,
regulations and orders of the United States and the State of
California and agrees to indemnify the State against any
loss, cost, damage or liability by reason of contractor’s
violation of this provision.
b) If this contract is in excess of $500,000, it is subject to the
requirements of the World Trade Organization (WTO)
Government Procurement Agreement (GPA).
8. CONTRACTOR’S POWER AND AUTHORITY: The contractor
warrants that it has full power and authority to grant the rights
herein granted and will hold the State harmless from and against
any loss, cost, liability, and expense (including reasonable
attorney fees) arising out of any breach of this warranty. Further,
contractor avers that it will not enter into any arrangement with
any third party which might abridge any rights of the State under
this contract.
The
State
will
notify
Contractor
of
any
such
claim
in
writing
and
tender
the
defense
thereof
within
a
reasonable
time;
and
The State will notify Contractor of any such claim
in writing
and tender the defense thereof within a
reasonable time; and
b
b
)
)
Contractor
will
have
sole
control
of
the
defense
of
any
action
on
such
claim
and
all
negotiations
for
its
settlement
or
compromise;
provided
that
(i)
when
substantial
principles
of
government
or
public
law
are
involved,
when
litigation
might
create
precedent
affecting
future
State
operations
or
liability,
or
when
involvement
of
the
State
is
otherwise
mandated
by
law,
the
State
may
participate
in
such
action
at
its
own
expense
with
respect
to
attorneys’
fees
and
costs
(but
not
liability);
(ii)
the
State
will
have
the
right
to
approve
or
disapprove
any
settlement
or
compromise,
which
approval
will
not
unreasonably
be
withheld
or
delayed;
and
(iii)
the
State
will
reasonably
cooperate
in
the
defense
and
in
any
related
settlement
negotiations.
Contractor will have sole control of the defense o
f any action
on such claim and all negotiations for
its settlement or
compromise; provided that (i) w
hen substantial principles of
government or public
law are involved, when litigation might
create pre
cedent affecting future State operations or liabili
ty,
or when involvement of the State is otherwise
mandated by
law, the State may participate in such
action at its own
expense with respect to attorney
s’ fees and costs (but not
liability); (ii) the Sta
te will have the right to approve or
disapprove an
y settlement or compromise, which approval
will not
unreasonably be withheld or delayed; and (iii) th
e
State will reasonably cooperate in the defense an
d in any
related settlement negotiations.
9. ASSIGNMENT: This contract shall not be assignable by the
contractor in whole or in part without the written consent of the
State. For the purpose of this paragraph, State will not
unreasonably prohibit Contractor from freely assigning its right to
payment, provided that Contractor remains responsible for its
obligations hereunder.
10. WAIVER OF RIGHTS: Any action or inaction by the State or the
failure of the State on any occasion, to enforce any right or
provision of the contract, shall not be construed to be a waiver by
the State of its rights hereunder and shall not prevent the State
from enforcing such provision or right on any future occasion.
The rights and remedies of the State herein are cumulative and
are in addition to any other rights or remedies that the State may
have at law or in equity.
11. ORDER OF PRECEDENCE: In the event of any inconsistency
between the articles, attachments, specifications or provisions
which constitute this Contract, the following order of precedence
shall apply:
a) these General Provisions – Non-IT Commodities;
b) contract form, i.e., Purchase Order STD 65, etc., and any
amendments thereto;
c) statement of work, including any specifications incorporated
by reference herein;
d) special terms and conditions; and
e) all other attachments incorporated in the contract by
reference.
12. PACKING AND SHIPMENT:
a) All goods are to be packed in suitable containers for
protection in shipment and storage, and in accordance with
applicable specifications. Each container of a multiple
container shipment shall be identified to:
GSPD-401Non-IT Commodities (REVISED AND EFFECTIVE 04/12/2007)
GENERAL PROVISIONS
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i) show the number of the container and the total number
of containers in the shipment; and
ii) the number of the container in which the packing sheet
has been enclosed.
b) All shipments by contractor or its subcontractors must
include packing sheets identifying: the State’s contract
number; item number; quantity and unit of measure; part
number and description of the goods shipped; and
appropriate evidence of inspection, if required. Goods for
different contracts shall be listed on separate packing
sheets.
c) Shipments must be made as specified in this contract, as it
may be amended, or otherwise directed in writing by the
State’s Transportation Management Unit within the
Department of General Services, Procurement Division.
13. TRANSPORTATION COSTS AND OTHER FEES OR
EXPENSES: No charge for delivery, drayage, express, parcel
post, packing, cartage, insurance, license fees, permits, cost of
bonds, or for any other purpose will be paid by the State unless
expressly included and itemized in the contract.
a) Contractor must strictly follow contract requirements
regarding Free on Board (F.O.B.), freight terms and routing
instructions. The State may permit use of an alternate
carrier at no additional cost to the State with advance written
authorization of the buyer.
b) If “prepay and add” is selected, supporting freight bills are
required when over $50, unless an exact freight charge is
approved by the Transportation Management Unit within the
Department of General Services Procurement Division and a
waiver is granted.
c) On "F.O.B. Shipping Point" transactions, should any
shipments under the contract be received by the State in a
damaged condition and any related freight loss and damage
claims filed against the carrier or carriers be wholly or
partially declined by the carrier or carriers with the inference
that damage was the result of the act of the shipper such as
inadequate packaging or loading or some inherent defect in
the equipment and/or material, contractor, on request of the
State, shall at contractor's own expense assist the State in
establishing carrier liability by supplying evidence that the
equipment and/or material was properly constructed,
manufactured, packaged, and secured to withstand normal
transportation conditions.
14. TIME IS OF THE ESSENCE: Time is of the essence in this
contract.
15. DELIVERY: Contractor shall strictly adhere to the delivery and
completion schedules specified in this contract. Time, if stated as
a number of days, shall mean calendar days unless otherwise
specified. The quantities specified herein are the only quantities
required. If contractor delivers in excess of the quantities
specified herein, the State shall not be required to make any
payment for the excess goods, and may return them to contractor
at contractor’s expense or utilize any other rights available to the
State at law or in equity.
16. SUBSTITUTIONS: Substitution of goods may not be tendered
without advance written consent of the buyer. Contractor shall not
use any specification in lieu of those contained in the contract
without written consent of the buyer.
17. INSPECTION, ACCEPTANCE AND REJECTION:
a) Contractor and its subcontractors will provide and maintain a
quality assurance system acceptable to the State covering
goods and services under this contract and will tender to the
State only those goods that have been inspected and found
to conform to this contract’s requirements. Contractor will
keep records evidencing inspections and their result, and will
make these records available to the State during contract
performance and for three years after final payment.
Contractor shall permit the State to review procedures,
practices, processes and related documents to determine
the acceptability of Contractor’s quality assurance system or
other business practices related to performance of the
contract.
b) All goods may be subject to inspection and test by the State
or its authorized representatives.
c) Contractor and its subcontractors shall provide all
reasonable facilities for the safety and convenience of
inspectors at no additional cost to the State. Contractor shall
furnish to inspectors all information and data as may be
reasonably required to perform their inspection.
d) All goods to be delivered hereunder may be subject to final
inspection, test and acceptance by the State at destination,
notwithstanding any payment or inspection at source.
e) The State shall give
written notice of rejection of goods
delivered or services performed hereunder
within a
reasonable time after receipt of such goods
or performance
of such services
. Such notice of rejection will state the
respects in which the goods do not substantially conform to
their specifications. If the State does not provide such notice
of rejection within thirty (30) days, unless otherwise specified
in the Statement of Work, of delivery, such goods and
services will be deemed to have been accepted.
Acceptance by the State will be final and irreversible, except
as it relates to latent defects, fraud, and gross mistakes
amounting to fraud. Acceptance
shall not be construed to
waive any
warranty rights that the State might have at law or
by express reservation in this
Contract with respect to any
nonconformity.
18. SAMPLES:
a) Samples of items may be required by the State for inspection
and specification testing and must be furnished free of
expense to the State. The samples furnished must be
identical in all respects to the products bid and/or specified in
the contract.
b) Samples, if not destroyed by tests, may, upon request made
at the time the sample is furnished, be returned at
contractor’s expense.
19. WARRANTY: Unless otherwise specified, the warranties
contained in this contract begin after acceptance has occurred.
a) Contractor warrants that goods and services furnished
hereunder will conform to the requirements of this contract
(including all descriptions, specifications and drawings made
a part hereof), and such goods will be merchantable, fit for
their intended purposes, free from all defects in materials
and workmanship and to the extent not manufactured
pursuant to detailed designs furnished by the State, free
from defects in design. The State’s approval of designs or
specifications furnished by contractor shall not relieve the
contractor of its obligations under this warranty.
b) All warranties, including special warranties specified
elsewhere herein, shall inure to the State, its successors,
assigns, customer agencies and users of the goods or
services.
20. SAFETY AND ACCIDENT PREVENTION: In performing work
under this contract on State premises, contractor shall conform to
any specific safety requirements contained in the contract or as
required by law or regulation. Contractor shall take any additional
precautions as the State may reasonably require for safety and
accident prevention purposes. Any violation of such rules and
requirements, unless promptly corrected, shall be grounds for
termination of this contract in accordance with the default
provisions hereof.
21. INSURANCE: When performing work on property in the care,
custody or control of the State, contractor shall maintain all
GSPD-401Non-IT Commodities (REVISED AND EFFECTIVE 04/12/2007)
GENERAL PROVISIONS
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commercial general liability insurance, workers’ compensation
insurance and any other insurance the State deems appropriate
under the contract. Contractor shall furnish an insurance
certificate evidencing required insurance coverage acceptable to
the State. Upon request by the buyer, the contractor may be
required to have the State shown as an “additional insured” on
selected policies.
22. TERMINATION FOR NON-APPROPRIATION OF FUNDS:
a) If the term of this contract extends into fiscal years
subsequent to that in which it is approved, such continuation
of the contract is contingent on the appropriation of funds for
such purpose by the Legislature. If funds to effect such
continued payment are not appropriated, contractor agrees
to take back any affected goods furnished under this
contract, terminate any services supplied to the State under
this contract, and relieve the State of any further obligation
therefor.
b) STATE AGREES THAT IF PARAGRAPH (a) ABOVE IS
INVOKED, GOODS SHALL BE RETURNED TO THE
CONTRACTOR IN SUBSTANTIALLY THE SAME
CONDITION IN WHICH DELIVERED TO THE STATE,
SUBJECT TO NORMAL WEAR AND TEAR. STATE
FURTHER AGREES TO PAY FOR PACKING, CRATING,
TRANSPORTATION TO CONTRACTOR’S NEAREST
FACILITY AND FOR REIMBURSEMENT TO THE
CONTRACTOR FOR EXPENSES INCURRED FOR THEIR
ASSISTANCE IN SUCH PACKING AND CRATING.
23. TERMINATION FOR THE CONVENIENCE OF THE STATE:
a) The State may terminate performance of work under this
contract for its convenience in whole or, from time to time, in
part, if the Department of General Services, Deputy Director,
Procurement Division, or designee, determines that a
termination is in the State’s interest. The Department of
General Services, Deputy Director, Procurement Division, or
designee, shall terminate by delivering to the contractor a
Notice of Termination specifying the extent of termination
and the effective date thereof. The parties agree that, as to
the terminated portion of the contract, the contract shall be
deemed to remain in effect until such time as the termination
settlement, if any, is concluded and the contract shall not be
void.
b) After receipt of a Notice of Termination, and except as
directed by the State, the contractor shall immediately
proceed with the following obligations, as applicable,
regardless of any delay in determining or adjusting any
amounts due under this clause. The Contractor shall:
i) Stop work as specified in the Notice of Termination.
ii) Place no further subcontracts for materials, services, or
facilities, except as necessary to complete the
continued portion of the contract.
iii) Terminate all subcontracts to the extent they relate to
the work terminated.
iv) Settle all outstanding liabilities and termination
settlement proposals arising from the termination of
subcontracts; the approval or ratification of which will be
final for purposes of this clause.
24. TERMINATION FOR DEFAULT:
a) The State may, subject to the Force Majeure paragraph
contained herein, by written notice of default to the
contractor, terminate this contract in whole or in part if the
contractor fails to:
i) Deliver the goods or to perform the services within the
time specified in the contract or any amendment
thereto;
ii) Make progress, so as to endanger performance of this
contract (but see subparagraph (b) below); or
iii) Perform any of the other provisions of this contract (but
see subparagraph (b), below).
b) The State’s right to terminate this contract under
subparagraphs (a)(ii) and (a)(iii) above, may be exercised if
the contractor does not cure such failure within the time
frame stated in the cure notice issued by the buyer.
c) If the State terminates this contract in whole or in part, it may
acquire, under the terms and in the manner the buyer
considers appropriate, goods or services similar to those
terminated, and the contractor will be liable to the State for
any excess costs for those goods or services. However, the
contractor shall continue the work not terminated.
d) If the contract is terminated for default, the State may require
the contractor to transfer title and deliver to the State, as
directed by the buyer, any:
i) Completed goods, and
ii) Partially completed goods and materials, parts, tools,
dies, jigs, fixtures, plans, drawings, information, and
contract rights (collectively referred to as
“manufacturing materials” in this clause) that the
contractor has specifically produced or acquired for the
terminated portion of this contract. Upon direction of
the buyer, the contractor shall also protect and preserve
property in its possession in which the State has an
interest.
e) The State shall pay contract price for completed goods
delivered and accepted. The contractor and buyer shall
agree on the amount of payment for manufacturing materials
delivered and accepted for the protection and preservation of
the property. Failure to agree will be a dispute under the
Disputes clause. The State may withhold from these
amounts any sum the buyer determines to be necessary to
protect the State against loss because of outstanding liens
or claims of former lien holders.
f) If, after termination, it is determined that the contractor was
not in default, or that the default was excusable, the rights
and obligations of the parties shall be the same as if the
termination had been issued for the convenience of the
State.
g) The rights and remedies of the State in this clause are in
addition to any other rights and remedies provided by law or
under this contract.
25. FORCE MAJEURE:
Except for defaults of subcontractors at any tier, the contractor
shall not be liable for any excess costs if the failure to perform the
contract arises from causes beyond the control and without the
fault or negligence of the contractor. Examples of such causes
include, but are not limited to:
a) Acts of God or of the public enemy, and
b) Acts of the federal or state government in either its sovereign
or contractual capacity.
If the failure to perform is caused by the default of a subcontractor
at any tier, and if the cause of the default is beyond the control of
both the contractor and subcontractor, and without the fault or
negligence of either, the contractor shall not be liable for any
excess costs for failure to perform.
26. RIGHTS AND REMEDIES OF STATE FOR DEFAULT:
a) In the event any goods furnished or services provided by the
contractor in the performance of the contract should fail to
conform to the requirements herein, or to the sample
submitted by the contractor, the State may reject the same,
and it shall become the duty of the contractor to reclaim and
remove the item promptly or to correct the performance of
services, without expense to the State, and immediately
replace all such rejected items with others conforming to the
contract.
b) In addition to any other rights and remedies the State may
have, the State may require contractor, at contractor’s
expense, to ship goods via air freight or expedited routing to
avoid or minimize actual or potential delay if the delay is the
fault of the contractor.
GSPD-401Non-IT Commodities (REVISED AND EFFECTIVE 04/12/2007)
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c) In the event of the termination of the contract, either in whole
or in part, by reason of default or breach by the contractor,
any loss or damage sustained by the State in procuring any
items which the contractor agreed to supply shall be borne
and paid for by the contractor.
d) The State reserves the right to offset the reasonable cost of
all damages caused to the State against any outstanding
invoices or amounts owed to contractor or to make a claim
against the contractor therefore.
27. CONTRACTOR’S LIABILITY FOR INJURY TO PERSONS OR
DAMAGE TO PROPERTY:
a) The contractor shall be liable for damages arising out of
injury to the person and/or damage to the property of the
State, employees of the State, persons designated by the
State for training, or any other person(s) other than agents or
employees of the contractor, designated by the State for any
purpose, prior to, during, or subsequent to delivery,
installation, acceptance, and use of the goods either at the
contractor’s site or at the State’s place of business, provided
that the injury or damage was caused by the fault or
neligence of the contractor.
b) Contractor shall not be liable for damages arising out of or
caused by an alteration or an attachment not made or
installed by the contractor, or for damage to alterations or
attachments that may result from the normal operation and
maintenance of the goods provided by the contractor during
the contract.
28. INDEMNIFICATION: Contractor agrees to indemnify, defend and
save harmless the State, its officers, agents and employees from
any and all claims and losses accruing or resulting to any and all
contractors, subcontractors, suppliers, laborers and any other
person, firm, or corporation furnishing or supplying work, services,
materials or supplies in connection with the performance of this
contract, and from any and all claims and losses accruing or
resulting to any person, firm or corporation which may be injured
or damaged by contractor in the performance of this contract.
29. INVOICES: Unless otherwise specified, invoices shall be sent to
the address set forth herein. Invoices shall be submitted in
triplicate and shall include the contract number; release order
number (if applicable); item number; unit price, extended item
price and invoice total amount. State sales tax and/or use tax
shall be itemized separately and added to each invoice as
applicable.
30. REQUIRED PAYMENT DATE: Payment will be made in
accordance with the provisions of the California Prompt Payment
Act, Government Code Section 927 et. seq. Unless expressly
exempted by statute, the Act requires state agencies to pay
properly submitted, undisputed invoices not more than 45 days
after (i) the date of acceptance of goods or performance of
services; or (ii) receipt of an undisputed invoice, whichever is
later.
31. TAXES: Unless otherwise required by law, the State of California
is exempt from Federal excise taxes. The State will only pay for
any State or local sales or use taxes on the services rendered or
goods supplied to the State pursuant to this contract.
32. NEWLY MANUFACTURED GOODS: All goods furnished under
this contract shall be newly manufactured goods; used or
reconditioned goods are prohibited, unless otherwise specified.
33. CONTRACT MODIFICATION: No amendment or variation of the
terms of this contract shall be valid unless made in writing, signed
by the parties and approved as required. No oral understanding
or agreement not incorporated in the contract is binding on any of
the parties.
34. CONFIDENTIALITY OF DATA: All financial, statistical, personal,
technical and other data and information relating to the State's
operation which are designated confidential by the State and
made available to the contractor in order to carry out this contract,
or which become available to the contractor in carrying out this
contract, shall be protected by the contractor from unauthorized
use and disclosure through the observance of the same or more
effective procedural requirements as are applicable to the State.
The identification of all such confidential data and information as
well as the State's procedural requirements for protection of such
data and information from unauthorized use and disclosure shall
be provided by the State in writing to the contractor. If the
methods and procedures employed by the contractor for the
protection of the contractor's data and information are deemed by
the State to be adequate for the protection of the State's
confidential information, such methods and procedures may be
used, with the written consent of the State, to carry out the intent
of this paragraph. The contractor shall not be required under the
provisions of this paragraph to keep confidential any data or
information which is or becomes publicly available, is already
rightfully in the contractor's possession, is independently
developed by the contractor outside the scope of this contract, or
is rightfully obtained from third parties.
35. NEWS RELEASES: Unless otherwise exempted, news releases
pertaining to this contract shall not be made without prior written
approval of the Department of General Services.
36. PATENT, COPYRIGHT and TRADE SECRET INDEMNITY:
a) Contractor shall hold the State of California, its officers,
agents and employees, harmless from liability of any nature
or kind, including costs and expenses, for infringement or
use of any copyrighted or uncopyrighted composition, secret
process, patented or unpatented invention, article or
appliance furnished or used in connection with the contract.
b) Contractor may be required to furnish a bond to the State
against any and all loss, damage, costs, expenses, claims
and liability for patent, copyright and trade secret
infringement.
c) Contractor, at its own expense, shall defend any action
brought against the State to the extent that such action is
based upon a claim that the goods or software supplied by
the contractor or the operation of such goods pursuant to a
current version of contractor supplied operating software
infringes a United States patent or copyright or violates a
trade secret. The contractor shall pay those costs and
damages finally awarded against the State in any such
action. Such defense and payment shall be conditioned on
the following:
i) That the contractor shall be notified within a reasonable
time in writing by the State of any notice of such claim;
and,
ii) That the contractor shall have the sole control of the
defense of any action on such claim and all
negotiations for its settlement or compromise, provided,
however, that when principles of government or public
law are involved, the State shall have the option to
participate in such action at its own expense.
d) Should the goods or software, or the operation thereof,
become, or in the contractor's opinion are likely to become,
the subject of a claim of infringement of a United States
patent or copyright or a trade secret, the State shall permit
the contractor at its option and expense either to procure for
the State the right to continue using the goods or software,
or to replace or modify the same so that they become
non-infringing. If none of these options can reasonably be
taken, or if the use of such goods or software by the State
shall be prevented by injunction, the contractor agrees to
take back such goods or software and make every
reasonable effort to assist the State in procuring substitute
goods or software. If, in the sole opinion of the State, the
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return of such infringing goods or software makes the
retention of other goods or software acquired from the
contractor under this contract impractical, the State shall
then have the option of terminating such contracts, or
applicable portions thereof, without penalty or termination
charge. The contractor agrees to take back such goods or
software and refund any sums the State has paid contractor
less any reasonable amount for use or damage.
e) The contractor shall have no liability to the State under any
provision of this clause with respect to any claim of patent,
copyright or trade secret infringement which is based upon:
i) The combination or utilization of goods furnished
hereunder with equipment or devices not made or
furnished by the contractor; or,
ii) The operation of equipment furnished by the contractor
under the control of any operating software other than,
or in addition to, the current version of
contractor-supplied operating software; or
iii) The modification by the State of the equipment
furnished hereunder or of the software; or
iv) The combination or utilization of software furnished
hereunder with non-contractor supplied software.
f) Contractor certifies that it has appropriate systems and
controls in place to ensure that state funds will not be used in
the performance of this contract for the acquisition, operation
or maintenance of computer software in violation of copyright
laws.
g) The foregoing states the entire liability of the contractor to
the State with respect to infringement of patents, copyrights
or trade secrets.
37. EXAMINATION AND AUDIT: Contractor agrees that the State, or
its designated representative shall have the right to review and
copy any records and supporting documentation pertaining to
performance of this contract. Contractor agrees to maintain such
records for possible audit for a minimum of three (3) years after
final payment, unless a longer period of records retention is
stipulated. Contractor agrees to allow the auditor(s) access to
such records during normal business hours and to allow
interviews of any employees or others who might reasonably have
information related to such records. Further, contractor agrees to
include a similar right of the State to audit records and interview
staff in any subcontract related to performance of this contract.
38
.
.
DISPUTES
:
:
a) The parties shall deal in good faith and attempt to resolve
potential disputes informally. If the dispute persists,
contractor shall submit to the Department Director or
designee a written demand for a final decision regarding the
disposition of any dispute between the parties arising under,
related to or involving this contract, unless the State, on its
own initiative, has already rendered such a final decision.
Contractor’s written demand shall be fully supported by
factual information, and if such demand involves a cost
adjustment to the contract, contractor shall include with the
demand a written statement signed by an authorized person
indicating that the demand is made in good faith, that the
supporting data are accurate and complete and that the
amount requested accurately reflects the contract
adjustment for which contractor believes the State is liable. If
the contractor is not satisfied with the decision of the
Department Director or designee, the contractor may appeal
the decision to the Department of General Services, Deputy
Director, Procurement Division. In the event that this
contract is for information technology goods and/or services,
the decision may be appealed to an Executive Committee of
State and contractor personnel.
b) Pending the final resolution of any dispute arising under,
related to or involving this contract, contractor agrees to
diligently proceed with the performance of this contract,
including the delivery of goods or providing of services in
accordance with the State’s instructions. Contractor’s failure
to diligently proceed in accordance with the State’s
instructions shall be considered a material breach of this
contract.
c) Any final decision of the State shall be expressly identified as
such, shall be in writing, and shall be signed by the
Department Director or designee or Deputy Director,
Procurement Division if an appeal was made. If the State
fails to render a final decision within 90 days after receipt of
contractor’s demand, it shall be deemed a final decision
adverse to contractor’s contentions. The State’s final
decision shall be conclusive and binding regarding the
dispute unless contractor commences an action in a court of
competent jurisdiction to contest such decision within 90
days following the date of the final decision or one (1) year
following the accrual of the cause of action, whichever is
later.
39. STOP WORK:
a) The State may, at any time, by written Stop Work Order to
the contractor, require the contractor to stop all, or any part,
of the work called for by this contract for a period up to 90
days after the Stop Work Order is delivered to the contractor,
and for any further period to which the parties may agree.
The Stop Work Order shall be specifically identified as such
and shall indicate it is issued under this clause. Upon
receipt of the Stop Work Order, the contractor shall
immediately comply with its terms and take all reasonable
steps to minimize the incurrence of costs allocable to the
work covered by the Stop Work Order during the period of
work stoppage. Within a period of 90 days after a Stop Work
Order is delivered to the contractor, or within any extension
of that period to which the parties shall have agreed, the
State shall either:
i) Cancel the Stop Work Order; or
ii) Terminate the work covered by the Stop Work Order as
provided for in the termination for default or the
termination for convenience clause of this contract.
b) If a Stop Work Order issued under this clause is canceled or
the period of the Stop Work Order or any extension thereof
expires, the contractor shall resume work. The State shall
make an equitable adjustment in the delivery schedule, the
contract price, or both, and the contract shall be modified, in
writing, accordingly, if:
i) The Stop Work Order results in an increase in the time
required for, or in the contractor’s cost properly
allocable to the performance of any part of this contract;
and
ii) The contractor asserts its right to an equitable
adjustment within 30 days after the end of the period of
work stoppage; provided, that if the State decides the
facts justify the action, the State may receive and act
upon a proposal submitted at any time before final
payment under this contract.
c) If a Stop Work Order is not canceled and the work covered
by the Stop Work Order is terminated in accordance with the
provision entitled Termination for the Convenience of the
State, the State shall allow reasonable costs resulting from
the Stop Work Order in arriving at the termination settlement.
d) The State shall not be liable to the contractor for loss of
profits because of a Stop Work Order issued under this
clause.
40. PRIORITY HIRING CONSIDERATIONS: If this contract includes
services in excess of $200,000, the contractor shall give priority
consideration in filling vacancies in positions funded by the
contract to qualified recipients of aid under Welfare and
Institutions Code Section 11200 in accordance with PCC Section
10353.
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41. COVENANT AGAINST GRATUITIES: The contractor warrants
that no gratuities (in the form of entertainment, gifts, or otherwise)
were offered or given by the contractor, or any agent or
representative of the contractor, to any officer or employee of the
State with a view toward securing the contract or securing
favorable treatment with respect to any determinations concerning
the performance of the contract. For breach or violation of this
warranty, the State shall have the right to terminate the contract,
either in whole or in part, and any loss or damage sustained by
the State in procuring on the open market any items which
contractor agreed to supply shall be borne and paid for by the
contractor. The rights and remedies of the State provided in this
clause shall not be exclusive and are in addition to any other
rights and remedies provided by law or in equity.
42. NONDISCRIMINATION CLAUSE:
a) During the performance of this contract, contractor and its
subcontractors shall not unlawfully discriminate, harass or
allow harassment, against any employee or applicant for
employment because of sex, sexual orientation, race, color,
ancestry, religious creed, national origin, disability (including
HIV and AIDS), medical condition (cancer), age, marital
status, and denial of family care leave. Contractor and
subcontractors shall insure that the evaluation and treatment
of their employees and applicants for employment are free
from such discrimination and harassment. Contractor and
subcontractors shall comply with the provisions of the Fair
Employment and Housing Act (Government Code, Section
12990 et seq.) and the applicable regulations promulgated
thereunder (California Code of Regulations, Title 2, Section
7285.0 et seq.). The applicable regulations of the Fair
Employment and Housing Commission implementing
Government Code Section 12990 (a-f), set forth in Chapter 5
of Division 4 of Title 2 of the California Code of Regulations
are incorporated into this contract by reference and made a
part hereof as if set forth in full. Contractor and its
subcontractors shall give written notice of their obligations
under this clause to labor organizations with which they have
a collective bargaining or other agreement.
b) The contractor shall include the nondiscrimination and
compliance provisions of this clause in all subcontracts to
perform work under the contract.
43. NATIONAL LABOR RELATIONS BOARD CERTIFICATION:
Contractor swears under penalty of perjury that no more than one
final, unappealable finding of contempt of court by a federal court
has been issued against the contractor within the immediately
preceding two-year period because of the contractor’s failure to
comply with an order of the National Labor Relations Board. This
provision is required by, and shall be construed in accordance
with, PCC Section 10296.
44. ASSIGNMENT OF ANTITRUST ACTIONS: Pursuant to
Government Code Sections 4552, 4553, and 4554, the following
provisions are incorporated herein:
a) In submitting a bid to the State, the supplier offers and
agrees that if the bid is accepted, it will assign to the State all
rights, title, and interest in and to all causes of action it may
have under Section 4 of the Clayton Act (15 U.S.C. 15) or
under the Cartwright Act (Chapter 2, commencing with
Section 16700, of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods,
material, or services by the supplier for sale to the State
pursuant to the solicitation. Such assignment shall be made
and become effective at the time the State tenders final
payment to the supplier.
b) If the State receives, either through judgment or settlement,
a monetary recovery for a cause of action assigned under
this chapter, the assignor shall be entitled to receive
reimbursement for actual legal costs incurred and may, upon
demand, recover from the State any portion of the recovery,
including treble damages, attributable to overcharges that
were paid by the assignor but were not paid by the State as
part of the bid price, less the expenses incurred in obtaining
that portion of the recovery.
c) Upon demand in writing by the assignor, the assignee shall,
within one year from such demand, reassign the cause of
action assigned under this part if the assignor has been or
may have been injured by the violation of law for which the
cause of action arose and
i) the assignee has not been injured thereby, or
ii) the assignee declines to file a court action for the cause
of action.
45. DRUG-FREE WORKPLACE CERTIFICATION: The contractor
certifies under penalty of perjury under the laws of the State of
California that the contractor will comply with the requirements of
the Drug-Free Workplace Act of 1990 (Government Code Section
8350 et seq.) and will provide a drug-free workplace by taking the
following actions:
a) Publish a statement notifying employees that unlawful
manufacture, distribution, dispensation, possession, or use
of a controlled substance is prohibited and specifying actions
to be taken against employees for violations, as required by
Government Code Section 8355(a).
b) Establish a Drug-Free Awareness Program as required by
Government Code Section 8355(b) to inform employees
about all of the following:
i) the dangers of drug abuse in the workplace;
ii) the person's or organization's policy of maintaining a
drug-free workplace;
iii) any available counseling, rehabilitation and employee
assistance programs; and,
iv) penalties that may be imposed upon employees for
drug abuse violations.
c) Provide, as required by Government Code Section 8355(c),
that every employee who works on the proposed or resulting
contract:
i) will receive a copy of the company's drug-free policy
statement; and,
ii) will agree to abide by the terms of the company's
statement as a condition of employment on the
contract.
46.
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47. SWEATFREE CODE OF CONDUCT:
a) Contractor declares under penalty of perjury that no apparel,
garments or corresponding accessories, equipment,
materials, or supplies furnished to the State pursuant to the
contract have been produced in whole or in part by
sweatshop labor, forced labor, convict labor, indentured
labor under penal sanction, abusive forms of child labor or
exploitation of children in sweatshop labor, or with the benefit
of sweatshop labor, forced labor, convict labor, indentured
labor under penal sanction, abusive forms of child labor or
exploitation of children in sweatshop labor. Contractor
further declares under penalty of perjury that they adhere to
the Sweatfree Code of Conduct as set forth on the California
Department of Industrial Relations website located at
www.dir.ca.gov, and Public Contract Code Section 6108.
b) Contractor agrees to cooperate fully in providing reasonable
access to its records, documents, agents or employees, or
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premises if reasonably required by authorized officials of the
State, the Department of Industrial Relations, or the
Department of Justice to determine Contractor’s compliance
with the requirements under paragraph (a).
48. RECYCLING: The Contractor shall certify in writing under penalty
of perjury, the minimum, if not exact, percentage of post
consumer material as defined in the Public Contract Code Section
12200, in products, materials, goods, or supplies offered or sold
to the State regardless of whether the product meets the
requirements of Section 12209. With respect to printer or
duplication cartridges that comply with the requirements of
Section 12156(e), the certification required by this subdivision
shall specify that the cartridges so comply (PCC 12205).
49. CHILD SUPPORT COMPLIANCE ACT: For any contract in
excess of $100,000, the contractor acknowledges in accordance
with PCC Section 7110, that:
a) The contractor recognizes the importance of child and family
support obligations and shall fully comply with all applicable
state and federal laws relating to child and family support
enforcement, including, but not limited to, disclosure of
information and compliance with earnings assignment
orders, as provided in Chapter 8 (commencing with Section
5200) of Part 5 of Division 9 of the Family Code; and
b) The contractor, to the best of its knowledge is fully complying
with the earnings assignment orders of all employees and is
providing the names of all new employees to the New Hire
Registry maintained by the California Employment
Development Department.
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51. ELECTRONIC WASTE RECYCLING ACT OF 2003: The
Contractor certifies that it complies with the requirements of the
Electronic Waste Recycling Act of 2003, Chapter 8.5, Part 3 of
Division 30, commencing with Section 42460 of the Public
Resources Code, relating to hazardous and solid waste.
Contractor shall maintain documentation and provide reasonable
access to its records and documents that evidence compliance.
52. USE TAX COLLECTION: In accordance with PCC Section
10295.1, Contractor certifies that it complies with the
requirements of Section 7101 of the Revenue and Taxation Code.
Contractor further certifies that it will immediately advise State of
any change in its retailer’s seller’s permit or certification of
registration or applicable affiliate’s seller’s permit or certificate of
registration as described in subdivision (a) of PCC Section
10295.1.
53. EXPATRIATE CORPORATIONS: Contractor hereby declares
that it is not an expatriate corporation or subsidiary of an
expatriate corporation within the meaning of PCC Section 10286
and 10286.1, and is eligible to contract with the State.
54. DOMESTIC PARTNERS: For contracts over $100,000 executed
or amended after January 1, 2007, the contractor certifies that the
contractor is in compliance with Public Contract Code section
10295.3.
