Full text
EXHIBIT 79
Case 1:20-cv-00658-LMB-IDD Document 131-14 Filed 05/07/21 Page 1 of 16
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GSPD-401 Non IT Commodities
(Revised and Effective 06/08/2010)
GENERAL PROVISIONS
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1. DEFINITIONS:
The following terms shall be given the
meaning shown, unless context requires
otherwise or a unique meaning is otherwise
specified.
a) “Business entity” means any individual,
business,
partnership,
joint
venture,
corporation, S-corporation, limited liability
corporation, limited liability partnership,
sole proprietorship, joint stock company,
consortium, or other private legal entity
recognized by statute.
b) “Buyer” means the State’s authorized
contracting official.
c) “Contract”
means
this
Contract
or
agreement (including any purchase order),
by whatever name known or in whatever
format used.
d) “Contractor” means the Business Entity
with whom the State enters into this
Contract. Contractor shall be synonymous
with “supplier”, “vendor” or other similar
term.
e) “Goods” (commodities) means all types
of tangible personal property, including but
not limited to materials, supplies, and
equipment (including computer equipment
and telecommunications).
f)
“State” means the government of the
State of California, its employees and
authorized
representatives,
including
without limitation any department, agency,
or other unit of the government of the State
of California.
2. CONTRACT FORMATION:
a) If this Contract results from a sealed bid
offered in response to a solicitation
conducted
pursuant
to
Chapters
2
(commencing with Section 10290), 3
(commencing with Section 12100), and 3.6
(commencing with Section 12125) of Part
2 of Division 2 of the Public Contract Code
(PCC), then Contractor's bid is a firm offer
to the State which is accepted by the
issuance of this Contract and no further
action is required by either party.
b) If this Contract results from a solicitation
other than described in paragraph a),
above, Contractor’s quotation or proposal
is deemed a firm offer and this Contract
document is the State's acceptance of that
offer.
c) If this Contract resulted from a joint bid, it
shall be deemed one indivisible Contract.
Each such joint Contractor will be jointly
and severally liable for the performance of
the entire Contract. The State assumes no
responsibility or obligation for the division
of orders or
purchases
among joint
Contractor’s.
3. COMPLETE INTEGRATION:
This Contract, including any documents
incorporated herein by express reference, is
intended to be a complete integration and
there are no prior or contemporaneous
different or additional agreements pertaining
to the subject matter of the Contract.
4. SEVERABILITY:
The Contractor and the State agree that if any
provision of this Contract is found to be illegal
or unenforceable, such term or provision shall
be deemed stricken and the remainder of the
Contract shall remain in full force and effect.
Either party having knowledge of such term or
provision shall promptly inform the other of the
presumed non-applicability of such provision.
5. INDEPENDENT CONTRACTOR:
Contractor and the agents and employees of
Contractor, in the performance of this
Contract, shall act in an independent capacity
and not as officers or employees or agents of
the State.
6. APPLICABLE LAW:
This Contract shall be governed by and shall
be interpreted in accordance with the laws of
the State of California; venue of any action
brought with regard to this Contract shall be in
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GSPD-401 Non IT Commodities
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GENERAL PROVISIONS
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Sacramento County, Sacramento, California.
The United Nations Convention on Contracts
for the International Sale of Goods shall not
apply to this Contract.
7. COMPLIANCE
WITH
STATUTES
AND
REGULATIONS:
a) Contractor warrants and certifies that in
the performance of this Contract, it will
comply with all applicable statutes, rules,
regulations and orders of the United States
and the State of California and agrees to
indemnify the State against any loss, cost,
damage
or
liability
by
reason
of
Contractor’s violation of this provision.
b) If this Contract is in excess of $554,000, it
is subject to the requirements of the World
Trade Organization (WTO) Government
Procurement Agreement (GPA).
8. CONTRACTOR’S POWER AND AUTHORITY:
The Contractor warrants that it has full power
and authority to grant the rights herein granted
and will hold the State harmless from and
against any loss, cost, liability, and expense
(including reasonable attorney fees) arising
out of any breach of this warranty. Further,
Contractor avers that it will not enter into any
arrangement with any third party which might
abridge any rights of the State under this
Contract.
a) The State will notify Contractor of any such
claim in writing and tender the defense
thereof within a reasonable time; and
b) Contractor will have sole control of the
defense of any action on such claim and
all negotiations for its settlement or
compromise;
provided that (i) when
substantial principles of government or
public law are involved, when litigation
might create precedent affecting future
State operations or liability, or when
involvement of the State is otherwise
mandated
by
law,
the
State
may
participate
in
such action at
its own
expense with respect to attorneys’ fees
and costs (but not liability); (ii) the State will
have the right to approve or disapprove
any settlement or compromise, which
approval will not unreasonably be withheld
or
delayed;
and
(iii) the State will
reasonably cooperate in the defense and
in any related settlement negotiations.
9. ASSIGNMENT:
This Contract shall not be assignable by the
Contractor in whole or in part without the
written consent of the State. For the purpose
of this paragraph, State will not unreasonably
prohibit Contractor from freely assigning its
right to payment, provided that Contractor
remains
responsible
for
its
obligations
hereunder.
10.WAIVER OF RIGHTS:
Any action or inaction by the State or the
failure of the State on any occasion, to enforce
any right or provision of the Contract, shall not
be construed to be a waiver by the State of its
rights hereunder and shall not prevent the
State from enforcing such provision or right on
any future occasion. The rights and remedies
of the State herein are cumulative and are in
addition to any other rights or remedies that
the State may have at law or in equity.
11.ORDER OF PRECEDENCE:
In the event of any inconsistency between the
articles,
attachments,
specifications
or
provisions which constitute this Contract, the
following order of precedence shall apply:
a) these
General
Provisions
–
Non-IT
Commodities;
b) Contract form, i.e., Purchase Order STD
65, etc., and any amendments thereto;
c) Statement
of
Work,
including
any
specifications incorporated by reference
herein;
d) special terms and conditions; and
e) all other attachments incorporated in the
Contract by reference.
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GENERAL PROVISIONS
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12.PACKING AND SHIPMENT:
a) All Goods are to be packed in suitable
containers for protection in shipment and
storage, and in accordance with applicable
specifications. Each container of a multiple
container shipment shall be identified to:
i)
show the number of the container and
the total number of containers in the
shipment; and
ii) the number of the container in which
the packing sheet has been enclosed.
b) All shipments by Contractor or its
subcontractors
must
include
packing
sheets identifying: the State’s Contract
number; item number; quantity and unit of
measure; part number and description of
the
Goods
shipped;
and appropriate
evidence of inspection, if required. Goods
for different Contracts shall be listed on
separate packing sheets.
c) Shipments must be made as specified in
this Contract, as it may be amended, or
otherwise directed in writing by the State’s
Transportation Management Unit within
the Department of General Services,
Procurement Division.
13.TRANSPORTATION COSTS AND OTHER
FEES OR EXPENSES:
No charge for delivery, drayage, express,
parcel post, packing, cartage, insurance,
license fees, permits, cost of bonds, or for any
other purpose will be paid by the State unless
expressly included and itemized in the
Contract.
a) Contractor must strictly follow Contract
requirements regarding Free on Board
(F.O.B.),
freight
terms
and
routing
instructions. The State may permit use of
an alternate carrier at no additional cost to
the
State
with
advance
written
authorization of the Buyer.
b) If “prepay and add” is selected, supporting
freight bills are required when over $50,
unless an exact freight charge is approved
by the Transportation Management Unit
within the Department of General Services
Procurement Division and a waiver is
granted.
c) On "F.O.B. Shipping Point" transactions,
should any shipments under the Contract
be received by the State in a damaged
condition and any related freight loss and
damage claims filed against the carrier or
carriers be wholly or partially declined by
the carrier or carriers with the inference
that damage was the result of the act of the
shipper such as inadequate packaging or
loading or some inherent defect in the
equipment and/or material, Contractor, on
request of the State, shall at Contractor's
own
expense
assist
the
State
in
establishing carrier liability by supplying
evidence that the equipment and/or
material
was
properly
constructed,
manufactured, packaged, and secured to
withstand
normal
transportation
conditions.
14.TIME IS OF THE ESSENCE:
Time is of the essence in this Contract.
15.DELIVERY:
Contractor shall strictly adhere to the delivery
and completion schedules specified in this
Contract. Time, if stated as a number of days,
shall mean calendar days unless otherwise
specified. The quantities specified herein are
the only quantities required. If Contractor
delivers in excess of the quantities specified
herein, the State shall not be required to make
any payment for the excess Goods, and may
return them to Contractor at Contractor’s
expense or utilize any other rights available to
the State at law or in equity.
16.SUBSTITUTIONS:
Substitution of Goods may not be tendered
without advance written consent of the Buyer.
Contractor shall not use any specification in
lieu of those contained in the Contract without
written consent of the Buyer.
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GENERAL PROVISIONS
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17.INSPECTION,
ACCEPTANCE
AND
REJECTION:
a) Contractor and its subcontractors will
provide and maintain a quality assurance
system acceptable to the State covering
Goods and services under this Contract
and will tender to the State only those
Goods that have been inspected and
found to conform to this
Contract’s
requirements. Contractor will keep records
evidencing inspections and their result,
and will make these records available to
the State during Contract performance and
for three years after final payment.
Contractor shall permit the State to review
procedures, practices, processes and
related documents to determine the
acceptability
of
Contractor’s
quality
assurance system or other business
practices related to performance of the
Contract.
b) All Goods may be subject to inspection
and test by the State or its authorized
representatives.
c) Contractor and its subcontractors shall
provide all reasonable facilities for the
safety and convenience of inspectors at no
additional cost to the State. Contractor
shall furnish to inspectors all information
and data as may be reasonably required to
perform their inspection.
d) All Goods to be delivered hereunder may
be subject to final inspection, test and
acceptance by the State at destination,
notwithstanding any payment or inspection
at source.
e) The State shall give written notice of
rejection of Goods delivered or services
performed hereunder within a reasonable
time after receipt of such Goods or
performance of such services. Such notice
of rejection will state the respects in which
the Goods do not substantially conform to
their specifications. If the State does not
provide such notice of rejection within
thirty (30) days, unless otherwise specified
in the Statement of Work, of delivery, such
Goods and services will be deemed to
have been accepted. Acceptance by the
State will be final and irreversible, except
as it relates to latent defects, fraud, and
gross mistakes amounting to fraud.
Acceptance shall not be construed to
waive any warranty rights that the State
might have at law or by express
reservation in this Contract with respect to
any nonconformity.
18.SAMPLES:
a) Samples of items may be required by the
State for
inspection and specification
testing and must be furnished free of
expense to the State. The samples
furnished must be identical in all respects
to the products bid and/or specified in the
Contract.
b) Samples, if not destroyed by tests, may,
upon request made at the time the sample
is furnished, be returned at Contractor’s
expense.
19.WARRANTY:
Unless otherwise specified, the warranties
contained in this Contract begin after
acceptance has occurred.
a) Contractor warrants that
Goods and
services furnished hereunder will conform
to the requirements of this Contract
(including all descriptions, specifications
and drawings made a part hereof), and
such Goods will be merchantable, fit for
their intended purposes, free from all
defects in materials and workmanship and
to the extent not manufactured pursuant to
detailed designs furnished by the State,
free from defects in design. The State’s
approval of designs or specifications
furnished by Contractor shall not relieve
the Contractor of its obligations under this
warranty.
b) All warranties, including special warranties
specified elsewhere herein, shall inure to
the
State,
its
successors,
assigns,
customer
agencies
and
users
of
the
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GENERAL PROVISIONS
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Goods or services.
20.SAFETY AND ACCIDENT PREVENTION:
In performing work under this Contract on
State premises, Contractor shall conform to
any specific safety requirements contained in
the Contract or as required by law or
regulation. Contractor shall take any additional
precautions as the State may reasonably
require for safety and accident prevention
purposes. Any violation of such rules and
requirements, unless promptly corrected, shall
be grounds for termination of this Contract in
accordance with the default provisions hereof.
21.INSURANCE:
When performing work on property in the care,
custody or control of the State, Contractor
shall maintain all commercial general liability
insurance, workers’ compensation insurance
and any other insurance the State deems
appropriate under the Contract. Contractor
shall
furnish
an
insurance
certificate
evidencing
required
insurance
coverage
acceptable to the State. Upon request by the
Buyer, the Contractor may be required to have
the State shown as an “additional insured” on
selected policies.
22.TERMINATION FOR NON-APPROPRIATION
OF FUNDS:
a) If the term of this Contract extends into
fiscal years subsequent to that in which it
is approved, such continuation of the
Contract is contingent on the appropriation
of funds for such purpose by the
Legislature. If funds to effect such
continued payment are not appropriated,
Contractor agrees to take back any
affected Goods furnished under this
Contract, terminate any services supplied
to the State under this Contract, and
relieve the State of any further obligation
therefor.
b) STATE AGREES THAT IF PARAGRAPH
(a) ABOVE IS INVOKED, GOODS SHALL
BE RETURNED TO THE CONTRACTOR
IN
SUBSTANTIALLY
THE
SAME
CONDITION IN WHICH DELIVERED TO
THE STATE, SUBJECT TO NORMAL
WEAR AND TEAR. STATE FURTHER
AGREES TO PAY FOR PACKING,
CRATING,
TRANSPORTATION
TO
CONTRACTOR’S NEAREST FACILITY
AND FOR REIMBURSEMENT TO THE
CONTRACTOR
FOR
EXPENSES
INCURRED FOR THEIR ASSISTANCE IN
SUCH PACKING AND CRATING.
23.TERMINATION FOR THE CONVENIENCE OF
THE STATE:
a) The State may terminate performance of
work
under
this
Contract
for
its
convenience in whole or, from time to time,
in part, if the Department of General
Services, Deputy Director, Procurement
Division, or designee, determines that a
termination is in the State’s interest. The
Department of General Services, Deputy
Director,
Procurement
Division,
or
designee, shall terminate by delivering to
the Contractor a Notice of Termination
specifying the extent of termination and
the effective date thereof. The parties
agree that, as to the terminated portion of
the Contract, the Contract shall be
deemed to remain in effect until such time
as the termination settlement, if any, is
concluded and the Contract shall not be
void.
b) After receipt of a Notice of Termination,
and except as directed by the State, the
Contractor shall immediately proceed with
the following obligations, as applicable,
regardless of any delay in determining or
adjusting any amounts due under this
clause. The Contractor shall:
i)
Stop work as specified in the Notice of
Termination.
ii) Place no further subcontracts for
materials, services, or facilities, except
as
necessary
to
complete
the
continued portion of the Contract.
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GENERAL PROVISIONS
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iii) Terminate all subcontracts to the extent
they relate to the work terminated.
iv) Settle all outstanding liabilities and
termination
settlement
proposals
arising
from
the
termination
of
subcontracts;
the
approval
or
ratification of which will be final for
purposes of this clause.
24.TERMINATION FORDEFAULT:
a) The State may, subject to the Force
Majeure paragraph contained herein, by
written notice of default to the Contractor,
terminate this Contract in whole or in part
if the Contractor fails to:
i)
Deliver the Goods or to perform the
services within the time specified in the
Contract or any amendment thereto;
ii) Make progress, so as to endanger
performance of this Contract (but see
subparagraph (b) below); or
iii) Perform any of the other provisions of
this Contract (but see subparagraph
(b), below).
b) The State’s right to terminate this Contract
under subparagraphs (a)(ii) and (a)(iii)
above, may be exercised if the Contractor
does not cure such failure within the time
frame stated in the cure notice issued by
the Buyer.
c) If the State terminates this Contract in
whole or in part, it may acquire, under the
terms and in the manner the Buyer
considers appropriate, Goods or services
similar to those terminated, and the
Contractor will be liable to the State for any
excess costs for those Goods or services.
However, the Contractor shall continue the
work not terminated.
d) If the Contract is terminated for default, the
State may
require the Contractor to
transfer title and deliver to the State, as
directed by the Buyer, any:
i)
Completed Goods, and
ii) Partially
completed
Goods
and
materials, parts, tools, dies, jigs,
fixtures, plans, drawings, information,
and
Contract
rights
(collectively
referred
to
as
“manufacturing
materials” in this clause) that the
Contractor has specifically produced or
acquired for the terminated portion of
this Contract. Upon direction of the
Buyer, the Contractor shall also protect
and preserve property in its possession
in which the State has an interest.
e) The State shall pay Contract price for
completed Goods delivered and accepted.
The Contractor and Buyer shall agree on
the amount of payment for manufacturing
materials delivered and accepted for the
protection
and
preservation
of
the
property. Failure to agree will be a dispute
under the Disputes clause. The State may
withhold from these amounts any sum the
Buyer determines to be necessary to
protect the State against loss because of
outstanding liens or claims of former lien
holders.
f)
If, after termination, it is determined that
the Contractor was not in default, or that
the default was excusable, the rights and
obligations of the parties shall be the same
as if the termination had been issued for
the convenience of the State.
g) The rights and remedies of the State in this
clause are in addition to any other rights
and remedies provided by law or under
this Contract.
25.FORCE MAJEURE:
Except for defaults of subcontractors at any
tier, the Contractor shall not be liable for any
excess costs if the failure to perform the
Contract arises from causes beyond the
control and without the fault or negligence of
the Contractor. Examples of such causes
include, but are not limited to:
a) Acts of God or of the public enemy, and
b) Acts of the federal or state government in
either its sovereign or contractual capacity.
If the failure to perform is caused by the default
of a subcontractor at any tier, and if the cause
of the default is beyond the control of both the
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Contractor and subcontractor, and without the
fault or negligence of either, the Contractor
shall not be liable for any excess costs for
failure to perform.
26.RIGHTS AND REMEDIES OF STATE FOR
DEFAULT:
a) In the event any Goods furnished or
services provided by the Contractor in the
performance of the Contract should fail to
conform to the requirements herein, or to
the sample submitted by the Contractor,
the State may reject the same, and it shall
become the duty of the Contractor to
reclaim and remove the item promptly or to
correct
the performance of services,
without expense to the State, and
immediately replace all such rejected
items with others conforming to
the
Contract.
b) In addition to any other rights and
remedies the State may have, the State
may require Contractor, at Contractor’s
expense, to ship Goods via air freight or
expedited routing to avoid or minimize
actual or potential delay if the delay is the
fault of the Contractor.
c) In the event of the termination of the
Contract, either in whole or in part, by
reason of default
or breach by the
Contractor, any loss or damage sustained
by the State in procuring any items which
the Contractor agreed to supply shall be
borne and paid for by the Contractor.
d) The State reserves the right to offset the
reasonable cost of all damages caused to
the State against any outstanding invoices
or amounts owed to Contractor or to make
a claim against the Contractor therefore.
27.CONTRACTOR’S LIABILITY FOR INJURY TO
PERSONS OR DAMAGE TO PROPERTY:
a) The Contractor shall be liable for damages
arising out of injury to the person and/or
damage to the property of the State,
employees
of
the
State,
persons
designated by the State for training, or any
other person(s) other than agents or
employees of the Contractor, designated
by the State for any purpose, prior to,
during,
or
subsequent
to
delivery,
installation, acceptance, and use of the
Goods either at the Contractor’s site or at
the State’s place of business, provided
that the injury or damage was caused by
the fault or neligence of the Contractor.
b) Contractor shall not be liable for damages
arising out of or caused by an alteration or
an attachment not made or installed by the
Contractor, or for damage to alterations or
attachments that may result from the
normal operation and maintenance of the
Goods provided by the Contractor during
the Contract.
28.INDEMNIFICATION:
Contractor agrees to indemnify, defend and
save harmless the State, its officers, agents
and employees from any and all claims and
losses accruing or resulting to any and all
Contractors,
subcontractors,
suppliers,
laborers and any other person, firm, or
corporation furnishing or supplying work,
services, materials or supplies in connection
with the performance of this Contract, and
from any and all claims and losses accruing or
resulting to any person, firm or corporation
which may be injured or damaged by
Contractor in the performance of this Contract.
29.INVOICES:
Unless otherwise specified, invoices shall be
sent to the address set forth herein. Invoices
shall be submitted in triplicate and shall
include the Contract number; release order
number (if applicable); item number; unit price,
extended item price and invoice total amount.
State sales tax and/or use tax shall be
itemized separately and added to each invoice
as applicable.
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30.REQUIRED PAYMENT DATE:
Payment will be made in accordance with the
provisions of the California Prompt Payment
Act, Government Code Section 927 et. seq.
Unless expressly exempted by statute, the Act
requires state agencies to pay properly
submitted, undisputed invoices not more than
45 days after (i) the date of acceptance of
Goods or performance of services; or (ii)
receipt of an undisputed invoice, whichever is
later.
31.TAXES:
Unless otherwise required by law, the State of
California is exempt from Federal excise
taxes. The State will only pay for any State or
local sales or use taxes on the services
rendered or Goods supplied to the State
pursuant to this Contract.
32.NEWLY MANUFACTURED GOODS:
All Goods furnished under this Contract shall
be newly manufactured Goods; used or
reconditioned Goods are prohibited, unless
otherwise specified.
33.CONTRACT MODIFICATION:
No amendment or variation of the terms of this
Contract shall be valid unless made in writing,
signed
by the parties and approved as
required. No oral understanding or agreement
not incorporated in the Contract is binding on
any of the parties.
34.CONFIDENTIALITY OF DATA:
All financial, statistical, personal, technical and
other data and information relating to the
State's operation which are designated
confidential by the State and made available
to the Contractor in order to carry out this
Contract, or which become available to the
Contractor in carrying out this Contract, shall
be
protected
by
the
Contractor
from
unauthorized use and disclosure through the
observance of the same or more effective
procedural requirements as are applicable to
the State. The identification of all such
confidential data and information as well as
the State's procedural requirements for
protection of such data and information from
unauthorized use and disclosure shall be
provided by the State in writing to the
Contractor. If the methods and procedures
employed by the Contractor for the protection
of the Contractor's data and information are
deemed by the State to be adequate for the
protection
of
the
State's
confidential
information, such methods and procedures
may be used, with the written consent of the
State, to carry out the intent of this paragraph.
The Contractor shall not be required under the
provisions
of
this
paragraph
to
keep
confidential any data or information which is or
becomes
publicly
available,
is
already
rightfully in the Contractor’s possession, is
independently developed by the outside the
scope of this Contract, or is rightfully obtained
from third parties.
35.NEWS RELEASES:
Unless otherwise exempted, news releases
pertaining to this Contract shall not be made
without
prior
written
approval
of
the
Department of General Services.
36.PATENT, COPYRIGHT and TRADE SECRET
INDEMNITY:
a) Contractor
shall
hold
the
State
of
California,
its
officers,
agents
and
employees, harmless from liability of any
nature or kind, including costs and
expenses, for infringement or use of any
copyrighted or uncopyrighted composition,
secret process, patented or unpatented
invention, article or appliance furnished or
used in connection with the Contract.
b) Contractor may be required to furnish a
bond to the State against any and all loss,
damage, costs, expenses, claims and
liability for patent, copyright and trade
secret infringement.
c) Contractor, at its own expense, shall
defend any action brought against the
State to the extent that such action is
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based upon a claim that the Goods or
software supplied by the Contractor or the
operation of such Goods pursuant to a
current version of Contractor supplied
operating software infringes a United
States patent or copyright or violates a
trade secret. The Contractor shall pay
those costs and damages finally awarded
against the State in any such action. Such
defense and payment shall be conditioned
on the following:
i)
That the Contractor shall be notified
within a reasonable time in writing by
the State of any notice of such claim;
and,
ii) That the Contractor shall have the sole
control of the defense of any action on
such claim and all negotiations for its
settlement or compromise, provided,
however, that when principles of
government or public law are involved,
the State shall have the option to
participate in such action at its own
expense.
d) Should the Goods or software, or the
operation thereof, become, or in the
Contractor's opinion are likely to become,
the subject of a claim of infringement of a
United States patent or copyright or a
trade secret, the State shall permit the
Contractor at its option and expense either
to procure for the State the right to
continue using the Goods or software, or
to replace or modify the same so that they
become non-infringing. If none of these
options can reasonably be taken, or if the
use of such Goods or software by the State
shall
be
prevented
by injunction,
the
Contractor agrees to
take back such
Goods or software and make every
reasonable effort to assist the State in
procuring substitute Goods or software. If,
in the sole opinion of the State, the return
of such infringing Goods or software
makes the retention of other Goods or
software acquired from the Contractor
under this Contract impractical, the State
shall then have the option of terminating
such Contracts, or applicable portions
thereof, without penalty or termination
charge. The Contractor agrees to take
back such Goods or software and refund
any sums the State has paid Contractor
less any reasonable amount for use or
damage.
e) The Contractor shall have no liability to the
State under any provision of this clause
with respect to any claim of patent,
copyright or trade secret infringement
which is based upon:
i)
The combination or utilization of Goods
furnished hereunder with equipment or
devices not made or furnished by the
Contractor; or,
ii) The operation of equipment furnished
by the Contractor under the control of
any operating software other than, or in
addition to, the current version of
Contractor-supplied
operating
software; or
iii) The modification by the State of the
equipment furnished hereunder or of
the software; or
iv) The combination or utilization of
software furnished hereunder with non-
contractor supplied software.
f)
Contractor certifies that it has appropriate
systems and controls in place to ensure
that state funds will not be used in the
performance of this Contract for the
acquisition, operation or maintenance of
computer software in violation of copyright
laws.
g) The foregoing states the entire liability of
the Contractor to the State with respect to
infringement of patents, copyrights or
trade secrets.
37.EXAMINATION AND AUDIT:
Contractor agrees that the State, or its
designated representative shall have the right
to review and copy any records and supporting
documentation pertaining to performance of
this Contract. Contractor agrees to maintain
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such records for possible audit for a minimum
of three (3) years after final payment, unless a
longer period of records retention is stipulated.
Contractor agrees to allow the auditor(s)
access to such records during normal
business hours and to allow interviews of any
employees or others who might reasonably
have information related to such records.
Further, Contractor agrees to include a similar
right of the State to audit records and interview
staff in any subcontract related to performance
of this Contract.
38.DISPUTES:
a) The parties shall deal in good faith and
attempt to resolve potential disputes
informally.
If
the
dispute
persists,
Contractor shall submit to the Department
Director or designee a written demand for
a final decision regarding the disposition of
any dispute between the parties arising
under, related to or involving this Contract,
unless the State, on its own initiative, has
already rendered such a final decision.
Contractor’s written demand shall be fully
supported by factual information, and if
such demand involves a cost adjustment
to the Contract, Contractor shall include
with the demand a written statement
signed by an authorized person indicating
that the demand is made in good faith, that
the supporting data are accurate and
complete and that the amount requested
accurately
reflects
the
Contract
adjustment for which Contractor believes
the State is liable. If the Contractor is not
satisfied
with
the
decision
of
the
Department Director or designee, the
Contractor may appeal the decision to the
Department of General Services, Deputy
Director, Procurement Division. In the
event that this Contract is for information
technology Goods and/or services, the
decision may be appealed to an Executive
Committee of State and Contractor
personnel.
b) Pending the final resolution of any dispute
arising under, related to or involving this
Contract, Contractor agrees to diligently
proceed with the performance of this
Contract, including the delivery of Goods
or providing of services in accordance with
the
State’s
instructions.
Contractor’s
failure to diligently proceed in accordance
with the State’s instructions
shall
be
considered
a
material
breach
of this
Contract.
c) Any final decision of the State shall be
expressly identified as such, shall be in
writing, and shall be signed by the
Department Director or designee or
Deputy Director, Procurement Division if
an appeal was made. If the State fails to
render a final decision within 90 days after
receipt of Contractor’s demand, it shall be
deemed a final decision adverse to
Contractor’s contentions. The State’s final
decision shall be conclusive and binding
regarding the dispute unless Contractor
commences an action in a court of
competent jurisdiction to contest such
decision within 90 days following the date
of the final decision or one (1) year
following the accrual of the cause of
action, whichever is later.
39.STOP WORK:
a) The State may, at any time, by written Stop
Work Order to the Contractor, require the
Contractor to stop all, or any part, of the
work called for by this Contract for a period
up to 90 days after the Stop Work Order is
delivered to the Contractor, and for any
further period to which the parties may
agree. The Stop Work Order shall be
specifically identified as such and shall
indicate it is issued under this clause.
Upon receipt of the Stop Work Order, the
Contractor shall immediately comply with
its terms and take all reasonable steps to
minimize the incurrence of costs allocable
to the work covered by the Stop Work
Order during the period of work stoppage.
Within a period of 90 days after a Stop
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Work Order is delivered to the Contractor,
or within any extension of that period to
which the parties shall have agreed, the
State shall either:
i)
Cancel the Stop Work Order; or
ii) Terminate the work covered by the
Stop Work Order as provided for in the
termination
for
default
or
the
termination for convenience clause of
this Contract.
b) If a Stop Work Order issued under this
clause is canceled or the period of the Stop
Work Order or any extension thereof
expires, the Contractor shall resume work.
The State shall make an equitable
adjustment in the delivery schedule, the
Contract price, or both, and the Contract
shall be modified, in writing, accordingly, if:
i)
The Stop Work Order results in an
increase in the time required for, or in
the Contractor’s cost properly allocable
to the performance of any part of this
Contract; and
ii) The Contractor asserts its right to an
equitable adjustment within 30 days
after the end of the period of work
stoppage; provided, that if the State
decides the facts justify the action, the
State may receive and act upon a
proposal submitted at any time before
final payment under this Contract.
c) If a Stop Work Order is not canceled and
the work covered by the Stop Work Order
is terminated in accordance with the
provision entitled Termination for the
Convenience of the State, the State shall
allow reasonable costs resulting from the
Stop Work Order in arriving at the
termination settlement.
d) The State shall not be liable to the
Contractor for loss of profits because of a
Stop Work Order issued under this clause.
40.PRIORITY HIRING CONSIDERATIONS:
If this Contract includes services in excess of
$200,000, the Contractor shall give priority
consideration in filling vacancies in positions
funded by the Contract to qualified recipients
of aid under Welfare and Institutions Code
Section 11200 in accordance with PCC
Section 10353.
41.COVENANT AGAINST GRATUITIES:
The Contractor warrants that no gratuities (in
the form of entertainment, gifts, or otherwise)
were offered or given by the Contractor, or any
agent or representative of the Contractor, to
any officer or employee of the State with a
view toward securing the Contract or securing
favorable treatment with respect to any
determinations concerning the performance of
the Contract. For breach or violation of this
warranty, the State shall have the right to
terminate the Contract, either in whole or in
part, and any loss or damage sustained by the
State in procuring on the open market any
items which Contractor agreed to supply shall
be borne and paid for by the Contractor. The
rights and remedies of the State provided in
this clause shall not be exclusive and are in
addition to any other rights and remedies
provided by law or in equity.
42.NONDISCRIMINATION CLAUSE:
a) During the performance of this Contract,
Contractor and its subcontractors shall not
unlawfully discriminate, harass or allow
harassment, against any employee or
applicant for employment because of sex,
sexual orientation, race, color, ancestry,
religious creed, national origin, disability
(including
HIV
and
AIDS),
medical
condition (cancer), age, marital status, and
denial of family care leave. Contractor and
subcontractors shall insure that the
evaluation
and
treatment
of
their
employees and applicants for employment
are free from such discrimination and
harassment.
Contractor
and
subcontractors shall
comply
with
the
provisions of the Fair Employment and
Housing Act (Government Code, Section
12990 et seq.) and the applicable
regulations
promulgated
thereunder
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(California Code of Regulations, Title 2,
Section 7285.0 et seq.). The applicable
regulations of the Fair Employment and
Housing
Commission
implementing
Government Code Section 12990 (a-f), set
forth in Chapter 5 of Division 4 of Title 2 of
the California Code of Regulations are
incorporated
into
this
Contract
by
reference and made a part hereof as if set
forth
in
full.
Contractor
and
its
subcontractors shall give written notice of
their obligations under this clause to labor
organizations with which they have a
collective bargaining or other agreement.
b) The
Contractor
shall
include
the
nondiscrimination
and
compliance
provisions of this clause in all subcontracts
to perform work under the Contract.
43.NATIONAL LABOR RELATIONS BOARD
CERTIFICATION:
Contractor swears under penalty of perjury
that no more than one final, unappealable
finding of contempt of court by a federal court
has been issued against the Contractor within
the immediately preceding two-year period
because of the Contractor’s failure to comply
with an order of the National Labor Relations
Board. This provision is required by, and shall
be construed in accordance with, PCC Section
10296.
44.ASSIGNMENT OF ANTITRUST ACTIONS
Pursuant to Government Code Sections 4552,
4553, and 4554, the following provisions are
incorporated herein:
a) In submitting a bid to the State, the
supplier offers and agrees that if the bid is
accepted, it will assign to the State all
rights, title, and interest in and to all causes
of action it may have under Section 4 of
the Clayton Act (15 U.S.C. 15) or under the
Cartwright Act (Chapter 2, commencing
with Section 16700, of Part 2 of Division 7
of the Business and Professions Code),
arising from purchases of Goods, material,
or services by the supplier for sale to the
State pursuant to the solicitation. Such
assignment shall be made and become
effective at the time the State tenders final
payment to the supplier.
b) If the State receives, either through
judgment or settlement,
a monetary
recovery for a cause of action assigned
under this chapter, the assignor shall be
entitled to receive reimbursement for
actual legal costs incurred and may, upon
demand, recover from the State any
portion of the recovery, including treble
damages, attributable to overcharges that
were paid by the assignor but were not
paid by the State as part of the bid price,
less the expenses incurred in obtaining
that portion of the recovery.
c) Upon demand in writing by the assignor,
the assignee shall, within one year from
such demand, reassign the cause of action
assigned under this part if the assignor has
been or may have been injured by the
violation of law for which the cause of
action arose and
i)
the assignee has not been injured
thereby, or
ii) the assignee declines to file a court
action for the cause of action.
45.DRUG-FREE WORKPLACE CERTIFICATION:
The Contractor certifies under penalty of
perjury under the laws of the State of California
that the Contractor will comply with the
requirements of the Drug-Free Workplace Act
of 1990 (Government Code Section 8350 et
seq.) and will provide a drug-free workplace by
taking the following actions:
a) Publish a statement notifying employees
that unlawful manufacture, distribution,
dispensation, possession, or use of a
controlled substance is prohibited and
specifying actions to be taken against
employees for violations, as required by
Government Code Section 8355(a).
b) Establish
a
Drug-Free
Awareness
Program as required by Government Code
Section 8355(b) to inform employees
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about all of the following:
i)
the dangers of drug abuse in the
workplace;
ii) the person's or organization's policy of
maintaining a drug-free workplace;
iii) any available counseling, rehabilitation
and employee assistance programs;
and,
iv) penalties that may be imposed upon
employees for drug abuse violations.
c) Provide, as required by Government Code
Section 8355(c), that every employee who
works on the proposed or resulting
Contract:
i)
will receive a copy of the company's
drug-free policy statement; and,
ii) will agree to abide by the terms of the
company's statement as a condition of
employment on the Contract.
46.FOUR-DIGIT DATE COMPLIANCE:
Contractor warrants that it will provide only
Four-Digit Date Compliant (as defined below)
Deliverables and/or services to the State.
“Four Digit Date Compliant” Deliverables and
services can accurately process, calculate,
compare, and sequence date data, including
without limitation date data arising out of or
relating to leap years and changes in
centuries. This warranty and representation is
subject to the warranty terms and conditions of
this Contract and does not limit the generality
of warranty obligations set forth elsewhere
herein.
47.SWEATFREE CODE OF CONDUCT:
a) Contractor declares under penalty of
perjury that no apparel, garments or
corresponding accessories, equipment,
materials, or supplies furnished to the
State pursuant to the Contract have been
produced in whole or in part by sweatshop
labor,
forced
labor,
convict
labor,
indentured labor under penal sanction,
abusive forms of child labor or exploitation
of children in sweatshop labor, or with the
benefit of sweatshop labor, forced labor,
convict labor, indentured labor under penal
sanction, abusive forms of child labor or
exploitation of children in sweatshop labor.
Contractor further declares under penalty
of perjury that they adhere to the
Sweatfree Code of Conduct as set forth on
the California Department of Industrial
Relations
website
located
at
www.dir.ca.gov, and Public Contract Code
Section 6108.
b) Contractor agrees to cooperate fully in
providing reasonable access to its records,
documents,
agents
or
employees,
or
premises
if
reasonably
required
by
authorized officials of the State, the
Department of Industrial Relations, or the
Department of Justice to determine
Contractor’s
compliance
with
the
requirements under paragraph (a).
48.RECYCLING:
The Contractor shall certify in writing under
penalty of perjury, the minimum, if not exact,
percentage of post-consumer material as
defined in the Public Contract Code Section
12200, in products, materials, Goods, or
supplies offered or sold to the State regardless
of
whether
the
product
meets
the
requirements of Section 12209. With respect
to printer or duplication cartridges that comply
with the requirements of Section 12156(e), the
certification required by this subdivision shall
specify that the cartridges so comply (PCC
12205).
49.CHILD SUPPORT COMPLIANCE ACT:
For any Contract in excess of $100,000, the
Contractor acknowledges in accordance with
PCC Section 7110, that:
a) The Contractor recognizes the importance
of child and family support obligations and
shall fully comply with all applicable state
and federal laws relating to child and
family support enforcement, including, but
not limited to, disclosure of information and
compliance with earnings assignment
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orders,
as
provided
in
Chapter
8
(commencing with Section 5200) of Part 5
of Division 9 of the Family Code; and
b) The Contractor, to the best of its
knowledge is fully complying with the
earnings
assignment
orders
of
all
employees and is providing the names of
all new employees to the New Hire
Registry maintained by the California
Employment Development Department.
50.AMERICANS WITH DISABILITIES ACT:
Contract assures the State that the Contractor
complies with the Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq).
51.ELECTRONIC WASTE RECYCLING ACT OF
2003:
The Contractor certifies that it complies with
the requirements of the Electronic Waste
Recycling Act of 2003, Chapter 8.5, Part 3 of
Division 30, commencing with Section 42460
of the Public Resources Code, relating to
hazardous and solid waste. Contractor shall
maintain
documentation
and
provide
reasonable access to
its
records and
documents that evidence compliance.
52.USE TAX COLLECTION:
In accordance with PCC Section 10295.1,
Contractor certifies that it complies with the
requirements of Section 7101 of the Revenue
and Taxation Code. Contractor further certifies
that it will immediately advise State of any
change in its retailer’s seller’s permit or
certification of registration or applicable
affiliate’s seller’s permit or certificate of
registration as described in subdivision (a) of
PCC Section 10295.1.
53.EXPATRIATE CORPORATIONS:
Contractor hereby declares that it is not an
expatriate corporation or subsidiary of an
expatriate corporation within the meaning of
PCC Section 10286 and 10286.1, and is
eligible to Contract with the State.
54.DOMESTIC PARTNERS:
For Contracts over $100,000 executed or
amended
after
January
1,
2007,
the
Contractor certifies that the Contractor is in
compliance with Public Contract Code Section
10295.3.
55.SMALL BUSINESS PARTICIPATION AND
DVBE
PARTICIPATION
REPORTING
REQUIREMENTS:
a)
If for this Contract Contractor made
a commitment to achieve small business
participation, then Contractor must within
60 days of receiving final payment under
this Contract (or within such other time
period as may be specified elsewhere in
this Contract) report to the awarding
department the actual percentage of small
business participation that was achieved.
(Govt. Code § 14841.)
b)
If for this Contract Contractor made
a commitment to achieve disabled veteran
business enterprise (DVBE) participation,
then Contractor must within 60 days of
receiving final payment under this Contract
(or within such other time period as may be
specified elsewhere in this Contract)
certify in a report to the awarding
department:
(1)
the
total
amount
the
prime
Contractor
received
under
the
Contract;
(2) the name and address of the
DVBE(s) that participated in the
performance of the Contract;
(3) the amount each DVBE received
from the prime Contractor;
(4) that all payments under the
Contract have been made to the
DVBE; and
(5) the actual percentage of DVBE
participation that was achieved. A
person or entity that knowingly
provides false information shall be
subject to a civil penalty for each
violation. (Mil. & Vets. Code §
999.5(d); Govt. Code § 14841.)
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56.LOSS LEADER:
It is unlawful for any person engaged in
business within this state to sell or use any
article or product as a “loss leader” as defined
in Section 17030 of the Business and
Professions Code. (PCC 10302(b).).
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