Purchase Order Terms & Conditions
Supplies and Non-professional Services
The materials, supplies or non-professional services covered by the Purchase Order shall be furnished subject to the following terms and conditions:
1. DEFINITIONS: “City” means “City of San Buenaventura; “Seller,” “Contractor,” or “Vendor” means the party with whom City is contracting; and “Purchase Order,” “Service Agreement,” “Service Order,” or “Order” means the name or title of the instrument of contracting, including all documents, exhibits and attachments referenced therein.
“Purchasing Manager” means the City Purchasing and Contracts Manager or designee.
2. 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 objects to any additional or different terms in Seller’s acceptance. 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.
3. 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 Purchasing Manager. 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.
4. 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.
5. ASSIGNMENT: This Order is not assignable by Seller in whole or in part, without the prior written approval of the Purchasing Manager.
6. TROPICAL HARDWOODS: In accordance with City Administrative Policy and Procedure (AP&P) No. 18.2, incorporated and made a part of these terms and conditions, Seller shall not provide any items to the City in performance of this contract, which are tropical rainforest hardwood products.
7. MODIFICATION: No modification of this Order, including any substitutions or changes in price, quantity, or merchandise, and/or additional or different terms in Seller’s acceptance, shall be binding on the City unless agreed to in writing and signed by the City Purchasing Manager.
8. 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.
9. LIVING WAGE REQUIREMENTS (Applicable to service contracts entered into or financial assistance provided, whose combined total exceeds $30,124 for fiscal year 2016-2017):
Seller understands and agrees that this Agreement may be subject to the provisions of Chapter 2.525 of the San Buenaventura Municipal Code (“Code”), entitled “Living Wages and Benefits for City Services”, a copy of which has been provided, or is available, to Seller. By reason thereof, during the term of this Agreement, Seller 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 provided for by this Agreement. Moreover, Seller will require any of it’s successors, assigns and subcontractors who receive any compensation or other emoluments arising out the performance of the services provided for by this Agreement to similarly pay and/or provide such wages and/or benefits to all of its employees engaged in whole or in part in performing the such services. In addition, Seller and any of its successors, assigns and sub-consultants who received any compensation or other emoluments arising out of the performance of the services provided for by this Agreement will post the “Notice to Employees” and provide the other information required by Section 2.525.170 of Chapter 2.525 of the Code at the time in the manner provided for by that section.
Seller also understands and agrees that any violation of Chapter 2.525 of the Code will be deemed to be a material breach of this Agreement entitling City to suspend or terminate this Agreement and/or impose the civil penalties provided for by Section 2.525.400 of Chapter 2.525 of the Code.
By initialing this Section, Seller agrees that it has been provided with and read a copy of Chapter 2.525 of the Code as well as this Section, and that Seller understands Chapter 2.525 of the Code and this Section.
Seller’s initials: ______
10. 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 public works construction projects over $25,000 and projects for alteration, demolition, repair, or maintenance work over $15,000. Prevailing wages are required to be paid to all workers, including subcontracted employees.
This contract may be subject to compliance monitoring and enforcement by the DIR. As of July 1, 2014, all contractors and subcontractors must register with the DIR in order to submit a bid and be awarded a contract
(https://efiling.dir.ca.gov/PWCR/ActionServlet?action=displayPWCRegistrationForm). As of April 1, 2015, the City must hire only registered contractors and subcontractors. For complete requirements, please refer to the “Contractor Registration Fact Sheet” located on the City’s website at http://www.cityofventura.net/ft/purchasing.
The Contractor will post at appropriate conspicuous points at the site of the project a schedule showing determinations of the Director of Industrial Relations of the prevailing rate of per diem wages. It will be the Contractor’s responsibility to obtain copies of the prevailing rate of per diem wages. One source that may be used is the California Department of Industrial Relations website which is currently located at www.dir.ca.gov, or by calling the Prevailing Wage Unit at (415) 703-4774.
The Contractor will comply with Section 1007 of the San Buenaventura Charter. In accordance with Labor Code Section 1775 (“Section 1775”), the Contractor will forfeit as a penalty to the City, $25.00 for each calendar day or portion thereof, for each worker paid less than the stipulated prevailing rates for such work or craft in which such worker is employed for any work done under the contract by Contractor, or by any subcontractor under Contractor, in violation of the provisions of the City’s Charter or applicable law. In addition to said penalty and pursuant to Section 1775, the difference between the stipulated prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the stipulated prevailing wage rate will be paid to each worker by the Contractor. Any sums forfeited under the provisions of this section will be deducted from the payments under this contract by the City.
Every Contractor and subcontractor will keep an accurate record showing the name, occupation, and the actual per diem wages paid to each worker employed in connection with the public project.
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.
Use of Prevailing Wages versus 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.
11. SMALL LOCAL BUSINESS PURCHASING PREFERENCE: In determining the lowest responsible bidder for any City purchase of goods or public works construction contract that is for $250,000 or less, and when responsibility and quality are equal, a credit of five percent (5%) of the bid submitted by the lowest responsible bidder meeting specifications shall be given to a bidder that meets the definition of a “Small Local Business” as defined below.
Definition: “Small Local Business” shall mean either: 1) a business entity that has for at least twelve (12) months immediately preceding submittal of its bid held a current business license issued by the City and maintained its principal business office within the City’s geographic boundaries, and that employs fewer than one hundred (100) employees or has average annual gross receipts of twenty million dollars ($20,000,000) or less over the preceding three-year period; or 2) a business entity that proposes to use subcontractors, accounting for at least thirty (30) percent of the contract bid value, that have for at least twelve (12) months immediately preceding submittal of its bid held a current business license issued by the City and maintained its principal business office within the City’s geographic boundaries, and that employs fewer than one hundred (100) employees or has average annual gross receipts of twenty million dollars ($20,000,000) or less over the preceding three years.
Certification: Should Seller meet the requirement of a Small Local Business, Attachment A must be completed and returned with a valid and authorized quotation.
12. 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 Ventura County.
13. INSURANCE: Inthe event work is to be performed or labor furnished on any City-owned property or controlled venues, Seller shall obtain and keep in full force and effect during the complete performance period under this Purchase Order a General Liability Insurance policy, issued by a company authorized to transact business in the State of Californiaand the City of San Buenaventura and shall have a minimum “Best’s” Insurance Guide rating of “A:VII.” Self-insurance will not be considered to comply with these insurance specifications. Coverage shall be on an occurrence basis with a minimum combined single limit of $1,000,000 for Commercial General Liability, ($2,000,000 Aggregate); Business Auto $1,000,000 per occurrence and Employer’s Liability coverage of at least $1,000,000; The policy coverage form shall include Completed operations and Products Liability; Workers’ Compensation coverage to the Statutory minimum shall also be maintained. The City reserves to increase the level of required coverage dependent upon the type of service required.
TheCity, its officers and employees, shall be named as Additional Insureds and said policy shall fully cover the Additionally Insured parties and said policy shall cover liability assumed by Seller under the Purchase Order. A Certificate of Insurance and Additional Insured Endorsement may be required prior to the release of any Purchase Order, or as indicated on the face of the Order. NOTE: Copies of City approved Special Endorsements are available on the City’s website under the Purchasing and Contracts section.
14. INDEMNIFICATION AND HOLD HARMLESS: Seller shall save harmless and indemnify, and at the City’s request, defend the City, its officers, officials, employees, agents, representatives, and volunteers from and against any and all claims, demands, actions, damages, expenses, suits, accidents, injuries, liability, or proceedings of any character whatever (including without limitation, attorney’s fees), brought for or on account of, or resulting from or arising out of or in connection with, any act, error or omission, negligence, wrongful conduct, or other action by Seller or any of Seller’s officers, agents, employees, representatives, sub-consultants, or subcontractors in connection with or in the performance of the Order.
15. DELIVERY: Time is of the essence in the performance of this Order. 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 or this Order.
16. 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 Order, 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 reduction in 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 order for unaccepted materials, supplies, and services. Neither final acceptance nor payment shall relieve Seller of responsibility for faulty materials, supplies, or services.
17. 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.
18. 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 affect on the City.
19. WARRANTIES: The City rejects any disclaimer by Seller of any warranty, standard, implied or express, unless specifically agreed to on the face of this Order.
20. 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.
21. 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 to be kept confidential, will not be made available to any individual or organization by Seller without the prior written approval of the City.
22. APPROPRIATION OF FUNDS: The City intends to request the appropriation funds periodically to be paid for Seller’s services. In the event the City is not appropriated sufficient funds for continued services of Seller beyond each current fiscal year, the City will not be obligated to pay the remainder of the contractual services outlined in this agreement. Such event will not constitute an event of default. The City agrees to notify Seller in writing of such non-appropriation at the earliest possible time. This agreement shall cover only those costs incurred up to the conclusion of each current fiscal year.
23. 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. Periods of performance may be extended if the facts as to the cause of delay justify such extension in the opinion of the Purchasing Manager.
24. 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: (1) 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.
25. INVOICE AND PAYMENT: Unless otherwise specified, a separate invoice shall be issued for each shipment of product, or service provided, in duplicate. 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.
26. TAXES: The City is subject to California State sales and use tax. If you are licensed to collect this tax, include it on your invoice. The City is exempt from Federal Excise Tax (exemption certificates will be furnished by the Purchasing and Contracts Division upon request).
27. ENTIRE AGREEMENT: This Order constitutes the entire agreement and understanding between the parties, and supersedes all prior agreements and understandings related thereto.
28. 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 order 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
Attachment A - Small Local Business Purchasing Preference Certification
Qualified vendors that desire consideration, as a City of Ventura “Small Local Business” under this solicitation must complete the “Statement of Small Local Business Certification” contained herein and submit it as a part of their proposal. Late submittals of the “Statement of Small Local Business Certification” will not be considered. Submission of this statement will qualify the business for treatment as a “Small Local Business” for purposes of this solicitation only. The Statement made under this solicitation shall not qualify the vendor as a “Small Local Business” under any other solicitation.
Small Local Business Certification:
Any business claiming to be a “Small Local Business”, as defined under the Proposal Instructions section of this solicitation, shall so certify in writing to the City’s requesting Buyer. The Buyer shall not be required to verify the accuracy or any such certifications, and shall have the sole discretion to determine if a business meets the definition of a “Small Local Business”.
Any person or business falsely claiming to be a local vendor under this section shall be ineligible to transact any business with the City for a period of not less than three (3) months and not more than twenty-four (24) months as determined the sole discretion of the City’s Purchasing Manager. The City shall also have the right to terminate all or any part of any contract entered into with such person or business.
STATEMENT OF SMALL LOCAL BUSINESS CERTIFICATION
Qualified local vendors desiring consideration under the City of Ventura’s Small Local Business Preference Program and Policy must complete the following and submit with their proposal (print or type).
I ____________________________________________________, __________________________________
(Individual submitting bid/proposal) (Title)
Of/for ________________________________________, Certify that ________________________________
(Company Name) (Company Name)
is a City of Ventura “Small Local Business”, as defined under the Proposal Instructions section of the solicitation, and therefore qualifies for the Small Local Business Preference.
___________________________________________, _______________________________, _____________
(Signature) (Title) (Date)