(Supplies and Non-Professional Services)
All materials, supplies, or services, required for performance of this Agreement, shall be furnished subject to the following terms and conditions:
DEFINITIONS:
"Assistant Finance Director" means the City's Assistant Finance Director or designee. "City" means "City of San Buenaventura.
"Seller," "Contractor," or "Vendor" means the party with whom City is contracting.
"Purchase Order," "Agreement," "Contract," "Service Order," or "Order" means the name or title of the instrument of contracting, including all documents, exhibits and attachments referenced therein.
FEDERAL FUNDING:
ACCEPTANCE OF ORDER: This Order is the City's offer to Seller. Seller's acceptance shall be strictly limited to the terms of this Order and the City hereby rejects any additional or different terms in Seller's acceptance; therefore, by executing and returning to the City the Acceptance or Acknowledgment copy of this Order, or by beginning performance, Seller accepts this order as written.
CONFLICT OF INTEREST: Seller warrants to the best of its knowledge that the submission of any offer related to this order does not constitute a conflict of interest in terms of negotiating for or having an arrangement with any City employee or elected or appointed member of City government, including any member of the employee's immediate family who may have participated directly or indirectly with the Assistant Finance Director. For intentional breach or violation of this warranty, the City shall have the right, at its discretion, to annul this agreement without liability, and Seller may be subject to damages and/or debarment or suspension.
PRICE WARRANTY: Seller warrants that the price of the ordered products or services does not exceed the price charged by Seller to any other customer purchasing the same products or services in like or smaller quantities, and under similar conditions of purchase.
ASSIGNMENT: This Order is not assignable by Seller in whole or in part, without the prior written approval of the Assistant Finance Director.
TROPICAL HARDWOODS: Seller shall not provide any tropical hardwood item to the City.
AMENDMENTS AND MODIFICATIONS: The Assistant Finance Director may at any time, by written CHANGE TO THE PURCHASE order, and without notice to the sureties, make a modification to this Agreement. Any claim by the Seller for adjustment under this clause must be asserted within 30 calendar days from the notification date.
DISPUTES: Except as otherwise provided in these terms and conditions, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Assistant Finance Director, who shall reduce this decision to writing and mail a copy to the Seller. The decision of the Assistant Finance Director shall be final and conclusive, unless Seller requests mediation within ten (10) calendar days. Pending final decision of a dispute, the Seller shall proceed diligently with the performance of the Agreement and in accordance with the decision of the Assistant Finance Director.
MEDIATION: Should a dispute arise out of this Agreement, any party may request that it be submitted to mediation within ten (10) calendar days of the Assistant Finance Director's decision on the dispute. The parties shall meet in mediation within thirty (30) days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a "blindfold" process.
The cost of mediation shall be borne equally by both parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than sixty (60) days, unless the maximum time is extended by both parties.
NON-DISCRIMINATION AND WORKPLACE POLICIES: Seller, when providing a service, program, or activity to the public on behalf of the City, shall not discriminate in the employment of any person because of race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight, or height of such person. Any seller who is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provision of federal law or executive order in the performance of any contract with the City thereby shall be found in material breach of such contract and, thereupon, the City shall have the power to cancel or suspend the contract, in whole or in part, or to deduct from the amount payable to such contractor the sum of $25.00 for each person for each calendar day during which such person was discriminated against, as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer shall constitute evidence of a violation of contract under this section.
In addition, if Contractor will be providing a service, program, or activity to the public on behalf of the City, Contractor shall comply with the Americans with Disabilities Act and City's policies pursuant thereto, and shall be required to certify that they are in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act.
LIVING WAGE REQUIREMENTS:
Bidder understands and agrees that if Living Wages are applicable subject to the provisions of Chapter 2.525 of the San Buenaventura Municipal Code (the "Code") entitled, "Living Wages and Benefits for City Services" (a copy of which is available upon request), Bidder will pay and/or provide the wages and/or benefits required therein to all of its employees engaged in whole or in part in performing the services required pursuant to the solicitation.
Moreover, Bidder will require any of its successors, assigns, and subcontractors who receive any compensation or other emoluments arising out of the performance of the services required to similarly pay and/or provide such wages and/or benefits to all of their employees engaged in whole or in part in performing such services.
PREVAILING WAGE REQUIREMENTS:
Effective January 1, 2015, the payment of State prevailing rates of wages as designated for Ventura County for on-site work and delivery of materials shall apply to projects for alteration, demolition, repair, or maintenance work over $15,000. Prevailing wages are required to be paid to all workers, including subcontracted employees.
For information, go to:
https://www.dir.ca.gov/Public-Works/PublicWorksSB854FAQ.html
Use of Prevailing Wages vs. Living Wages: In the event that there is a difference between the amount of wages to be paid under the City's local Living Wage requirements and the requirements of this provision, the wage rate that is the higher of the two shall be applicable to the contract. PLEASE NOTE, with respect to Federal contracts, other requirements may apply, in which case, the highest of the federal Prevailing Wage, state Prevailing Wage and local Living Wage prevails.
It is unlawful to split, or separate into small portions, work orders, projects, purchases, or public works projects for the purpose of evading these prevailing wage requirements.
LAWS AND COMPLIANCE: Vendor shall abide by all Federal, State, and Local Laws, Ordinances, Regulations, and Statutes, including Occupational Safety and Health Administration standards, as may be related to the performance of duties under this agreement. In addition, the Seller, at Seller's sole expense, shall obtain all applicable permits and licenses that are required for performance hereunder. This Order shall be interpreted according to the laws of the State of California. Should litigation occur, venue shall be in the Superior Court of California, County of Ventura.
INSURANCE:
Prior to commencing the services required by this Agreement, and at all other times this Agreement remains in effect, the VENDOR shall procure and maintain in full force and effect all of the insurance required by Attachment "A," attached hereto and incorporated herein by this reference.
INDEMNIFICATION AND HOLD HARMLESS: As a separate and independent covenant from VENDOR's obligations under Section 14 hereof, VENDOR shall indemnify, protect, defend with counsel acceptable to the CITY, and hold CITY and CITY's officers, employees, agents, and volunteers harmless and free from any and all claims, liabilities, or expenses, including attorney's fees, arising out of or relating to any negligent act, negligent omission, or wrongful conduct, or any loss, damage, or injury, including death, that is sustained from any communicable disease (including, but not limited to any form of the coronavirus, or anything emanating from or related to a coronavirus), related in any way to VENDOR's performance of its services pursuant to this Agreement. In the event CITY and/or any of CITY's officers, employees, agents, or volunteers are named in any lawsuit, or should any claim be made against it or any of them by lawsuit or otherwise arising out of or relating to such negligent act, negligent omission, or wrongful conduct, or any loss, damage, or injury, including death, that is sustained from any communicable disease (including, but not limited to any form of the coronavirus, or anything emanating from or related to a coronavirus), VENDOR shall indemnify them for any judgment rendered against them for such negligent act, negligent omission, or wrongful act, or any loss, damage, or injury, including death, that is sustained from any communicable disease (including, but not limited to any form of the coronavirus, or anything emanating from or related to a coronavirus), any sums paid out in settlement or otherwise, and all costs incurred by them in their defense, including but not limited to attorney's fees.
VENDOR also understands and agrees that it is being employed to perform the services provided for by this Agreement because of VENDOR's professed expertise and experience in performing such services. In addition, VENDOR understands and agrees that while CITY or CITY's officers, employees, agents, or volunteers may elect to do so, they have no duty to review, inspect, monitor, or supervise the work performed by VENDOR pursuant to this Agreement except as otherwise expressly provided for by this Agreement. As a consequence, VENDOR waives any right of contribution against CITY or any of CITY's officers, employees, agents, or volunteers arising out of such failure to inspect, review, monitor, or supervise the work performed by VENDOR pursuant to this Agreement.
The VENDOR's obligations under this Section of the Agreement shall survive the termination of the Agreement.
DELIVERY: Time is of the essence in the performance of this Agreement. Deliveries (as specified on the Order) shall be strictly in accordance with the quantities and schedule specified on the Order. If at any time it appears Seller may not meet such schedule, Seller shall immediately by verbal means (to be confirmed in writing) notify City of the reasons for, and estimated duration of, the delay, and if requested by City, make every effort to avoid or minimize the delay to the maximum extent possible, including the expenditure of premium time and shipping via air or
other means of fast transportation. Any additional costs caused by these requirements shall be borne by the Seller, unless delay in delivery arises out of causes beyond the control and without the fault or negligence of Seller or its subcontractors. The foregoing requirements are in addition to all of the City's other rights and remedies, as may be provided by law.
INSPECTION: The materials, supplies, or services furnished shall be exactly as specified in this order, free from all defects in Seller's design, workmanship, and materials, and except as otherwise provided in this Agreement, shall be subject to inspection and test by the City at all times and places. If any materials, supplies, or services are found to be defective or not as specified, the City may reject them, require Seller to correct them without charge, or require delivery of such materials, supplies, or services at a reduced price, which is equitable under the circumstances. Seller shall bear all risks as to rejected materials, supplies, and services and, in addition to any costs for which Seller may become liable to the City under other provisions of this Order, shall reimburse the City for all transportation costs, other related costs incurred, or payments to Seller in accordance with the terms of this agreement for unaccepted materials, supplies, and services. Neither final acceptance nor payment shall relieve Seller of responsibility for faulty materials, supplies, or services.
TITLE: Except as otherwise expressly provided herein, title to and risk of loss on all items shipped by Seller to the City shall pass to the City upon the City's inspection and acceptance of such items at City's buildings.
PRODUCT LIABILITY: Seller warrants that it now has, or shall continue to maintain during the term of this order, insurance covering product liability should malfunction occur causing injury. Seller also warrants the reliability, suitability and completeness of the product, and guarantees that product shall be free from any destructive or malicious content, which would have an adverse effect on the City.
WARRANTIES: The City rejects any disclaimer by Seller of any warranty, standard, implied or express, unless specifically agreed to on the face of this Agreement.
GRATUITIES: The City may rescind the right of the Seller to proceed under this agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise are offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City, with the intent of influencing the award of this agreement or securing favorable treatment with respect to performance of this agreement.
CONFIDENTIALITY: Any reports, information, data, statistics, forms, procedures, systems, studies, and any other communication or form of knowledge given to or prepared or assembled by Seller under this Agreement, which City requests be kept confidential, will not be made available to any individual or organization by Seller without the prior written approval of the City.
NON-APPROPRIATION OF FUNDS: Payments due and payable to CONTRACTOR for current services are within the current budget and within an available, unexhausted, and unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient funds for payment of CONTRACTOR's services beyond the current fiscal year, and if no funds are legally available from other sources to lawfully make the payments, this Agreement may be terminated at the end of the original term or renewal term and the CITY shall not be obligated to make further payments beyond the current original or renewal term. The CITY will provide notice of its inability to continue the Agreement at such time as the CITY's Designated Representative is aware of the non-appropriation of funds. However, failure to notify does not renew the term of the contract.
DEFAULT BY SELLER: The City reserves the right to cancel this order if goods or services are not delivered as directed within the time specified. In case of default by Seller, the City may procure the articles or services from other sources and may deduct from any monies due, or that may thereafter become due to the Seller. The difference between the price named in the Order and actual cost thereof to the City shall be considered the prevailing market price at the time such purchase is made. The exercise by the City of this remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Periods of performance may be extended if the facts as to the cause of delay justify such extension in the opinion of the Assistant Finance Director.
TERMINATION: At any time, with or without cause, the City shall have the right, in its sole discretion, to terminate this Order by giving written notice to Seller. There shall be no period of grace after giving the notice of termination. Termination shall become effective immediately upon the giving of notice by personal delivery or mail. The City shall pay Seller as full compensation for performance up to the date of such termination:
the unit or pro rata order price for the delivered and accepted portion; and (2) a reasonable amount, not otherwise recoverable from other sources by Seller as approved by the City, with respect to the undelivered or unaccepted portion of this Order; provided compensation hereunder shall in no event exceed the total order price.
INVOICE AND PAYMENT: Unless otherwise specified, a separate invoice shall be issued in duplicate for each shipment of product or service provided. Invoices shall contain the following information:
Purchase Order or Contract/Agreement number
Description of items or services
Quantity or level of effort performed by unit of measure, unit price, and extended totals.
No invoice shall be issued prior to shipment of products or delivery of services. No payments shall be made until receipt of a correct invoice, and the City reserves the right to delay payment until the products or services have been accepted. Payment due dates, including discount periods, will be computed for the date of receipt of products and correct invoice (whichever is later). Payment shall not constitute acceptance of any product(s) or service(s). For the purpose of earning the discount, payment is to be made on the date of mailing of the City warrant or check.
TAXES: The City is subject to California State sales and use tax. If Seller is licensed to collect this tax, it should be included on Seller's invoice. The City is exempt from Federal Excise Tax (exemption certificates will be furnished by the Purchasing and Contracts Division upon request).
ENTIRE AGREEMENT: This Order constitutes the entire agreement and understanding between the parties, and supersedes all prior agreements and understandings related thereto. To the extent this Agreement or subsequently issued purchase orders rely on any cooperative purchase agreements, no terms or provisions included in the cooperative purchase agreement, except for any pricing terms, shall apply unless agreed upon in writing by City and Vendor.
ACKNOWLEDGEMENT: Seller acknowledges that it has reviewed the City's terms and conditions and insurance requirements and that Seller hereby agrees to full compliance. The below signature will acknowledge receipt and acceptance of this agreement as written. NOTE that in accordance with Article 2, if Seller begins performance without written acknowledgement of this order, Seller accepts this order as written.
Please sign and return this acknowledgement by fax, e-mail, or return mail.
OFFICIAL SIGNATURE DATE
PRINT NAME TITLE
APPROVED AS TO FORM
PER SBMC, SECTION 4.600.050
Gregory G. Diaz, City Attorney