HomeMy WebLinkAbout1999-239
Resolution No. 1999-239
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF SAN
BERNARDINO APPROVING CALIFORNIA MULTIPLE AWARD SCHEDULE
CONTRACT NUMBER 3-98-00-0226A AND A WARDING CONTRACT TO NEC BCS,
INC. FOR THE PURCHASE AND INSTALLATION OF AN AUTOMATED CALL
DISTRIBUTION SYSTEM WITH RELATED HARDWARE AND SOFTWARE.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
SECTION 1. Approval of California Multiple Award Schedule contract number 3-98-00-
0226A (auached and incorporated herein as Exhibits 1 and 2) authorizing exemption from the
centralized purchasing system,
SECTION 2, Authorize and direct the Purchasing Manager to issue a Purchase Order to
NEC BCS Inc. (West) for the purchase and installation of an Automated Call Distribution system
with related hardware and software in the amount of $68,659.00,
SECTION 3. The authorization to execute the above referenced purchase order
is rescinded if it is not issued within sixty (60) days of the passage of this resolution.
IIIII
IIIII
I I I I I
I I I I I
IIIII
IIIII
I I I I I
I I I I I
I I I I I
25
26
27
28
1999-239
1
2
3
4
5
6
7
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF SAN
BERNARDINO APPROVING CALIFORNIA MULTIPLE AWARD SCHEDULE
CONTRACT NUMBER 3-98-00-0226A AND AWARDING CONTRACT TO NEC BCS,
INC, FOR THE PURCHASE AND INSTALLATION OF AN AUTOMATED CALL
DISTRIBUTION SYSTEM WITH RELATED HARDWARE AND SOFTWARE.
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a joint regular meeting thereof, held on
September
the 20th
day of
, 1998, by the following vote, to wit:
8 Council Members:
Abstain
Absent
Ayes
x
Nays
9
10
11
12
13
14
ESTRADA
x
LIEN
MCGINNIS
x
x
SCHNETZ
(V ACAN1) - 5th Ward
15 ANDERSON
16 MILLER
17
18
19
x
x
o{~ CLu~
-Y~ City Clerk
~;?~
day of
20
21
22
23
24
25
26
27
28
The foregoing resolution is hereby approved this
September , 1998.
alles, Mayor
of San Bernardino
Approved as to form and
Legal co
James F.
BY:
'- -
2
1999-239
Exhibit 1
(
Department of General Services
Procurement Division
P.O. Box 942804
Sacramento, CA 94204-0001
State of California
MULTIPLE AWARD SCHEDULE
NEC BCS, Inc.(West)
3-98-00-0226A -
Brand-Cisco Systems
PBX-System
Telephone-Digital
Wire-Cable (Various)
Video Equipment-Conferencing
Voice-Mail System
(
CONTRACT NUMBER 3-98-00-0226A
AND GSA* TERM:
DISTRIBUTION: STATEWIDE
5/1/98 through 5/1/2000
.or other similar schedules as defined by CMAS Unit
CMAS Schedule A - COUNTY OF MERCED FOCUS # 9997-01
THERE IS NO LEGAL AUTHORITY FOR CONTRACTORS TO PROVIDE NON.INFORMATION
TECHNOLOGY SERVICES UNDER THE CMAS PROGRAM. AGENCIES SHOULD NOT ENTER INTO
CMAS AGREEMENTS FOR NON-INFORMATION TECHNOLOGY SERVICES.
This contract is available for use by State of Califomia agencies and any city, county, city and county, district or other
local governmental body or corporation empowered to expend public funds. While the State makes this contract
available, each local agency should make its own determination whether the CMAS program is consistent with their
procurement policies and regulations.
CMAS Contractors are required to provide all CMAS and Federal (or other base contract) contract terms and
conditions with the Iist(s) of products, services, and prices. These terms and conditions may include guarantees
and other important provisions not included on the contract cover page. PLEASE REQUEST FROM
CONTRACTOR A COPY OF ALL CONTRACT TERMS AND CONDITIONS IF NOT PROVIDED INITIALLY.
(
Effective Date: 7/6/1998
st, California Multiple Award Schedule Unit
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
NEC BCS, Inc, (West)
3-98-00-0226A
CMAS CONTRACT TERMS AND CONDITIONS
The attached CMAS contract terms and conditions dated
5/26/1998 are incorporated into this contract.
PURCHASE ORDERS
All individual purchase orders issued against this CMAS contract
incorporate these ordering provisions as well as all terms and
conditions.
SELF-DELETING FEDERAL GSA TERMS AND CONDITIONS
Instructions. or terms and conditions appearing in the Spedal
Items or other provisions of the Federal GSA which are intended
to apply to the purchase. license, or rental (as applicable) of the
products or services by the U.S. Government in the United
States. and/or to any overseas location shall be self-deleting.
(Example: "Examinations of Records" provision).
Federal regulations and standards, such as Federal Acquisition
Regulation (FAR). Federal Information Resources Management
Regulation (FIRMR), Federal Information Processing StandardS
(FIPS), or General Services Administration Regulation (GSAR)
shall be self-<1eleting. Federal blanket orders and small order
procedures are not applicable.
ORDER OF PRECEDENCE
Any conflict or inconsistency in the meaning between CMAS and
the terms and conditions appearing in. or otherwise intended to
apply to the Federal GSA Schedule shall be resolved by giving
preference to CMAS (see CMAS Terms and Conditions,
CONFLICT OF TERMS),
VIDEO CONFERENCING
Agencies interested in procuring video conferencing
equipment and services should be aware of the state's
network and equipment interoperability concerns, which
extend well beyond any single vendor's equipment. As a
minimum. agencies must ensure that the hardware, firmware
and software complies with current international CCITT video
conferencing standards.
TELECOMMUNICATIONS EQUIPMENT
Prior to using this contract. all state agencies are advised to
review the Department of General Services.
Telecommunications Division, "State Telecommunications
Management Manual' (STMM), Category 0400 Sections for
current delegation parameters applying to the acquisition of
telecommunications equipment and services. This provision
does not apply to local governments.
EXCEPTIONS TO THE ATTACHED County of Merced FOCUS
#9997 ~1 Contract
Leasing
(
,
Federal GSA Lease provisions are NOT acceptable, and cannot
be sold through CMAS because the rates and contract tenns are
unacceptable, and not applicable to the State.
Federal Lease to Own Purchase (L TOP) and hardware rental
provisions with no residual value owed at end term are
acceptable ($1 residual value is acceptable).
712198
As an altemative, agencies may consider financing through the State's
financial marketplace GS SMart. All terms and conditions and lenders
are pre.approved for easy financing. The GS SMart Internet address is
-http://pd/dgslgov/finance/gs$mart,htm", Buyers without Intemet
access may call the GS SMart Administrator, Pat Mullen at 916/327.
2600 (pmullen@dgs,ca,gov) for further information,
ORDER FORM
State agencies shall use a Contract'Delegation Purchase Order
(Std. 65) for purchases and services.
Local govemments shall, in lieu of the State's Purchase Order
(Std. 65), use their own purchase order document
The Procurement Division will bill each state and local agency
for use of CMAS contracts, equal to 1.21 % of the value of each
order. The Procurement Division will bill state and local
agendes directly. The 1.21% fee should NOT be induded in the
order total, or remitted before a bill is received from us.
One copy of each order shall be forwarded to the Department of
General Services fOGS), Procurement Division. CMAS Unit.
1500 . 5th Street, Suite 116. Sacramento, CA 95814,
Attention: Carol Umfleet (IMS# C-39).
ORDERING PROCEDURES
The ordering entity is required to complete and distribute the
order form. For services, the ordering entity shall modify the
information contained on the form to indude the service period
(start and end date), and the monthly cost (or other intermittent
cost), and any other information pertinent to the services being
provided. The cost for each line item should be included on the
order, not just system totals.
STATE POLICY
USE OF CMAS IS OPTIONAL. AGENCIES ARE STRONGLY
ENCOURAGED TO OPTIMIZE THE BENEFITS OF THE CMAS
PROGRAM BY COMPARING DIFFERENT SCHEDULES FOR
VARYING PRODUCTS, SERVICES AND PRICES. AND
CAREFULLY REVIEWING ALL CONTRACT TERMS AND
CONDITIONS, TO OBTAiN THE BEST VALUE AVAILABLE.
THE CALIFORNIA MULTIPLE AWARD SCHEDULE DOES NOT
REDUCE OR RELIEVE STATE AGENCIES OF THEIR
RESPONSIBILITY TO MEET STATEWIDE REQUIREMENTS
REGARDING CONTRACTS OR PROCUREMENTS OF GOODS
OR SERVICES. Special attention should be given to the
Automated Accounting System requirements of State
Administrative Manual (SAM) Section 7260.-62, the Productive
Use Requirements of SAM Section 5203.
Agencies should be aware that approval from the Department of
Information Technology (DOlT) is required for.
. procurement of major Information Technology systems
pursuant to SAM Section 4819.39;
. purchase of imaging equipment which exceed $25,000; and
. purchase of used Information Technology equipment
Spedal attention is to be given to the following:
. SAM Section 4819.41 and 4832 certifications for Information
Technology procurements and compliance with policies.
. Services may not be paid for in advance.
2
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMASI
NEC BCS, Inc. (West)
3,98-00-0226A
. Agendes must adhere to the guidelines in SAM Section
2120/2121 for servicing office equipment.
. Agencies are required to file with the Department of Fair
Employment and Housing (DFEH) a Contract Award Report
Std. 16 for each order over $5,000 within 10 days of award.
including amendments which exceed $5,000.
YEAR 2000 COMPLIANCE
Contract language pertaining to Year 2000 Compliance is
addressed in the attached CMAS Terms and Conditions.
PERSONAL SERVICES
To ensure sufficient expertise for all consulting or personal
ser/ices contracts. prior to issuing an order. the ordering agency
is required to review the resumes of all personnel Contractor
intends to use to fulfill the order. Each agency is responsible for
verifying that Contractor personnel meet any education or
experience requirements listed in the CMAS contract
Each order should contain, as a minimum, a description of the
task, a statement of the Contractor's responsibilities, completion
criteria, a list of deliverable items (if any), the estimated starting
date, the scheduled completion date, and a fixed cost for each
task. The aggregate of the fixed costs for all tasks constitutes
the fixed price ceiling for all tasks described.
Personal services are available under the following two options:
1. CMAS orders for personal services such as project
management, independent verification and validation,
systems analysis and design, and miscellaneous services
are not limited to the number of hours or months per year
that a consultant can work if the services contracted for are
not available within civil service, cannot be performed
satisfactorily by civil service employees, or are of such a
highly specialized or technical nature that the necessary
expert knowledge, experience, and ability are not available
through the civil service system (Government Gode
1913Q,b (3)).
2. CMAS personal services orders for programmers, systems
analysts, and technical specialists which are of an urgent,
temporary, or occasional nature, such that hiring additional
civil service positions is not feasible, are limited to nine
months (1548 hours) per consultant within a twelve
consecutive month period (Government Code 19130.b
(10)/Califomia State Constitution, Article VII, Section 5).
This provision is per agency and is inclusive of orders
issued on your behalf by another agency. Contractors must
wait three (3) months from CMAS order
termination/expiration before submitting the candidate's
resume fqr work at the same agency/department
For both options above, the Contractor may conduct training
courses for which appropriately qualified civil service instructors
are not available, provided that pemlanent instructor positions in
academies or similar settings shall be filled through civil service
appointment (Government Code 19130,b (9)).
FOLLOW-ON CONTRACTS/PURCHASE ORDERS FOR
CONSULTANT SERVICES IN FEASIBILITY STUDIES AND
EDP ACQUISITION
No person, firm, or subsidiary thereof who has been awarded a
consulting services contract/purchase order, or a
contract/purchase order which includes a consulting component,
7/2198
may be awarded a contracUpurchase order for the provision of
services. delivery of goods or supplies, or any other related
action which is required, suggested, or otherwise deemed
appropriate as an end product of the consulting services
contract/purchase order. Therefore, any consultant that
contracts with a state agency to develop a feasibility study or
provide formal recommendations for the acquisition of EDP
products or services is precluded from contracting for any work
recommended in the feasibility study or the formal
recommendation.
PUBLIC WORKS PROJECTS
A public works contract is defined as an agreement for ..the
erection, construction, alteration, repair, or improvement of any
publiC structure, building, road, or other public improvement of
any kind' in accordance with the Public Contract Code (PCC)
Section 1101. State agencies planning these types of projects
need to review the Stale Contracting Manual (SCM) Section 10
for applicable guidelines and regulations.
Agency CMAS orders may allow for a publiC works
component only when it is Incidental to the overall project
requirements. Agencies are to ensure that the applicable laws
and codes pertaining to the Contractor and sub-Contractor
licensing, prevailing wage rates, bonding, labor code
requirements, etc. are adhered to by the prime Contractor as
well as any sub-Contractor during the performance under the
agency's CMAS order,
LEASE/PURCHASE ANALYSIS
State agencies must complete a Lease/Purchase Analysis (LPA)
to detemline best value when contemplating a lease/rental, and
retain a copy for future audit purposes (SAM 3700), The LPA is
not required to be approved by the Department of General
Services.
PRICE ANALYSIS
CMAS contracts are considered "price analyzed" because they
are based upon federal government multiple award schedules on
which a price/cost analysis was already performed, or upon
other multiple award schedules where the products have been
competitively bid and the prices compared and/or assessed.
Therefore, additional analysis is not required by the Procurement
Division or individual agencies.
ORDER LIMITS
The maximum amount of each transaction placed under the
award contract is $500,000.
Splitting of contracts to avoid any monetary limitations is
prohibited (SAM 1215),
00 not circumvent normal procurement methods by splitting
purchases into a series of delegated purchase orders
(SAM 3572).
Splitting a project into small projects to avoid either fiscal or
procedural controls is prohibited (SAM 4819.34).
MINIMUM ORDER LIMITATION
There is no minimum dollar value limitation on orders placed
under this contract.
3
c
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
NEC BCS, Inc. (Westl
3-98-00-0226A
MULTIPLE CONTRACTS ON STD, 65 ORDER FORM this contract, NSP items must adhere to the following provisions
and limitation.
/
I
Agencies may include multiple contracts from the same supplier
on a single Std. 65 ContracUOelegation Purchase Order.
Agencies wishing to create a single purchase order using
multiple CMAS contract numbers must adhere to the following
guidelines. without exception.
1. All contracts must be for the same CMAS supplier.
2. The order must go to one supplier location.
3. Place the ward "CMAS" in the space usually reserved for the
contract number. On Std. 655, this is at the top of the form.
The word "CMAS" signifies that the order contains items
from multiple CMAS contracts.
4, The purchasing agency may only use one (1) bill code,
5. For each individual contract (as differentiated by alpha
suffix), the agency must identify and group together the
contract number with line items and subtotal per contract
number (do not indude tax in the subtotal), AND sequentially
identify each individual contract as Sub #1, Sub #2, Sub #3,
etc. This facilitates accurate billing by the Procurement
Division.
6. The total of all items on the purchase order must not exceed
the order limit identified in the CMAS contract.
7. Do not combine items from both commodity and information
technology contracts. Commodity contracts begin with the
number 4 and information technology contracts begin with
the number 3. The order limits are different for these types
of contracts.
MAINTENANCE TAX
Section 1655 of the Sales and Use Tax Regulations of the
Business Taxes law Guide under Optional Warranties rule is that
sales tax shall not be charged on optional warranties and
therefore the Contractor is considered the end user and liable for
the sales tax. Prices charged for service are not subject to sales
tax and neither can sales tax be assessed the State for any part
or consumable supply installed that is induded in the full service
maintenance.
OPEN MARKET ITEMS
The only time that open market items may be induded in a
CMAS order is when they fall under the parameters of the Not
Specifically Priced (NSP) Items provision. If the NSP provision
is not induded in the schedule, or the products and/or services
required do not qualify under the parameters of the NSP
provision, the products and/or services must be procured
separate from tMAS.
NOT SPECIFICALLY PRICED (NSP) ITEMS
Contractors must be authorized providers of the
hardware/software services they offer under the Not Specifically
Priced (NSP) Items provision; or, otherwise, risk contract
termination.
CMAS Contractor has the option of accepting orders for non-
contract products and services (NSP items), subject to the
following requirements. Agency orders containing only NSP
items are prohibited. To be induded on an order issued under
7/2198
1. The Contractor agrees to specifically monitor all schedule
orders received to ensure adherence to this provision.
2. A schedule order containing NSP items may be issued only
if such an order results in the lowest overall alternative to
meet the needs of the Government.
3. NSP items shall be clearly identified in the schedule order.
Any product or service already specifically priced and
induded in the schedule contract may not be identified as a
NSP item.
4. Maximum Order Limitation: For orders $250,000.00, or
less, the total dollar value of all NSP items included in a
schedule order shall not exceed $5,000.00. For orders
exceeding $250,000.00, and at the option of the supplier,
the total dollar value of all NSP items in a schedule order
shall not exceed 5% of the total cost of the order, or
525,000.00 whichever is lower. This indudes orders with
approved "exception" limits.
5. An NSP item induded in an order issued against a
schedule contract is subject to all of the terms and
conditions set forth in the schedule contract.
6, The following NSP items ARE SPECIFICALLY EXCLUDED
from any order issued under this contract:
a) Items which are not intended for use in directly
supporting the priced items induded in the same
order. An item must be subordinate to the specifically.
priced item that the NSP item is supporting.
For example, a cable, which is not otherwise
specifically priced in the contract, is subordinate to a
specifically priced printer or facsimile machine, and is
eligible to be an NSP item subject to that cable
meeting the remaining NSP requirements. However, a
printer or facsimile machine, which is not otherwise
specifically priced in the contract, is not subordinate to
a specifically priced cable, and is not eligible to be an
NSP item.
b) Supply type items, except for the minimum amount
necessary to provide initial support to the priced
schedule items induded in the same order.
c) Software, except operating software.
d) Computers, Computer Systems, Workstations and
Terminals.
e) External Peripherals.
f) Trade-ins, Upgrades, involving the swapping of
boards, are permissible, where the schedule contract
makes specifiC provisions for this action. In those
instances where it is permitted, the schedule order
must indude the replacement item and an order
notation that the purchase involves the swapping of a
board.
g) Items which do not meet the Productive Use
Requirements.
4
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
NEC BCS, Inc. (West)
3-98-00-0226A
h) Any other item or class of items which is specifically CONTRACTOR TRAVEL
excluded from the scope of this schedule contract.
i) Public Works components which are NOT incidental
to the overall project requirements. Refer to the
previous Public Works Projects provision as well as
the CMAS Terms and Conditions. Provision #7.
j) Products or services the supplier is NOT factory
authorized or otherwise certified or trained to
provide.
kl Follow.on consultant services that were previously
recommended or suggested by the same supplier
for information technology projects. Refer to the
CMAS Terms and Conditions. Provision #33.
The Contractor will not accept any order under the contract
containing NSP items which does not conform to these terms.
The Contractor will promptly notify the Customer agency issuing
the non-conforming order of its non acceptance and the reasons
for its non acceptance.
PRODUCTIVE USE REQUIREMENTS
Each equipment or software component must be in current
operation for a paying customer and the paying customer
must be external to the Contractor's organization (not owned
by the Contractor and not owning the Contractorl.
To substantiate compliance with the Productive Use
Requirements. the Contractor must provide the name and
address of a customer installation and the name and
telephone number of a contact person.
The elapsed time such equipment or software must have
been in operation is based upon the importance of the
equipment or software for system operation and its cost.
The following designates product categories and the required
period of time for equipment or software operation prior to
approval of the replacement item on CMAS.
Category 1 . Critical Software: Critical software is software
that is required to control the overall operation of a computer
system or peripheral equipment. Included in this category are
operating systems, data base management systems,
language interpreters, assemblers and compilers,
communications software, and other essential system
software.
Cost
More than $100,000
$10,000 up to s 1 00,000
Less than $10,000
Prior Operation
8 months
4 months
1 month
Category 2 - All Information Technology Equipment and
Non-Critical Software: Information technology equipment is
defined in SAM Section 4819.2.
Cost
More than $100,000
$10,000 up to $100.000
Less than $10,000
Prior Operation
6 months
4 months
1 month
CREDIT CARD
NEC BCS, Inc. (West) does not accept the State of California
credit card (CAL-Card).
7/2198
State agencies (not local governments) should refer to SAM
Section 0774 "TRAVEL AND RELATED REIMBURSEMENT OF
PERSONS NOT STATE EMPLOYEES: when transportation
and per diem costs are to be reimbursed by the State.
If the contract provides for travel, State agencies may pay
travel and per diem expenses according to state travel time
and per diem rules (represented employee rates) and verified
receipts. Local government, education and special districts
will pay travel time and per diem according to their statutory
requirements. All travel and per diem bxpenses must be
within contract parameters, and incorporated into the
agency's order.
If travel is NOT addressed or is not covered in the contract,
then the agency cannot include it as a line item on the order.
SHIPPING INSTRUCTIONS
F,O,B, (Free On Board) Destination,
PAYMENT TERMS
Net 30 days.
Each State accounting office must have a copy of the
attached Vendor Data Record (Std. 204) In order to process
payment of invoices. Agencies should forward a copy of
the Std. 204 to their respective accounting office(s).
Without the Std. 204, payment may be unnecessarily
delayed.
DELIVERY
30 days after receipt of order, or as negotiated between agency
and Contractor.
WARRANTY
See award schedule for warranties.
OWNERSHIP INFORMATION
NEC BeS. Inc. (West) is a large business enterprise.
CONTRACT DISTRIBUTION AND UPDATES
Contractors will provide to agencies a copy of their catalog(s) or
listing(s), contract terms and conditions, and all updates upon
request.
SUPPLIER QUARTERLY REPORTS
Contractors are required to submit a detailed report
quarterly to the DGS Procurement Division, CMAS Unit,
1500" 5th Street, Suite 116, Sacramento, CA 95814,
Attention: Carol Umfleet (IMS Code # C-39). A separate
report is required for each contract. as differentiated by alpha
suffix (if applicable). Suppliers with resellers are responsible for
reporting reseller ordering activity. Any report that does not
follow the required format or that exdudes information will be
deemed incomplete.
Effective September 30.1997, new schedules for suppliers
with existing schedules. and extensions or renewals of
existing schedules, will be approved ONLY if the supplier
has submitted to the CMAS Unit all quar1env reports due.
5
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
NEC BCS, Inc. (Westl
3-9B-OO-0226A
Copies of purchase orders are no longer acceptable. Each
quarterly report is required within two weeks of the end of
March. June. September. and December of each calendar
year. Subsequent to September 30. 1997, reports which
become two months past due will result in automatic
contract revocation. A report is required even when there is
no activity.
,----
1999-239
The report must include the agency name, purchase order
number, purchase order date, agency billing code. pre-tax total
order cost, agency contact name, address and phone number,
and total dollars for the quarter. Tax must NOT be induded in
the quarterly report. even jf the agency indudes tax on the
purchase order.
A sample quarterly report (Attachment A) indicating required
format and infonnation is attached for your reference.
AMERICANS WITH DISABILITY ACT (ADA)
Section 504 of the Rehabilitation Act of 1973 as amended; Tille
VI and VII of the Civil Ri9hts Act of 1964 as amended;
Americans with Disabilities Act, 42 USC 12101; Califomia Code
of Regulations, Title 2. Title 22; California Government Code,
Sections 11135. et seq.; and other federal and state laws, and
Executive Orders prohibit discrimination. All programs, activities,
employment opportunities, and services must be made available
to all persons, induding persons with disabilities. See
Attachment B for Procurement Division's ADA Compliance Policy
of Nondiscrimination on the Basis of Disability.
Individual government agencies are responsible for self-
compliance with ADA regulations.
Supplier sponsored events must provide reasonable
accommodations for persons with disabilities.
ALTERNATIVE MEDIA AND ON-LINE ACCESS TO
SCHEDULES
Contact Contractor directly regarding the availability of
schedules or listings on CD ROM, or access to electronic
Bulletin Board Systems (BBS).
CONTRACTOR MAILING ADDRESS AND PHONE NUMBER
Orders may be mailed to the following address;
NEC BCS, Inc. (West)
6025 Slauson Ave.
Culver City, CA 90230
CMAS Representative: Susan Leonard
voice: (925)543-5122
fax: (925)543-5151
NEC BCS, Inc. (West)
12657 Alcosta Blvd., Suite 150
San Ramon, CA 94583
DGS PROCUREMENT DIVISION CONTACT AND PHONE
NUMBER
Carol Umfleet
Department of General Services
Procurement Division, CMAS Unit
1500 -5th Street, Suite 116
Sacramento, CA 95814
Phone 1# 916/324-8045
Fax 1# 9161323-1441
Calnet 1# 8/454-8045
Want to know more about CMAS? We welcome the opportunity to present the details of this program to your
agency or group. Please contact the California Multiple Award Schedule Unit at 916/324-8045 or Calnet 8/454-
8045 to arrange a date and time.
7/2198
6
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
ThiS agreement shall provide the State. at its discretion, the right to procure the products and services offered by the Contractor as identified
in the Contractor's California Multiple Award Schedule; subject to the availability of funds, unless earlier terminated by the State in accordance
with the termination provisions contained herein, or the purchase order.
All CMAS terms and conditions (including cover page provisions) are hereby incorporated by reference into individual purchase
orders issued against the contract.
Agency changes to the CMAS terms and conditions which result in increase risk or liability to the State are not acceptable.
1. APPROPRIATION OF FUNDS
3. If the term of this contract extends into fiscal years
subsequent to that in which it is approved, such
continuation of the contract is subject to 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 equipment
and software 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 Provision a above is invoked,
equipment shall be returned to contractor in substantially
the same condition in which it was delivered to the State.
subject to normal wear and tear. State further agrees to
pay for packing, crating, transportation to contractor's
nearest fadlity and for reimbursement to the contractor for
expenses incurred for their assistance in such packing
and crating.
2. DRUG-FREE WORKPLACE CERTIFICATION
By signing this contract, the Contractor hereby certifies under
penalty of pe~ury under the laws of the State of California that
the Contractor will comply with the requirements of the Drug~
Free Wor1<piace 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:
1) the dangers of drug abuse in the workplace:
2) the person's or organization's policy of maintaining a
drug-free workplace:
3) any available counseling, rehabilitation and employee
assistance programs: and.
4) penalties that rnay 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
contract
1) will- receive a copy of the company's drug-free policy
statement; and,
2) will agree to abide by the terms of the company's
statement as a condition of employment on the
contract.
Failure to comply with these requirements may result in
suspension of payments under the contract or termination of
the contract or both and the Contractor may be ineligible for
award of any future State contracts if the department
determines that any of the following has occurred: (1) the
Contractor has made false certification, or (2) violates the
certification by failing to carry out the requirements as noted
above.
Revision 5/26/1998
3, NATIONAL LABOR RELATIONS BOARD CERTIFICATION
By signing hereon the Contractor swears under penalty of
pe~ury 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 Public
Contract Code Section 10296.
4, STATEMENT OF COMPLIANCE
The Contractor's signature affixed hereon and dated shall
constitute a certification under the penalty of perjury under the
laws of the State of California that the Contractor has, unless
exempted, complied with the nondiscrimination program
requirernents of Government Code Section 12990 and Title 2,
California Administrative Code. Section 8103.
5, EXAMINATION AND AUDIT
a. State Auditor Audit
The contracting parties shall be subject to the examination
and audit of the State Auditor for a period of three (3)
years after final payment under the contract in accordance
with Government Code Section 8546.7. The examination
and audit shall be confined to those matters connected
with the performance of the contract induding, but not
limited to, the costs of administering the contract.
b. Disabled Veteran Business Enterprise Audit
Contractor agrees that the awarding department, or its
delegatee, will have the right to review. obtain, and copy
all records pertaining to performance of the contract.
Contractor agrees to provide the awarding department, or
its delegatee, with any relevant information requested and
shail permit the awarding department, or its delegatee,
access to its premises, upon reasonable notice, during
normal business hours for the purpose of interviewing
employees and inspecting and copying such books,
records, accounts, and other material that may be
relevant to a matter under investigation for the purpose of
determining compliance with Military and Veterans
Code, Section 999 at seq. and Title 2. California Code of
Regulations, Section 1896.60 et seq. Contractor further
agrees to maintain such records for a period of three (3)
years after final payment under the contract.
6. CONTRACTOR'S LICENSE REQUIREMENTS
Contracts which indude installation, or the wording "Furnish
and Install" require at the time of contract award that suppliers
possess a valid California State Contractor's License. If sub-
contractors are used, they must also posses a valid California
State Contractor's License. All businesses which construct or
alter any building, highway, road, parking facility, railroad,
excavation, or other structure in California must be licensed
by the California State License Board (CSLB) if the total cost
(labor and materials) of the project is $300.00 or more.
Failure to be licensed or to keep the license current and in
good standing shall be grounds for contract revocation.
Page 1 of 15
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
7, SPECIAL CONDITIONS PUBLIC WORKS
REQUIREMENTS (APPLICABLE TO INSTALLATION ONLY)
a. Prior to the commencement of performance. the
Contractor must obtain and provide to the State, a
payment bond, on Standard Form 807, when the contract
involves a public works expenditure (Iabor/installation
costs) in excess of $5,000. Such bond shall be in a sum
not less than one-half the contract price. Forms shall be
provided to the Contractor.
b. In accordance with the provisions of Section 1773 of the
California Labor Code, the Contractor shall, conform and
stipulates to the general prevailing rate of wages,
induding employer benefits as defined in Section 1773.1
of the California Labor Code, applicable to the dasses of
labor to be used for public works such as at the delivery
site for the assembly and installation af the equipment or
materials under the contract. Pursuant to Section 1770 of
the California Labor Code, the Department of Industrial
Relations has ascertained the general prevailing rate of
wages in the county in which the work is to be done, to be
as listed in the Department of Transportation booklet
entitled General Prevailing Wage Rates. The booklet is
compiled monthly and copies of the same are available
from the Department of Industrial Relations, Prevailing
Wage Unit at (415) 972-8628, The booklet is required to
be posted at the job site,
c. The Contractor hereby certifies by signing this contract
that:
1) Contractor has met or will comply with the standards
of affinnative compliance with the Non-Discrimination
Clause Requirements induded herein.
2) Contractor is aware of the provisions of Section 3700
of the Labor Code which require every employer to be
insured against liability for workmen's compensation
or to undertake self-insurance in accordance with the
provisions of that Code, and Contractor will comply
with such provisions before commencing the
performance of the work of this contract.
d. Laws to be Observed
1) Labor
Pursuant to Section 1775 of the California Labor Code
the Contractor shall, as a penalty to the State or
Political subdivision on whose behalf the contract is
made or awarded, forfeit not more than fifty (S50.00)
for each calendar day, Of portions thereof, for each
worker paid by him or subcontractor under him, less
than the prevailing wage so stipulated; and in addition,
the Contractor further agrees to pay to each workman
the difference between the actual amount paid for
each calendar day, or portions thereof, and the
stipulated prevailing wage rate for the same. This
provision shall not apply to properly indentured
appl'entices,
Pursuant to Sections 1810-1815 of the Caiifomia
Labor Code, indusiva, it is further agreed that the
maximum hours a worker is to be employed is limited
to eight hours a day and forty hours a week and the
Contractor shall forfeit, as a penalty to the State,
twenty-five ($25) for each worker empioyed in the
execution of the contract for each calendar day during
which a workman is required or permitted to labor
more than eight hours in any calendar day or more
than forty hours in any calendar week, in violation of
California Labor Code Sections 1810-1815, inclusive.
2) Worker's Compensation Insurance
Revision 5/26/1998
Page 2 of 15
The Contractor will be required to secure the payment
of compensation to its employees in accordance with
the provisions of Labor Code Section 3700.
3) Travel and Subsistence Payments
Travel and subsistence payments shall be paid to
each worker needed to execute the work, as such
travel and subsistence payments are defined in the
applicable collective bargaining agreements filed in
accordance with Labor Code Section 1773.8.
4) Apprentices
Special attention is directed to Sections 1777.5,
1777,6, and 1777.7 of the Caiifomia Labor Code and
Title 8, California Administrative Code Section 200 et
seq. Each Contractor and/or subcontractor must, prior
to commencement of the public works contract.
contact the Division of Apprenticeship Standards, 525
Golden Gate Avenue, San Francisco, CA, or one of its
branch offices to insure compliance and complete
understanding of the law regarding apprentices and
specifically the required ratio thereunder.
Responsibility for compliance with this section lies with
the prime contractor.
5) Payroll
The contractor shall keep an accurate payroll record
showing the name, social security account, work
dassification specific and straight time and overtime
hours worked by each employee. A certified copy of
the employee's payroll record shall be available for
inspection as specified in section 1776 of the
California Labor Code.
8, DISPUTES (APPLIES TO SERVICE CONTRACTS ONLY)
a. Any dispute concerning a question of fact arising under
the terms of this agreement which is not disposed of
within a reasonable period of time by the Contractor and
State employees nonnaUy responsible for the
administration of this contract shall be brought to the
attention of the Chief Executive Officer (or designated
representative) of each organization for joint resolution.
At the request of either party, the State shall provide a
forum for discussion of the disputed item(s), at which time
the State Chief of Procurement, or his representative,
shall be available to assist in the resolution by providing
advice to both parties as to the State of California EDP
policies and procedures. If agreement cannot be reached
through the application of high level management
attention, either party may assert its other rights and
remedies within this contract or within a court of
competent jurisdiction.
b. The rights and remedies of the State provided above shall
not be exdusive and are in addition to any other rights and
remedies provided by law or under the contract.
c. The State and the Contractor agree that, the existence of a
dispute not\oYithstanding, they will continue without delay to
carry out all their responsibilities under this contract which
are not affected by the dispute.
9, CONTRACTOR EVALUATION (CONSULTING SERVICE
CONTRACTS OVER 55,000)
In accordance with the California Government Code,
Contractor performance evaluation will be completed wi~in
the guidelines of the State Administrative Manual, Section
1283. The Slate contracting agency, upon contract
completion, will complete and forward the contractor
evaluation to the Department of General Services.
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
10, CONTRACTS IN EXCESS OF 5200,000 (APPLIES TO
SERVICE CONTRACTS ONLY)
Contractor shall give priority consideration in filling vacancies
in positions funded by this contract to qualified recipients of
aid under Welfare and Institutions Code Section 11200
(Public Contract Code 10353).
11, ASSIGNMENT OF ANTITRUST ACTIONS
The following provision of Government Code Section 4552,
4553, and 4554 (Statutes of 1978, Ch, 414) shall be
applicable to the Contractor.
In signing this contract, the Contractor agrees that it will
assign to the purchasing body 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, sec. 15) or under the Cartwright Act
[Chapter 2 (commencing with Section 16700) of Part 2 of
Division 7 of the Business and Professions Codel. arising
from purchases of goods. materials, or services by the
Contractor for sale to the purchasing body pursuant to the
contract. Such assignment shall be made and become
effective at the time the purchasing body tenders final
payment to the Contractor.
If an awarding body or public purchasing body 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
public body any portion of the recovery, including treble
damages, attributable to overcharges that were paid by the
assignor but were not paid by the public body as part of the
contract price, less the expenses incurred in obtaining that
portion of the recovery.
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 (a) the assignee has not been
injured thereby, or (b) the assignee declines to tile a court
action for the cause of action.
12, REQUIRED PAYMENT DATE
Payment is due to Contractor 30 days from the date the
equipment, software or services are received and accepted by
the State or 30 days from the date a correct invoice is
received in the office specified by the State, whichever is
later. When provision is made for a testing period preceding
acceptance by the State, date of acceptance shall mean the
date the equipment or software is accepted by the State
during the specified testing period.
13. 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, race, color, ancestry,
religious creed, national origin, physical disability
(including HIV and AIDS), mental disability, medical
condition (cancer), age (over 40), marital status, and
denial of family care leave. Contractors 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 (Govemment Code, Section 12900 et seq.) and the
applicable regulations promulgated thereunder (Califomia
Code of Regulations. Title 2. Section 7285,0 et seq,), The
applicable regulations of the Fair Employment and
Revision 5126/1998
Page 3 of 15
Housing Commission implementing Government Code,
Section 12990 (a-D. set forth in Chapter 5 of Division 4 of
Title 2 of the California Gode 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. This Contractor shaH include the nondiscrimination and
compliance provisions of this clause in all subcontracts to
perform work under the contract.
14, VENDOR DATA RECORD
Each Contractor doing business with the State of Califomia
must indicate their residency status along with their vendor
identification number. Contractors are required to provide a
completed Vendor Data Record, Sid. 204 (attached), to the
DGS Procurement Division before entering into this contract.
15. DEBARMENT CERTIFICATION (FEDERALLY FUNDED
SERVICE CONTRACTS OVER 510,000)
The prospective recipient of Federal assistance funds is
required to certify (attached), that neither it nor its principals
are presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participation in
this transaction by any Federal department or agency. The
Contractor is required to complete the attached certification
before entering into this contract.
16, TERMINATION OF CONTRACT
a. The State may terminate this contract at any time upon
one month prior written notice.
b, If the Conlraclo(s GSA Multiple Award Schedule is
terminated within the term of the California Multiple Award
Schedule, the California schedule shall also be
considered to be terminated on the same date.
c. Upon termination or other expiration of this contract, each
party will assist the other party in orderly termination of
the contract and the transfer of all assets, tangible and
intangible, as may facilitate the orderly, nondisrupted
business continuation of each party.
d. Prior to the expiration of this contract. this contract may be
terminated for the convenience of both parties by mutual
consent.
17, UPOATES AND/OR CHANGES
Any updates and/or changes to the GSA Multiple Award
Schedule (or other multiple award contract) prices and/or
catalog shall be available to the State of California when they
become effective for the Federal Govemment (or other
awarding authority), except for Contractors addinQ new
manufacturer's products and/or services which are based on
another Contractor's federal schedule or other multiple award
schedule. When Contractors offer new manufacturer's
products and/or services which reside on another Contractor's
schedule or contract. the CMAS Unit must approve an
amendment adding the new manufacturer's products and/or
services BEFORE they may be sold to the State of California
Also, new federal contract terms and conditions which
constitute a material difference from existing contract terms
and conditions are not considered approved until the CMAS
Unit issues a supplement including the new terms and
conditions. A material change has a potentially significant
effect on the delivery, quantity or quality of items provided. the
amount paid to the vendor, or on the cost to the State.
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
18, CONTRACT AMOUNT
There is no minimum or maximum dollar amount specified by
this contract nor is there any guarantee of minimum purchase
of Contractor's products or services by the State.
19, PURCHASE ORDER LIMITS
Orders for Information Technology products and/or services
shall not exceed $500,000 per transaction. Orders for non
Information Technology (commodities) products and/or
services shall not exceed $100,000 per transaction.
20, NO ADDITIONAL COSTS
No additional costs beyond those identified in the agreement
shall be incurred by the State for obtaining the products and
services offered.
21, DELIVERY (ORDERS S250,OOO"OR LESS)
If the Contractor does not deliver its products to a site
designated by the State within the delivery time specified, the
State may terminate the right of the Contractor to deliver and
may obtain substitute products.
22, CONFIDENTIALITY
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 agreement, or which
become available to the Contractor in carrying out this
agreement, 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 agreement. or is rightfully
obtained from third parties.
23, QUARTERLY REPORTS
Contractors are required to submit a detailed report quarterty
to the DGS Procurement Division, CMAS Unit, 1500 5th
Street, Suite 116, Sacramento, 95814, Attention: Carol
Umfleet (lMS Code # C-39). A separate report is required for
each conlr5lct, as differentiated by alpha suffix Of applicable).
Suppliers with resellers are responsible for reporting reseller
ordering activity. Any report that does not follow the required
format or that excludes information will be deemed
incomplete.
New schedules for suppliers with existing schedules. and
extensions or renewals of existing schedules. will be
approved ONLY if the supplier has submitted to the CMAS
Unit all Quarterly reports due. [Copies of purchase orders are
no longer acceptable.] Each Quarterlv report is required within
t'oNo weeks of the end of March, June, September, and
December of each calendar year. Reports which become two
months past due wdl result in automatic contract revocation.
A report is required even when there is no activity.
Revision 5/2611998
The report must include the agency name, purchase order
number, purchase order date, agency billing code, pre-tax
total order cost, agency contact name, address and phone
number, and total dollars for the quarter. Tax must NOT be
included in the quarterty report, even if the agency includes
tax on the purchase order.
24, TAXES
The State of Califomia is exempt from Federal excise taxes
and no payment shall be made for any personal property
taxes levied on the Contractor or on any taxes levied an
employee wages. The State will only pay for any Slale or
local sales or use taxes on the services rendered or
equipment, parts or software supplied to the State pursuant to
this contract
25, INVOICES AND PAYMENTS
The Contractor shall render invoices to the ordering agency.
Invoices far purchases and software fees are not due and
payable until successful completion of any applicable
acceptance testing. Invoices for services are not due and
payable, and do not constitute an obligation of the State, until
the month following the month for which charges accrue.
Software maintenance and license fees, which are considered
a subscription. may be paid in advance if a provision
addressing payment in advance is included in the contract or
purchase order.
26. AMENDMENTS
This contract may be amended by mutual consent of the
parties. An amendment shall not be effective until approved
by the Director of General Services, or until a certification of
exemption from such approval has been signed by the
contracting agency. No alteration or variation of the tenns of
this contract shall be valid unless made in writing, and no oral
understanding or agreement not incorporated herein shall be
binding on any of the parties hereto.
27. ASSIGNMENT
This contract shall not be assignable in whole or in part
without written consent of the State. It is the policy of the
State of Califomia to withhold consent from proposed
assignments. subcontracts, or novations when such transfer
of responsibility would operate to decrease the State's
likelihood of receiving perlormance on the contract. The
State does not normally object to the granting of assignments
for finandal purposes provided that the original Contractor
retains all of its responsibilities and obligations under the
contract. In the event of any assignment herein to which the
State has consented, each such assignment shall contain a
provision that further assignments shall not be made to any
third or subsequent party without additional written consent of
the State unless otherwise stipulated in the State selected
financing plan.
Should the State desire financing of the assets provided
hereunder through GS SMart, the State's financial
marketplace, the Contractor agrees to assign to a State-
designated lender its right to receive payment from the State
for the assets in exchange for payment by the lender of the
cash purchase price for the assets. Upon notice t9 do so from
the State-designated lender at any time prior to payment by
the State for the assets, the Contractor will execute and
deliver to the State-designated lender an assignment
agreement and any additional documents necessary for the
State selected financing plan. The State-designated lender
will pay the Contractor according to the tenns of the
Contractor's invoice upon acceptance of the assets by
the State.
Page 4 of 15
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMASI
CONTRACT TERMS AND CONDITIONS
28, GENERAL INDEMNITY
The Contractor agrees to indemnify, defend and save
harmless the State, its officers. agents and employees from
any and all claims and losses, with the exception of
consequential damages accruing or resulting to any other
person, finn 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 the Contractor in the
performance of this contract which are attributable to the
negligence or intentionally tortious acts of the Contractor
provided that the Contractor is notified in writing within 30
days that the State has knowledge of such daims.
29, GOVERNING LAW
This Agreement shall be constrUed in accordance with, and its
performance governed by, the laws of the State of California.
30, CONFLICT OF TERMS
If there is a conflict between the terms and conditions of the
Contracto(s MULTIPLE award schedule and the California
Multiple Award Schedule terms and conditions, the California
Multiple Award Schedule teons and conditions shall prevail.
31. NEWS RELEASES
News releases pertaining to this agreement shall not be made
without prior written approval of the OGS Procurement
Division.
32. CONTRACTS (ORDERS) FUNDED IN WHOLE OR PART BY
THE FEDERAL GOVERNMENT
All contracts (induding individual orders), except for State
construction projects, which are funded in whole or in part by
the federal government may be canceled with 30 days
notice, and are subject to the following:
a. It is mutually understood between the parties that this
contract (order) may have been written before
ascertaining the availability of congressional appropriation
of funds, for the mutual benefit of both parties, in order to
avoid program and fiscal delays which would occur if the
contract (order) were executed after that determination
was made.
b. This contract (order) is valid and enforceable only if
sufficient funds are made available to the State by the
United States Government for the fiscal year during which
the order was generated for the purposes of this program.
In addition, this contract (order) is subject to any
additional restrictions, limitations, or conditions enacted by
the Congress or any statute enacted by the Congress
which may affect the provisions, terms or funding of this
contract (order) in any manner.
c. It is mutually agreed that if the Congress does not
approQriate sufficient funds for the program, this contract
(order) shall be amended to reflect any reduction in funds.
d. The department has the option to void the contract (order)
under the 3()..day cancellation dause or to amend the
contract to reflect any reduction of funds.
33, FOllOW-ON CONTRACTS FOR CONSULTANT SERVICES
IN FEASIBILITY STUDIES AND EDP ACQUISITION (SAM
5202)
No person, firm, or subsidiary thereof who has been awarded
a consulting services contract. or a contract which includes a
consulting component, may be awarded a contract for the
provision of services. delivery of goods or supplies, or any
other related action which is required, suggested, or otherwise
deemed appropriate as an end product of the consulting
Revision 5/26/1998
Page 5 of 15
services contract. Therefore, any consultant that contracts
with a state agency to develop a feasibility study or provide
formal recommendations for the acquisition of EDP products
or services is precluded from contracting for any work
recommended in the feasibility study or the formal
recommendation.
34, 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
under the contract
35. CONFLICT OF INTEREST
a. Current State Employees (Public Contract Code Section
10410):
1) No officer or employee shall engage in any
employment. activity or enterprise from which the
officer or employee receives compensation or has a
financial interest and which is sponsored or funded by
any State agency, unless the employment, activity or
enterprise is required as a condition of regular State
employment.
2) No officer or employee shall contract on his or her own
behalf as an independent contractor with any State
agency to provide goods or services.
b. Former State Employees (Public Contract Code Section
10411):
1) For the two-year period from the date he or she left
State employment, no former State officer or employee
may enter into a contract in which he or she engaged in
any of the negotiations, transactions, planning,
arrangements or any part of the decision-making
process relevant to the contract while employed in any
capacity by any Stale agency.
2) For the twelve-month period from the date he or she
left State employment, no former State officer or
employee may enter into a contract with any State
agency if he or she was employed by that State agency
in a policy-making position in the same general subject
area as the proposed contract within the twelve-month
period prior to his or her leaving State service.
AND
TRADE
SECRET
36. PATENT, COPYRIGHT.
PROTECTION
a. The 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 equipment or
softlNare supplied by the Contractor, or the operation of
such equipment 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:
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
1) That the Contractor shall be notified within a
reasonable time in writing by the State of any notice of
such claim: and,
2) 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 prindples of government or public
Jaw are involved. the State shall have the option to
participate in such action at its own expense.
b. Should the machines 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, 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
machines or software, or to replace or modify the same sa
that they become naninfringing and continue to meet bid
specifications. If neither of these options can reasonably
be taken, or if the use of such equipment or software by
the State shall be prevented by injunction, the Contractor
agrees to take back such equipment or software, and
refund any sums the State has paid Contractor less any
reasonable amount for use or damage and make every
reasonable effort to assist the State in procuring substitute
equipment or software. If, in the sole opinion of the State,
the return of such infringing equipment or software makes
the retention of other items of equipment or software
acquired from the Contractor under this contract
impractical, the State shall then have the option of
terminating the contract, or applicable portions thereof,
without penalty or termination charge. The Contractor
agrees to take back such equipment or software and
refund any sums the State has paid Contractor less any
reasonable amount for use or damage.
c. The Contractor shall have no liability to the State under
any provision of this Paragraph 36 with respect to any
claim of patent, copyright. or trade secret infringement
which is based upon:
1) The combination or utilization of machines furnished
hereunder with machines or devices not made or
furnished by the Contractor.
2) The operation of machines furnished by the Contractor
under the control of any operating software ather than,
or in addition to. the aforementioned current version of
Contractor-supplied operating software.
3) The modification by the State of the machines
furnished hereunder or of the aforementioned software.
4) The combination or utilization of softw'are furnished
hereunder with noncontractor's supplied softw'are.
d. The foregoing states the entire liability of the Contractor
with respect to infringement of patents, copyrights and
trade secrets.
37. LIMITATION OF LIABILITY
a. The equipment. shall be under State's exdusive
management and control. The State agrees that the
Contractor shall not be liable for any damages caused by
the State's failure to fulfill any State responsibilities of
assuring the proper use, management and supervision of
the machines and programs, audit controls, operating
methods, and office procedures, and for establishing aU
proper checkpoints necessary for the State's intended use
of the machines.
b, Contractor's liability for damages to the State for any
cause whatsoever, and regardless of the form at action,
whether in contract or in tort, shall be limited to the
Revision 5/2611998
Page 6 of 15
greater of $200,000 or the purchase price stated herein
for the specifiC machines that caused the damages or that
are the subject matter of or are directly related to the
cause of action.
The foregoing limitation of liability shall not apply to the
payment of costs and damage awards referred to in
Paragraph 36, entiUed .Patent, Copyright, and Trade
Secret Protection", to claims covered by other specific
provisions calling for liquidated damages or specifying a
different limit of liability, or to daims for injury to persons
or damage to property caused by Contractor's negligence.
This limitation of liability does not apply to the receipt of
court costs or attorney's fees that might be awarded by a
court in addition to damages after litigation based on this
contract.
c. State's liability for damages for any cause whatsoever,
and regardless of the form of action whether in contract or
in tort, exduding negligence, shall be limited to the
greater of $200,000 or the purchase price stated herein
for the specific machines that caused the damage or that
are the subject matter of or are directly related to the
cause of action.
d. In no event will either the Contractor or the State be liable
for consequential damages even if notification has been
given as to the possibility of such damages.
*equipment-an all-inclusive term which refers either to
individual machines or to a complete data processing
system or subsystem, induding its operating software (if
any),
38, FORCE MAJEURE
Except far defaults of subcontractors, neither party shall be
responsible for delays or failures in performance resulting
from acts beyond the control of the offending party. Such
acts shall include but shall not be limited to acts of God, fire,
flood, earthquake, other natural disasters, nuclear accident.
strike, lockout. riot, freight embargo, publiC regulated utility, or
governmental statutes or regulations superimposed after the
fact. If a delay or failure in performance by the Contractor
arises out of a default of its subcontractor, and if such default
arised out of causes beyond the control of both the Contractor
and subcontractor, and without the fault or negligence of
either of them, the Contractor shall not be liable for damages
of such delay or failure, unless the supplies or services to be
furnished by the subcontractor were obtainable from other
sources in sufficient time to permit the Contractor to meet the
required performance schedule.
39, RISK OF LOSS OR DAMAGE
The State shall be relieved from all risks of loss or damage to
the equipment under this contract prior to delivery and/or
installation as defined in the actual purchase order except
when such loss or damage is due to fault or negligence of the
State,
40. WARRANTY
Warranty will be provided as indicated in the Contractor's
CMAS.
41, SUBCONTRACTING REQUIREMENTS
Any subcontractor that the CMAS supplier chooses to use in
fulfilling the requirements of this contract/order, and which is
expected to receive more that ten (10) percent of value of the
contract/order, must also meet all contractual, administrative,
and technical requirements of the contract. as applicable.
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
42, FORCED, CONVICT, AND INDENTURED LABOR
Contractor or grantee certifies that no foreign-made
equipment, materials. or supplies furnished to the State
pursuant to the contract/agreement will be produced in whole
or in part by forced labor, convict labor, or indentured labor
under penal sanction. The contractor or grantee agrees to
comply with the requirements of Public Contract Code (peG),
Section 6108.
Any contractor contracting with the state who knew or should
have known that the foreign-made equipment, materials or
supplies furnished to the state were produced in whole or part
by forced labor, convict labor, or indentured labor under penal
sanction, when entering into a contract pursuant to the above,
may. sUbject to PCC. Section 6108. subdivision (c). have any
or all of the following sanctions imposed:
1) The contract under whicIT the prohibited equipment.
materials or supplies were provided may be voided at
the option of the state agency to which the equipment,
materials or supplies were provided.
2) The contractor may be assessed a penalty which shall
be the greater of one thousand donars ($1.000) or an
amount equaling 20 percent of the value of the
equipment, materials or supplies that the state agency
demonstrates were produced in whole or in part by
forced labor, convict labor, or indentured tabor under
penal sanction.
3) The contractor may be removed from the bidde~s list for
a period not to exceed 360 days.
43. NONCOLLUSION AFFIDAVIT
By signing this contract, contractor hereby certifies that any
quotation provided for a CMAS order or project is not made in
the interest of, or on behalf of, any undisclosed person,
partnership, company, association, organization, or
corporation; that the quotation is genuine and not collusive or
sham; that the contractor has not directly or indirectly induced
or solicited any other contractor to put in a false sham
quotation, and has not directly or indirectly colluded,
conspired, connived, or agreed with any contractor or anyone
else to put in a sham quotation, or that anyone shall refrain
from bidding; that the contractor has not in any manner,
directly or indirectly, sought by agreement, communication, or
conference with anyone to fix any overhead, profit, or cost
element of the quoted price, of that of any other contractor, or
to secure any advantage against the public body awarding the
contract or anyone interested in the proposed contract; that all
statements in the quotation are true; and, further, that the
contractor has not, directly or indirectly, submitted its quoted
price or any breakdown thereof, of the contents thereof, or
divulged information or data relative thereto, or paid. and will
not pay, any fee to any corporation, partnership, company,
association, organization, bid depository, or to any member of
agent thereof to effectuate a collusive or sham bid or
quotation, -
44. YEAR 2000 WARRANTY
Agencies Issuing or processing a purchase order must
use this language in lieu of alternative language, unless
specifically authorized by the Department of Information
Technology (DOlT) and approved by the Department of
General Services.
a. Information Technology Products and/or Services
The Contractor warrants that its hardware, software,
and firmware products and services delivered under
this contract shall be able to accurately process date
data (Including, but not limited to, calculating,
comparing, and/or sequencing) from, into, and
Revision 512611998
Page 7 of 15
between the twentieth and twenty-first centuries, and
the years 1999 and 2000 and leap year calculations to
the extent that other information technology used in
combination with the information technology being
acquired, properly exchanges date data with it. This
warranty is subject to the warranty terms and
conditions of this contract. Nothing in this warranty
shall be construed to limit any rights or remedies the
State may otherwise have under this contract with
respect to defects other than Year 2000
performance.(SISI98)
b. Non-Information Technology Products and/or
Services
The Contractor warrants and represents that the
goods or services sold, leased or licensed to the
State of California, its agencies, or its political
subdivisions, pursuant to this contract/purchase
order are "Year 2000 compliant" For purposes of
this contract/purchase order, a good or service is
Year 2000 compliant If it will continue to function fully
before, at and after the Year 2000 without interruption
and, if applicable, with full ability to accurately and
unambiguously process, display, compare, calculate,
manipulate and otherwise utilize date information.
This warranty and representation supersedes all
warranty disclaimers and limitations and all
limitations on liability provided by or through
Contractor.(S/5198)
45. TERMINATION FOR CONVENIENCE
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 Director or
designee determines that a termination is in the
State's interest. The Department Director 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 Department Director or designee, 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 shal1:
1) Stop work as specified in the Notice of Termination.
2) Place no further subcontracts for materials,
services, or facilities, except as necessary to
complete the continued portion of the contract.
3) Terminate all subcontracts to the extent they relate
to the work terminated.
4) 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.
5) As directed by the Department Director or
designee, transfer title and deliver to the State (a)
fabricated or unfabricated parts, work in process,
completed work, supplies, and other material
produced or acquired for the work terminated, and
(b) completed or partially completed plans,
drawings, information, and other property that, if
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
the contract had been completed, would be
required to be furnished to the State.
6) Complete performance of the work not terminated;
and
7) Take any action that may be necessary or as the
State may direct for the protection and preservation
of the property related to this contract that is in the
possession of the Contractor and in which the
State has or may acquire an interest, and to
mitigate any potential damages or requests for
contract adjustment or termination settlement to
the maximum practical extent.
c. At the completion of the Contractor's termination
efforts, the Contractor may submit to the Department
Director or designee a list. indicating quantity and
quality of termination mventory not previously
disposed of, and request instruction for disposition
ofthe residual termination inventory.
d. After termination, the Contractor shall submit a final
termination settlement proposal to the Department
Director or designee In the form and with the
certification prescribed by the Department Director or
designee. The Contractor shall submit the proposal
promptly but no later than ninety (90) days from the
effective date of termination, unless extended in
writing by the State upon written request of the
Contractor within the ninety (90) day period.
However, If the Department Director or designee
determines that the facts justify it, a termination
settlement proposal may be received and acted on
after the expiration of the filing period or any
extension. If the Contractor fails to submit the
proposal within the time allowed, the Department
Director or designee may determine on the basis of
information available, an equitable adjustment
amount, if any, due the Contractor because of the
termination and shall pay the amount determined.
e. The Contractor and the State may agree upon the
whole or any part of the amount to be paid because of
the termination. The amount may Include a
reasonable allowance for profit on work done,
including a reasonable amount for accounting, legal,
clerical and other expenses reasonably necessary for
the preparation of termination settlement proposals
and supporting data; and storage, transportation and
other costs incurred, reasonably necessary for the
preservation, protection, or disposition of the
termination inventory. However, the agreed amount
may not exceed the total contract price as reduced by
(1) the amount of payments previously made and (2)
the contract price of work. not terminated. The
contract shall be amended. and the Contractor paid
the agreed amount.
f. If the Contractor and the State fail to agree on the
whole amount to be paid because of the termination
of wor1<, the State shall pay the Contractor the
amounts determined by the State as follows, but
without duplication of any amounts agreed on as set
forth above:
1) The contract price for completed supplies or
services accepted by the State (or sold or acquired)
not previously paid for, adjusted for any saving of
freight and other charges.
The total of:
a) The costs incurred in the performance of the
work terminated, including Initial costs and
Revision 5/26/1998
Page 8 of 15
preparatory expense allocable thereto, but
excluding any costs attributable to supplies or
services paid or to be paid; and
b) The cost of settling and paying termination
settlement proposals under terminated
subcontracts that are properly chargeable to
the terminated portion of the contract; and
c) Storage, transportation, and other costs
incurred, reasonably necessary for the
preservation, protection, or disposition of the
termination inventory.
g. Except for normal spoilage. and except to the extent
that the State expressly assumed the risk of loss, the
State shall exclude from the amounts payable to the
Contractor, the fair value, as determined by the
Department Director or designee, of property that is
destroyed, lost, stolen, or damaged so as to become
undeliverable to the State or to a buyer.
h. The Contractor shall use generally accepted
accounting principles and sound business practices
in determining all costs claimed, agreed to, or
determined under this clause. Such costs shall be
allocable to the terminated contract or portion
thereof, allowable under applicable laws. regulations,
generally accepted accounting principles and good
business judgment and objectively reasonable.
i. The Contractor shall have the right of appeal, under
the Disputes clause, from any determination made by
the State, except that if the Contractor failed to submit
the termination settlement proposal within the time
provided and failed to request a time extension, there
is no right of appeal. If the Department Director or
designee has made a determination of the amount
due, the State shail pay the Contractor (1) the amount
determined if there is no right of appeal or if no timely
appeal has been taken, or (2) the amount finally
determined on appeal. Following any attempted
administrative resolution with the Department
Director or designee, the Contractor may proceed in
accordance with the Disputes clause of the contract.
j. In arriving at the amount due the Contractor under
this clause, there shall be deducted:
1) All payments to the Contractor under the
terminated portion of this contract;
2) Any claim which the State has against the
Contractor under this or any other contract:
3) The agreed price for, or the proceeds of sale of,
materials, supplies, or other things acquired by the
Contractor or sold under the provisions of this
clause and not recovered by or credited to the
State.
k. If the termination is partial, the Contractor may file a
proposal with the Department Director or designee for
an equitable adjustment of the price(s) of the
continued portIon of the contract. The Oepartment
Director or designee shall make any equitable
adjustment agreed upon. Any proposal by the
Contractor for an equitable adjustment under this
clause shall be requested within 30 days from the
effective date of termination unless extended in
writing by the Department Director or designee.
I. The State may:
1) Under the terms and conditions it prescribes, make
partial payments and payments against costs
incurred by the Contractor for the terminated
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
(
portion of the contract, if the State believes that
total of these payments will not exceed the amount
to which the Contractor will be entitled.
2) If the total payments exceed the amount finally
determined to be due, the Contractor shall repay
the excess to the State upon demand, together with
interest computed at the rate established by the
California Treasurer's Pooled Money Investment
Fund Rate. Interest shall be computed for the
period from the date the excess payment is
received by the Contractor to the date the excess Is
repaid. Interest shall not be charged on any excess
payment due to a reduction in the Contractor's
termination settlement proposal because of
retention or other disposition of termination
inventory until 10 days after the date of the
retention or disposition, or a Jater date determined
by the State because of the circumstances.
m. In determining the amount payable to the Contractor
and notwithstanding any other provision. if it appears
that the Contractor would have sustained a loss on
the entire contract had it been completed, the State
shall allow no proflt and shall reduce the settlement
to reflect the Indicated rate of loss.
n. Unless otherwise provided in this contract or by
statute, the Contractor shall maintain all records and
documents relating to the terminated portion of this
contract for three years after final settlement. This
includes all books and other evidence bearing on the
Contractor's costs and expenses under this Contract.
The Contractor shall make these records and
documents available to the State, at the Contractor's
office, at all reasonable times, without any direct
charge. If approved by the State, photographs,
microphotographs, or other authentic reproductions
may be maintained instead of original records and
documents.
46. 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 of 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
whlch'the parties shall have agreed. the State shall
either:
1) Cancel the stop work order, or
2) Terminate the work covered by the stop work. order
as provided for in the tennlnation 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:
Revision 5/2611998
1) 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
2) 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 tenninated 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 settlemenL
d. If a stop work order is not canceled and the work
covered by the stop work order is terminated for
default, the State shall allow, by equitable adjustment
or otherwise, reasonable costs resulting from the
stop work order.
e. An appropriate equitable adjustment may be made in
any related contract of the Contractor that provides
for adjustment and is affected by any stop work order
under this clause. The State shall not be liable to the
contractor for loss of profits because of a stop work
order issued under this clause.
47, RENTAL AGREEMENTS
The State does not agree to :
Indemnify a Contractor;
Assume responsibility for matters beyond its
control;
Agree to make payments in advance;
Accept any other provision creating a contingent
liability against the State; or
Agree to obtain insurance to protect the Contractor.
The State's responsibility for repairs and liability for
damage or loss is restricted to that made necessary by or
resulting from the negligent act or omission of the State
or its officers, employees, or agents.
If the Contractor maintains the equipment, the Contractor
must keep the equipment in good working order and
make all necessary repairs and adjustments without
qualification. The State may terminate or cease paying
rent should the Contractor fail to maintain the equipment
properly.
Personal property taxes are not generally reimbursed
when leasing equipment (SAM 8136).
FOR CMAS ORDERS WHICH EXCEED $250,000 THE
FOLLOWING TERMS AND CONDITIONS APPLY AND ARE
ADDIT10NAL TO PROVISIONS NUMBERED 1 TO 47.
48, SITE PREPARATION
a. If the equipment to be installed requires special
environmental considerations. Contractor shall provide
site preparation spedfications for equipment within a
reasonable time upon request by the State. The
equipment, if installed according to these spedfications,
shall operate efficiently, from an environmental point of
view and properly from a functional point of view.
b. The State may prepare a site plan showing the location of
each item of equipment and detailing the assodated
electrical power and environmental control facilities. If
Page g of 15
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
(
requested, the Contractor will revIew and comment on the
adequacy of the State's plan, and shall be permitted free
access subject to the security requirements for the site for
this purpose. Altematively, the Contractor may prepare
the site plan, and will be permitted free access to the site
for this purpose.
c. The State shall cause the site to be prepared in
accordance with the Contractor's written minimum site
and environmental specifications. unless the Contractor
has agreed to be responsible for such site preparation, on
or before the Facility Readiness Date specified in the
order.
d. Any subsequent alterations or modifications to the site
which are directly attributable to incomplete or erroneous
specifications provided by the Contractor and which
involve additional expense sball be made at the expense
of the Contractor, to the extent that such costs would not
have been incurred had the complete and/or correct
specifications been initially provided.
e. If any such site alterations as discussed above cause a
delay in the installation, Paragraph 50, liquidated
Damages, shall apply,
f. Unless mutually agreed to otherwise, arrangements for
procurement, installation, and maintenance of
non contractor's communication media (telephone lines,
modems, etc.) necessary for the remote transmission of
data are the responsibility of the State. In addition, if
requested by the Contractor, the State shall provide one
telephone, with appropriate coupling devices for the
transmission of data, for the Contractor's use in
installation and maintenance of the equipment. Any toll
charges resulting from the use of this instrument by the
Contractor in the installation and maintenance of the
equipment will be borne by the Contractor.
49. INSTALLATION AND DELIVERY DATES
a. Equipment (Hardware and Operating Software)
1) Except as otherwise provided in Paragraph 49,a. (7),
the Contractor shall install equipment ready for use on
or before the Installation Dates specified in the order.
Time is the essence of this aQreement.
2) Installation Dates may be changed by mutual consent
of the Contractor and the State by amendment;
however, consent of the Contractor is not required if, at
least 90 days prior to the Installation Date, the State
defers the installation of any machine, but a new
Installation Date will be established by mutual
agreement Such unilateral deferment shall not exceed
180 days, except by mutual agreement.
3) The State shall provide the Contractor access to the
site for the purpose of installing equipment prior to the
Installation Date. The Contractor shall specify in writing
the qme required to install the equipment.
4) Except as otherwise provided in Paragraph 49, a. (7).
the Contractor shall determine that the equipment is
ready for use, and operates in conformance wtth the
Contractor's published specifications. The Contractor
shall then certify in writing to the State that the
equipment is installed and ready to be tumed over to
the operational control of the State. The Contractor
shall also provide to the State appropriate
documentation to support the above certification, at
which time the State will accept control of the
equipment for the purpose of validating its installation
and performance.
Revision 5/26/1998
Page 10 of 15
5) Notwithstanding certification by Ihe Contractor that the
equipment has been installed and is ready for use, the
equipment shall not be deemed installed within the
terms of this Contract until such installation is
confirmed by the State through testing as prescribed in
the order or by performance of other suitable tests
mutually agreed to by both parties as being adequate
for this purpose. If the test is successfully completed.
the equipment shall be deemed installed and ready for
use as of the date of the Contractor's certification. The
State shall immediately begin acceptance testing of the
equipment in accordance with the provisions contained
in the order, and shall notify the Contractor in writing,
within five (5) working days, that the State concurs that
the equipment was installed. If the equipment fails to
successfully complete the test. the Contractor shall be
notified immediately of the failure, with written
confirmation to be provided in not more than five (5)
working days. Control of the equipment shall
immediately be given to the Contractor. The equipment
shall not be deemed to be installed until the Contractor
re-certifies such installation and the above-described
test is successfully completed,
6) Except as otherwise provided in Paragraph 49, a. (7), in
the event the Contractor fails to install the equipment
by the Installation Date specified in the order,
Paragraph 50, Liquidated Damages, shall apply.
7) If the nature of the equipment is such that the services
of the Contractor are not required for its installation,
and the Contractor so states in writing and the State
agrees in writing that such Contractor services are not
necessary, the Contractor may ship the equipment to
the State site. If the equipment arrives not later than
five (5) working days prior to the Installation Date, the
equipment shall be deemed to have been installed on
or before the Installation Date and no liquidated
damages shall be paid, irrespective to whether or not
the State is successful in installing the equipment
without Contractor assistance. If this procedure is
used, the State shall make every reasonable effort to
install the equipment prior to the Installation Date, and
shall confirm such installation in accordance with the
procedures set forth in Paragraph 49 (5), without
requiring a certification of installation as set forth in
Paragraph 49 (4) by the Contractor. If, however, the
State is unable to install the equipment, it shall notify
the Contractor that Contractor assistance is required.
The Contractor shall then assist in the equipment
installation and certification that such installation has
been accomplished.
b. Software (other than OperatinQ Software)
1) The Contractor shall provide those programming aids,
program products, and applications listed in the order,
on or before the Delivery Dates specified in the order,
and shall certify to the State that such software has
been delivered and is ready for State use. For
purposes of this Paragraph, -delivered- also means
received by the State, if such software is mailed by the
Contractor.
2) If, in the opinion of the Contractor, the services of the
Contractor are required to install the software on the
State equipment, "delivery" of the software, for the
purposes of this contract, shall be deemed to indude
such installation services.
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
3) In the event the Contractor fails to deliver the agreed-
upon software by the dates specified, Paragraph 50,
Liquidated Damages. shall apply.
50, LIQUIDATED DAMAGES
a. General
The Installation Dates of the equipment and the Delivery
Dates for software set forth in the order have been fixed
so that the utilization of the eQuipment and soft\.vare is
consistent with the timing schedules of the State's
programs. If any of the units of equipment. with all
required operating software, are not installed within the
times specified in the order, and/or if any of the other
software is not delivered to the State within the time limits
specified in the order, the delay will interfere with the
proper implementation of the State's programs, to the loss
and damage of the State. From the nature of the case, it
would be impracticable and extremely difficult to fix the
actual damages sustained in the event of any such delay.
The State and Contractor, therefore, presume that in the
event of any such delay the amount of damage which will
be sustained from a delay will be the amounts set forth in
the order, and the State and the Contractor agree that in
the event of any such delay, the Contractor shall pay such
amounts as liquidated damages and not as a penalty.
Similarly, a unilateral deferment by the State of equipment
installation without appropriate notice or a delay in
readying the facility interferes with the installation
schedule under which the Contractor is operating, thus
resulting in damages to the Contractor. The State and
Contractor presume that in the event of such delay, the
amount of damage which will be sustained will be the
amount set forth in the order, and they agree that in the
event of such a delay, the State will pay such amount as
liquidated damages and not as a penalty. Amounts due
the State as liquidated damages may be deducted by the
State from any money payable to the Contractor. The
State shall notify the Contractor in writing of any claim for
liquidated damages pursuant to this paragraph on or
before the date State deducts such sums from money
payable to the Contractor.
b. Equipment Installation Delays Caused by the Contractor
1) If the Contractor does not install the equipment,
(designated by the Conlracto(s type and model
number), and special features included with the
equipment (or suitable substitutes acceptable to the
State), ready for use with all appropriate operating
software, all as listed in the order, on or before the
Installation Date(s) specified in the order, or in the case
of the equipment delivered to the State in time for State
installation, the Contractor shall be liable for fixed
liquidated damages specified in the order, in lieu of all
other damages far such naninstallatian. Liquidated
damages shall accrue for each calendar day between
the Installation Date specified in the order and the date
the equipment is certified ready for use or 180 calendar
days, whichever occurs first
2) If some, but not all of the machines are installed, ready
for use, during a period of time when liquidated
damages are applicable, and the State uses any such
installed machines, liquidated damages shall not
accrue against the machines used for any calendar day
the machines are so used.
3) If the delay is more than thirty (30) calendar days, then
by written notice to the Contractor, the State may
terminate the right of the Contractor to install, and may
obtain substitute equipment, in accordance with the
Revision 5/26/1998
Page 11 of 15
provision of Paragraph 56, Rights and Remedies of the
State for Default. In this event, the Contractor shall
also be liable far liquidated damages. in the amounts
specified above until substitute equipment is installed.
ready far use, or for 180 days from the installation date,
whichever occurs first.
c. Other Delivery Delays Caused by the Contractor
1) If the Contractor does not deliver all the programming
aids, program products, and applications listed in the
order ready for use in substantial accordance with the
Contractor's specifications, on or before the Delivery
Dates specified in the order, .the Contractor shall be
liable for liquidated damages in the amounts specified
in the order, in lieu of all ather damages for such
nondelivery. Liquidated damages shall accrue for each
calendar day between the Delivery Date specified and
the actual date of the delivery of such software or for
180 days, whichever occurs first. If the Contractor fails
to provide the software listed in the order by the
specified Delivery Date, but provides suitable
substitution of software acceptable to the State,
liquidated damages shall not apply to listed software for
which substituted software is provided.
2) If the State is unable to use the equipment an the
installation date because Contractor failed to deliver the
software listed in the order by the delivery date
specified in the order, and Contractor does not furnish
suitable substitute software acceptable to the State,
liquidated damages for equipment noninstaUation as
specified in Paragraph 50. b. (1), shall be paid to the
State in lieu of damages for software nondelivery as
specified in Paragraph SO. c. (1). Such liquidated
damages shall apply until the State uses the equipment
or until Contractor provides the programming aids or
applications which would render the equipment usable,
whichever occurs first, but not for more than 180
calendar days.
d. Installation or Delivery Delays Caused by the State
1) In the event the equipment cannot be installed because
the State has failed to prepare the facility by the Facility
Readiness Date specified in the order, the State shall
be liable for fixed liquidated damages specified in the
order for each day between the Facility Readiness Date
specified in the order and the actual readiness date. but
not to exceed 180 calendar days, in lieu of all other
damages for such delay.
2) In the event a change directed by the State requires a
later installation date of certain equipment and the
State has failed to notify the Contractor of the delay at
least 60 days prior to the original Installation Date, the
State shall be liable, in lieu of all other damages. for
liquidated damages as specified in Paragraph 50, d.
(1), far each day between the original Installation Date
and the new Installation Date, but not to exceed 180
calendar days.
3) The Slate shall not be liable for liquidated damages
under both Paragraph 50. d. (1) and d. (2) above during
the same period of time with respect to the same
equipment.
51, ACCEPTANCE TESTING FOR EQUIPMENT (includinq
Operating Software)
a. Acceptance testing is intended to ensure that ~e
equipment acquired operates in substantial accord With
the Contractor's technical specifications, is adequate to
perform as warranted by the Contractor, and evidences a
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMASI
CONTRACT TERMS AND CONDITIONS
satisfactory level of performance reliability, prior to its
acceptance by the State. If the equipment to be installed
includes operating software as listed in the order. such
operating software shall be present for the acceptance
test unless substitute operating software acceptable to the
State is provided. Acceptance testing may be required as
specified in the order for all newly installed technology
systems. subsystems, and individual equipment. and
machines which are added or field modified (modification
of a machine from one model to another) after a
successful performance period.
b. In accordance with Paragraph 49, a, (4), Installation and
Delivery Dates, the Contractor shall certify in writing to the
State when equipment is installed and ready for use, at
which time operational control becomes the responsibility
of the State, Acceptance .testing (as specified in the
order) shall commence on the first State workday
following certification, and shall end when the equipment
has met the standard of performance (performance
criteria) as provided in the order for a period of 30
consecutive days. Operation of the equipment to confirm
its installation, as provided in Paragraph 49. a. (5),
Installation and Delivery Dates. shall be considered to be
a part of the acceptance test.
c. In the event the equipment does not meet the standard of
performance during the initial 30 consecutive calendar
days. the acceptance tests shall continue on a day-to-day
basis until the standards of performance are met for 30
consecutive days.
d. If the equipment does not meet the standards of
performance within ninety (gO) consecutive days after the
start of the acceptance testing, the State shall have the
option to request replacement equipment, extend the
performance period or terminate the order (or portions
thereof) and seek relief as provided by Paragraph 56,
Rights and Remedies of State for Default. The State's
option shall remain in effect until such time as the
equipment meets the performance criteria, or 180
consecutive days after the start of the acceptance testing,
whichever occurs first. If the equipment has not met the
standards of performance by 180 days after installation,
the contract shall be canceled or the defective equipment
deleted from the contract and the provisions of Paragraph
56, Rights and Remedies of State for Default shall appiy,
e. At the request of the Contractor, the State shall make
available not only the failed equipment, but also those
machines which must be utilized by the Contractor to
identify the cause of failure and to accomplish the repair.
f. Equipment shall not be accepted by the State and no
charges associated with such equipment shall be paid by
the State until the equipment has satisfactorily completed
the acceptance tests. In addition, if required in the order,
no charges shall be paid until specified Contractor~
supplied software has been accepted by the State.
g. Immediately upon successful completion of the
acceptance tests, the State shall notify the Contractor in
writing of acceptance of the equipment and authorize
appropriate payment. The State shall maintain adequate
daily records to satisfy the requirements of acceptance
testing. Increments of time shall be measured in hours
and whole minutes.
52, ACCEPTANCE TESTING FOR SOFTWARE (other than
Operating Soft.Nare)
a. Acceptance testing may be required as specified in the
order for all Contractor-supplied soft.Nare as specified and
listed in the order, induding all software initially installed,
Revision 5/26/1998
Page 12 of 15
improved versions (new releases) of this software, any
such softv..tare which has been altered (modified) by the
Contractor to satisfy State requirements, and any
substitute soft.Nare provided by the Contractor in lieu
thereof, unless the order provides otherwise. The
purpose of the acceptance test is to ensure that the
softv..tare operates in substantial accord with the
Contractor's technical specifications and meets the State's
performance specifications. The procedures for the
accomplishment of such tests are contained in the order.
b. When soft.Nare has been provided and certified in
accordance with Paragraph 49, Installation and Delivery
Dates, b. (1), the State shail begin acceptance testing on
the first State workday following such certification, as
specified in the order.
c. If successful completion of the acceptance test is not
attained within ninety (gO) consecutive days after the start
of the acceptance testing, the State shall have the option
to request substitute soft.Nare, cancel that portion of the
contract which relates to the unaccepted software, or
continue the acceptance tests. The State's option shall
remain in effect until such time as the tests are
successfully performed, or 180 days after certification,
whichever occurs first. If the acceptance tests have not
been successfully performed prior to the expiration of 180
days, that portion of the contract which relates to the
unaccepted soft.Nare shall be canceled, unless both
parties agree to the continuation of the tests or to the
delivery of substitute software. If the unaccepted software
(or its functional equivalent) is crucial to the
accomplishment of the work for which the equipment was
acquired, and is so identified in the order, the State shall
have the option of terminating the entire contract in
accordance with Paragraph 56, Rights and Remedies of
State for Default.
d. Unless otherwise provided in the order, software shall not
be accepted by the State and no charges associated with
such soft.Nare shall be paid by the State until the software
has satisfactorily completed the acceptance tests.
e. Immediately upon successful completion of the
acceptance testing, the State shall notify the Contractor in
writing of the acceptance of the software and authorize
appropriate payment. The State shall maintain adequate
records to satisfy the requirements of acceptance testing.
53. 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 theoState 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
equipment 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 negligence 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 Contractor's equipment.
54, ENGINEERING CHANGES
Engineering changes, determined applicable by Contractor.
will be controlled and installed by Contractor on equipment
covered by this contract. The State may elect to have only
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
mandatory changes, as determined by Contractor, installed
on machines so designated. A wrttten notice of this election
must be provided to the Contractor for written confirmation.
There shall be no charge for engineering changes made. Any
Contractor.jnitiated change shall be installed at a time
mutually agreeable to the State and the Contractor.
Contractor reserves the right to charge, at its then current
time and material rates, for additional service time and
materials required due to noninstallation of applicable
engineering changes after Contractor has made a reasonable
effort to secure time to install such changes.
55, CONNECTION POINTS FOR CENTRAL PROCESSOR
EVALUATION EQUIPMENT
If requested by the State, the Contractor agrees to identify, on
all items of equipment supplied under this contract, all
appropriate test points far connecting one of the commerdally
available hardware monitors designed to measure system
activity,
56, RIGHTS AND REMEDIES OF STATE FOR DEFAULT
a. In the event any equipment, software, or service furnished
by the Contractor in the performance of this contract
should fail ta conform to the spedficatlons therefore, the
State may reject the same, and it shall thereupon become
the duty of the Contractor to reclaim and remove the
same forthwith, without expense ta the State, and
immediately to replace all such rejected equipment,
software, or service with others conforming ta such
spedtications; provided that should the Contractor fail,
neglect or refuse to da so the State shall thereupon have
the right to purchase in the open market. in lieu thereof. a
corresponding quantity of any such equipment, software,
or service and to deduct from any monies due or that may
thereafter become due to the Contractor the difference
between the price named in this contract and the actual
cost thereof to the State.
b. In the event the Contractor shall fail to make prompt
delivery as specified of any equipment. software, or
service. the same conditions as to the rights of the State
to purchase in the open market and to reimbursement set
forth above shall apply. except as otherwise provided in
Paragraph 38, Force Majeure.
c. In the event of the cancellation of this contract either in
whole or in part. by reason of the default or breach thereof
by the Contractor, any loss or damage sustained by the
State in procuring any equipment, software or service
which the Contractor therein agreed to supply shall be
borne and paid for by the Contractor.
d. The rights and remedies of the State provided above shall
not be exclusive and are in addition to any other rights
and remedies provided by law or under the contract.
57, 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
hereunder hannless from and against any loss, coslllability,
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.
58, TITLE TO EQUIPMENT
Unless otherwise specified in the order or financing plan. title
to the equipment shall remain in the Contractor and assigns, it
any, until such time as the full purchase prices. applicable
taxes and interest charges. if any, are paid to the Contractor.
Revision 5/26/1998
Page 13 of 15
Title to each machine will be transferred to the State when its
purchase price, taxes. and associated interest charges. if any,
are paid. Title to a special feature installed on a machine and
for which only a single installation charge was paid shall pass
to the State at no additional charge, together with title to the
machine on which it was installed.
59, WAIVER OF BREACH
No tenn or provision of this contract shall be deemed waived
and na breach excused, unless such waiver or consent shall
be in writing and signed by an individual authorized to so
waive or consent. Any consent by either party to. or waiver
of, a breach by the other, whether "express or implied, shall
not constitute a consent to, waiver of, or excuse for. any other
breach or subsequent breach. except as may be expressly
provided in the waiver or consent.
60, CONFLICT WITH EXISTING LAW
The Contractor and the State agree that it any provision of
this contract is found to be illegal or unenforceable; such tenn
or provision shall be deemed stricken and the remainder of
the contract shall remain in full force and effect. Either party
having knowfedge of such term or provision shall promptly
infonn the other of the presumed non-applicability of such
provision. Should the offending proviSion go to the heart of
the contract, the contract shall be terminated in a manner
commensurate with the interests of both parties, to the
maximum extent reasonable.
61, LIMITATION OF ACTIONS
No action, regardless of fann, arising out of this contact may
be brought by either party more than two years after the
cause of action has arisen. or in the case of nonpayment,
more than two years from the date of the last payment. except
where either party (within two years after a cause of action
has arisen) provides the other party in writing a notice of a
potential cause of action, disclosing all material facts then
known by the notifying party concerning such cause of action,
then the notifying party may bring an action based on the
matter so disclosed at any time prior to the expiration of four
years from the time the cause of action arose.
DEFINITIONS
(from STATE MODEL PURCHASE CONTRACT 2/98)
a. Data Processing System (System}. The total complement
of Contractor-furnished machines, including one or more
central processors (or instruction processors) and
operating software, which are acquired to operate as an
integrated group.
b. Data Processing Subsystem4A complement of
Contractor-furnished individual machines, including the
necessary controlling elements (or the functional
equivalent) and operating software. if any, which are
acquired to operate as an integrated group, and which
are interconnected entirely by Contractor-supplied power
andlor signal cables; e.g., direct access controller and
drives. a cluster of terminals with their controller, etc.
c. Machine-An individual unit of a data processing system
or subsystem, separately identified by a type and/or
model number, comprised of but not limited to
mechanical, elec~echanical, and electronic parts,
microcode, and special features installed thereon and
lnduding any necessary software: e.g., central
processing unit. memory module, tape unit. card reader,
etc.
d. Equipment-An all-inclusive term which refers either. to
individual machines or to a complete data processing
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
system or subsystem, including its operating software (if
any),
e. Equipment Failure-A malfunction in the equipment,
excluding all external factors, which prevents the
accomplishment of the equipment's intended function{s).
If microcode or operating software, residing in the
equipment. is necessary for the proper operation of the
equipment, a failure of such microcode or operating
software which prevents the accomplishment of the
equipment's intended functions shall be deemed to be
an equipment failure.
f. Operation Use Time-For performance measurement
purposes. that time during which equipment is in actual
operation by the State.
g. Preventive Maintenance-That maintenance. performed
on a scheduled basis by the Contractor, which is
designed to keep the equipment in proper operating
condition.
h. Remedial Maintenance-That maintenance perfonned
by the Contractor which results from equipment
(including operating software) failure, and which is
performed as required; Le., on an unscheduled basis.
i. Principal Period of Maintenance-Any nine consecutive
hours per day (usually between the hours of 7:00 a.m.
and 6:00 p.m.) as selected by the State, including an
official meal period not to exceed one hour, Monday
through Friday, excluding holidays observed at the
installation.
j. Period of Maintenance Coverage-The period of time,
as selected by the State, during which maintenance
services are provided by the Contractor for a fixed
monthly charge, as opposed to an hourly charge for
services rendered. The Period of Maintenance
Coverage consists of the Principal Period of
Maintenance and any additional hours of coverage per
day, and/or increased coverage for weekends and
holidays.
k. Maintenance Diagnostic Routines-The diagnostic
programs customarily used by the Contractor to test
equipment for proper functioning and reliability.
I. Facility Readiness Date-The date specified in the
contract by which the State must have the site prepared
and available for equipment delivery and installation.
m. Installation Date-The date specified in the contract by
which the Contractor must have the ordered equipment
ready (certified) for use by the State.
n. Performance Period-A period of time during which the
State, by appropriate tests and production runs,
evaluates the performance of newly installed equipment
and software prior to its acceptance by the State.
o. Acceptance Tests-Those tests performed during the
Perfomlance Period as listed in the purchase order
which are intended to determine compliance of
equipment and software with Contractor's published
specifications and to determine the reliability of the
equipment.
p. Machine Alteration-Any change to a Contractor-supplied
machine which is not made by the Contractor, and which
results in the machine deviating from its physical,
mechanical, electrical, or electronic (including
microcode) design, whether or not additional devices or
parts are employed in making such change.
q. Attachment-The mechanical, electrical, or electronic
interconnection to the Contractor-supplied machine or
system of equipment manufactured by other than the
Revision 5126/1998
Page 14 of 15
original equipment manufacturer and which is not
connected by the Contractor.
r. Software-An all-inclusive term which refers to any
computer programs, routines, or subroutines supplied by
the Contractor, including operating software,
programming aids, application programs, and program
products.
s. OperatinQ Software-Those routines, whether or not
identified as program products, that reside in the
equipment and are required for the equipment to perform
its intended function(s), and which interface the operator,
other Contractor-supplied programs, and user programs
to the equipment.
t PrOQramminQ Aids-Contractor-supplied programs and
routines executable on the Contractor's equipment which
assists a programmer in the development of applications
induding language processors, sorts, communications
modules, data base management systems, and utility
routines, (tape-to-disk routines, disk-to-print routines,
etc.).
u. Application ProQram-A computer program which is
intended to be executed on the Contractor's equipment
for the purpose of performing useful work for the user of
the information being processed. Application programs
are usually developed or otherwise acquired by the user
of the hardware/software system, but they may be
supplied by the Contractor.
v. Program Product-Programs, routines, subroutines, and
related items which are proprietary to the Contractor and
which are licensed to the State for its use, usually on the
basis of separately stated charges and appropriate
contractual provisions.
w. Software Failure-A malfunction in the Contractor-
supplied software, other than operating software, which
prevents the accomplishment of work, even though the
equipment (including its operating software) may still be
capable of operating properly. For operating softw"are
failure, see definition of equipment failure.
x. Information Technology Services-Are defined as
services performed directly on or pertaining to
electronic data processing and telecommunications
hardware, firmware. and software including, but not
limited to, computerized and auxiliary automated
information handling, system design and analysis.
data conversion. computer programming,
information storage and retrieval, voice, video. data
communications, requisite system controls,
simulation, maintenance and repair, software
licensing, and training. Also included are services
of an advisory nature requiring a recommended
course of action or personal expertise as it pertains
to an information technology project, and
information technology support functions.
1999-239
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
CONTRACT TERMS AND CONDITIONS
Attachment for Personal Services (applicable when CMAS contract allows Personal Services)
1. The State may terminate this agreement and be relieved of
the payment of any consideration to Contractor should
Contractor fail to perform the covenants herein contained at
the time and in the manner herein provided. In the event of
such termination the State may proceed with the wol1< in any
manner deemed proper by the State. The cost to the State
shall be deducted from any sum due the Contractor under this
agreement, and the balance, if any, shalt be paid the
Contractor upon demand.
2. Time is of the essence in this agreement.
3, PERSONNEL
a. Contractor personnel shall perlorm their duties on the
premises of the State, during the State's regular work days
and normal work hours. exCept as may be specifically
agreed to othelWise by the State.
b. The State reserves the right to disapprove the continuing
assignment of Contractor personnel provided to the State
under this Agreement. If the State exercises this right, and
the Contractor cannot immediately replace the disapproved
personnel, the State agrees to an equitable adjusbnent in
schedule or ather terms that may be affected thereby.
c. The Contractor will make every effort consistent with sound
business practices to honor the specific requests of the
State with regard to assignment of its employees: however,
subject to Paragraph 3b above, the Contractor reserves the
sole right to determine the assignment of its employees. If
a Contractor employee is unable to perform due to illness,
resignation, or other factors beyond the Contractor's
control. the Contractor will make every reasonable effort to
provide suitable substitute personnel.
d. In recognition of the fact that Contractor personnel
providing services under this Agreement may perform
similar services from time to time for others, this
Agreement shall not prevent Contractor from performing
such similar services or restrict Contractor from using the
personnel provided to the State under this Agreement,
providing that such use does not conflict with the
performance of services under this Agreement.
4, RESPONSIBILITIES OF THE STATE
The State shall provide normal office working facilities and
equipment necessary for Contractor performance under this
Agreement. Any spedal requirements (e.g., reprographic
services, computer time. keydata entry, etc.) must be
identified.
5, RIGHTS IN DATA
a. All technical communications and records originated or
prepared by the Contractor pursuant to this Agreement
including papers. reports, charts. computer programs, and
other documentation, but not induding Contractor's
administrative communications and records relating to this
Agreement shall be delivered to and shall become the
exclusive property of the State and may be copyrighted by
the State.
Revision 5/26/1998
Page 15 of 15
b. The ideas. concepts. know-how, or techniques relating to
date processing, developed during the course of this
Agreement by the Contractor or jointly by the Contractor
and the State can be used by either party in any way it may
deem appropriate.
c. All inventions, discoveries or improvements of the computer
programs developed pursuant to this Agreement shall be
the property of the State. The State agrees to grant a
nonexclusive royalty-free license for any such invention,
discovery, or improvement to the. Contractor or any other
such person and further agrees that the Contractor or any
other such person may sublicense additional persons on
the same royalty-free basis.
d. This Agreement shall not predude the Contractor from
developing materials outside this Agreement which are
competitive, irrespective of their similarity to materials
which might be delivered to the State pursuant to this
Agreement.
S, REPORTING, INVOICING, AND PAYMENT FOR SERVICE
In the aggregate, invoices reflecting progress payments will
not exceed 90 percent of the ceiling amount of the
agreement, with the balance to be invoiced upon satisfactory
completion of the Agreement. In accordance with PCC
Section 12112: if a contract has progress payments, then a
performance bond is required by law. The bond is issued to
the name of the contracting agency. if the agency is issuing
the contract under delegated authority or CMAS they hold the
bond, otherwise DGS holds the bond. The amount of the
bond is 50% of the total amount of the contract.
7, LIABILITIES FOR DAMAGES
a. The Contractor shall be relieved from liability with respect
to the performance of work as outlined in each order when
the State agrees the tasks have been satisfactorily
completed.
b. Except for liability for injury to persons or damage to
property, the Contractor will be liable for damages only to
the extent of the maximum amount of this Agreement.
c. In no event will the contractor or the state be liable for
consequential damages even if notification has been given
as to the possibility of such damages.
d. Notwithstanding the foregoing, nothing contained herein
shall limit contractor's liability for personal injury and
damage to property caused by contractor's negligence or
tortuous act.
e. Neither party to this Agreement shall be liable for damages
resulting from delayed or defective performance when such
delays arise out of causes beyond the control and without
the fault or negligence of the offending party. Such causes
may indude, but are not restricted to. Acts of God or of the
public enemy, acts of the State in its sovereign capacity,
fires. floods, power failure, disabling strikes, epidemics,
quarantine restrictions, and freight embargoes.
yu~-16.99 11:32A
1999-239
NEe
INVESTMENT SUMMARY
NEAX 1400 1MX - ACO & NAVIGATOR ADDITIONS
For
City of SaD Bernardino
Jul)' 16,1999
Q!y, Description
ACJ) Additions
I NEAX 2400 ACJ) Release I V - 100 Agents
1 Application Processor
1 Set J)ocumentation
1 S~l Cables
1 Command Program
1 Digital Anmmneemcnt Card
1 Tt'aining
$15,551
NuviQ:ator
I
1
1
1
1
$J 7.369
Glohal Navigator 200
P!vfT.-2000 - 85 Minute UPS
l:nix Softwar~ 1<)1' PML-2000
Set Oocumentation
Navigator Implementation
Wall hoards
I
2
3
3
$11.446
36" Wallboard
48" Wallboard
Cahle Runs
S~l Brackets
Investl11~nt includes equipment, labor, one year Maintemmec.
and Warranty
S64,166
Tax (Estimate)
$4,29J
Total Investment
$68,659
Standard Payment Arrangcmen1~
50% Upon Agreement
50% Upon Invoice
Exhibit 2