Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
7/28/1999 - STAFF REPORTS (23)
DATE: July 28, 1999 TO: City Council FROM: Director, Department of Facilities PURCHASE OF PLAY EQUIPMENT FROM MIRACLE RECREATION EQUIPMENT COMPANY RECOMMENDATION: That City Council approve the purchase of play equipment from Miracle Recreation Equipment Company at the same volume discount pricing that it has set for the State of California, according to the state's terms and conditions, for sites located in Ruth Hardy Park and Sunrise Plaza for a total amount of$126,255.66. BACKGROUND: For several years, City staff has recognized the need to modernize play equipment in parks through the community. However, due to the limited resources available to the department, upgrades have been limited to only those individual pieces of equipment that required replacing rather than addressing the needs of entire structures. In fiscal year 1998-99, City Council realized the need for play equipment replacement at several locations and appropriated funds to begin the systematic replacement of play structures in parks throughout the community. These funds were to be used for replacing the most critical and noncompliant equipment first. That equipment was determined to be at Ruth Hardy Park and Sunrise Plaza, respectively, as they were the oldest structures. Additionally,staff had been advised that Federal Standards forAmericans with Disabilities Act (ADA) Year 2000 Compliance were in the process of being upgraded as they related to accessability requirements for playground equipment. An audit of play equipment performed earlier this year by City staff determined that play equipment located at Ruth Hardy Park and Sunrise Plaza did not meet current ASTM F1487 Standard Consumer Safety Performance Specifications(CSPS)orADA Year2000 Compliance standards.Additionally, City staff determined that several components of each of these structures posed a potential safety risk to users. Due to this, the noncompliant equipment was immediately removed and staff began working on the replacement of these components with modern, up-to-date equipment. The Parks Division staff has been working with Miracle Recreation Equipment Company for several months in designing new ADA-compliant play equipment to replace noncompliant equipment at the two designated locations in Ruth Hardy Park and Sunrise Plaza. During this process, it became evident that the City did not have the funds to completely replace equipment located in both parks. Upon realizing the City's extreme need, the Variety Children's Charities of the Desert approached the City with an interest in donating funds to upgrade play equipment in Sunrise Plaza. Its benevolent donation of $40,000 has enabled the City to accelerate the replacement and upgrade of equipment at Sunrise Plaza so that this project may proceed in conjunction with the original project at Ruth Hardy Park. As Miracle Recreation Equipment Company provides the most extensive materials warranty in the business and its equipment is fully compliant with year 2000 standards, staff felt comfortable in using its equipment designs. Also, due to Miracle's State of California Price Schedule, on file in the office of the City Clerk, it is able to offer substantial discounts to the City that other equipment manufacturers do not. 4 A The City's Procurement Manager, pursuant to the requirements of Municipal Code Section 112.270,6, finds that the competitive process conducted by the State of California for the proposed purchase is adequate to protect the public interest and the total cost of the services and material is likely to be less through the proposed cooperative purchase than could be obtained through the City's independent purchasing. Funds are available in the following accounts:261-2493-51 51 1, Replace Play Structure— Ruth Hardy Park, and 261-2493-51513, Replace Parks Play Equipment. p FJ y. S CE ELL, Director HAROLD GOOD, Procurement Manager Department of Facilities Procurement Division APPROVED: kf�- - ,jv-v,,City Manager Q [AppROVFD ATTACHMENTS: © DFCi..1M T? 1. State Price Schedule 2. Quotations for Equipment 3. Minute Order +`'.w-ti '`• Department of General Services J, Procurement Division P.O. Box 942804 Sacramento, CA 94204-0001 State of California MULTIPLE AWARD SCHEDULE Miracle Recreation Equipment Co. 4-99-78-0006A - Display — Signs Equipment— Playground Outdoor— Barbecue Steel Outdoor— Waste Receptacle Playground — Surface Rubberized Tables — Rectangular Tables — Square CONTRACT NUMBER 4-99-78-0006A 9/1/1997 through 8/31/2002 AND GSA TERM: DISTRIBUTION: STATEWIDE CMAS Schedule A - GSA#GS-07F-9713G (Miracle Recreation Equipment Co.) This contract is available for use by State of California 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 contract terms and conditions with the list(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. Oft tto Effective Date: 3/24/1999 LAINE HALL, Program Analyst, Ca lt ornia Multiple Award Schedule Unit t 6y: MIRACLE PLAYGROUNDS; 909 676 6706; Jul-14-99 3:16PM; Page 2/3 Miracle Playground Sales, Inc. Quotation 27537 Commerce Center Drive Suite 105 DATE Quotation' Temecula, CA 92590 7/14/19139 KS-1246 800 264-7225 909 676-8706 FAX it;of Palm Y City of Palm Springs Accounts Payable PO Box 2743 Palm Springs, CA 92263-2743 TERMS REP F013 PROJECT Net 30 KS Delivered Sunrise Park ITEM DESCRIPTION QTY RATE TOTAL 714-000 Custom Kids' Choice Playsystem Ages-5 to 1 29,870.64 29,870.64T 12 718-000 Custom Tots' Choice Playsystem Ages 2 to 5 1 5,909.84 6,909-84T -Includes swings MREC FTP Freight-Miracle Truck 1 3,772.00 3,772.00T Sales Tax Riverside County 7.75% 3,142.82 THIS QUOTE IS GOOD FOR 60 DAYS TOTAL $43.695.30 The acceptance signature above serves as authorization to order the Items quoted and SIGNATURE indicates acceptance of the listed payment 40 0 ant By: MIRACLE PLAYGROUNDS; S 909 676 8706; Jul.99 3:16PM; Page 3/3 Miracle Playground Sales, Inc. Quotation 27537 Commerce Center Drive Suite 105 DATE Quotation Temecula, CA 92590 7/lanss9 Ks-12a7 *] 800 264-7225 909 676-8706 FAX NAME/ADDRESS City of Palm Springs Accounts Payable PO Box 2743 Palm Springs, CA 92263-2743 TERMS REP FOB PROJECT Net 30 KS Delivered Ruth Hardy Park ITEM DESCRIPTION QTY RATE TOTAL 714-000 Custom Kids'Choice Playsystem Includes 1 67,945.14 67,948.14T Swings Ages 5 to 12 MREC FTP Freight-Miracle Truck 1 8,674.00 8,674.00T Sales Tax Riverside County 7.75% 6,938.22 THIS QUOTE IS GOOD FOR 60 DAYS TOTAL $82,560.36 The acceptance signature above serves as authorization to order the items quoted and SIGNATURE indicates acceptance of the listed payment M10 s f,�J MINUTE ORDER APPROVING THE PURCHASE OF PLAY EQUIPMENT FROM MIRACLE RECREATION EQUIPMENT COMPANY AT THE SAME VOLUME DISCOUNT PRICING THAT IT HAS SET FOR THE STATE OF CALIFORNIA, ACCORDING TO THE STATE'S TERMS AND CONDITIONS, FOR SITES LOCATED IN RUTH HARDY PARK AND SUNRISE PLAZA FOR A TOTAL AMOUNT OF $126,255.66. I HEREBY CERTIFY that this Minute Order, approving the purchase of play equipment from Miracle Recreation Equipment Company at the same volume discount pricing that it has set for the State of California, according to the state's terms and conditions, for sites located in Ruth Hardy Park and Sunrise Plaza for a total amount of$126,255.66, was approved by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 28" day of July, 1999. BY: PATRICIA A. SANDERS City Clerk V� s`'• �*h' Department of General Services 4 JA t A Procurement Division P.O. Box 942804 Sacramento, CA 94204-0001 State of California MULTIPLE AWARD SCHEDULE Miracle Recreation Equipment Co. 4-99-78-0006A - Display — Signs Equipment — Playground Outdoor — Barbecue Steel Outdoor— Waste Receptacle Playground — Surface Rubberized Tables — Rectangular Tables — Square CONTRACT NUMBER 4-99-78-0006A 9/1/1997 through 8/31/2002 AND GSA TERM: DISTRIBUTION: STATEWIDE CMAS Schedule A - GSA#GS-07F-9713G (Miracle Recreation Equipment Co.) This contract is available for use by State of California 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 contract terms and conditions with the list(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: 3/24/1999 ELAINE HALL, Program Analyst, Ca lt ornia Multiple Award Schedule Unit CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) MIRACLE RECREATION EQUIPMENT CO. CMAS#4-99-78-0006A CMAS CONTRACT TERMS AND CONDITIONS www.pd.dgs.ca.gov/acquVcontract(sbe.htm The attached CMAS contract terms and conditions dated 5/26/98 are incorporated into this contract. ORDER FORM PURCHASE ORDERS State agencies shall use a Contract/Delegation Purchase Order (Std.65)for purchases and services. All Individual purchase orders issued against this CMAS contract incorporate these ordering provisions as well as all terms and Local governments shall,In lieu of the State's Purchase Order conditions. (Std.65).use their own purchase order document. SELF-DELETING FEDERAL GSA TERMS AND CONDITIONS The Procurement Division will bill each state and local agency for use of CMAS contracts,equal to 1.21%of the value of each Instrucllons,or terms and conditions appearing in the Special order. The Procurement Division will bill state and local Items or other provisions of the Federal GSA which are Intended agencies directly. The 1.21%fee should NOT be included in the to apply to the purchase,license,or rental(as applicable)of the order total,or remitted before a bill is received from us. products or services by the U.S.Government in the United States,and/or to any overseas location shall be self-deleting. One copy of each order shall be forwarded to the Department of (Example:"Examinations of Records'provision). General Services(DGS) Procurement Division,CMAS Unit, 1500-5th Street,Suite 116,Sacramento,CA 95814, Federal regulations and standards,such as Federal Acquisition Attention: Carol Umfleet(IMS#C-39). Regulation(FAR),Federal Information Resources Management Regulation(FIRMR),Federal Information Processing Standards ORDERING PROCEDURES (FIPS),or General Services Administration Regulation(GSAR) shall be self-deleting. Federal blanket orders and small order The ordering entity is required to complete and distribute the procedures are not applicable. order form. For services,the ordering entity shall modify the Information contained an the form to include the service period ORDER OF PRECEDENCE (start and end date),and the monthly cost(or other intermittent cost),and any other information pertinent to the services being Any conflict or inconsistency in the meaning between CMAS and provided. The cost for each line item should be included on the the terms and conditions appearing in,or otherwise intended to order,not just system totals. apply to the Federal GSA Schedule shall be resolved by giving preference to CMAS(see CMAS Terms and Conditions, STATE POLICY CONFLICT OF TERMS). USE OF CMAS IS OPTIONAL. AGENCIES ARE STRONGLY EXCEPTIONS TO THE ATTACHED FEDERAL GSA ENCOURAGED TO OPTIMIZE THE BENEFITS OF THE CMAS MULTIPLE AWARD SCHEDULE#GS-07F-9713G PROGRAM BY COMPARING DIFFERENT SCHEDULES FOR VARYING PRODUCTS,SERVICES AND PRICES,AND Leasing: CAREFULLY REVIEWING ALL CONTRACT TERMS AND Except as stated below,Federal GSA Lease provisions are NOT CONDITIONS,TO OBTAIN THE BEST VALUE AVAILABLE. acceptable,and cannot be sold through CMAS because the rates and contract terms are unacceptable,and not applicable to THE CALIFORNIA MULTIPLE AWARD SCHEDULE DOES NOT the State. REDUCE OR RELIEVE STATE AGENCIES OF THEIR RESPONSIBILITY TO MEET STATEWIDE REQUIREMENTS Federal Lease to Own Purchase(LTOP)and hardware rental REGARDING CONTRACTS OR PROCUREMENTS OF GOODS provisions with no residual value owed at end term are OR SERVICES. Special attention should be given to the acceptable($1 residual value is acceptable). Automated Accounting System requirements of State Administrative Manual(SAM)Section 7260-62,the Productive As an alternative,agencies may consider financing through the'State's Use Requirements of SAM Section 5203. financial marketplace GS$Mart All terms and conditions and lenders are pre-approved for easy financing. The GS$Mart Internet address is Agencies should be aware that approval from the Department of 'http://pd/dgs/gov/finance/gs$marLhtm'. Buyers without Internet Information Technology(DOIT)is required for. access may call the GS$Mart Administrator,Pat Mullen at 916/327- 2600(pmullenQdgs.ca.gov)for further infornation. • procurement of major Information Technology systems pursuant to SAM Section 4819.39; SMALL BUSINESS ORDERING CONSIDERATION • purchase of imaging equipment which exceed$25,000;and • purchase of used Information Technology equipment. Effective January 1,1999,pursuant to Assembly Bill No.2405, prior to placing orders under the California Multiple Award Special attention is to be given to the following: Schedule program,State agencies shall whenever practicable first consider offers from small businesses that have established . SAM Section 4819.41 and 4832 certifications for Information CMAS contracts(Public Contract Code 10290). NOTE: Technology procurements and compliance with policies. Substantiation of compliance with this requirement will be • Services may not be paid for in advance. requested by the Department of General Services auditors when • Agencies must adhere to the guidelines in SAM Section your files are reviewed. 2120/2121 for servicing office equipment. • Agencies are required to file with the Department of Fair The following website lists CMAS Small Business Partners: Employment and Housing(DFEH)a Contract Award Report 1/11/99 2 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) MIRACLE RECREATION EQUIPMENT CO. CMAS#4-99-7MO06A Std. 16 for each order over$5,000 within 10 days of award, including amendments which exceed$5,000. Do not circumvent normal procurement methods by splitting • Pursuant to Public Contract Code Section 10359 state purchases into a series of delegated purchase orders agencies are to report all Consulting Services Contract activity (SAM 3572). for the preceding fiscal year to DGS and the six legislative committees and individuals that are listed on the annual Splitting a project Into small projects to avoid either fiscal or memorandum from DGS. procedural controls is prohibited(SAM 4819.34). YEAR 2000 COMPLIANCE MINIMUM ORDER LIMITATION Contract language pertaining to Year 2000 Compliance is The minimum dollar value of an order to be issued under this addressed In the attached CMAS Terns and Conditions. contract is$100.00. PUBLIC WORKS PROJECTS MULTIPLE CONTRACTS ON STD,65 ORDER FORM A public works contract is defined as an agreement for"the Agencies may include multiple contracts from the same supplier erection,construction,alteration,repair,or improvement of any on a single Sid.65 Contract/Delegation Purchase Order. . public structure,building,road,or other public improvement of Agencies wishing to create a single purchase order using any kind"In accordance with the Public Contract Code(PCC) multiple CMAS contract numbers must adhere to the following Section 1101, State agencies planning these types of projects guidelines,without exception. need to review the State Contracting Manual(SCM)Section 10 for applicable guidelines and regulations. 1. All contracts must be for the same CMAS supplier. Agency CMAS orders may allow for a public works 2. The order must go to one supplier location. component only when it Is Incidental to the overall project requirements. Agencies are to ensure that the applicable laws 3. Place the word"CMAS"In the space usually reserved for the and codes pertaining to the Contractor and sub-Contractor contract number. On Std.65s,this is at the top of the form. licensing,prevailing wage rates,bonding,labor code The word'CMAS"signifies that the order contains items requirements,etc.are adhered to by the prime Contractor as from multiple CMAS contracts. well as any sub-Contractor during the performance under the agency's CMAS order. 4. The purchasing agency may only use one(1)bill code. Note. In accordance with Labor Code Section 1773.2,the 5. For each Individual contract(as differentiated by alpha ordering agency is responsible for determining the appropriate suffix),the agency must identify and group together the craft, classification or type of worker needed for any contract contract number with line items and subtotal per contract for public works. Also,the agency is to specify the number(do not include tax in the subtotal),AND sequentially applicable prevailing wage rates as determined by the identify each individual contract as Sub#1,Sub#2,Sub 43, Director of the Department of Industrial Relations(DIR). In etc. This facilitates accurate billing by the Procurement lieu of specifying the prevailing wage rates, the agency may Division. include a statement on the order that the prevailing wage rates are on file at the agency's office, and will be made 6. The total of all items on the purchase order must not exceed available upon request. The prevailing wage rates are the order limit identified in the CMAS contract. available from the DIR at(415) 972-8628. 7. Do not combine items from both commodity and information LEASEIPURCHASE ANALYSIS technology contracts. Commodity contracts begin with the number 4 and information technology contracts begin with State agencies must complete a Lease/Purchase Analysis(LPA) the number 3. The order limits are different for these types to determine best value when contemplating a lease/rental,and of contracts. retain a copy for future audit purposes(SAM 3700). The LPA is not required to be approved by the Department of General MAINTENANCE TAX Services. Section 1655 of the Sales and Use Tax Regulations of the PRICE ANALYSIS Business Taxes law Guide under Optional Warranties rule is that sales tax shall not be charged on optional warranties and CMAS contracts are considered"price analyzed"bemuse they therefore the Contractor Is considered the end user and liable for are based upon federal government multiple award schedules on the sales tax. Prices charged for service are not subject to sales which a pricalcost analysis was already performed,or upon tax and neither can sales tax be assessed the State for any part other multiple award schedules where the products have been or consumable supply installed that is included in the full service competitively bid and the prices compared and/or assessed. maintenance. Therefore,additional analysis is not required by the Procurement Division or Individual agencies. OPEN MARKET ITEMS ORDER LIMITS The only time that open market items may be included in a CMAS order is when they fall under the parameters of the Not The maximum amount of each transaction placed under the Specifically Priced(NSP)Items provision. If the NSP provision award contract is$100,000.00, is not included in the schedule,or the products and/or services Splitting of contracts to avoid any monetary limitations is required do not qualify under the parameters of the NSP prohibited(SAM 1215), 1111/99 3 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) MIRACLE RECREATION EQUIPMENT CO. CMAS#4-99-78-0006A provision,the products and/or services must be procured e) External Peripherals. separate from CMAS. • f) Trade-ins, Upgrades,Involving the swapping of NOT SPECIFICALLY PRICED(NSP)ITEMS boards,are permissible,where the schedule contract makes specific provisions for this action. In those Contractors must be authorized providers of the instances where it is permitted,the schedule order hardware/software services they offer under the Not Specifically must include the replacement Item and an order Priced(NSP)Items provision;or,otherwise,risk contract notation that the purchase involves the swapping of a termination. board. CMAS Contractor has the option of accepting orders for non- g) Items which do not meet the Productive Use contract products and services(NSP items),subject to the Requirements. following requirements. Agency orders containing only NSP Items are prohibited. To be included on an order Issued under h) Any other item or Gass of Items which Is specifically this contract,NSP items must adhere to the following provisions excluded from the scope of this schedule contract and limitation. i) Public Works components which are NOT incidental 1. The Contractor agrees to specifically monitor all schedule to the overall project requirements. Refer to the orders received to ensure adherence to this provision. previous Public Works Projects provision as well as. the CMAS Terms and Conditions, Provision V. 2. A schedule order containing NSP items may be Issued only if such an order results in the lowest overall alternative to j) Products or services the supplier is NOT factory meet the needs of the Government. authorized or otherwise certified or trained to provide. 3. NSP items shall be dearly Identified in the schedule order. Any product or service already specifically priced and k) Follow-on consultant services that were previously included in the schedule contract may not be identified as a recommended or suggested by the same supplier NSP item. for information technology projects. Refer to the CMAS Terms and Conditions, Provision,#33. 4. Maximum Order Limitation: For orders$250,000.00,or less,the total dollar value of all NSP items included in a The Contractor will not accept any order under the contract schedule order shall not exceed$5,000.00. For orders containing NSP items which does not conform to these terms. exceeding$250,000.00,and at the option of the supplier, The Contractor will promptly notify the Customer agency issuing the total dollar value of all NSP items in a schedule order the non-conforming order of its non acceptance and the reasons shall not exceed 5%of the total cost of the order,or for its non acceptance. $25,000.00 whichever is lower. This includes orders with approved"exception'limits. PRODUCTIVE USE REQUIREMENTS 5. An NSP item included in an order issued against a Each equipment or software component must be in current schedule contract is subject to all of the terms and operation for a paying customer and the paying customer conditions set forth in the schedule contract. must be external to the Contractor's organization(not owned by the Contractor and not owning the Contractor). 6. The following NSP items ARE SPECIFICALLY EXCLUDED from any order issued under this contract: To substantiate compliance with the Productive Use Requirements,the Contractor must provide the name and a) Items which are not intended for use in directly address of a customer installation and the name and supporting the priced items included in the same telephone number of a contact person. order. An item must be subordinate to the specifically- _ priced item that the NSP Item Is supporting. The elapsed time such equipment or software must have been in operation is based upon the importance of the For example,a cable,which is not otherwise equipment or software for system operation and its cost. specifically priced in the contract,is subordinate to a The following designates product categories and the required specifically priced printer or facsimile machine,and is period of time for equipment or software operation prior to eligible to be an NSP item subject to that cable approval of the replacement item on CMAS. meeting the remaining NSP requirements. However,a printer or facsimile machine,which is not otherwise Category 1 -Critical Software: Critical software is software specifically priced in the contract,is not subordinate to that is required to control the overall operation of a computer a specifically priced cable,and is not eligible to be an system or peripheral equipment. Included in this category are NSP item, operating systems, data base management systems, language interpreters, assemblers and compilers, b) Supply type items,except for the minimum amount communications software, and other essential system necessary to provide initial support to the priced software. schedule items included in the same order. Cost Prior Operation c) Software,except operating software. More than $100,000 8 months $10,000 up to $100,000 4 months d) Computers,Computer Systems,Workstations and Less than $10,000 1 month Terminals. 1111199 4 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) MIRACLE RECREATION EQUIPMENT CO. CMAS#4-99-78-0006A Category 2-All Information Technology Equipment and Contractor note: Additional shipping costs incurred by deviation Non-Critical Software: Information technology equipment is to above shipping instructions,without Traffic Management defined in SAM Section 4819.2. approval shall be charged to the Contractor. Cost Prior Operation PAYMENT TERMS More than $100,000 6 months $10,000 up to $100,000 4 months 3%cash,net 30 days. Less than $10,000 1 month Each State accounting office must have a copy of the CREDIT CARD attached Vendor Data Record(Std.204)In order to process payment of Invoices. Agencies should forward a copy of Mirada Recreation Equipment Co.accepts the State of the Std.204 to their respective accounting office(s). California credit card(CAL-Card). Without the Sid.204,payment may be unnecessarily delayed. Agencies are NOT required to submit support documentation to CMAS for CAL-Card transactions,and the CMAS Unit will not bill DISCOUNT agencies for CAL-Card transactions. 15%-192-37e CONTRACTOR TRAVEL 10%-192-37 abcd State agencies(not local governments)should refer to SAM QUANTITY DISCOUNT Section 0774"TRAVEL AND RELATED REIMBURSEMENT OF PERSONS NOT STATE EMPLOYEES;when transportation 1%on orders$25,000-$49,999 and per diem costs are to be reimbursed by the State. 2%on orders$50,000 and over If the contract provides for travel, State agencies may pay DELIVERY travel and per diem expenses according to state travel time and per diem rules (represented employee rates) and verified 30 days after receipt of order,or as negotiated between agency receipts. Local government, education and special districts and Contractor. will pay travel time and per diem according to their statutory requirements. All travel and per diem expenses must be WARRANTY within contract parameters, and incorporated into the agency's order. See award schedule for warranties. If travel is NOT addressed or is not covered in the contract, OWNERSHIP INFORMATION then the agency cannot include it as a line item on the order. Mirada Recreation Equipment Co.is a large business SHIPPING INSTRUCTIONS enterprise. . F.O.B.(Free On Board)Odgin. CONTRACT DISTRIBUTION AND UPDATES State agencies(not local governments)must follow the Contractors will provide to agencies a copy of their catalog(s)or instructions below for shipping charges exceeding$50.00. listing(s),contract terms and conditions,and all updates upon request All shipments will be made by ground transportation unless otherwise ordered on the Sid.65. SUPPLIER QUARTERLY REPORTS Before placing order,contact the DGS Traffic Management Contractors are required to submit a detailed report Unit 916/574-2203 to determine the routing of freight shipments. quarterly to the DGS Procurement Division,CMAS Unit, You will need to provide Traffic Management with the point of 1500-5th Street,Suite 116,Sacramento,CA 95814, origin and destination. They will also want to know the Attention: Carol Umfleet. A separate report Is required for commodity being shipped and the estimated shipping weight of each contract,as differentiated by alpha suffix(if applicable). the order. If shipping overnight,the account number must be Suppliers with resellers are responsible for reporting reseller included. ordedng activity. Any report that does not follow the required Routing information should be shown on the face of the format or that excludes information will be deemed incomplete. Contract/Delegation Purchase Order(Sid.65)In the format shown below. Effective September 30,1997,new schedules for suppllers with existing schedules,and extensions or renewals of Agency Note: Estimated freight charge of on existing schedules,will be approved ONLY if the supplier this order, has submitted to the CMAS Unit all quarterly reports due. SHIPPING INSTRUCTIONS: Contractor route via Copies of purchase orders are no longer acceptable. Each . Annotate bill(s)of quarterly report is required within two weeks of the end of lading as follows: "Freight for account of State of California. March,June,September,and December of each calendar Tender applies' If unable to year. Subsequent to September 30,1997,reports which use this carrier,call Traffic Management 916/574-2203. become two months past due will result in automatic contract revocation. A report is required even when there is no activity. 1/11199 5 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) MIRACLE RECREATION EQUIPMENT CO., CMAS#4-99-78-0006A The report must include the agency name,purchase order ALTERNATIVE MEDIA AND ON-LINE ACCESS TO number,purchase order date,agency billing code,pre-tax total SCHEDULES order cost,agency contact name,address and phone number, and total dollars for the quarter. Tax must NOT be included in Contact Contractor directly regarding the availability of the quarterly report,even if the agency Includes tax on the schedules or listings on CD ROM,or access to electronic purchase order. Bulletin Board Systems(BBS). A sample quarterly report(Attachment A)indicating required CONTRACTOR MAILING ADDRESS AND PHONE NUMBER format and information Is attached for your reference. Orders may be mailed to the following address,or faxed to AMERICANS WITH DISABILITY ACT(ADA) (417)2354713: Section 504 of the Rehabilitation Act of 1973 as amended;rifle Miracle Recreation Equipment Co. VI and VII of the Civil Rights Act of 1964 as amended; 907 E.County Road Americans with Disabilities Act,42 USC 12101;California Code Monett,MO 65708 of Regulations,Title 2,Title 22;California Government Code, Attn: Thad Joseph Sections 11135,et seq.;and other federal and state laws,and Executive Orders prohibit discrimination. All programs,activities, Agencies with questions regarding products and/or services may employment opportunities,and services must be made available call(800)5234202 x 428. to all persons,Including persons with disabilities. See EMAIL:playgroundman@hotmaii.com. Attachment B for Procurement Division's ADA Compliance Policy of Nondiscrimination on the Basis of Disability. DGS PROCUREMENT DIVISION CONTACT AND PHONE NUMBER Individual government agencies are responsible for self- compliance with ADA regulations. Carol Umfleet Department of General Services Supplier sponsored events must provide reasonable Procurement Division,CMAS Unit accommodations for persons with disabilities. 1500-5th Street,Suite 116 Sacramento,CA 95814 _Phone#91 61324-8 045 Calnet#8/454-8045 Fax#9161323-1441 ,Want to know more about CMAS_ 2,o We Weldome_the apporfum_ ty to present the;iletailshif this program to your_ A!° + p I agency-or group Please contact�the C6liforhi4 Multiple Award Schedule Unit at916/324-8045 orq"CaGiet 8/454 '. 8045 to arrdnge a.date and tune! 1/11/99 6 ATTACHMENT A WAS QUARTERLY BUSINESS ACTIVITY REPORT Calendar Quarter Number: (Quarter#and Year) CMAS Contract Number: XX-XX-XX-XXXXX(including alpha suffix if applicable) Contractor: Company Name Address Contractor Contact: Name Phone Number Agency Name Purchase Order Purchase Agency Total Dollars Agency Agency Phone , Number Order Date Billing Code per Order Contact Address Number Total dollars for quarter: $ Tax must NOT be included in the quarterly report even if the agency includes tax on the purchase order. NOTE., A report is required even when there is no activity. 1/11/99 7 ATTACHMENT B ADA NOTICE Procurement Division (State Department of General Services) AMERICANS WITH DISABILITIES ACT (ADA) COMPLIANCE POLICY OF NONDISCRIMINATION ON THE BASIS OF DISABILITY To meet and carry out compliance with the nondiscrimination requirements of the Americans With Disabilities Act (ADA), it is the policy of the Procurement Division (within the State Department of General Services) to make every effort to ensure that its programs, activities, and services are available to all persons, including persons with disabilities. For ,persons with a disability needing a reasonable modification to participate in the Procurement process, or for persons having questions regarding reasonable modifications for the Procurement process, please contact the Procurement Division at (916) 445-2500 (main office); the Procurement Division TTY/TDD (telephone device for the deaf) or California Relay Service numbers which are listed below. You may also. contact directly the Procurement Division contact person that is handling this procurement. IMPORTANT: TO ENSURE THAT WE CAN MEET YOUR NEED, IT IS BEST THAT WE RECEIVE YOUR REQUEST AT LEAST 10 WORKING DAYS BEFORE THE SCHEDULED EVENT (i.e., MEETING, CONFERENCE, WORKSHOP, etc.) OR DEADLINE DUE-DATE FOR PROCUREMENT DOCUMENTS. The Procurement Division TTY telephone numbers are: Sacramento Office: (916) 322-7535 Fullerton Office: (714) 773-2093 The California Relay Service Telephone Numbers are: Voice: 1 -800-735-2922 or 1 -888-877-5379 TTY: 1-800-735-2929 or 1 -888-877-5378 Speech to Speech: 1 -800-854-7784 1/11199 8 nAnanaawA VENDOR DATA RECORD (Raqulnd In 11au of IRS W-D when dtoln9 hNebese wish the Stab of pTfomls) am.rKv."n NOM Governmental enLNks,todersl,state,and load(Inchrdlny publk sdwol dbtrkts)sn not required to submit this form. SECTION 1 mup be completed by se req=dW relate&W Ly telare biwan*Qta the ver idor wAe�mancx DGS ]?rotor PURPOSE Inkmbcn contaaed In Ids bon vd be used by SIRW m436 sub agencW to prepare Infdsmaffon Realms(Form 1099)and PLUM 15W — 5th Street Suite 116 ter wftlddnp on paymerte to rnnrasident M°rAom Prompt RETURN CTCanTEMOME realm of fus fully completed form WW Prevent delays when Tor Sacraeento CA 95814 tees"Pam' Taa+cha rare 916 324-8045 (See Pdv+dyStatement on nwr») © VEOoearweFaawua aatenardaEnMfarXu aTw®anurwMretE r.a f.a� aJAaOAurf3i 141-6 'TY�bAeD/,'7 7a go L wt KGt - ✓may07 �- a 6SZDd' OtI%pE amdar.Y NOTE:SUM and local 10WAL CORPORATION*Adedmimpa+A PART IOMW Ywrmrdal n'1Cas. VENDOR ENTITY ❑.�fe..•,a.—a•�.-><s1 ❑ k4kid"3010 TYPE dw has we rct ❑ BMW CORPORATION NxpuV ❑ ESTATE OR TRUST npind M wba 1* bm ❑A arm CORPORATIONS ❑ INDIVIDUALSW PTO Q4 SOCIAL SECURITY NDNBEA REQUIRED FOR eDfYmUALMLE PROPRIETOR BY AUTHORITY OF REVENUE AND TAXATION CODE SECTION 10645 rSv www) NOTE Pap"WN nod be proowaed VENOM wow w TAXPAYER eq . LIL NUMBER I''9 t 3, I ' I Sj J 10X l I ( t l d d d .i d i .l d d d d M>paW I.D.nerbw. F VENOM ENTRY Two rACOMMADW PAATNG6 FVEOM WRY TEE AT FANYWALAW SW EITATEOIITKW.9ffEAf K MGIIOEIOIDREXaar Q N; a.An eehae le a ❑ Callonia ReaNrt•Qalaad b do Warr h CA wa prFnrrt plea d IM+Yrea h CA WN a c tl m a aakaMigFta VENDOR rrtlrt at thr RAN RESEENCY (Sn Awrael rterarMnetryroaeiidwta may to K*d to dale deerh STATUS MWgdiq kAhWIRAaraidrt ❑ it adMW w/NEROFIMWnHO<aOnanFWM;FMTUBDMAtpow k ■CanMFta rubwL am Frtlrt ISaarowaai ❑ 49WEsreaaa EOCIAMOMMFOew © 1 hxsby arWy tsldrr peaaby of per)Ray under the Inns of fM Shte of CaWomb VW fhe lntormatlon provided on fhb document b bve and comoa If my nsldency ststua should dange,l will promptly cERr>FruIO Inform you. SIDNATURE Ani101atlOVaOol1 aF111EirrfANE7rM11rrrM�/NIP TIRE / TN o sGPr�- s7 1/'l� - jam./ { v Sys ra'wwATulE - RATE rneFTl 3 iy M1_ s; id9.3-y���L 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 WAS terms and conditions which result in Increase risk or liability to the State are not acceptable. 1. APPROPRIATION OF FUNDS 3. NATIONAL LABOR RELATIONS BOARD CERTIFICATION a. If the term of this contract extends into fiscal years By signing hereon the Contractor swears under penalty of subsequent to that in which it is approved, such perjury that no more than one final, unappealable finding of continuation of the contract is subject to the appropriation contempt of court by a Federal court has been issued against of funds for such purpose by the Legislature. If funds to the Contractor within the immediately preceding two-year effect such continued payment are not appropriated, period because of the Contractor's failure to comply with an Contractor agrees to take back any affected equipment order of the National Labor Relations Board.This provision is and software furnished under this contract, terminate any required by,and shall be construed in accordance with Public services supplied to the Stale under this contract, and Contract Code Section 10296. relieve the State of any further obligation therefor. 4. STATEMENT OF COMPLIANCE b. State agrees that if Provision a above Is invoked, equipment shall be returned to contractor in substantially The Contractor's signature affixed hereon and dated shall the same condition in which it was delivered to the Slate, constitute a certification under the penalty of perjury under the subject to normal wear and tear. State further agrees to laws of the State of California that the Contractor has,unless pay for packing, crating, transportation to contractors exempted, complied with the nondiscrimination program nearest facility and for reimbursement to the contractor for requirements of Government Code Section 1'2990 and Title 2, expenses incurred for their assistance in such packing California Administrative Code,Section 8103. and crating. 5. EXAMINATION AND AUDIT 2. DRUG-FREE WORKPLACE CERTIFICATION a. State Auditor Audit By signing this contract, the Contractor hereby certifies under The contracting parties shall be subject to the examination penalty of perjury under the laws of the State of California that and audit of the State Auditor for a period of three (3) the Contractor will comply with the requirements of the Drug- years after final payment under the contract in accordance Free Workplace Act of 1990(Government Code Section 8350 with Government Code Section 8546.7. The examination et seq.) and will provide a drug-free workplace by taking the and audit shall be confined to those matters connected following actions: with the performance of the contract including, but not a. Publish a statement notifying employees that unlawful limited to,the costs of administering the contract. manufacture, distribution, dispensation, possession, or b. Disabled Veteran Business Enterprise Audit use of a controlled substance is prohibited and specifying Contractor agrees that the awarding department, or its actions to be taken against employees for violations, as delegatee, will have the right to review, obtain, and copy required by Government Code Section 8355(a). all records pertaining to performance of the contract. b. Establish a Drug-Free Awareness Program as required by Contractor agrees to provide the awarding department, or Government Code Section 8355(b) to inform employees its delegates,with any relevant information requested and about all of the following: shall permit the awarding department, or its delegatee, 1) the dangers of drug abuse in the workplace; access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing 2) the person's or organization's policy of maintaining a employees and inspecting and copying such books, drug-free workplace; records, accounts, and other material that may be 3) any available counseling, rehabilitation and employee relevant to a matter under Investigation for the purpose of assistance programs;and, determining compliance with Military and Veterans 4) penalties that may be imposed upon employees for Code,Section 999 et seq.and Titie 2,California Code of drug abuse violations. Regulations, Section 1896.60 et seq. Contractor further c. Provide, as required by Government Code Section B355 agrees to maintain such records for a period of three (3) (c), that every employee who works on the proposed years after final payment under the contract. contract: 6. CONTRACTOR'S LICENSE REQUIREMENTS 1) will receive a copy of the company's drug-free policy Contracts which include installation, or the wording"Fumish statement;and, and Install'require at the time of contract award that suppliers 2) will agree to abide by the terms of the company's possess a valid California State Contractors License. If sub- statement as a condition of employment on the contractors are used,they must also posses a valid California contract State Contractors License. All businesses which construct or Failure to comply with these requirements may result in alter any building, highway, road, parking facility, railroad, suspension of payments under the contract or termination of excavation, or other structure in California must be licensed the contract or both and the Contractor may be ineligible for by the California Stale License Board (CSLB)if the total cost award of any future State contracts if the department (labor and materials) of the project is $300.00 or more. determines that any of the following has occurred: (1) the Failure to be licensed or to keep the license current and in Contractor has made false certification, or (2) violates the good standing shall be grounds for contract revocation. certification by failing to carry out the requirements as noted above. Revision 5/26/1998 Page 1 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS 7. SPECIAL CONDITIONS PUBLIC WORKS The Contractor will be required to secure the payment REQUIREMENTS(APPLICABLE TO INSTALLATION ONLY of compensation to its employees in accordance with a. Prior to the commencement of performance, the the provisions of Labor Code Section 3700. Contractor must obtain and provide to the State, a 3) Travel and Subsistence Payments payment bond,on Standard Form 807,when the contract Travel and subsistence payments shall be paid to involves a public works expenditure (labor/installation each worker needed to execute the work, as such costs)in excess of$5,000. Such bond shall be In a sum travel and subsistence payments are defined in the not less than one-half the contract price. Forms shall be applicable collective bargaining agreements filed in provided to the Contractor. accordance with Labor Code Section 1773.8. b. In accordance with the provisions of Section 1773 of the 4) Apprentices California Labor Code, the Contractor shall, conform and stipulates to the general prevailing rate of wages, Special attention is directed to Sectors 1777.5, including employer benefits as defined in Section 1773.1 1777.6, and 1777.7 of the California Labor Code and of the California Labor Code,applicable to the Gasses of Title 8, California Administrative Code Section 200 et labor to be used for public works such as at the delivery seq. Each Contractor and/or subcontractor must,prior site for the assembly and Installation of the equipment or to commencement of the public works contract, materials under the contract Pursuant to Section 1770 of contact the Division of Apprenticeship Standards, 525 the California Labor Code, the Department of Industrial Golden Gate Avenue,San Francisco,CA,or one of its Relations has ascertained the general prevailing rate of branch offices to insure compliance and complete wages In the county in which the work is to be done,to be understanding of the law regarding apprentices and as listed in the Department of Transportation booklet specifically the required ratio thereunder. enticed General Prevailing Wage Rates. The booklet is Responsibility for compliance with this section lies with compiled monthly and copies of the same are available the prime contractor. from the Department of Industrial Relations, Prevailing 5) Payroll Wage Unit at(415)972-8628. The booklet Is required to The contractor shall keep an accurate payroll record be posted at the job site. showing the name, social security account, work c. The Contractor hereby certifies by signing this contract classification specific and straight time and overtime that hours worked by each employee. A certified copy of 1) Contractor has met or will comply with the standards the employee's payroll record shall be available for of affirmative compliance with the Non-Discrimination inspection as specified in section 1776 of the Clause Requirements included herein. _ California Labor Code. 2) Contractor is aware of the provisions of Section 3700 8. DISPUTES(APPLIES TO SERVICE CONTRACTS ONLY) of the Labor Code which require every employer to be a. Any dispute concerning a question of fact arising under insured against liability for workmen's compensation the terms of this agreement which is not disposed of or to undertake self-insurance in accordance with the within a reasonable period of time by the Contractor and provisions of that Code, and Contractor will comply State employees normally responsible for the with such provisions before commencing the administration of this contract shall be brought to the performance of the work of this contract. attention of the Chief Executive Officer (or designated d. Laws to be Observed representative) of each organization for joint resolution. 1) Labor At the request of either party, the State shall provide a Pursuant to Section 1775 of the California Labor Code forum for discussion of the disputed item(s),at which time the State Chief of Procurement, or his representative, the Contractor shall, as a penalty to the State or shall be available to assist in the resolution by providing Political subdivision on whose behalf the contract is advice to both parties as to the State of California EDP made or awarded, forfeit not more than fifty ($50.00) policies and procedures. If agreement cannot be reached for each calendar day, or portions thereof, for each through the application of high level management worker paid by him or subcontractor under him, less attention, either party may assert its other rights and than the prevailing wage so stipulated;and in addition, remedies within this contract or within a court of the Contractor further agrees to pay to each workman competent jurisdiction. the difference between the actual amount paid for b.The rights and remedies of the State provided above shall each calendar day, or portions thereof, and the stipulated prevailing wage rate for the same. This not be exclusive and are in addition to any other rights and provision shall not apply to properly indentured remedies provided by law or under the contract. apprentices. c.The State and the Contractor agree that,the existence of a Pursuant to Sections 1810-1815 of the California dispute notwithstanding, they will continue without delay to Labor Code, inclusive, it is further agreed that the carry out all their responsibilities under this contract which maximum hours a worker is to be employed is limited are not affected by the dispute. to eight hours a day and forty hours a week and the 9, CONTRACTOR EVALUATION (CONSULTING SERVICE Contractor shall forfeit, as a penalty to the State, CONTRACTS OVER$5,000) twenty-five ($25) for each worker employed in the In accordance with the California Government Code, execution of the contract for each calendar day during which a workman is required or permitted to labor Contractor performance evaluation will be completed within more than eight hours in any calendar day or more the guidelines of the State Administrative Manual, Section than forty hours in any calendar week, in violation of 1283. The State contracting agency, upon contract California Labor Code Sections 1810-1815,inclusive. completion, will complete and forward the contractor 2) Worker's Compensation Insurance evaluation to the Department of General Services. Revision 5/26/1998 Page 2 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS 10. CONTRACTS IN EXCESS OF $200000 (APPLIES TO Housing Commission implementing Government Code, SERVICE CONTRACTS ONLY) Section 12990(a-f),set forth in Chapter 5 of Division 4 of Contractor shall give priority consideration In filling vacancies Title 2 of the California Code of Regulations are in positions funded by this contract to qualified recipients of incorporated into this contract by reference and made a aid under Welfare and Institutions Code Section 11200 part hereof as if set forth in full. Contractor and its (Public Contract Code 10353). subcontractors shall give written notice of their obligations under this clause to labor organizations with which they 11. ASSIGNMENT OF ANTITRUST ACTIONS have a collective bargaining or other agreement. The following provision of Government Code Section 4552, b. This Contractor shall include the nondiscrimination and 4553, and 4554 (Statutes of 1978, Ch. 414) shall be compliance provisions of this clause in all subcontracts to applicable to the Contractor. perform work under the contract. In signing this contract, the Contractor agrees that it will 14. VENDOR DATA RECORD 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 Each Contractor doing business with the State of California Clayton Act (15 U.S.C. sec. 15) or under the Cartwright Act must Indicate their residency status along with their vendor [Chapter 2 (commencing with Section 16700) of Part 2 of identification number. Contractors are required to provide a Division 7 of the Business and Professions Code], arising completed Vendor Data Record, Sid. 204 (attached), to the from purchases of goods, materials, or services by the DGS Procurement Division before entering into this contract. Contractor for sale to the purchasing body pursuant to the 15. DEBARMENT CERTIFICATION(FEDERALLY FUNDED contract. Such assignment shall be made and become SERVICE CONTRACTS OVER$10,000) effective at the time the purchasing body tenders final payment to the Contractor. The prospective recipient of Federal assistance funds Is required to certify (attached), that neither it nor its principals If an awarding body or public purchasing body receives,either are presently debarred,suspended, proposed for debarment, through judgment or settlement, a monetary recovery for a declared ineligible,or voluntarily excluded from participation in cause of action assigned under this chapter, the assignor this transaction by any Federal department or agency. The shall be entitled to receive reimbursement for actual legal Contractor is required to complete the attached certification costs incurred and may, upon demand, recover from the before entering into this contract. public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the 16. TERMINATION OF CONTRACT assignor but were not paid by the public body as part of the a. The State may terminate this contract at any time upon contract price, less the expenses incurred in obtaining that one month prior written notice. portion of the recovery. b. If the Contractor's GSA Multiple Award Schedule is Upon demand in writing by the assignor, the assignee shall, terminated within the term of the California Multiple Award within one year from such demand, reassign the cause of Schedule, the California schedule shall also be action assigned under this part if the assignor has been or considered to be terminated on the same date. may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been c. Upon termination or other expiration of this contract, each injured thereby, or (b) the assignee declines to file a court party will assist the other party in arderiy termination of action for the cause of action. the contract and the transfer of all assets, tangible and Intangible, as may facilitate the orderly, nondisrupted 12. REQUIRED PAYMENT DATE business continuation of each party. Payment is due to Contractor 30 days from the date the d.Prior to the expiration of this contract, this contract may be equipment,software or services are received and accepted by terminated for the convenience of both parties by mutual the State or 30 days from the date a correct Invoice is consent. received in the office specified by the State, whichever is 17 UPDATES AND/OR CHANGES later. When provision is made for a testing period preceding acceptance by the State, date of acceptance shall mean the Any updates and/or changes to the GSA Multiple Award date the equipment or software is accepted by the State Schedule (or other multiple award contact) prices and/or during the specified testing period. catalog shall be available to the State of California when they become effective for the Federal Government (or other 13. NONDISCRIMINATION CLAUSE awarding authority), except for Contractors adding new a. During the performance of this contract,Contractor and its manufacturer's products and/or services which are based on subcontractors shall not unlawfully discriminate,harass or another Contractor's federal schedule or other multiple award allow harassment, against any employee or applicant for schedule. When Contractors offer new manufacturer's employment because of sex, race, color, ancestry, products and/or services which reside on another Contractor's religious creed, national origin, physical disability schedule or contract, the CMAS Unit must approve an (including HIV and AIDS), mental disability, medical amendment adding the new manufacturer's products and/or condition (cancer), age (over 40), marital status, and services BEFORE they may be sold to the State of Califomia denial of family care leave. Contractors and Also, new federal contract terms and conditions which subcontractors shall Insure that the evaluation and constitute a material difference from existing contract terms treatment of their employees and applicants for and conditions are not considered approved until the CMAS employment are free from such discrimination and Unit issues a supplement including the new terms and harassment. Contractor and subcontractors shall comply conditions. A material change has a potentially significant with the provisions of the Fair Employment and Housing effect on the delivery,quantity or quality of items provided,the Act (Government Code, Section 12900 et seq.) and the amount paid to the vendor,or on the cost to the State. applicable regulations promulgated thereunder(California Code of Regulations,Title 2,Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Revision 5/2 611 9 9 8 Page 3 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS 18. CONTRACT AMOUNT The report must include the agency name, purchase order There is no minimum or maximum dollar amount spedfied by number, purchase order date, agency billing code, pre-tax this contract nor is there any guarantee of minimum purchase total order cost, agency contact name, address and phone of Contractor's products or services by the State. number, and total dollars for the quarter. Tax must NOT be Included report, even if the agency includes 19. PURCHASE ORDER LIMITS tax on the purchase order. Orders for Information Technology products and/or services 24. TAXES shall not exceed 4500,000 per transaction. Orders for non Information Technology (commodities) products and/or The Slate of California is exempt from Federal excise taxes services shall not exceed$100,000 per transaction. and no payment shall be made for any personal property taxes levied on the Contractor or on any taxes levied on 20. NO ADDITIONAL COSTS employee wages. The State will only pay for any State or No additional costs beyond those identified in the agreement local sales or use taxes on the services rendered or shall be incurred by the State for obtaining the products and equipment,parts or software supplied to the State pursuant to services offered. this contract 21.. DELIVERY(ORDERS$250,000 OR LESS) 25. INVOICES AND PAYMENTS If the Contractor does not deliver its products to a site The Contractor shall render invoices to the ordering agency. designated by the State within the delivery time specified,the Invoices for purchases and software fees are not due and State may terminate the right of the Contractor to deliver and payable until successful completion of any applicable may obtain substitute products. acceptance testing. Invoices for services are not due and payable,and do not constitute an obligation of the State, until 22. CONFIDENTIALITY the month following the month for which charges accrue. All financial,statistical,personal,technical and other data and Software maintenance and license fees,which are considered information relating to the State's operation which are a subscription, may be paid In advance if a provision designated confidential by the State and made available to addressing payment in advance is included in the contract or the Contractor in order to carry out this agreement, or which purchase order. become available to the Contractor in carrying out this 26. AMENDMENTS agreement, shall be protected by the Contractor from unauthorized use and disclosure through the observance of This contract may be amended by mutual consent of the the same or more effective procedural requirements as are parties. An amendment shall not be effective until approved applicable to the State. The identification of all such by the Director of General Services, or until a certification of confidential data and Information as well as the State's exemption from such approval has been signed by the procedural requirements for protection of such data and contracting agency. No alteration or variation of the terms of information from unauthorized use and disclosure shall be this contract shall be valid unless made in writing, and no oral provided by the State in writing to the Contractor. If the understanding or agreement not incorporated herein shall be methods and procedures employed by the Contractor for the binding on any of the parties hereto. protection of the Contractors data and information are deemed by the State to be adequate for the protection of the 27. ASSIGNMENT State's confidential information, such methods and This contract shall not be assignable in whole or in part procedures may be used, with the written consent of the without written consent of the State. It is the policy of the State, to carry out the intent of this paragraph. The State of California to withhold consent from proposed Contractor shall not be required under the provisions of this assignments, subcontracts, or novations when such transfer paragraph to keep confidential any data or Information which of responsibility would operate to decrease the State's is or becomes publicly available, is already rightfully in the likelihood of receiving performance on the contract. The Contractors possession, is independently developed by the State does not normally object to the granting of assignments Contractor outside the scope of this agreement,or is rightfully for financial purposes provided that the original Contractor obtained from third parties. retains all of its responsibilities and obligations under the 23. QUARTERLY REPORTS contract. In the event of any assignment herein to which the State has consented, each such assignment shall contain a Contractors are required to submit a detailed report quarterly provision that further assignments shall not be made to any to the DGS Procurement Division, CMAS Unit, 1500 5th third or subsequent party without additional written consent of Street, Suite 116, Sacramento, 95814, Attention: Carol the State unless otherwise stipulated In the State selected Umfleet(IMS Code#C 39). A separate report is required for financing plan. each contract, as differentiated by alpha suffix(if applicable). Should the State desire financing of the assets provided Suppliers with resellers are responsible for reporting reseller hereunder through GS $Mart, the State's financial ordering activity. Any report that does not follow the required marketplace, the Contractor agrees to assign to a State- format or that excludes Information will be deemed designated lender its right to receive payment from the State incomplete. for the assets in exchange for payment by the lender of the New schedules for suppliers with existing schedules and cash purchase price for the assets. Upon notice to do so from extensions or renewals of existing schedules will be the State-designated lender at any time prior to payment by approved ONLY if the supplier has submitted to the CMAS the State for the assets, the Contractor will execute and Unit all quartedy reports due. [Copies of purchase orders are deliver to the State-designated lender an assignment no longer acceptable.l Each quarterly report is required within agreement and any additional documents necessary for the two weeks of the end of March June September, and State selected financing plan. The State-designated lender December of each calendar Year. Reports which become two will pay the Contractor according to the terms of the months past due will result in automatic contract revocation. Contractor's invoice upon acceptance of the assets by A report is required even when there is no activity. the State. Revision 5/26/1998 Page 4 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS 28. GENERAL INDEMNITY services contract. Therefore, any consultant that contracts The Contractor agrees to indemnify, defend and save with a state agency to develop a feasibility study or provide harmless the State, its officers, agents and employees from formal recommendations for the acquisition of EDP products any and all claims and losses, with the exception of or services is precluded from contracting for any work consequential damages accruing or resulting to any other recommended in the feasibility study or the formal person, firm or corporation furnishing or supplying work, recommendation. services, materials or supplies in connection with the 34. COVENANT AGAINST GRATUITIES performance of this contract,and from any and all claims and losses accruing or resulting to any person,firth or corporation The Contractor warrants that no gratuities (in the forth of which may be injured or damaged by the Contractor in the entertainment, gifts, or otherwise) were offered or given by performance of this contract which are attributable to the the Contractor or any agent or representative of the negligence or intentionally tortious acts of the Contractor Contractor,to any officer or employee of the State with a view provided that the Contractor is notified in writing within 30 toward securing the contract or securing favorable treatment days that the State has knowledge of such claims. with respect to any determinations concerning the performance of the contrail For breach or violation of this 29. GOVERNING LAW warranty, the State shall have the right to terminate the This Agreement shall be construed in accordance with,and its contract, either in whole or in part, and any loss or damage performance governed by,the laws of the State of California. sustained by the State in procuring on the open market any items which Contractor agreed to supply shall be bome and 30. CONFLICT OF TERMS paid for by the Contractor. The rights and remedies of the If there is a conflict between the terms and conditions of the Stale provided in this clause shall not be exclusive and are in Contractor's MULTIPLE award schedule and the California addition to any other rights and remedies provided by law or Multiple Award Schedule terms and conditions, the California under the contract. Multiple Award Schedule terms and conditions shall prevail. 35. .CONFLICT OF INTEREST 31. NEWS RELEASES a. Current State Employees (Public Contract Code Section News releases pertaining to this agreement shall not be made 10410): without prior written approval of the DGS Procurement 1)No officer or employee shall engage in any Division. employment, activity or enterprise from which the 32. CONTRACTS(ORDERS)FUNDED IN WHOLE OR PART BY officer or employee receives compensation or has a THE FEDERAL GOVERNMENT financial interest and which is sponsored or funded by any State agency, unless the employment, activity or All contracts (including Individual orders), except for State enterprise is required as a condition of regular State construction projects,which are funded in whole or in part by employment the federal government may be canceled with 30 days 2)No officer or employee shall contract on his or her own notice,and are subject to the following: behalf as an independent contractor with any State a. It is mutually understood between the parties that this agency to provide goods or services. contract (order) may have been written before b. Former State Employees (Public Contract Code Section ascertaining the availability of congressional appropriation 10411): of funds,for the mutual benefit of both parties,in order to avoid program and fiscal delays which would occur if the 1)For the two-year period from the date he or she left contract (order) were executed after that determination State employment,no former State officer or employee was made. may enter into a contract in which he or she engaged in b. This contract (order) is valid and enforceable only if any of the negotiations, transactions, planning, arrangements or any part of the decision-making sufficient funds are made available to the State by the United States Government for the fiscal year during which process relevant to the contract while employed in any capacity by any State agency. the order was generated for the purposes of this program. In addition, this contract (order) Is subject to any 2)For the twelve-month period from the date he or she additional restrictions,limitations,or conditions enacted by left State employment no former State officer or the Congress or any statute enacted by the Congress employee may enter into a contract with any State which may affect the provisions, terms or funding of this agency if he or she was employed by that State agency contract(order)in any manner. in a policy-making position in the same general subject area as the proposed contract within the twelve-month e. It is mutually agreed that if the Congress does not period prior to his or her leaving State service. appropriate sufficient funds for the program, this contract (order)shall be amended to reflect any reduction in funds. 36. PATENT, COPYRIGHT, AND TRADE SECRET d. The department has the option to void the contract(order) PROTECTION under the 30-day cancellation clause or to amend the a. The Contractor, at its own expense, shall defend any contract to reflect any reduction of funds. action brought against the State to the extent that such 33. FOLLOW-ON CONTRACTS FOR CONSULTANT SERVICES action is based upon a claim that the equipment or FEASIBILITY STUDIES AND EDP ACQUISITION (SAS software supplied by the Contractor, or the operation of IN IN such equipment pursuant to a current version of Contractor-supplied operating software,infringes a United No person,firm, or subsidiary thereof who has been awarded States patent,or copyright or violates a trade secret. The a consulting services contract, or a contract which includes a Contractor shall pay those costs and damages finally consulting component, may be awarded a contract for the awarded against the State in any such action. Such provision of services, delivery of goods or supplies, or any defense and payment shall be conditioned on the other related action which is required,suggested,or otherwise following: deemed appropriate as an end product of the consulting Revision 5/2 611 9 9 8 Page 5 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS 1)That the Contractor shall be notified within a greater of $200,000 or the purchase price stated herein reasonable time in writing by the State of any notice of for the specific machines that caused the damages or that such claim:and, are the subject matter of or are directly related to the 2)That the Contractor shall have the sole control of the cause of action. defense of any action on such claim and all The foregoing limitation of liability shall not apply to the negotiations for its settlement or compromise,provided, payment of costs and damage awards referred to in however, that when principles of government or public Paragraph 36, entitled 'Patent, Copyright, and Trade law are involved, the State shall have the option to Secret Protection', to claims covered by other specific participate in such action at Its own expense. provisions calling for liquidated damages or specifying a b. Should the machines or software,or the operation thereof, different limit of liability, or to claims for injury to persons become, or in the Contractor's opinion are likely to or damage to property caused by Contractor's negligence. become,the subject of a claim of infringement of a United This limitation of liability does not apply to the receipt of States patent, copyright or a trade secret, the State shall court costs or attomey's fees that might be awarded by a permit the Contractor at its option and expense either to court in addition to damages after litigation based on this procure for the State the right to continue using the cone machines or software,or to replace or modify the same so c. State's liability for damages for any cause whatsoever, that they become noninfringing and continue to meet bid and regardless of the forth of action whether in contract or specifications. If neither of these options can reasonably in tort, excluding negligence, shall be limited to the be taken, or If the use of such equipment or software by greater of$200,000 or the purchase price stated herein the State shall be prevented by injunction, the Contractor for the specific machines that caused the damage or that agrees to take back such equipment or software, and are the subject matter of or are directly related to the refund any sums the State has paid Contractor less any cause of action. reasonable amount for use or damage and make every _ d. In no event will either the Contractor or the State be liable reasonable effort to assist the State In procuring substitute for consequential damages even if notification has been equipment or software. If,in the sole opinion of the State, given as to the possibility of such damages. the return of such infringing equipment or software makes equipment-an all-Inclusive term which refers either to the retention of other items of equipment or software acquired from the Contractor under this contract individual machines or to a complete data processing Impractical, the State shall then have the option of system or subsystem, Including its operating software (if terminating the contract, or applicable portions thereof, any). without penalty or termination charge. The Contractor 38. FORCE MAJEURE - agrees to take back such equipment or software and refund any sums the State has paid Contractor less any Except for defaults of subcontractors, neither party shall be reasonable amount for use or damage. responsible for delays or failures in performance resulting c. The Contractor shall have no liability to the State under from acts beyond the control of the offending party. Such any provision of this Paragraph 36 with respect to any acts shall include but shall not be limited to acts of God, fire, claim of patent, copyright, or trade secret infringement flood, earthquake, other natural disasters, nuclear accident, which is based upon: strike,lockout, dot,freight embargo,public regulated utility,or governmental statutes or regulations superimposed after the I)The combination or utilization of machines furnished fact. If a delay or failure in performance by the Contractor hereunder with machines or devices not made or arises out of a default of its subcontractor,and if such default furnished by the Contractor. adsed out of causes beyond the control of both the Contractor 2)The operation of machines furnished by the Contractor and subcontractor, and without the fault or negligence of under the control of any operating software other than, either of them, the Contractor shall not be liable for damages or in addition to, the aforementioned current version of of such delay or failure, unless the supplies or services to be Contractor-supplied operating software, furnished by the subcontractor were obtainable from other 3)The modificatlon by the State of the machines sources in sufficient fime to permit the Contractor to meet the furnished hereunder or of the aforementioned software. required performance schedule. 4)The combination or utilization of software furnished 39. RISK OF LOSS OR DAMAGE hereunder with noncontractors supplied software. The State shall be relieved from all risks of loss or damage to d. The foregoing states the entire liability of the Contractor the equipment under this contract prior to delivery and/or with respect to infringement of patents, copyrights and installation as defined in the actual purchase order except trade secrets. when such loss or damage is due to fault or negligence of the State. 37. LIMITATION OF LIABILITY a. The equipmenC shall be under State's exclusive 40. WARRANTY management and control. The State agrees that the Warranty will be provided as indicated in the Contractors Contractor shall not be liable for any damages caused by CMAS. the State's failure to fulfill any State responsibilities of 41. SUBCONTRACTING REQUIREMENTS assuring the proper use, management and supervision of the machines and programs, audit controls, operating Any subcontractor that the CMAS supplier chooses to use in methods, and office procedures, and for establishing all fulfilling the requirements of this contractlorder, and which is proper checkpoints necessary for the State's intended use expected to receive more that ten(10)percent of value of the of the machines. contract/order, must also meet all contractual, administrative, b. Contractors liability for damages to the State for any and technical requirements of the contract,as applicable. cause whatsoever, and regardless of the form of action, whether in contract or in tort, shall be limited to the Revision 5/26/1998 Page 6 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS 42. FORCED, CONVICT, AND INDENTURED LABOR (This this contract shall be able to accurately process date provision is not applicable to Information Technology data (including, but not limited to, calculating, CMAS contracts, (CMAS contracts that start with the comparing, and/or sequencing) from, into, and number"3".) between the twentieth and twenty-first centuries, and Contractor or grantee certifies that no foreign-made the years 1999 and 2000 and leap year calculations to equipment, materials, or supplies furnished to the State the extent that other Information technology used in pursuant to the contract/agreement will be produced in whole combination with the information technology being or in part by forced labor, convict labor, or indentured labor acquired, properly exchanges date data with It This under penal sanction. The contractor or grantee agrees to warranty Is subject to the warranty terms and comply with the requirements of Public Contract Code(PCC), conditions of this contract Nothing in this warranty Section 6108. shall be construed to limit any rights or remedies the Any contractor contracting with the state who knew or should State may otherwise have under this contract with to defects other than Year 2000 have known that the foreign-made equipment, materials or respect supplies furnished to the state were produced in whole or part performance.(5/5198) by forced labor,convict labor,or indentured labor under penal b. Non-Information Technology Products and/or sanction,when entering into a contract pursuant to the above. Services may,subject to PCC, Section 6108,subdivision (c), have any The Contractor warrants and represents that the or all of the following sanctions imposed: goods or services sold, leased or licensed to the 1) The contract under which the prohibited equipment, State of California, its agencies, or Its political materials or supplies were provided may be voided at subdivisions, pursuant to this contractlpuechase the option of the state agency to which the equipment, order are "Year 2000 compliant" For purposes of materials or supplies were provided. this contractlpurchase order, a good or service is Year 2000 compliant if it will continue to function fully 2) The contractor may be assessed a penalty which shall before,at and after the Year 2000 without Interruption be the greater of one thousand dollars ($1,000) or an and, if applicable, with full ability to accurately and amount equaling 20 percent of the value of the unambiguously process, display, compare, calculate, equipment, materials or supplies that the state agency manipulate and otherwise utilize date information. demonstrates were produced in whole or in part by This warranty and representation supersedes all forced labor, convict labor, or indentured labor under warranty disclaimers and limitations and all penal sanction. limitations on liability provided by or through 3) The contractor may be removed from the bidder's list for Contractor.(5/5/98) a period not to exceed 360 days. 45. TERMINATION FOR CONVENIENCE 43. NONCOLLUSION AFFIDAVIT a. The State may terminate performance of work under By signing this contract, contractor hereby certifies that any this Contract for its convenience in whole or, from quotation provided for a WAS order or project is not made in time to time, in part if the Department Director or the interest of, or on behalf of, any undisclosed person, designee determines that a termination is in the partnership, company, association, organization, or State's interest. The Department Director or designee corporation; that the quotation is genuine and not collusive or shall terminate by delivering to the Contractor a sham;that the contractor has not directly or indirectly induced Notice of Termination specifying the extent of or solicited any other contractor to put in a false sham termination and the effective date tnereof. The parties quotation, and has not directly or indirectly colluded, agree that, as to the terminated portion of the conspired, connived, or agreed with any contractor or anyone contract, the contract shall be deemed to remain in else to put In a sham quotation, or that anyone shall refrain effect until such time as the termination settlement, if from bidding; that the contractor has not in any manner, any,Is concluded and the contract shall not be void. directly or indirectly, sought by agreement, communication,or b. After receipt of a Notice of Termination,and except as conference with anyone to fix any overhead, profit, or cost directed by the Department Director or designee, the element of the quoted price,of that of any other contractor,or Contractor shall Immediately proceed with the to secure any advantage against the public body awarding the following obligations,as applicable,regardless of any contract or anyone interested in the proposed contract;that all delay in determining or adjusting any amounts due statements in the quotation are We; and, further, that the under this clause. The Contractor shall: contractor has not, directly or indirectly, submitted its quoted 1)Stop work as specified in the Notice of Termination. price or any breakdown thereof, of the contents thereof, or divulged information or data relative thereto, or paid,and will 2)Place no further subcontracts for materials, not pay, any fee to any corporation, partnership, company, services, or facilities, except as necessary to association,organization,bid depository,or to any member of complete the continued portion of the contract. agent thereof to effectuate a collusive or sham bid or 3)Terminate all subcontracts to the extent they relate quotation. to the work terminated. 44. YEAR 2000 WARRANTY 4)Settle all outstanding liabilities and termination Agencies Issuing or processing a purchase order must settlement proposals arising from the termination use this language in lieu of alternative language, unless of subcontracts; the approval or ratification of specifically authorized by the Department of Information which will be final for purposes of this clause. Technology (DOIT) and approved by the Department of 5)As directed by the Department Director or General Services. designee, transfer title and deliver to the State (a) a. Information Technology Products and/or Services fabricated or unfabricated parts, work in process, completed work, supplies, and other material The Contractor warrants that its hardware, software, produced or acquired for the work terminated, and and firmware products and services delivered under Revision 5/26/1998 Page 7 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS (b) completed or partially completed plans, a)The costs incurred in the performance of the drawings, information, and other property that, if work terminated, including Initial costs and the contract had been completed, would be preparatory expense allocable thereto, but required to be furnished to the State. excluding any costs attributable to supplies or 6)Complete performance of the work not terminated; services paid or to be paid;and and b)The cost of settling and paying termination 7)Take any action that may be necessary or as the settlement proposals under terminated State may direct for the protection and preservation subcontracts that are properly chargeable to of the property related to this contract that is in the the terminated portion of the contract;and possession of the Contractor and in which the c)Storage, transportation, and other costs State has or may acquire an Interest, and to incurred, reasonably necessary for the mitigate any potential damages or requests for preservation, protection, or disposition of the contract adjustment or termination settlement to termination inventory. .the maximum practical extent, g. Except for normal spoilage, and except to the extent c. At the completion of the Contractors termination that the State expressly assumed the risk of loss,the efforts,the Contractor may submit to the Department State shall exclude from the amounts payable to the Director or designee a list, indicating quantity and Contractor, the fair value, as determined by the quality of termination Inventory not previously Department Director or designee, of property that is disposed of, and request Instruction for disposition destroyed, lost,stolen, or damaged so as to become of the residual termination Inventory, undeliverable to the State or to a buyer. d. After termination, the Contractor shall submit a final h. The Contractor shall use generally accepted termination settlement proposal to the Department accounting principles and sound business practices Director or designee In the form and with the In determining all. costs claimed, agreed to, or certification prescribed by the Department Director or determined under this clause. Such costs shall be designee. The Contractor shall submit the proposal allocable to the terminated contract or portion promptly but no later than ninety (90) days from the thereof,allowable under applicable laws, regulations, effective date of termination, unless extended in generally accepted accounting principles and good writing by the State upon written request of the business judgment and objectively reasonable. Contractor within the ninety (90) day period. 1. The Contractor shall have the right of appeal, under However, If the Department Director or designee the Disputes clause,from any determination made by determines that the facts justify it, a termination the Stater except that if the Contractor failed to submit settlement proposal may be received and acted on the termination settlement proposal within the time after the expiration of the filing period or any provided and failed to request a time extension,there extension. If the Contractor fails to submit the is no right of appeal. If the Department Director or proposal within the time allowed, the Department designee has made a determination of the amount Director or designee may determine on the basis of due,the State shall pay the Contractor(1)the amount Information available, an equitable adjustment determined if there is no right of appeal or if no timely amount, if any, due the Contractor because of the appeal has been taken, or (2) the amount finally termination and shall pay the amount determined. determined on appeal. Following any attempted e. The Contractor and the State may agree upon the administrative resolution with the Department whole or any part of the amount to be paid because of Director or designee, the Contractor may proceed in the termination. The amount may include a accordance with the Disputes clause of the contract. reasonable allowance for profit on work done, J. In arriving at the amount due the Contractor under Including a reasonable amount for accounting, legal, this clause,there shall be deducted: clerical and other expenses reasonably necessary for the preparation of termination settlement proposals 1)AII payments to the Contractor under the and supporting data; and storage,transportation and terminated portion of this contract; other costs incurred, reasonably necessary for the 2)Any claim which the State has against the preservation, protection, or disposition of the Contractor under this or any other contract; termination inventory. However, the agreed amount 3)The agreed price for, or the proceeds of sale of, may not exceed the total contract price as reduced by materials,supplies, or other things acquired by the (1) the amount of payments previously made and (2) Contractor or sold under the provisions of this the contract price of work not terminated. The clause and not recovered by or credited to the contract shall be amended, and the Contractor paid State. the agreed amount. f. If the Contractor and the State fail to agree on the k. If the salter with the is partial,the Contractor may file r 9 proposal with the Department Director or designee for whole amount to be paid because of the termination an equitable adjustment of the price(s) of the of work, the State shall pay the Contractor the continued portion of the contract. The Department amounts determined by the State as follows, but Director or designee shall make any equitable without duplication of any amounts agreed on as set adjustment agreed upon. Any proposal by the forth above: Contractor for an equitable adjustment under this 1)The contract price for completed supplies or clause shall be requested within 30 days from the services accepted by the State(or sold or acquired) effective date of termination unless extended in not previously paid for, adjusted for any saving of writing by the Department Director or designee. freight and other charges. I. The State may: The total of: Revision 5/26/1998 Page 8 of 15 1 CALIFORNIA MULTIPLE AWARD SCHEDULE(CMAS) CONTRACT TERMS AND CONDITIONS 1)Under the terms and conditions it prescribes,make adjustment in the delivery schedule,the contract partial payments and payments against costs price,or both,and the contract shall be modified,in Incurred by the Contractor for the terminated writing,accordingly,if: portion of the contract, if the State believes that 1)The stop work order results in an Increase in the total of these payments will not exceed the amount time required for,or in the Contractor's cost to which the Contractor will be entitled. properly allocable to the performance of any part of 2)If the total payments exceed the amount finally this Contract;and determined to be due, the Contractor shall repay 2)The Contractor asserts its right to an equitable the excess to the State upon demand,together with adjustment within 30 days after the end of the Interest computed at the rate established by the period of work stoppage;provided,that If the State California Treasurer's Pooled Money Investment decides the facts justify the action,the State may Fund Rate. Interest shall be computed for the receive and act upon a proposal submitted at any period from the date the excess payment is time before final payment under this contract received by the Contractor to the date the excess is repaid. Interest shall not be charged on any excess c. If a stop work order Is not canceled and the work payment due to a reduction in the Contractor's covered by the stop work order Is terminated in termination settlement proposal bemuse of accordance with the provision entitled Termination retention or other disposition of termination for the Convenience of the State,the State shall allow Inventory until 10 days after the date of the reasonable costs resulting from the stop work order retention or disposition, or a later date determined In arriving at the termination settlement. by the State bemuse of the circumstances. d. If a stop work order Is not canceled and the work in. In determining the amount payable to the Contractor covered by the stop work order is terminated for and notwithstanding any other provision,if it appears default,the State shall allow,by equitable adjustment that the Contractor would have sustained a loss on or otherwise,reasonable costs resulting from the the entire contract had it been completed, the State stop work order. shall allow no profit and shall reduce the settlement e. An appropriate equitable adjustment may be made in to reflect the Indicated rate of loss. any related contract of the Contractor that provides n. Unless otherwise provided In this contract or by for adjustment and Is affected by any stop work order statute, the Contractor shall maintain all records and under this clause. The State shall not be liable to the documents relating to the terminated portion of this contractor for loss of profits bemuse of a stop work contract for three years after final settlement. This order Issued under this clause. Includes all books and other evidence bearing on the 47. RENTAL AGREEMENTS Contractor's costs and expenses under this Contract. The State does not agree to The Contractor shall make these records and documents available to the State, at the Contractor's Indemnity a Contractor, office, at all reasonable times, without any direct Assume responsibility for matters beyond its charge. If approved by the State, photographs, control; microphotographs, or other authentic reproductions Agree to make payments in advance; may be maintained instead of original records and documents. Accept any other provision creating a contingent 46. STOP WORK liability against the State;or Agree to obtain insurance to protect the Contractor. a. The State may,at any time,by written stop work order The State's responsibility for repairs and liability for to the Contractor, require the Contractor to stop all,or any part, of the work called for by this contract for damage or loss is restricted to that made necessary by or a period of 90 days after the stop work order is resulting from the negligent act or omission of the State delivered to the Contractor,and for any further period or its officers,employees,or agents. to which the parties may agree. The stop work order If the Contractor maintains the equipment,the Contractor shall be specifically identified as such and shall must keep the equipment in good working order and Indicate it is issued under this clause. Upon receipt make all necessary repairs and adjustments without of the stop work order, the Contractor shall qualification. The State may terminate or cease paying Immediately comply with its terms and take all rent should the Contractor fail to maintain the equipment reasonable steps to minimize the incurrence of costs properly. allocable to the work covered by the stop work order Personal property taxes are not generally reimbursed during the period of work stoppage. Within a period when leasing equipment(SAM 8736). of 90 days after a stop work order is delivered to the Contractor, or within any extension of that period to FOR CMAS ORDERS WHICH EXCEED $250,000 THE which the parties shall have agreed, the State shall FOLLOWING TERMS AND CONDITIONS APPLY AND ARE either: ADDITIONAL TO PROVISIONS NUMBERED 1 TO 47. 1)Cancel the stop work order,or 48. SITE PREPARATION 2)Terminate the work covered by the stop work order a. If the equipment to be installed requires special as provided for in the termination for default or the environmental considerations, Contractor shall provide termination for convenience clause of this contract. site preparation specifications for equipment within a b. If a stop work order issued under this clause is reasonable time upon request by the State. The canceled or the period of the stop work order or any equipment, if installed according to these specifications, extension thereof expires,the Contractor shall shall operate efficiently, from an environmental point of resume work. The State shall make an equitable view and propedy from a functional point of view. Revision 5/26/1998 Page 9 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE(CMAS) CONTRACT TERMS AND CONDITIONS b. The State may prepare a site plan showing the location of equipment for the purpose of validating its installation each item of equipment and detailing the associated and performance, electrical power and environmental control facilities. If 5)Notwithstanding certification by the Contractor that the requested, the Contractor will review and comment on the equipment has been installed and is ready for use, the adequacy of the State's plan, and shall be permitted free equipment shall not he deemed installed within the access subject to the security requirements for the site for terms of this Contract until such installation is this purpose. Alternatively, the Contractor may prepare confirmed by the State through testing as prescribed in the site plan,and will be permitted free access to the site the order or by performance of other suitable tests for this purpose. mutually agreed to by both parties as being adequate c. The State shall cause the site to be prepared in for this purpose. If the test is successfully completed, accordance with the Contractors written minimum site the equipment shall be deemed installed and ready for and environmental specifications, unless the Contractor use as of the date of the Contractor's certification. The has agreed to be responsible for such site preparation,on State shall immediately begin acceptance testing of the or before the Facility Readiness Date specified in the equipment in accordance with the provisions contained order. In the order, and shall notify the Contractor in writing, d. Any subsequent alterations or modifications to the site within five(5)working days, that the State concurs that which are directly attributable to Incomplete or erroneous the equipment was installed. If the equipment fails to specifications provided by the Contractor and which successfully complete the test, the Contractor shall be involve additional expense shall be made at the expense notified Immediately of the failure, with written of the Contractor, to the extent that such costs would not confirmation to be provided in not more than five (5) have been incurred had the complete and/or correct working days. Control of the equipment shall specifications been Initially provided. Immediately be given to the Contractor. The equipment shall not be deemed to be installed until the Contractor e. If any such site alterations as discussed above cause a delay in the Installation, Paragraph 50, Liquidated test such Installation and the above described tesst is successfully completed. Damages,shall apply. 6)Except as otherwise provided in Paragraph 49,a.(7).In f. Unless mutually agreed to otherwise, arrangements for the event the Contractor fails to install the equipment procurement, installation, and maintenance of by the Installation Date specified in the order, noncontractor's communication media (telephone lines, Paragraph 50,Liquidated Damages,shall apply. modems, etc.) necessary for the remote transmission of 7)If the nature of the equipment is such that the services requested by the Contractor,, the State shall provide one data are the responsibility the State. In addition, of the Contractor are not required for its installation, telephone, with appropriate coupling devices for the and the Contractor so states in writing and the State transmission of data, for the Contractor's use in agrees in writing that such Contractor services are not installation and maintenance of the equipment Any toll necessary, the Contractor may ship the equipment to charges resulting from the use of this instrument by the the State site. If the equipment arrives not later than Contractor in the installation and maintenance of the rive (5)working days prior to the Installation Date, the equipment will be borne by the Contractor. equipment shall be deemed to have been installed on or before the Installation Date and no liquidated 49. INSTALLATION AND DELIVERY DATES damages shall be paid, irrespective to whether or not a. Equipment(Hardware and Operating Software) the State is successful in installing the equipment 1)Except as otherwise provided in Paragraph 49,a. (7), without Contractor assistance. If this procedure Is the Contractor shall install equipment ready for use on used, the State shall make every reasonable effort to or before the Installation Dates specified in the order. Install the equipment prior to the Installation Date, and shall confirm such installation in accordance with the Time is the essence of this agreement. procedures set forth in Paragraph 49 (5), without 2)Installation Dates may be changed by mutual consent requiring a certification of installation as set forth in of the Contractor and the State by amendment; Paragraph 49 (4) by the Contractor. If, however, the however, consent of the Contractor is not required if,at State is unable to install the equipment, it shall notify least 90 days prior to the Installation Date, the State the Contractor that Contractor assistance is required, defers the installation of any machine, but a new The Contractor. shall then assist in the equipment Installation Date will be established by mutual installation and certification that such installation has agreement. Such unilateral deferment shall not exceed been accomplished. 180 days,except by mutual agreement. 3)The State shall provide the Contractor access to the b. Software(other than Operating Software) site for the purpose of installing equipment prior to the 1)The Contractor shall provide those programming aids, Installation Date. The Contractor shall specify in writing program products, and applications listed in the order, the time required to install the equipmenL on or before the Delivery Dates specified in the order, 4)Except as otherwise provided In Paragraph 49, a. (7), and shall certify to the State that such software has the Contractor shall determine that the equipment is been delivered and is ready for State use. For ready for use, and operates in conformance with the purposes of this Paragraph, "delivered" also means Contractors published specifications. The Contractor received by the State,if such software is mailed by the shall then certify in Writing to the State that the Contractor. equipment is installed and ready to be turned over to 2)If, in the opinion of the Contractor, the services of the the operational control of the State. The Contractor Contractor are required to install the software on the shall also provide to the State appropriate State equipment, 'delivery" of the software, for the documentation to support the above certification, at purposes of this contract, shall be deemed to include which time the State will accept control of the such installation services. Revision 5/26/1996 Page 10 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE(CMAS) CONTRACT TERMS AND CONDITIONS 3)In the event the Contractor fails to deliver the agreed- provision of Paragraph 56,Rights and Remedies of the upon software by the dates specified, Paragraph 50, State for Default In this event, the Contractor shall Liquidated Damages,shall apply. also be liable for liquidated damages, in the amounts 50. LIQUIDATED DAMAGES specified above until substitute equipment is installed, ready for use,or for 180 days from the installation date, a. General whichever occurs first The Installation Dates of the equipment and the Delivery c. Other Delivery Delays Caused by the Contractor Dates for software set forth in the order have been fixed 1)If the Contractor does not deliver all the programming so that the utilization of the equipment and software is aids, program products, and applications listed in the consistent with the timing schedules of the State's order ready for use in substantial accordance with the programs. If any of the units of equipment, with all Contractor's specifications, on or before the Delivery required operating software, are not installed within the Dates specified In the order, the Contractor shall be times specified in the order, and/or if any of the other liable for liquidated damages In the amounts specified software is not delivered to the State within the time limits in the order, in lieu of all other damages for such specified in the order, the delay will Interfere with the nondelivery. Liquidated damages shall accrue for each proper implementation of the State's programs,to the loss calendar day between the Delivery Date specified and and damage of the State. From the nature of the case, it the actual date of the delivery of such software or for would be impracticable and extremely difficult to fix the 180 days,whichever occurs first. If the Contractor fails actual damages sustained in the event of any such delay. to provide the software listed In the order by the The State and Contractor, therefore, presume that in the specified Delivery Date, but provides suitable event of any such delay the amount of damage which will substitution of software acceptable to the State, be sustained from a delay will be the amounts set forth in liquidated damages shall not apply to listed software for the order, and the State and the Contractor agree that in which substituted software is provided. the event of any such delay,the Contractor shall pay such amounts as liquidated damages and not as a penalty. 2) If the State is unable to use the equipment on the Installation date because Contractor failed to deliver the Similarly.a unilateral deferent by the State of equipment software listed in the order by the delivery date Installation without appropriate notice or a delay in specified in the order, and Contractor does not furnish readying the facility interferes with the installation suitable substitute software acceptable to the State, schedule under which the Contractor is operating, thus liquidated damages for equipment noninstallation as resulting in damages to the Contractor. The State and specified in Paragraph 50, b. (1), shall be paid to the Contractor_presume that in the event of such delay, the State in lieu of damages for software nondelivery as amount of damage which will be sustained will be the specified in Paragraph 50, c. (1). Such liquidated amount set forth in the order, and they agree that in the damages shall apply until the State uses the equipment event of such a delay, the State will pay such amount as or until Contractor provides the programming aids or liquidated damages and not as a penalty. Amounts due applications which would render the equipment usable, the State as liquidated damages may be deducted by the whichever occurs first, but not for more than 180 State from any money payable to the Contractor. The calendar days. State shall natty the Contractor in writing of any claim for liquidated damages pursuant to this paragraph on or d. Installation or Delivery Delays Caused by the State before the date State deducts such sums from money 1)In the event the equipment cannot be installed because payable to the Contractor, the State has failed to prepare the facility by the Facility b. Equipment Installation Delays Caused by the Contractor Readiness Date specified In the order, the State shall 1 be liable for fixed liquidated damages specified in the )If the Contractor does not install the equipment, (designated by the Contractor's type and model order for each day between the Facility Readiness Date specified in the order and the actual readiness date, but number), and special features included with the not to exceed equipment (or suitable substitutes acceptable to the State), ready for use with all appropriate operating damages for succhh delay. calendar days, in lieu of all other software, all as listed in the order, on or before the 2)In the event a change directed by the State requires a Installation Date(s)specified in the order,or in the case later.installation date of certain equipment and the of the equipment delivered to the State in time for State State has failed to notify the Contractor of the delay at Installation, the Contractor shall be liable for fixed least 60 days prior to the original Installation Date, the liquidated damages specified in the order, in lieu of all State shall be liable, in lieu of all other damages, for other damages for such noninstallation. Liquidated liquidated damages as specified In Paragraph 50, d. damages shall accrue for each calendar day between (1), for each day between the original Installation Date the Installation Date specified in the order and the date and the new Installation Date, but not to exceed 180 the equipment Is certified ready for use or 180 calendar calendar days. days,whichever occurs first 3)The State shall not be liable for liquidated damages under both Paragraph 50,d.(1)and d.(2)above during 2)If some,but not all of the machines are installed,ready the same period of time with respect to the same for use, during a period of time when liquidated equipment. damages are applicable, and the State uses any such installed machines, liquidated damages shall not 51. ACCEPTANCE TESTING FOR EQUIPMENT (including accrue against the machines used for any calendar day Operating Software) the machines are so used. 3)If the delay is more than thirty(30)calendar days, then a. Acceptance testing is intended ensure that the by written notice to the Contractor, the State may equipment acquired operates in substantial accord with terminate the right of the Contractor to install, and may the Contractor's technical specifications, is adequate to Perform as warranted by the Contractor, and evidences a obtain substitute equipment, in accordance with the Revision 5/26/1998 Page 11 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS satisfactory level of performance reliability, prior to its improved versions (new releases) of this software, any acceptance by the State. If the equipment to be installed such software which has been altered (modified) by the includes operating software as listed In the order, such Contractor to satisfy State requirements, and any operating software shall be present for the acceptance substitute software provided by the Contractor in lieu test unless substitute operating software acceptable to the thereof, unless the order provides otherwise. The State is provided. Acceptance testing may be required as purpose of the acceptance test is to ensure that the specified in the order for all newly installed technology software operates in substantial accord with the systems, subsystems, and individual equipment, and Contractor's technical specifications and meets the State's machines which are added or field modified (modification performance specifications. The procedures for the of a machine from one model to another) after a accomplishment of such tests are contained in the order. successful performance period. b. When software has been provided and certified in b. In accordance with Paragraph 49, a. (4), Installation and accordance with Paragraph 49, Installation and Delivery Delivery Dates,the Contractor shall certify in writing to the Dates, b. (1), the State shall begin acceptance testing on State when equipment is installed and ready for use, at the first State workday following such certification, as which time operational control becomes the responsibility specified in the order. of the State. Acceptance testing (as specified in the c. If successful completion of the acceptance test is not order) shall commence on the first State workday attained within ninety(90)consecutive days after the start following certification, and shall end when the equipment of the acceptance testing, the State shall have the option has met the standard of performance (performance to request substitute software, cancel that portion of the criteria) as provided In the order for a period of 30 contract which relates to the unaccepted software, or consecutive days. Operation of the equipment to confirm continue the acceptance tests. The State's option shall Its Installation, as provided In Paragraph 49, a. (5), remain in effect until such time as the tests are Installation and Delivery Dates, shall be considered to be successfully performed, or 180 days after certification, a part of the acceptance test. whichever occurs first. If the acceptance tests have not c. In the event the equipment does not meet the standard of been successfully performed prior to the expiration of 180 performance during the initial 30 consecutive calendar days, that portion of the contract which relates to the days, the acceptance tests shall continue on a day-to-day unaccepted software shall be canceled, unless both basis until the standards of performance are met for 30 parties agree to the continuation of the tests or to the consecutive days. delivery of substitute software. If the unaccepted software d. If the equipment does not meet the standards of (or its functional equivalent) is crucial to the performance within ninety(90)consecutive days after the accomplishment of the work for which the equipment was start of the acceptance testing, the State shall have the acquired, and is so identified in the order, the State shall option to request replacement equipment, extend the have the option of terminating the entire contract in performance period or terminate the order (or portions accordance with Paragraph 56, Rights and Remedies of thereof) and seek relief as provided by Paragraph 56, State for Default Rights and Remedies of State for Default. The State's d. Unless otherwise provided in the order,software shall not option shall remain in effect until such time as the be accepted by the Slate and no charges associated with equipment meets the performance criteria, or 180 such software shall be paid by the State until the software consecutive days after the start of the acceptance testing, has satisfactorily completed the acceptance tests. whichever occurs first. If the equipment has not met the e. Immediately upon successful completion of the standards of performance by 180 days after installation, acceptance testing,the State shall notify the Contractor in the contract shall be canceled or the defective equipment writing of the acceptance of the software and authorize deleted from the contract and the provisions of Paragraph appropriate payment. The State shall maintain adequate 56.Rights and Remedies of State for Default shall apply. records to satisfy the requirements of acceptance testing. e. At the request of the Contractor, the State shall make 53. CONTRACTOR'S LIABILITY FOR INJURY TO PERSONS available not only the failed equipment, but also those OR DAMAGE TO PROPERTY machines which must be utilized by the Contractor to Identify the cause of failure and to accomplish the repair. a. The Contractor shall be liable for damages arising out of injury to the person and/or damage to the property of the f. Equipment shall not be accepted by the State and no State,employees of the State,persons designated by the charges associated with such equipment shall be paid by State for training,or any other person(s)other than agents the State until the equipment has satisfactorily completed or employees of the Contractor, designated by the State the acceptance tests. In addition, If required in the order, for any purpose, prior to, during, or subsequent to no charges shall be paid until specified Contractor- delivery, Installation, acceptance, and use of the supplied software has been accepted by the State. equipment either at the Contractor's site or at the State's g. Immediately upon successful completion of the place of business,provided that the injury or damage was acceptance tests, the State shall notify the Contractor in caused by the fault or negligence of the Contractor. writing of acceptance of the equipment and authorize b. Contractor shall not be liable for damages arising out of or appropriate payment The State shall maintain adequate caused by an alteration or an attachment not made or daily records to satisfy the requirements of acceptance installed by the Contractor,or for damage to alterations or testing. Increments of time shall be measured in hours attachments that may result from the normal operation and whole minutes, and maintenance of the Contractor's equipment. 52. ACCEPTANCE TESTING FOR SOFTWARE (other than 54. ENGINEERING CHANGES Operating Software) a Engineering changes, determined applicable by Contractor, . Acceptance testing may be required as specified in the will be controlled and installed by Contractor on equipment order for all Contractor-supplied software as specified and covered by this contract. The State may elect to have only listed in the order, including all software initially installed, Revision 5/26/1998 Page 12 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS mandatory changes, as determined by Contractor, Installed Title to each machine will be transferred to the State when its on machines so designated. A written notice of this election purchase price,taxes,and associated interest charges,if any, must be provided to the Contractor for written confirmation. are paid. Tide to a special feature installed on a machine and There shall be no charge for engineering changes made. Any for which only a single installation charge was paid shall pass Contractor-initiated change shall be installed at a time to the State at no additional charge, together with tide to the mutually agreeable to the State and the Contractor. machine on which it was installed. Contractor reserves the right to charge, at its then current 59. WAIVER OF BREACH time and material rates, for additional service time and materials required due to noninstallation of applicable No tern or provision of this contract shall be deemed waived engineering changes after Contractor has made a reasonable and no breach excused, unless such waiver or consent shall effort to secure time to install such changes. be in wrifing and signed by an individual authorized to so 55. CONNECTION POINTS FOR CENTRAL PROCESSOR waive or consent. Any consent by either party to, or waiver EVALUATION EQUIPMENT of, a breach by the other, whether express or implied, shall not constitute a consent to,waiver of,or excuse for,any other If requested by the State, the Contractor agrees to Identify,on breach or subsequent breach, except as may be expressly all Items of equipment supplied under this contract, all provided in the waiver or consent. appropriate test points for connecting one of the commercially 60. CONFLICT WITH EXISTING LAW available hardware monitors designed to measure system activity. The Contractor and the State agree that if any provision of 56. RIGHTS AND REMEDIES OF STATE FOR DEFAULT this contract is found to be illegal or unenforceable,such tern or provision shall be deemed stricken and the remainder of a. In the event any equipment,software,or service furnished the contract shall remain in full force and effect Either party by the Contractor in the performance of this contract having knowledge of such term or provision shall promptly _ should fail to conform to the specifications therefore, the Inform the other of the presumed non-applicability of such State may reject the same,and it shall thereupon become provision. Should the offending provision go to the heart of the duty of the Contractor to reclaim and remove the the contract, the contract shall be terminated in a manner same forthwith, without expense to the State, and commensurate with the Interests of both parties, to the Immediately to replace all such rejected equipment, maximum extent reasonable. software, or service with others conforming to such 61. LIMITATION OF ACTIONS specifications; provided that should the Contractor fail, neglect or refuse to do so the State shall thereupon have No action,regardless of form, arising out of this contact may the right to purchase in the open market,in lieu thereof,a be brought by either party more than two years after the corresponding quantity of any such equipment, software, cause of action has arisen, or in the case of nonpayment, or service and to deduct from any monies due or that may more than two years from the date of the last payment,except thereafter become due to the Contractor the difference where either party (within two years after a cause of action between the price named in this contract and the actual has arisen) provides the other party in writing a notice of a cost thereof to the State. potential cause of action, disclosing all material facts then b. In the event the Contractor shall fail to make prompt known by the notifying party concerning such cause of action, delivery as specified of any equipment, software, or then the notifying party may bring an action based on the service, the same conditions as to the rights of the State matter so disclosedtime at any time prior to the expiration of four years from the time the cause of action arose. to purchase in the open market and to reimbursement set forth above shall apply, except as otherwise provided in DEFINITIONS Paragraph 38,Force Majeure. (from STATE MODEL PURCHASE CONTRACT 2/98) c. In the event of the cancellation of this contract either in a. Data Processing System(SystemFThe total complement whole or in part,by reason of the default or breach thereof R Contractor-fumished machines,including one or more by the Contractor, any loss or damage sustained by the central processors (or instruction processors) and State in procuring any equipment, software or service operating software,which are acquired to operate as an which the Contractor therein agreed to supply shall be integrated group. bome and paid for by the Contractor, b. Data Processing Subsystem-A complement of d. The rights and remedies of the State provided above shall Contractor-furnished individual machines, including the not be exclusive and are in addition to any other rights necessary controlling elements (or the functional and remedies provided by law or under the contract. equivalent) and operating software, if any, which are 57. CONTRACTOR'S POWER AND AUTHORITY acquired to operate as an integrated group, and which The Contractor warrants that it has full power and authority to are interconnected entirely by Contractor-supplied power rant the Contractor herein and/or signal cables; e.g., direct access controller and 9 9 granted and will hold the State drives,a cluster of terminals with their controller,etc. hereunder harmless from and against any loss, cost, liability, and expense (including reasonable attorney fees) arising out Q Machine-An individual unit of a data processing system of any breach of this warranty. Further, Contractor avers that or subsystem, separately identified by a type and/or it will not enter into any arrangement with any third party model number, comprised of but not limited to which might abridge any rights of the State under this mechanical, electro-mechanical, and electronic parts, contras microcode, and special features installed thereon and including any necessary software; e.g., central 58. TITLE TO EQUIPMENT processing unit, memory module,tape unit, card reader, Unless otherwise specified in the order or financing plan, title etc• to the equipment shall remain in the Contractor and assigns,if d. Equipment-An all-inclusive term which refers either to any, until such time as the full purchase prices, applicable individual machines or to a complete data processing taxes and interest charges, if any, are paid to the Contractor. Revision 5/26/1998 Page 13 of 15 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS) CONTRACT TERMS AND CONDITIONS system or subsystem,including its operating software(if original equipment manufacturer and which is not any). connected by the Contractor. e. Equipment Failure-A malfunction in the equipment, r. Software An all-inclusive term which refers to any excluding all external factors, which prevents the computer programs,routines,or subroutines supplied by accomplishment of the equipment's intended function(s). the Contractor, including operating software. If microcode or operating software, residing in the programming aids, application programs, and program equipment, Is necessary for the proper operation of the products. equipment, a failure of such microcode or operating s. Operating Software Those routines, whether or not software which prevents the accomplishment of the identified as program products, that reside in the equipment's Intended functions shall be deemed to be equipment and are required for the equipment to perform an equipment failure. its intended function(s),and which interface the operator, f. Operation Use Time-For performance measurement other Contractor-supplied programs, and user programs purposes, that time during which equipment is in actual to the equipment operation by the State. L Programming Aids—Contracter-supplied programs and g. Preventive Maintenance—That maintenance, performed routines executable on the Contractor's equipment which on a scheduled basis by the Contractor, which is assists a programmer in the development of applications designed to keep the equipment in proper operating Including language processors, sorts, communications condition, modules, data base management systems, and utility h. Remedial Maintenance--That maintenance performed routines, (tape-to-disk routines, disk-to-print routines, by the Contractor which results from equipment etc.). (Including operating software) failure, and which is u. Application Progam A computer program which is performed as required;Le.,on an unscheduled basis. Intended to be executed on the Contractor's equipment 1. Principal Period of Maintenance--Any nine consecutive for the purpose of performing useful work for the user of hours per day (usually between the hours of 7:00 a.m. the information being processed. Application programs and 6:00 p.m.) as selected by the State, including an are usually developed or otherwise acquired by the user official meal period not to exceed one hour. Monday of the hardware/software system, but they may be through Friday, excluding holidays observed at the supplied by the Contractor. installation. v. Pr2g2m Product—Programs, routines,subroutines, and j. Period of Maintenance Coverage—The period of time, related items which are proprietary to the Contractor and as selected by the State, during which maintenance which are licensed to the State for its use,usually on the services are provided by the Contractor for a fixed basis of separately stated charges and appropriate monthly charge, as opposed to an hourly charge for contractual provisions. services rendered. The Period of Maintenance w. Software Failure—A malfunction in the Contractor- Coverage consists of the Principal Period of supplied software, ether than operating software, which Maintenance and any additional hours of coverage per prevents the accomplishment of work, even though the day, and/or increased coverage for weekends and equipment(including its operating software) may still be holidays. capable of operating property. For operating software Jr. Maintenance Diagnostic Routines—The diagnostic failure,see definition of equipment failure. programs customarily used by the Contractor to test X. Information Technology Services—Ara defined as equipment for proper functioning and reliability. services performed directly on or pertaining to I. Facility Readiness Date—The date specified in the electronic data processing and telecommunications contract by which the State must have the site prepared hardware, firmware, and software including, but not and available for equipment delivery and installation. limited to, computerized and auxiliary automated ' m. Installation Date—The date specified in the contract by Information handling, system design and analysis, which the Contractor must have the ordered equipment data conversion, computer programming, ready(certified)for use by the State. Information storage and retrieval,voice, video, data communications, requisite system controls, n. Performance Period—A period of time during which the simulation, maintenance and repair, software State, by appropriate tests and production runs, licensing, and training. Also included are services evaluates the performance of newly installed equipment of an advisory nature requiring a recommended and software prior to its acceptance by the State. course of action or personal expertise as it pertains 0. Acceptance Tests-Those tests performed during the to an Information technology project, and Performance Period as listed in the purchase order information technology support functions. which are Intended to determine compliance of equipment and software with Contractors published specifications and to determine the reliability of the equipment P. Machine Altera8en-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 5/26/1998 Page 14 of 15 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 b.The Ideas, concepts, know-how, or techniques relating to the payment of any consideration to Contractor should date processing, developed during the course of this Contractor fail to perform the covenants herein contained at Agreement by the Contractor or jointly by the Contractor the time and in the manner herein provided. In the event of and the State can be used by either party in any way it may such termination the State may proceed with the work in any deem appropriate. manner deemed proper by the State. The cost to the State c.All inventions,discoveries or improvements of the computer shall be deducted from any sum due the Contractor under this programs developed pursuant to this Agreement shall be agreement, and the balance, it any, shall be paid the the property of the State. The State agrees to grant a Contractor upon demand. nonexclusive royalty-free license for any such invention, 2. Time is of the essence in this agreement discovery, or improvement to the Contractor or any other 3. PERSONNEL such person and further agrees that the Contractor or any a.Contractor personnel shall perform their duties on the other such person may sublicense additional persons on premises of the State,during the State's regular work days the same royalty-free basis. and normal work hours, except as may be specifically d.This Agreement shall not preclude the Contractor from agreed to otherwise by the State. developing materials outside this Agreement which are b.The State reserves the right to disapprove the continuing competitive, irrespective of their similarity to materials which might be delivered to the State pursuant to this assignment of Contractor personnel provided to the Slate Agreement. under this Agreement If the State exercises this right and the Contractor cannot Immediately replace the disapproved 6. REPORTING,INVOICING AND PAYMENT FOR SERVICE personnel, the State agrees to an equitable adjustment in In the aggregate, Invoices reflecting progress payments will schedule or other terms that may be affected thereby. not exceed 90 percent of the ceiling amount of the c. The Contractor will make every effort consistent with sound agreement with the balance to be invoiced upon satisfactory business practices to honor the specific requests of the completion of the AgreemenL In accordance with PCC State with regard to assignment of its employees;however, Section 12112: if a contract has progress payments, then a subject to Paragraph 3b above,the Contractor reserves the performance bond is required by law. The bond is issued to sole right to determine the assignment of its employees. If the name of the contracting agency. If the agency is issuing a Contractor employee is unable to perform due to illness, the contract under delegated authority or CMAS they hold the resignation, or other factors beyond the Contractor's bond, otherwise DGS holds the bond. The amount of the control, the Contractor will make every reasonable effort to - bond is 50%of the total amount of the contract provide suitable substitute personnel. 7. LIABILITIES FOR DAMAGES d. In recognition of the fact that Contractor personnel a.The Contractor shall be relieved from liability with respect providing services under this Agreement may perform to the performance of work as outlined in each order when similar services from time to time for others, this the State agrees the tasks have been satisfactorily Agreement shall not prevent Contractor from performing completed. such similar services or restrict Contractor from using the b. Except for liability for injury to persons or damage to personnel provided to the State under this Agreement, property, the Contractor will be liable for damages only to providing that such use does not conflict with the the extent of the maximum amount of this Agreement. performance of services under this Agreement 4. RESPONSIBILITIES OF THE STATE a c no event will the contractor or the state be en given for consequential damages even if notification has been given The State shall provide normal office working facilities and as to the possibility of such damages. equipment necessary for Contractor performance under this d. Notwithstanding the foregoing, nothing contained herein Agreement. Any special requirements (e.g., reprographic shall limit contractors liability for personal injury and services, computer time, keydata entry, etc.) must be damage to property caused by contractors negligence or identified. tortuous act 5. RIGHTS IN DATA e.Neither party to this Agreement shall be liable for damages a. All technical communications and records originated or resulting from delayed or defective performance when such prepared by the Contractor pursuant to this Agreement delays arise out of causes beyond the control and without including papers, reports, charts, computer programs, and the fault or negligence of the offending party. Such causes other documentation, but not including Contractors may include,but are not restricted to.Acts of God or of the administrative communications and records relating to this public enemy, acts of the State in its sovereign capacity, Agreement shall be delivered to and shall become the fires, floods, power failure, disabling strikes, epidemics, exclusive property of the State and may be copyrighted by quarantine restrictions,and freight embargoes. the State. Revision 5/2611998 Page 15 of 15