Common use of Accounting and Audits Clause in Contracts

Accounting and Audits. Criteria Architect must establish and maintain books, records, and systems of account, in accordance with generally accepted accounting principles, reflecting all business operations of Criteria Architect transacted under this Agreement. Criteria Architect shall retain these books, records, and systems of account during the Term of this Agreement and for three (3) years thereafter. Pursuant to Government Code Section 8546.7, this Agreement is subject to examination and audit of the State Auditor as specified in the code. Criteria Architect shall permit the Judicial Council, its agent, other representatives, or an independent auditor to audit, examine, and make excerpts, copies, and transcripts from all books and original records, and to make audit(s) of all billing statements, invoices, original records, and other data related to the Services covered by this Agreement. Audit(s) may be performed at any time, provided that the Judicial Council shall give reasonable prior Notice to Criteria Architect and will conduct audit(s) during Criteria Architect’s normal business hours, unless Criteria Architect otherwise consents. If an audit or Judicial Council internal review reveals that the Criteria Architect and/or its Subconsultant(s) have overcharged the Judicial Council, Criteria Architect will immediately pay to the Judicial Council the overcharged amount plus interest from the date of receipt of overpayment. The rate of interest will be equal to eighteen percent (18%) per year, or the maximum rate permitted by applicable law, whichever is less. The audit or Judicial Council internal review will be conducted at the Judicial Council’s expense, unless the audit or review reveals that the Criteria Architect and/or its Subconsultant(s) has overcharged the Judicial Council by ten percent (10%) or more on any invoice, in which case the Criteria Architect will reimburse the Judicial Council for all costs and expenses incurred by the Judicial Council in connection with such audit or review, including direct and indirect costs associated with Judicial Council representatives. This remedy shall not be exclusive to any other remedies available to the Judicial Council including, without limitation, a claim against the Criteria Architect for a False Claim pursuant to the False Claims Act (Gov. Code § 12650, et seq.) IMS/Monetary Penalties. The Judicial Council shall be entitled to remedy any “False Claims,” as defined in California Government Code section 12650 et seq., made to the Judicial Council by the Criteria Architect or any Sub-Consultant under the standards set forth in Government Code section 12650 et seq. Any Criteria Architect or Sub-Consultant who submits a False Claim shall be liable to the Judicial Council for three (3) times the amount of damages that the Judicial Council sustains from the False Claim. If Criteria Architect and/or Sub-Consultant submits a False Claim, they shall also be liable to the Judicial Council for: (a) the costs, including attorney fees, of a civil action brought to recover any of those penalties or damages, and (b) a civil penalty of up to $10,000 for each false claim. Accounting System Requirements. Criteria Architect shall maintain and shall ensure that its Sub-Consultant(s) maintain, an adequate system of accounting and internal controls that meets GAAP. The obligations of this Section shall survive the expiration of and any termination of this Agreement.

Accounting and Audits. Criteria Architect Construction Manager must establish and maintain books, records, and systems of account, in accordance with generally accepted accounting principles, reflecting all business operations of Criteria Architect Construction Manager transacted under this Agreement. Criteria Architect Construction Manager shall retain these books, records, and systems of account during the Term of this Agreement and for three (3) years thereafter. Pursuant to Government Code Section 8546.7, this Agreement is subject to examination and audit of the State Auditor as specified in the code. Criteria Architect Construction Manager shall permit the Judicial Council, its agent, other representatives, or an independent auditor to audit, examine, and make excerpts, copies, and transcripts from all books and original records, and to make audit(s) of all billing statements, invoices, original records, and other data related to the Services covered by this Agreement. Audit(s) may be performed at any time, provided that the Judicial Council shall give reasonable prior Notice to Criteria Architect Construction Manager and will conduct audit(s) during Criteria ArchitectConstruction Manager’s normal business hours, unless Criteria Architect Construction Manager otherwise consents. If an audit or Judicial Council internal review reveals that the Criteria Architect Construction Manager and/or its Subconsultant(s) have overcharged the Judicial Council, Criteria Architect Construction Manager will immediately pay to the Judicial Council the overcharged amount plus interest from the date of receipt of overpayment. The rate of interest will be equal to eighteen percent (18%) per year, or the maximum rate permitted by applicable law, whichever is less. The audit or Judicial Council internal review will be conducted at the Judicial Council’s expense, unless the audit or review reveals that the Criteria Architect Construction Manager and/or its Subconsultant(s) has overcharged the Judicial Council by ten percent (10%) or more on any invoice, in which case the Criteria Architect Construction Manager will reimburse the Judicial Council for all costs and expenses incurred by the Judicial Council in connection with such audit or review, including direct and indirect costs associated with Judicial Council representatives, in addition to the payment of the overcharged amount. This remedy shall not be exclusive to any other remedies available to the Judicial Council including, without limitation, a claim against the Criteria Architect Construction Manager for a False Claim pursuant to the False Claims Act (Gov. Code § 12650, et seq.) IMS/Monetary Penalties. The Judicial Council shall be entitled to remedy any “False Claims,” as defined in California Government Code section 12650 et seq., made to the Judicial Council by the Criteria Architect Construction Manager or any Sub-Consultant Subconsultant(s) under the standards set forth in Government Code section 12650 et seq. Any Criteria Architect Construction Manager or Sub-Consultant Subconsultant(s) who submits a False Claim shall be liable to the Judicial Council for three (3) times the amount of damages that the Judicial Council sustains from the False Claim. If Criteria Architect Construction Manager and/or Sub-Consultant submits Subconsultant(s) submit a False Claim, they shall also be liable to the Judicial Council for: (a) the costs, including attorney fees, of a civil action brought to recover any of those penalties or damages, and (b) a civil penalty of up to $10,000 for each false claim. Accounting System Requirements. Criteria Architect Construction Manager shall maintain and shall ensure that its Sub-Consultant(sSubconsultant(s) maintain, an adequate system of accounting and internal controls that meets GAAP. The obligations of this Section section shall survive the expiration of and any termination of this Agreement.. COST DISCLOSURE - DOCUMENTS AND WRITTEN REPORTS Construction Manager is responsible for compliance with California Government Code section 7550, if the total cost of the Agreement is over Five Thousand Dollars ($5,000). CONSTRUCTION MANAGER’S USE OF COMPUTER SOFTWARE By executing this Agreement, the Construction Manager certifies that it has appropriate systems and controls in place to ensure that Judicial Council funds will not be used in the performance of the Agreement for the acquisition, operation, or maintenance of computer software in violation of copyright laws. Construction Manager must use the Judicial Council’s designated document management systems, databases, and construction management software. Construction Manager must use Judicial Council implemented systems and may not introduce new systems to the Project without the prior written approval of the Judicial Council, which may be withheld in the Judicial Council’s sole and absolute discretion. OWNERSHIP OF DATA Everything created, developed or produced in the course of the Construction Manager’s performance of the Services, including, without limitation, all Data, in any form, prepared, or in the process of being prepared, are works made for hire by the Construction Manager for the Judicial Council and are the sole property of the Judicial Council without further employment or the payment of additional compensation to the Construction Manager. The Judicial Council owns all of the right, title, and interest, in and to the Data, including, without limitation, all trademarks, copyrights, trade secrets, patents, and any and all other intellectual property rights therein (collectively, the “Intellectual Property Rights”). To the extent that any of the Data or the Intellectual Property Rights therein is not works for hire, the Construction Manager hereby irrevocably assigns its entire right, title, and interest in and to all those Data and the Intellectual Property Rights therein, to the Judicial Council. At the Judicial Council’s request, the Construction Manager will assist the Judicial Council in the Judicial Council’s prosecution, perfection, and registration of any or all Intellectual Property Rights in the Data. Construction Manager irrevocably appoints the Judicial Council as its attorney in fact, coupled with an interest, to take all actions and execute and file all documents that the Judicial Council deems necessary to perfect the Judicial Council’s interest and Intellectual Property Rights in the Data as set forth herein. The Judicial Council is entitled to access copies of the Data, in whatever form, including without limitation Computer Aided Design (CAD), at all times during the term of this Agreement. Any Data in the possession of the Construction Manager or in the possession of any Subconsultant upon completion or termination of the Agreement must be immediately delivered to the Judicial Council. If any Data are lost, damaged, or destroyed before final delivery to the Judicial Council, the Construction Manager must replace the Data at its own expense and the Construction Manager assumes all risks of loss, damage, or destruction of or to Data. After completion of the Project or after termination of this Agreement, Construction Manager must deliver to Judicial Council a complete set of Project records, including without limitation all documents generated by Construction Manager and copies of all documents exchanged with or copied to or from all other Project participants must be indexed using a file index numbering scheme provided or approved by the Project Manager and appropriately organized for easy use by Judicial Council personnel. All Project records are property of the Judicial Council, whether or not those records are in the Construction Manager’s possession. ROYALTIES AND PATENTS Construction Manager must pay all royalties and license fees related to this Agreement. To the furthest extent permitted under California law, Construction Manager shall hold the Indemnified Parties harmless from liability of any nature or kind, including costs and expenses, for infringement or use of any copyrighted or un-copyrighted composition, secret process, patented or un-patented invention, Article, or appliance furnished or used by Construction Manager or its Subconsultants in connection with this Agreement. To the furthest extent permitted under California law, Construction Manager, at its own expense, shall defend any action brought against the Indemnified Parties to the extent such action is based upon a Claim that any Data or Materials supplied by Construction Manager or its Subconsultants infringes a United States patent or copyright or violates a trade secret. Construction Manager shall pay those costs and damages finally awarded against the Indemnified Parties in any such action. Such defense and payment shall be conditioned on the following: That Construction Manager shall be notified within a reasonable time in writing by the Judicial Council of any Notice of such Claim; and, That Construction Manager shall have the sole control of the defense of any action on such Claim and all negotiations for its settlement or compromise, except where any such settlement or compromise would not fully resolve the outstanding Claim and would expose the Judicial Council to any future liabilities related thereto. When principles of government or public law are involved, the Judicial Council, the Court(s) and/or the State shall have the option to participate in such action at its own expense. Should the Data or Materials, become the subject of a claim of infringement of a United States patent or copyright or a trade secret, the Judicial Council shall permit Construction Manager at its option and expense either to procure for the Judicial Council and/or the Court(s) the right to continue using the Data or Materials, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or an injunction prevents the use of those Data or Materials by the Judicial Council and/or the Courts, Construction Manager agrees to take back such Data or Materials and make every reasonable effort to assist the Judicial Council and/or the Courts in procuring substitute Data or Materials of the reasonably same value and quality. If, in the determination of the Judicial Council, in its sole discretion, the return of such infringing Data or Materials makes the retention of other Data or Materials acquired from Construction Manager under this Agreement impractical, the Judicial Council shall then have the option of terminating the Agreement, in its entirety, without penalty or termination charge. Construction Manager agrees to take back the infringing Data or Materials and refund any sums that the Judicial Council has paid Construction Manager less any reasonable amount for use or damage. The rights and remedies of the Judicial Council provided in this provision shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. JUDICIAL COUNCIL PROPRIETARY OR CONFIDENTIAL INFORMATION Construction Manager understands and agrees that, in the performance of the Services under this Agreement or in contemplation thereof, the Construction Manager may have access to private or Confidential Information which may be owned or controlled by, or otherwise in the possession of, the Judicial Council and that information may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to the Judicial Council. This Confidential Information may include, but is not limited to, information related to security systems in court buildings, security systems in detention facilities, and the design and construction of those systems. Construction Manager agrees that all Confidential Information disclosed by the Judicial Council to the Construction Manager must be held in confidence and used only in the performance of the Agreement. Construction Manager shall exercise the same standard of care to protect this private or Confidential Information as the Construction Manager uses to protect its own proprietary information and, in any case, not less than a reasonably prudent person or entity would use to protect its own proprietary information. It is understood, however, that the Construction Manager may disclose the Judicial Council’s confidential information on a “need to know” basis to the Construction Manager’s employees, the Construction Manager’s Subconsultants, and the Subconsultants’ employees, and as required by law. Construction Manager must execute written agreements with any employee or Subconsultant receiving the Judicial Council’s Confidential Information incorporating this Article and obligating the recipient of the Confidential Information to comply with the provisions set forth herein. Notwithstanding the foregoing, Construction Manager may disclose Confidential Information: (i) to the extent necessary to comply with any law, rule, regulation, or applicable ruling; or (ii) as appropriate to respond to any summons or subpoena. Construction Manager shall provide Notice to the Judicial Council within a reasonable time prior to any such disclosure so that the Judicial Council may take any protective measure(s) to prevent the disclosure of Confidential Information. Neither Construction Manager nor its Subconsultants shall acquire a right or title in or to the Confidential Information as a result of any disclosure contemplated hereunder. The Judicial Council reserves the right to disclose all Data and Materials provided under this Agreement to Third Parties for the purpose of validation of the quality of Construction Manager’s Work and to use all Data and Materials for their intended purpose. Any disclosure of Confidential Information pursuant to this section shall not affect the confidential nature of any Confidential Information. Construction Manager agrees that monetary damages are inadequate to remedy any breach or threatened breach of this Section and, accordingly, consents to injunctive relief for any breach or threatened breach hereof without the posting of any bond. LIMITATION ON PUBLICATION Construction Manager must not publish or submit for publication any article, press release, or other writing relating to the Construction Manager’s Services for the Judicial Council without prior review and written permission by the Judicial Council. The Judicial Council endeavor to review any request for publication within thirty (30) days of submission to the Project Manager and, if permission is denied, the Judicial Council will provide written reasons for that denial. COVENANT AGAINST CONTINGENT FEES Construction Manager warrants that neither Construction Manager , nor any of its employees, nor Subconsultant(s) or their employees, have provided, or shall at any time provide, any gratuity in the form of money, tangible item(s), intangible benefit(s), or in any other form, to any officer, official, agent, or employee of the Judicial Council, any Judicial Branch Entity, or of the Court(s) for the purpose of securing or having secured award of this Agreement. Construction Manager warrants that neither Construction Manager, nor any of its employees, nor Subconsultant(s) or their employees, have provided or shall at any time provide any gratuity in the form of money, tangible item(s), intangible benefit(s), or in any other form, to any officer, official, agent, or employee of the Judicial Council, any Judicial Branch Entity, or of the Court(s) for the purpose of securing an outcome favorable to the Construction Manager any of its Subconsultant(s) resulting from any decisions made regarding the use of the State funds encumbered or to be encumbered under this Agreement. Construction Manager warrants that neither Construction Manager, nor any of its employees nor Subconsultant(s) or their employees, will knowingly allow any third party to provide any gratuity in the form of money, tangible item(s), intangible benefit(s), or in any other form to any officer, official, agent, or employee of the Judicial Council, any Judicial Branch Entity, or of the Court(s) for the purpose of securing an outcome favorable to the Construction Manager any of its Subconsultant(s) resulting from any decisions made regarding the use of the State funds encumbered or to be encumbered under this Agreement. For breach or violation of any of the aforesaid warranties, the Judicial Council will have the right to terminate this Agreement, and any loss or damage sustained by the Judicial Council in procuring, on the open market, any Work which the Construction Manager has agreed to supply, shall be borne, and paid for by the Construction Manager. The rights and remedies of the Judicial Council

Accounting and Audits. Criteria Architect 13.1. Construction Manager must establish and maintain books, records, and systems of account, in accordance with generally accepted accounting principles, reflecting all business operations of Criteria Architect Construction Manager transacted under this Agreement. Criteria Architect Construction Manager shall retain these books, records, and systems of account during the Term of this Agreement and for three (3) years thereafter. 13.2. Pursuant to Government Code Section section 8546.7, this Agreement is subject to examination and audit of the State Auditor as specified in the code. Criteria Architect Construction Manager shall permit the Judicial Council, its agent, other representatives, or an independent auditor to audit, examine, and make excerpts, copies, and transcripts from all books and original records, and to make audit(s) of all billing statements, invoices, original records, and other data related to the Services covered by this Agreement. Audit(sThe audit(s) may be performed at any time, provided that the Judicial Council shall give reasonable prior Notice to Criteria Architect Construction Manager and will conduct the audit(s) during Criteria ArchitectConstruction Manager’s normal business hours, unless Criteria Architect Construction Manager otherwise consents. 13.3. If an audit or Judicial Council internal review reveals that the Criteria Architect Construction Manager and/or its Subconsultant(s) have overcharged the Judicial Council, Criteria Architect Construction Manager will immediately pay to the Judicial Council the overcharged amount plus interest from the date of receipt of overpayment. The rate of interest will be equal to eighteen percent (18%) per year, or the maximum rate permitted by applicable law, whichever is less. The audit or Judicial Council internal review will be conducted at the Judicial Council’s expense, unless the audit or review reveals that the Criteria Architect Construction Manager and/or its Subconsultant(s) has overcharged the Judicial Council by ten percent (10%) or more on any invoice, in which case the Criteria Architect Construction Manager will reimburse the Judicial Council for all costs and expenses incurred by the Judicial Council in connection with such audit or review, including direct and indirect costs associated with Judicial Council representatives, in addition to the payment of the overcharged amount. This remedy shall not be exclusive to any other remedies available to the Judicial Council Council, including, without limitation, a claim against the Criteria Architect Construction Manager for a False Claim pursuant to the False Claims Act (Gov. Code § 12650, et seq.) ) 13.4. IMS/Monetary Penalties. The Judicial Council shall be entitled to remedy any “False Claims,” as defined in California Government Code section 12650 et seq., made to the Judicial Council by the Criteria Architect Construction Manager or any Sub-Consultant Subconsultant(s) under the standards set forth in Government Code section 12650 et seq. Any Criteria Architect Construction Manager or Sub-Consultant Subconsultant(s) who submits a False Claim shall be liable to the Judicial Council for three (3) times the amount of damages that the Judicial Council sustains from the False Claim. If Criteria Architect Construction Manager and/or Sub-Consultant submits Subconsultant(s) submit a False Claim, they shall also be liable to the Judicial Council for: (a) the costs, including attorney attorneys’ fees, of a civil action brought to recover any of those penalties or damages, and (b) a civil penalty of up to $10,000 for each false claim. Accounting System Requirements. Criteria Architect shall maintain and shall ensure that its Sub-Consultant(s) maintain, an adequate system of accounting and internal controls that meets GAAP. The obligations of this Section shall survive the expiration of and any termination of this Agreement.