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Finance Division

By Julia Price,2014-08-07 11:21
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Finance Division

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    ATTACHMENT A

    SAMPLE TERMS AND CONDITIONS

    Sample terms and conditions include: Exhibit A, Standard Provisions; Exhibit B, Special Provisions; Exhibit C, Payment Provisions; Exhibit D, Work to be Performed; and Exhibit E, Attachments.

    EXHIBIT A

    STANDARD PROVISIONS

1. Indemnification

    The Contractor shall indemnify, defend (with counsel satisfactory to the State), and save

    harmless the State and its officers, agents, and employees from any and all claims and losses

    accruing or resulting to any and all other contractors, Subcontractors, suppliers, and laborers,

    and any other person, firm, or corporation furnishing or supplying Work, Materials, Data, or

    services in connection with the performance of this Agreement, and from any and all claims

    and losses accruing or resulting to any person, firm, or corporation who may be injured or

    damaged by the Contractor or its agents or employees in the performance of this Agreement.

2. Relationship of Parties

    The Contractor and the agents and employees of the Contractor, in the performance of this

    Agreement, shall act in an independent capacity and not as officers or employees or agents

    of the State of California.

3. Termination for Cause

    The State may terminate this Agreement and be relieved of the payment of any

    consideration to the Contractor if the Contractor fails to perform the provisions of this

    Agreement at the time and in the manner provided. If the Agreement is terminated, the

    State may proceed with the Work in any manner it deems proper. The cost to the State to

    perform this Agreement shall be deducted from any sum due the Contractor under this

    Agreement or any other agreement, and the balance, if any, shall be paid to the Contractor

    upon demand.

4. No Assignment

    Without the written consent of the State, the Contractor shall not assign this Agreement in

    whole or in part.

5. Time of Essence

    Time is of the essence in this Agreement.

    Page A - 1

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    6. Validity of Alterations

    Alteration or variation of the terms of this Agreement shall not be valid unless made in

    writing and signed by the parties, and an oral understanding or agreement that is not

    incorporated shall not be binding on any of the parties.

    7. Consideration

    The consideration to be paid to the Contractor under this Agreement shall be compensation

    for all the Contractor's expenses incurred in the performance of this Agreement, including

    travel and per diem, unless otherwise expressly provided.

    END OF EXHIBIT A

    Page A - 2

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    EXHIBIT B

    SPECIAL PROVISIONS

    1. Definitions

    Terms defined below and elsewhere throughout the Contract Documents shall apply to the Agreement as defined.

    A. Acceptance” means the written acceptance issued to the Contractor by the State

    after the Contractor has completed a Deliverable, Submittal, or other Contract

    requirement, in compliance with the Contract Documents, including without

    limitation, Exhibit D, Work to Be Performed, and the Acceptance of the Work

    provision set forth in this exhibit.

B. Administrative Director refers to that individual, or authorized designee,

    empowered by the State to make final and binding executive decisions on behalf of

    the State.

    C. Amendment” means a written document issued by the State and signed by the

    Contractor which alters the Contract Documents and identifies the following: (i) a

    change in the Work; (ii) a change in Contract Amount; (iii) a change in time allotted

    for performance; and/or (iv) an adjustment to the Agreement terms.

    D. Confidential Information” means trade secrets, financial, statistical, personnel,

    technical, and other Data and information relating to the State’s business or the

    business of its constituents. Confidential Information does not include (i)

    information that is already known by the receiving party, free of obligation of

    confidentiality to the disclosing party; (ii) information that becomes generally

    available to the public, other than as a result of disclosure by the receiving party in

    breach of this Agreement; (iii) information that is independently developed by the

    receiving party without reference to the Confidential Information; and (iv)

    information that the receiving party rightfully obtains from a Third Party free of the

    obligation of confidentiality to the disclosing party.

E. The “Contract” or “Contract Documents” constitute the entire integrated

    agreement between the State and the Contractor, as attached to and incorporated by a

    fully executed State Standard Agreement form. The terms “Contract” or “Contract

    Documents” may be used interchangeably with the term “Agreement.”

    F. Contract Amount” means the total amount encumbered under this Agreement for

    any payment by the State to the Contractor for performance of the Work, in

    accordance with the Contract Documents.

    G. The “Contractor” means the individual, association, partnership, firm, company,

    consultant, corporation, affiliates, or combination thereof, including joint ventures,

    contracting with the State to do the Contract Work. The Contractor is one of the

    parties to this Agreement.

    Page B - 1

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    H. Data” means all types of raw data, articles, papers, charts, records, reports, studies,

    research, memoranda, computation sheets, questionnaires, surveys, and other

    documentation.

I. Day” means calendar day, unless otherwise specified.

J. Deliverable(s)” or “Submittal(s)” means one or more items, if specified in the

    Contract Documents, that the Contractor shall complete and deliver or submit to the

    State for acceptance.

    K. Force Majeure” means a delay which impacts the timely performance of Work

    which neither the Contractor nor the State are liable for because such delay or failure

    to perform was unforeseeable and beyond the control of the party. Acts of Force

    Majeure include, but are not limited to:

    i. Acts of God or the public enemy;

    ii. Acts or omissions of any government entity;

    iii. Fire or other casualty for which a party is not responsible;

    iv. Quarantine or epidemic;

    v. Strike or defensive lockout; and,

    vi. Unusually severe weather conditions.

    L. Key Personnel” refers to the Contractor’s personnel named in Exhibit E,

    Contractor’s Key Personnel, whom the State has identified and approved to perform

    the Work of the Contract. Qualifications of Key Personnel are represented by the

    resumes set forth in Exhibit E. Roles of Key Personnel are set forth in Exhibit D,

    Work to be Performed.

    M. Material” means all types of tangible personal property, including but not limited

    to goods, supplies, equipment, commodities, and information and telecommunication

    technology.

    N. Notice” means a written document initiated by the authorized representative of

    either party to this Agreement and given by:

    i. Depositing in the U. S. Mail (or approved commercial express carrier) prepaid

    to the address of the appropriate authorized representative of the other party,

    which shall be effective upon date of receipt; or

    ii. Hand-delivered to the other party’s authorized representative, which shall be

    effective on the date of service.

    O. Project” refers to all activity relative to this Agreement including activity of the

    Contractor, its Subcontractors, the State and the State’s representatives.

    Page B - 2

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    P. The “State” refers to the Judicial Council of California / Administrative Office of the

    Courts (“AOC”).

Q. State Standard Agreement” means the form used by the State to enter into

    agreements with other parties. Several originally signed, fully executed versions of

    the State Standard Agreement, together with the integrated Contract Documents,

    shall each represent the Agreement as an individual “Contract Counterpart.”

    R. Subcontractor” shall mean an individual, firm, partnership, or corporation having a

    contract, purchase order, or agreement with the Contractor, or with any Subcontractor

    of any tier for the performance of any part of the Agreement. When the State refers

    to Subcontractor(s) in this document, for purposes of this Agreement and unless

    otherwise expressly stated, the term “Subcontractor” includes, at every level and/or

    tier, all subcontractors, sub-consultants, suppliers, and materialmen.

    S. Task(s)” means one or more functions, if specified in the Contract Documents, to

    be performed by the Contractor for the State.

T. Third Party” refers to any individual, association, partnership, firm, company,

    corporation, consultant, Subcontractor, or combination thereof, including joint

    ventures, other than the State or the Contractor, which is not a party to this

    Agreement.

U. Work” or “Work to be Performed” or “Contract Work” may be used

    interchangeably to refer to the service, labor, Materials, Data, and other items

    necessary for the execution, completion and fulfillment of the Agreement by the

    Contractor to the satisfaction of the State. Work may be defined to include Tasks,

    Deliverables, and/or Submittals, as required by the Contract.

    2. Manner of Performance of Work

    The Contractor shall complete all Work specified in these Contract Documents to the State's satisfaction and in compliance with the Nondiscrimination/No Harassment Clause, as set forth in this Exhibit B.

    3. Termination Other Than for Cause

    A. In addition to termination for cause under Exhibit A, Standard Provisions paragraph

    3, the State may terminate this Agreement at any time upon providing the Contractor

    written Notice at least ten (10) Days before the effective date of termination. Upon

    receipt of the termination Notice, the Contractor shall promptly discontinue all

    services affected unless the Notice specifies otherwise.

    B. If the State terminates all or a portion of this Agreement other than for cause, the

    State shall pay the Contractor for the fair value of satisfactory services rendered

    before the termination, not to exceed the total Contract Amount.

    Page B - 3

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    4. State's Obligation Subject to Availability of Funds

    A. The State's obligation under this Agreement is subject to the availability of

    authorized funds. The State may terminate the Agreement or any part of the Contract

    Work, without prejudice to any right or remedy of the State, for lack of appropriation

    of funds. If expected or actual funding is withdrawn, reduced or limited in any way

    prior to the expiration date set forth in this Agreement, or in any Amendment hereto,

    the State may terminate this Agreement in whole or in part, upon written Notice to

    the Contractor. Such termination shall be in addition to the State's rights to terminate

    for convenience or default.

    B. Payment shall not exceed the amount allowable for appropriation by Legislature. If

    the Agreement is terminated for non-appropriation:

    i. The State will be liable only for payment in accordance with the terms of this

    Agreement for services rendered prior to the effective date of termination; and

    ii. The Contractor shall be released from any obligation to provide further

    services pursuant to the Agreement as are affected by the termination.

    C. Funding for this Agreement beyond the current appropriation year is conditional

    upon appropriation by the Legislature of sufficient funds to support the activities

    described in this Agreement. Should such an appropriation not be approved, the

    Agreement may terminate at the close of the current appropriation year. The

    appropriation year ends on June 30 of each year.

    5. Agreement Administration/Communication

A. Under this Agreement, the Project Manager, ____________, shall monitor and

    evaluate the Contractor's performance. All requests and communications about the

    Work to be Performed under this Agreement shall be made through the Project

    Manager. Any Notice from the Contractor to the State shall be in writing and shall

    be delivered the Project Manager as follows:

    _________________, Project Manager

    Judicial Council of California

    Administrative Office of the Courts

    455 Golden Gate Avenue

    San Francisco, CA 94102-3688

B. Notice to the Contractor shall be directed in writing to:

    ________________

    ________________

    ________________

    ________________

    Page B - 4

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    6. Progress Reports

    The Contractor shall submit progress reports to the Project Manager, as required, describing work performed, work status, work progress difficulties encountered, remedial actions, and statement of activity anticipated subsequent to reporting period for approval prior to payment of invoices. Invoices shall include, in detail, all costs and charges applicable.

    7. Acceptance of the Work

    A. The Project Manager shall be responsible for the sign-off acceptance of all the Work

    required and submitted pursuant to this Agreement. Prior to approval of the Work

    and prior to approval for payment, the Project Manager will apply the acceptance

    criteria set forth in subparagraph B of this provision, as appropriate, to determine the

    acceptability of the Work provided by the Contractor. Unsatisfactory ratings will be

    resolved as set forth in this provision.

B. Acceptance Criteria for Work (“Criteria”) provided by the Contractor pursuant to

    this Agreement:

    i. Timeliness: The Work was delivered on time;

    ii. Completeness: The Work contained the Data, Materials, and features required

    in the Contract; and

    iii. Technical accuracy: The Work is accurate as measured against commonly

    accepted standard (for instance, a statistical formula, an industry standard, or

    de facto marketplace standard).

    C. The Contractor shall provide the Work to the State, in accordance with direction

    from the Project Manager. The State shall accept the Work, provided the Contractor

    has delivered the Work in accordance with the Criteria. The State’s Project Manager

    shall use the Acceptance and Signoff Form, provided as Attachment 1 to this

    Agreement, to notify the Contractor of the Work’s acceptability.

D. If the State rejects the Work provided, the State’s Project Manager shall submit to the

    Contractor a written rejection using Attachment 1, the Acceptance and Signoff Form,

    describing in detail the failure of the Work as measured against the Criteria. If the

    State rejects the Work, then the Contractor shall have a period of ten (10) business

    days from receipt of the Notice of rejection to correct the stated failure(s) to conform

    to the Criteria.

    E. If the Project Manager requests further change, the Contractor shall meet with the

    Project Manager, within three (3) business days of such request, to discuss changes

    for the final submission of the Work. The Contractor shall provide the Work within

    three (3) business days after this meeting, at which time the Work will be accepted or

    the question of its acceptability referred to the Administrative Director of the AOC

    and a principal of the Contractor, as set forth in subparagraph F below.

    Page B - 5

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    F. If agreement cannot be reached between the State’s Project Manager and the

    Contractor on the Work’s acceptability, a principal of the Contractor and the

    Administrative Director of the AOC, or its designee, shall meet to discuss the

    problem. If agreement cannot be reached, in the reasonable judgment of the

    Administrative Director of the AOC, or its designee, and/or the Contractor fails to

    cure such deficiencies that are perceived in the Work to the reasonable satisfaction of

    the Administrative Director, or its designee, in the reasonable time established by the

    Administrative Director, the State may reject the Work and will notify the Contractor

    in writing of such action and the reason(s) for so doing. Upon rejection of the Work,

    the State may terminate this Agreement pursuant to the terms of Standard Provisions

    paragraph 3, as set forth in Exhibit A.

    8. Subcontracting

    The Contractor shall not subcontract this Agreement or services provided under this Agreement, unless the State agrees to the subcontracting in writing. Any authorized subcontract(s) shall be executed in the same manner as this Agreement. No party to this Agreement shall in any way contract on behalf of or in the name of another party to this Agreement.

    9. Contractor's Personnel--Replacement

    A. The State reserves the right to disapprove the continuing assignment of any of the

    Contractor's personnel provided to the State under this Agreement if in the State's

    opinion, the performance of the Contractor’s personnel is unsatisfactory. The State

    agrees to provide Notice to the Contractor in the event it makes such a determination.

    If the State exercises this right, the Contractor shall immediately assign replacement

    personnel, possessing equivalent or greater experience and skills.

    B. If any of the Contractor's Key Personnel become unavailable during the term of this

    Agreement, the Contractor shall immediately assign replacement personnel,

    possessing equivalent or greater experience and skills.

    C. The Contractor shall endeavor to retain the same individuals on the Project during the

    performance of the Work of this Agreement. However, the Contractor may, with

    approval of the State’s Project Manager, introduce personnel to the Project with

    specific skill sets or release personnel from the Project whose skill set is not needed

    at the time, except for the Contractor’s Project Contact.

    D. If any of the Contractor's Key Personnel identified within the Agreement become

    unavailable during the term of this Agreement, the Contractor will supply a substitute

    acceptable to the State's Project Manager.

    E. If any of the Contractor's Key Personnel become unavailable or are disapproved and

    the Contractor cannot furnish a replacement acceptable to the State, the State may

    terminate this Agreement for cause pursuant to Standard Provisions paragraph 3, as

    set forth in Exhibit A.

    Page B - 6

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

    10. Confidentiality

    A. Both the State and the Contractor acknowledge and agree that in the course of

    performing the Work under this Agreement, the State may disclose Confidential

    Information to the Contractor.

    B. The Contractor agrees not to disclose the Confidential Information to any Third Party

    and to treat it with the same degree of care as it would its own confidential

    information. It is understood, however, that the Contractor may disclose the State’s

    Confidential Information on a “need to know” basis to the Contractor’s employees

    and Subcontractors and, as directed by the Project Manager, representatives of the

    State that are working on the Project. All such employees and Subcontractors of the

    Contractor shall have executed a confidentiality agreement with the Contractor

    requiring a promise of confidentiality concerning the Contractor’s clients and

    business.

    11. Changes and Amendments

    Changes or Amendments to any component of the Contract Documents can be made only with prior written approval from the Project Manager. Requests for changes or Amendments must be submitted in writing and must be accompanied by a narrative description of the proposed change and the reasons for the change. Additional funds may not be encumbered under the Agreement due to an act of Force Majeure, although the performance period of the Agreement may be amended due to an act of Force Majeure. After the Project Manager reviews the request, a written decision shall be provided to the Contractor. Amendments to the Agreement shall be authorized via bilateral execution of a State Standard Agreement.

    12. Copyrights and Rights in Data

    All copyrights and rights in the Data produced with funding from this Agreement that may presumptively vest in the Contractor shall be transferred to the State.

    13. Ownership of Results

    Any interest of the Contractor in Data in any form, or other documents and/or recordings prepared by the Contractor for performance of services under this Agreement shall become the property of the State. Upon the State's written request, the Contractor shall provide the State with all this Data within thirty (30) Days of the request.

    The Contractor agrees not to assert any rights at common law, or in equity, or establish any claim to statutory copyright in such Data. The Contractor shall not publish or reproduce such Data in whole, or part, or any manner or form, or authorize others to do so without the written consent of the State.

    Page B - 7

    Project Title: Civil / Criminal Trust Accounting Process

    RFP Number:TCFS-052005

    Attachment A Sample Terms and Conditions

14. Standard of Professionalism

    The Contractor shall conduct all work consistent with professional standards for the industry

    and type of work being performed under the Agreement.

15. Services Warranty

    The Contractor warrants and represents that each of its employees, independent contractors

    or agents assigned to perform any services or provide any technical assistance in planning,

    development, training, consulting or related services under the terms of this Agreement shall

    have the skills, training, and background reasonably commensurate with his or her level of

    performance or responsibility, so as to be able to perform in a competent and professional

    manner. The Contractor further warrants that the services provided hereunder will conform

    to the requirements of this Agreement. All warranties, including any special warranties

    specified elsewhere herein, shall inure to the State, its successors, assigns, customer

    agencies, and any other recipients of the services provided hereunder.

16. Limitation on Publication

    The Contractor shall not publish or submit for publication any article, press release, or other

    writing relating to the Contractor's services for the State without prior review and written

    permission by the State.

17. Limitation on State's Liability

    The State shall not be responsible for loss of or damage to any non-State equipment arising

    from causes beyond the State's control.

18. Accounting System Requirement

    The Contractor shall maintain an adequate system of accounting and internal controls that

    meets Generally Accepted Accounting Principles or GAAP.

19. Retention of Records

    The Contractor shall maintain all financial Data, supporting documents, and all other

    records relating to performance and billing under this Agreement for a period in accordance

    with State and Federal law, a minimum retention period being no less than three (3) years.

    The retention period starts from the date of the submission of the final payment request.

    The Contractor is also obligated to protect Data adequately against fire or other damage.

20. Audit

    The Contractor shall permit the authorized representative of the State or its designee or both

    at any reasonable time to inspect or audit all Data relating to performance and billing to the

    State under this Agreement. The Contractor further agrees to maintain such Data for a

    period of three (3) years after final payment under this Agreement.

    Page B - 8

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