Purchase Order Terms and Conditions

CITY OF POWAY PURCHASE ORDER TERMS AND CONDITIONS

1. SHIPPING: All material shall be suitably packed, marked and shipped in accordance with the requirements of Common Carriers, in a manner to secure lowest transportation costs. Ship using the least expensive means unless otherwise instructed. Shipping charges not authorized by the City of Poway (hereinafter CITY), or those in excess of the least expensive means, will be charged back to the vendor.
   
   Vendor shall mark each package with the CITY of Poway Purchase Order number. Where multiple packages comprise a single shipment, each package shall be consecutively numbered. Purchase Order and Package shall be shown on all packing slips, bills of lading and invoices. Packing slips must accompany each shipment.
   
   
2. CONTRACT: The contract resulting from the acceptance of this order is to be construed according to the laws of California. None of your rights or obligations under this order may be assigned without prior written consent.
   
   
3. PAYMENT: If no terms are otherwise specified by contract or agreement, the net amount shall be payable within 30 days after the later of (i) delivery and acceptance of goods or other performance conforming with the terms of this Purchase Order and (ii) invoicing. Except as otherwise provided in the Purchase Order, the price includes all applicable Federal, State and local taxes and duties.
   
   
4. DELIVERY SCHEDULES: Deliveries are to be made on the quantities and at the times specified in the schedules furnished by the CITY. CITY shall have no liability for payment for items delivered to the CITY which are in excess of quantities specified. Unauthorized over-shipments will be returned at prices billed to the CITY, plus all charges. The CITY may from time to time change delivery schedules or direct temporary suspension of scheduled shipments.
   
   
5. WARRANTIES: Vendor expressly warrants that all the material and work covered by this order will conform to the specifications, drawings, samples or other descriptions furnished or specified by the CITY and will be of good material and workmanship and free from defects. Vendor expressly warrants that all material covered by this order, which is the product of the vendor, or is in accordance with vendor specifications, will be fit and sufficient for the purpose intended.
   
   
6. CANCELLATION: The CITY reserves the right to cancel all or any part of the undelivered portion of this order if vendor does not make the deliveries as specified in the schedules, or if the vendor breaches any of the terms herein, including the warranties of the vendor.
   
   
7. INSPECTION: All material received shall be subject to the CITY's inspection and rejection. Defective material not in accordance with the CITY's specifications will be held for the vendor’s shipping instructions and at the vendor’s risk. No goods returned to vendor, as defective, shall be replaced without an order. Payment for material on this order, prior to inspection, shall not construe an acceptance thereof. Rejected material will be returned at the prices billed, plus all charges.
   
   
8. CHANGES: No changes in terms, conditions, prices or deliveries shall be made without the CITY's specific authorization therefore in writing. The CITY shall have the right by written order to make changes. If such changes require a change in price or time of performance, the vendor shall notify the CITY immediately and thereupon an equitable adjustment shall be negotiated.
   
   
9. NO GIFTS: All City of Poway employees are prohibited from accepting any gift or gratuity that might be interpreted as influencing or having potential for influence over the employees' buying decisions.
   
   
10. INSURANCE: Insurance is required under the following conditions, unless otherwise noted in contract or agreement:
    
    
    1. If the City is contracting for any service, installation, or any form of construction;
    2. If vendor is using a City-owned facility for commercial or recreational purposes with over 20 people attending;
    3. If vendor is installing an item in any City facility or hooking up to, or using, City equipment to deliver a product; or
    4. If someone is undertaking construction on City property or City right-of-way.
       
       Vendor shall obtain and maintain during the life of this order the following insurance coverages:
       
       Comprehensive General Liability, including premises-operations, products/completed, broad form property damage, and blanket contractual liability with General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate;
       
       Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit;
       
       Professional Errors and Omissions Liability Insurance with policy limits of not less than $1,000,000 combined single limits, per claim and annual aggregate; and
       
       Workers' Compensation insurance in statutory amount (waiver may be submitted for Sole Proprietors).
       
       Additional Insured endorsement is required for General Liability coverage and must reference "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City."
       
       The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City.
       
       Said policy shall not terminate or be cancelled until thirty (30) days after written notice is given to the City.
11. STANDARD SPECIFICATIONS FOR PUBLIC WORKS CONSTRUCTION: The Standard Specifications for Public Works Construction, most current edition, will control the general provisions, construction materials, and construction methods for this Contract. Where the Plans or Technical Specifications describe portions of the work in general terms, but not in complete detail, it is understood that the item is to be furnished and installed completed and in place and that only the best general practice is to be used. Unless otherwise specified, Contractor shall furnish all labor, materials, tools, equipment, and incidentals, and do all the work involved in executing the Contract.
    
    
12. COVENANT AGAINST CONTINGENT FEES: Vendor declares that it has not employed or retained any company or person, other than a bona fide employee working for Vendor, to solicit or secure this ordert, that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of the order.  For breach of violation of this warranty, City shall have the right to annul this order without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
    
    
13. NO ASSIGNMENTS: Neither any part nor all of this order may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing.  Any assignment or subcontracting in violation of this provision shall be void.
    
    
14. INDEMNIFICATION: 
    
    
    1. For Claims (as defined herein) other than those alleged to arise from Vendor’s negligent performance of professional services, City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "Indemnitees") shall have no liability to Vendor or any other person for, and Vendor shall indemnify, protect and hold harmless Indemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses, including reasonable attorneys' fees and disbursements (collectively "Claims"), which Indemnitees may suffer or incur or to which Indemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of Vendor's negligent performance under this order, or by the negligent or willful acts or omissions of Vendor, its agents, officers, directors, sub-vendors or employees.
       
       
    2. For Claims alleged to arise from Vendor’s negligent performance of professional services, Indemnitees shall have no liability to Vendor or any other person for, and Vendor shall indemnify and hold harmless Indemnitees from and against, any and all Claims that Indemnitees may suffer or incur or to which Indemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise to the extent occurring as a result of Vendor's negligent performance of any professional services under this order, or by the negligent or willful acts or omissions of Vendor, its agents, officers, directors, sub-vendors or employees, committed in performing any of professional services under this Agreement.  For Claims alleged to arise from Vendor’s professional services, Vendor’s defense obligation to Indemnitees shall include only the reimbursement of reasonable defense costs and attorneys’ fees to the extent caused by Vendor’s negligence.
       
       
    3. The foregoing obligations of Vendor shall not apply to the extent that the Claims arise from the sole negligence or willful misconduct of City or its elected and appointed boards, officials, officers, agents, employees and volunteers.
       
       
    4. In any and all Claims against City by any employees of the Vendor, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this Section 15 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Vendor under worker's compensation acts, disability benefit acts or other employee benefit acts.
       
       
    5. Vendor shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Vendor is carrying and maintaining; however, if Vendor fails to take such action as is necessary to make a claim under any such insurance policy, Vendor shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Vendor under any insurance policy or policies required pursuant to this order.
       
       
    6. The obligations described in Section 15(a) through (e) above shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person indemnified pursuant to this Section 15.
       
       
    7. The rights and obligations of the parties described in this Section 15 shall survive the termination of this order.
       
       
15. ASSUMPTION OF RISK: Except for injuries to persons caused by the willful misconduct of any Indemnitee and not covered by insurance maintained, or required by this order to be maintained, by Vendor:  (a) Vendor hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Vendor that occurs in the course of, or in connection with, the performance of Vendor’s obligations under this order, ; and (b) it is hereby agreed that the Indemnitees are not to be liable for injury or damage which may be sustained by the person, goods or property of Vendor or its employees in connection with Vendor’s performance its obligations under this order.
    
    
16. VENDOR NOT AN AGENT: Except as City may specify in writing, Vendor shall have no authority, expressed or implied, to act on behalf of City in any capacity whatsoever as an agent.  Vendor shall have no authority, expressed or implied, pursuant to this order to bind City to any obligation whatsoever.
    
    
17. ENTIRE AGREEMENT: This order shall constitute the entire understanding between Vendor and City relating to the terms and conditions of the services to be performed by Vendor.  No agreements, representations or promises made by either party, whether oral or in writing, shall be of any force or effect unless it is in writing and executed by the party to be bound thereby.
    
    
18. SEVERABILITY: If any provision of this order is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this order shall remain in effect.
    
    
19. ADDITIONAL TERMS AND CONDITIONS: In the event that this Purchase Order results in a formal bid, the terms and conditions of that bid are incorporated herein. To the extent there is a conflict between the formal bid and the above terms and conditions, the terms of the bid shall control.