Services
Contractor agrees to perform the services and/or deliver materials and supplies beginning on the date of order and continuing until services are completed or materials and supplies are delivered. Contractor warrants that the services will be completed on or before the end date, and all materials and/or supplies shall be shipped by the date on which delivery is required. Time is of the essence.
Material and Workmanship
All goods and materials must be new, shall conform to the description requested, be of good quality and workmanship, be free from defects and be of equal to the approved sample, if samples have been required. In the event any goods or materials furnished or services provided by the Contractor in the performance of the Contract fail to conform to the requirements, or to the sample submitted by the Contractor, the District 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 District, and immediately replace all such rejected items with others conforming to the Contract.
All work shall be done and completed in a thorough, workmanlike manner, notwithstanding any omission from these specifications or the drawings, and it shall be the duty of the Contractor to call attention to apparent errors or omissions and request instructions before proceeding with the work. The Project Manager may, by appropriate instructions, correct errors and supply omissions, which instructions shall be binding upon the Contractor as though contained in the original Contract Documents.
Warranty of Title
Contractor warrants that all products shall conform to the description, be of good quality and workmanship, and be free from defects. Contractor further warrants that all goods furnished in connection with any services shall be merchantable and suitably safe and sufficient for the purpose for which they are normally used. Contractor warrants that it has good title to goods supplied hereunder and that they are free of liens and encumbrances. These warranties are in addition to those implied in fact or in law. For further purposes of this agreement, the term “services” shall include goods furnished in connection with the services.
Conflict in Terms, Amendments
When the terms of the contract or agreement or the pre-printed terms on the back of the purchase order conflict with the terms on the front of the purchase order, the terms on the front of the purchase order shall prevail. When the pre-printed terms on the back of the purchase order conflict with the terms of the contract or agreement, the terms of the contract or agreement shall prevail. This agreement embodies the entire agreement between Contractor and the District with respect to the subject matter hereof and supersedes all prior agreements and understandings whether written or oral, and all contemporaneous oral agreements and understandings relating to the subject matter hereof. No agreement hereafter made shall be effective to modify or discharge this agreement, whole or in part, unless such agreement is in writing and signed by both parties against whom enforcement of the modification or discharge is sought. This agreement shall be binding on the parties hereto and their respective personal and legal representatives, successors and assigns.
Invoices
Contractor shall invoice District for services performed according to the terms of the purchase order, or the agreement or contract. Contractor invoices shall reference the District’s purchase order number. Invoices not bearing a correct purchase order number shall be returned. Contractor invoices shall itemize the services performed, the goods delivered, the service address, and the corresponding rates and taxes, if any. The District shall make payments in conformance with terms as stipulated on the front of the purchase order. Payment of invoices shall not constitute acceptance of the services and/or goods and invoices shall be subject to adjustments for defect in quality or any failure of Contractor amount owed by District to Contractor against any amount owed by Contractor or any of its affiliated companies, contractors, subconsultants or agents to District.
Independent Contractor Relationship
Contractor is an independent contractor and not an employee of the District. Contractor expressly warrants that it will not represent that it is an employee or servant of the District, and shall not be considered employee of the District for any purpose.
Indemnity and Insurance
The Contractor shall provide necessary worker’s compensation insurance at the Contractor’s own cost and expense.
Contractor shall indemnify, keep and save harmless the District and each of its directors, officers, agents and employees against any and all suits, claims or actions arising out of any of the following:
i. Any injury to persons or property that may occur, or that may be alleged to have occurred, arising from the performance or implementation of this Contract; or
ii. Any allegation that materials or services developed, provided or used for this Contract infringe or violate any copyright, trademark, patent, trade secret, or any other intellectual-property or proprietary right of any third party.
Contractor further agrees to defend any and all such actions, suits or claims and pay all charges of attorneys and all other costs and expenses of defenses as they are incurred. If any judgment is rendered, or settlement reached, against the District or any of the other agencies or individuals enumerated above in any such action, Contractor shall, at its expense, satisfy and discharge the same.
This indemnification shall survive termination or expiration of the Contract.
Compliance with Law
Contractor warrants that the services and /or materials and goods provided shall be in strict conformity with all applicable local, state and federal laws. Contractor agrees to indemnify and hold harmless District from and against any loss, costs, claim, liability, damage or expense (including attorneys’ fees) that may be sustained because of Contractor’s breach of this warranty.
Default
In the event that: (a) Contractor fails to complete its performance of the services by the end date, or Contractor fails to deliver goods, materials or supplies as required herein; (b) Contractor breaches any warranty contained herein; (c) Contractor fails to provide insurance certificates required herein; (d) Contractor or Contractor’s insurance carrier fails to defend or indemnify District as required herein; (e) Contractor’s performance of the services violated applicable law; (f) Contractor admits to insolvency, makes an assignment for the benefit of creditors, or has a trustee appointed to take over all or a substantial part of its assets; or (g) Contractor fails to perform or comply with any provision of this agreement; such failure, breach or violation shall constitute a default under this agreement.
Termination by Default
In the event of a default by Contractor under this agreement, the District reserves the right without liability, in addition to its other rights and remedies, to terminate this agreement by notice to Contractor as to its portion of the services not yet rendered and to purchase substituted service at Contractor’s expense. Contractor shall reimburse the District for costs of such substituted services upon Contractor’s receipt of an invoice therefor.
Termination by Convenience
The District reserves the right to terminate this agreement or purchase order for convenience during performance of work. If this agreement is terminated for the District’s convenience, Contractor shall be entitled to compensation for services satisfactorily performed to the effective date of termination, or goods delivered before effective date of termination, provided, however, that District may condition payment of such compensation upon Contractor’s delivery to District of any and all documents, goods, materials or supplies which have already been shipped, but not yet received by the District by the effective date of termination. Payment by District for satisfactory goods delivered and/or services satisfactorily performed, to the effective date of termination shall be the sole and exclusive remedy to which Contractor is entitled in the event of termination of this agreement for convenience, and Contractor shall be entitled to no other compensation or damages and expressly waives the same.
Force Majeure
Neither party shall be liable to the other or responsible for nonperformance of any of the terms of agreement due to acts of God, as that term is defined in Section 7105(b)(2) of the Public Contract Code of the State of California.
Notices
All notices required are permitted to be made or given hereunder by one party to the other party shall be in writing and shall be deemed to have been given when hand delivered or on the dates stated on the receipt if deposited in the United States Mail in certified form, postage prepaid with return receipt requested, and addressed to such other party at its address on this purchase order, or in the agreement, or at such other address as may be specified by such other party by written notice and delivered in accordance herewith.
Assignment
This agreement is not assignable by Contractor in whole or in part, except with the prior written consent of the District. Contractor shall not use subcontractors to perform any part of the services without the prior written consent of the District.
Governing Law
This purchase order, and/or agreement, and all matters relating to it, shall be governed by the laws of the State of California.
Public Works Requirements
Prevailing Wage and Vendor Registration
All Contractors and Subcontractors of any tier bidding on, or offering to performing work on a public works project shall first be registered with the State Department of Industrial Relations (DIR) pursuant to Section 1725.5 of the Labor Code. No bid will be accepted nor any contract entered into without proof of the Contractor and Subcontractors’ current registration with the DIR (LC § 1771.1).
All public works projects awarded after January 1, 2015, are subject to compliance monitoring and enforcement by the DIR (LC § 1771.4) and all Contractors are required post job site notices, “as prescribed by regulation” (LC § 1771.4).
Pursuant to Section 1773 of the Labor Code, the District has obtained from the Director of Industrial Relations of the State of California, the general prevailing rates of per diem wages and the general prevailing rates for holiday and overtime work in the locality in which the Work is to be performed, for each craft, classification, or type of worker needed to execute the contract. A copy of the prevailing wage rates is on file with the District and available for inspection by any interested party at www.dir.ca.gov.
The Contractor shall post a copy of the general prevailing rate of per diem wages at the jobsite pursuant to Section 1773.2 of the Labor Code.
Pursuant to Section 1774 of the Labor Code, the Contractor and any of its Subcontractors shall not pay less than the specified prevailing rate of wages to all workers employed in the execution of the contract.
The Contractor shall, as a penalty to the State or the District, forfeit not more than the maximum set forth in Section 1775 of the Labor Code for each calendar day, or portion thereof, for each worker paid less than the prevailing rates for the work or craft in which the worker is employed under the contract by the Contractor or by any Subcontractor under him. The difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which such worker was paid less than the stipulated prevailing wage rate shall be paid to such worker by the Contractor.
General prevailing wage determinations have expiration dates with either a single asterisk or a double asterisk. Pursuant to California Code of Regulations, Title 8, Section 16204, the single asterisk means that the general prevailing wage determination shall be in effect for the specified contract duration. The double asterisk means that the predetermined wage modification shall be paid after the expiration date. No adjustment in the Contract Sum will be made for the Contractor’s payment of these predetermined wage modifications.
The Contractor and each Subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed in connection with the Work. The payroll records shall be certified and shall be available for inspection in accordance with the provisions of Section 1776 of the Labor Code. Certified payroll records shall be on the forms provided by the DIR or contain the same information required on the Department’s form
For public works projects awarded on or after April 1, 2015, or that are still ongoing after April 1, 2016, no matter when awarded, each Contractor and Subcontractor shall furnish the certified payroll related records as more specifically described above and in Labor Code section 1776 directly to the Labor Commissioner (see LC § 1771.4). These records shall be provided to the Labor Commissioner at least monthly or more frequently if required by the terms of the Contract. For exception on projects covered by collective bargaining agreements like a PLA, please see Labor Code section 1771.4.
In the event of noncompliance with the requirements of Section 1776 of the Labor Code, the Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with said Section. Should noncompliance still be evident after such 10-day period, the Contractor shall, as a penalty to the State or the District, forfeit the amount set forth in Section 1776 of the Labor Code for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due.
Hours of Labor
Pursuant to the provisions of Sections 1810, et seq. of the Labor Code the time of service of any worker employed upon the work shall be limited and restricted to eight hours during any one calendar day, and forty hours during any one calendar week, unless work performed by employees of the Contractor in excess of eight hours per day, and forty hours during any one calendar week, shall be permitted upon compensation for all hours worked in excess of eight hours per day at not less than one and one half times the basic rate of pay.
The Contractor shall, as a penalty to the State or the District, forfeit the amount set forth in Section 1813 of the Labor Code for each worker employed by the Contractor or by any Subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week in violation of the provisions of Labor Code, Sections 1810, et seq.
The Contractor and every Subcontractor shall keep an accurate record showing the name of and the actual hours worked each calendar day and each calendar week by each worker employed by him in connection with the Work; the record shall be kept open at all reasonable hours to the inspection of the District and to the Division of Labor Standards Enforcement of the State of California.
Employment of Apprentices
In the performance of a public works contract, the Contractor and any Subcontractor shall comply with the provisions concerning the employment of apprentices in Section 1777.5 of the Labor Code and any amendments thereof. In the event the Contractor or any Subcontractor willfully fails to comply with this requirement the Contractor or Subcontractor shall be subject to the penalties for noncompliance in Labor Code section 1777.7.
Wage Related Workplace Postings
The Contractor and every Subcontractor shall post at the workplace and comply with all required wage related workplace postings. Copies of the required postings may be downloaded or ordered electronically from the Department of Industrial Relations website at http://www.dir.ca.gov/wpnodb.html.
Equal Employment Opportunity
Contractor and its subcontractors shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin in the performance of this contract. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.