Sample_Contract.pdf

AGREEMENT

TITLE: BID NO. 3089 CAMPUS CATERING - KITCHEN EQUIPMENT

(“Agreement”)

Program/Event: BID NO. 3089

This Agreement is entered into by and between the parties stated below, each of which is referred to separately as the “Party” and collectively as the “Parties”:

“Contractor” “District”

Name of Contractor DBA (leave blank if none):

Attn: Name, Title Street address (no PO Box) City, CA 93### Phone: (###) ###-#### Email:

Clovis Unified School District Attn: Susan Rutledge

Assistant Superintendent of Business Services

1450 Herndon Avenue Clovis, CA 93611-0599 Phone: (559) 327-9127 Email: SusanRutledge@cusd.com

This Agreement consists of and any conflict or inconsistency in this Agreement shall be resolved by giving precedence as follows: (1) the Contract Conditions, (2) the Standard Provisions, (3) any exhibit or attachment stated in this Agreement as being a part of this Agreement, (4) the Required Submittals, and (5) other documents that Contractor is required to provide to District under this Agreement.

Terms with initial capital letter shall have the respective meanings set forth in this Agreement. Unless the context requires otherwise, any reference to a Party in this Agreement shall mean the Party and its governing body, officers, employees, and agents.

In consideration of the covenants, conditions, and promises in and for good and valuable consideration and the mutual benefits to be derived from this Agreement, Contractor and District have reviewed and understand and hereby enter into this Agreement. Each person executing this Agreement on behalf of a Party represents that he/she is authorized to execute on behalf of and to bind the Party to this Agreement.

CONTRACTOR

By:_____________________________________

Title:_____________________________________

DISTRICT

By: _____________________________________ Susan Rutledge Assistant Superintendent of Business Services

By: _____________________________________ Susan Rutledge Assistant Superintendent of Business Services

By:_____________________________________ Jannette Kovacevich Director of Campus Catering

CONTRACT CONDITIONS

PURPOSE/RECITALS:

By this Agreement, the Parties desire to set forth the terms and conditions upon which Contractor shall provide, and District shall compensate Contractor for the performance of the Services and other obligations required of Contractor under this Agreement, and to set forth the Parties’ rights and obligations under this Agreement.

1. SERVICES AND OBLIGATIONS (see Article 1 of Standard Provisions)

1A. CONTRACTOR OBLIGATIONS. Contractor shall provide all labor, materials, supplies, equipment, transportation, and any other items necessary to perform all obligations required of Contractor under this Agreement, which obligations shall include the following materials and services (collectively “Services”) (complete as indicated below):

1. Services that Contractor shall provide: Contractor shall provide KITCHEN EQUIPMENT in accordance with BID NO. 3089 CAMPUS CATERING - KITCHEN EQUIPMENT documents and Contractor’s Response Documents, attached hereto and made a part hereof as Exhibit “A”.

2. Date(s) when Contractor shall provide the Services (mark one and complete as indicated):

_ Date Determined − Contractor shall perform the Services on (state specific date(s); must be within Contract Term): The Parties’ employees may mutually change any specified date if the new date is within the Contract Term and there is no change to the Contract Amount.

_ Date to Be Determined − The Parties’ employees shall coordinate and schedule the date(s) on which Contractor shall perform the Services, which date(s) shall be within the Contract Term.

3. Location(s) where Contractor shall provide the Services, which location(s) the Parties’ employees may change if there is no change to the Contract Amount (state full address of each location below or attach separate list):

Name of Site, if applicable:

Clovis Unified Central Warehouse 1690 David E Cook Way Clovis, CA 93611

4. Full name of Contractor employee(s) who shall perform the Services (leave blank if none designated):

1B. DISTRICT OBLIGATIONS. District shall perform all obligations required of District under this Agreement, which shall include the following (leave blank if no additional obligations):

1C. OTHER TERMS AND CONDITIONS (leave blank if none):

2. CONTRACT AMOUNT AND PAYMENT

__ 2A. CONTRACT AMOUNT AND PAYMENT (see Article 2 of Standard Provisions) (check here and complete if District is required to pay Contractor monetary compensation; otherwise, leave blank.

1. INVOICE. Contractor shall invoice District in accordance with Section 2.3 of the Standard

Provisions, and District shall pay Contractor in accordance with the Payment Schedule stated below, the Contract Amount stated below (mark one and complete as indicated):

_a. Fixed Installment: $___ per month/quarter/year, the sum of all payments shall equal the “Contract Amount” of $___. Contractor shall submit each invoice to District monthly/quarterly/yearly by no later than the 15th day of the month immediately following the last day of the period for which Contractor requests payment.

_b. Rate/Not-To-Exceed Contract Amount: Services that Contractor performs in accordance with this Agreement, to be billed at $____ per hour in 15-minute increments OR pursuant to the rates set forth in Exhibit 1 and the sum of which shall not exceed the “Contract Amount” of $____. Contractor shall submit each invoice to District monthly/quarterly/yearly by no later than the 15th day of the month immediately following the last day of the period for which Contractor requests payment.

_c. Entire Contract Amount/Completion of All Services: Entire “Contract Amount” of $____. Contractor shall submit the invoice to District within 30 days of the date on which Contractor completed all Services in accordance with this Agreement.

X_d. Other/Specified Amount, Paid Periodically: “Contract Amount” of an amount not to exceed $____, or total of submitted pricing proposal. Contractor shall submit each invoice to District within 30 days of the date on which Contractor has completed, in accordance with this Agreement, the Services for which Contractor requests payment.

__ 2B. NO MONETARY COMPENSATION (check here if neither Party is required to pay any monetary compensation to the other Party): Neither Party shall have any obligations to pay or rights to receive monetary compensation from the other Party pursuant to this Agreement.

3. TERM AND TERMINATION OF AGREEMENT (see Article 3 of Standard Provisions)

3A. CONTRACT TERM.

“Effective Date” (date must be before the first date of Services): Month ##, 20## “Termination Date” (date must be after the last date of Services): Month ##, 20##

3B. GROUND FOR TERMINATION OF AGREEMENT (mark one and complete as appropriate):

With or Without Cause – A Party, with or without cause, may terminate this Agreement during the Contract Term by giving the other Party written notice at least 30 days before the effective date of termination of this Agreement.

X With Cause – Except as provided otherwise in Section 3.2.1 of the Standard Provisions, a Party may terminate this Agreement during the Contract Term only upon the other Party’s material breach of one or more provisions of this Agreement and after the non-breaching Party has given the breaching Party written notice at least 10 days before the effective date of termination of this Agreement (“Notice Period”) and an opportunity to cure the material breach before expiration of the Notice Period. The Parties’ authorized representatives may agree to extend the date to cure the material breach. Upon expiration of the Notice Period or the agreed upon date to cure the material breach, and if the breaching Party has not cured the material breach and provided written notice of such cure to the non-breaching Party, this Agreement shall terminate effective the day immediately following the expiration of the Notice Period or the agreed upon date to cure the material breach without any further notice or actions by either Party.

4. REQUIRED SUBMITTALS (See Section 1.5 of Standard Provisions)

Contractor shall provide to District each document marked below and those required of Contractor elsewhere in this Agreement (collectively and separately “Required Submittals”), each of which shall constitute a part of this Agreement (mark as applicable and submit with this Agreement):

X4A. Insurance marked below and complying with Section 4.1 of the Standard Provisions, written proof of which Contractor shall provide to District when Contractor delivers this Agreement

4. REQUIRED SUBMITTALS (See Section 1.5 of Standard Provisions) signed by Contractor and before Contractor commences any Services, unless Contractor is a school district or other public entity in which case Contractor shall provide written proof to District upon District’ request:

X Commercial general liability (“CGL”) with additional insured coverage.

X Workers compensation and employers’ liability if Contractor has any employees.

X Commercial automobile liability and, if required by Subsection 4.1.1.3 of the Standard

Provisions, additional insured coverage.

Abuse and molestation coverage if such coverage is not provided as part of the CGL policy and additional insured coverage.

Professional liability.

Additional insured coverage shall be set forth in a blanket additional insured endorsement or an endorsement that lists the Clovis Unified School District and its governing board and members thereof, employees, and agents as an additional insured. District will not accept a certificate of insurance as proof of additional insured coverage.

Contractor shall provide to District: (A) before commencement of any of the Services and from time to time as District may request, written proof satisfactory to District of the existence of the insurance required in 4.1.1 of the Standard Provisions, including the additional insured endorsement; (B) upon District’s request, a certified copy of the insurance policy or other document satisfactory to District; (C) no later than 15 days before the date on which a required insurance expires, written proof of renewal of the insurance, including the additional insured endorsement; and (D) written notice within two business days of the occurrence of any of the following: (1) any required insurance is cancelled or non-renewed, (2) notice from the insurer that the insurer intends to or will cancel or non-renew the insurance, and/or limit, restrict, or reduce Contractor’s insurance coverage such that the insurance does not comply with the requirements in 4.1.1 of the Standard Provisions, or (3) any required insurance’s policy limits have been reduced below those required in 4.1.1 of the Standard Provisions.

X4B. At District’ request and as applicable, Taxpayer Identification Number Request, W-9 (the form of which Contractor shall obtain from District) or Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding (W-8); and Nonresident Withholding Allocation Worksheet (Form 587), Withholding Exemption Certificate (Form 590), or other Franchise Tax Board forms; and documents that District requires to process payment to Contractor.

4C. Fingerprinting and Criminal Background Check Certification (“Fingerprinting Certification”), which Contractor shall obtain from and submit to District before Contractor commences any Services.

_4D. Tuberculosis Certification (“TB Certification”), which Contractor shall obtain from and submit to District before Contractor commences any Services.

_4E. Fingerprinting and Criminal Background Check Addendum for Contractor Operating as Sole Proprietor (“Sole Proprietor Fingerprinting Addendum”).

4. REQUIRED SUBMITTALS (See Section 1.5 of Standard Provisions)

_4F. PREVAILING WAGE WORK ADDENDUM – CONSTRUCTION SERVICES (only mark if Contractor will be performing construction services that are subject to the payment of prevailing wages): A portion or all of the Services that Contractor will provide under this Agreement are subject to the payment, monitoring, and enforcement of prevailing wages. The Prevailing Wage Work Addendum is attached hereto and constitutes a part of this Agreement. NOTE: If prevailing wage work is marked here, District’s Assistant Superintendent of Facility Services or designee shall complete and attach the Prevailing Wage Work Addendum.

_4G. SUBCONTRACTOR DESIGNATION FORM – CONSTRUCTION SERVICES (only mark if Contractor will be performing construction services and will use one or more subcontractors): Contractor is subcontracting with one or more subcontractors to perform a portion of the Services.

Contractor has listed each subcontractor on the Subcontractor Designation Form, which is attached and constitutes a part of this Agreement. NOTE: If subcontractor designation is marked here, the initiating District site/department shall provide the Subcontractor Designation Form to Contractor for Contractor to complete and return to the department/site.

These Standard Provisions contain the following articles:

Article 1 Services and Obligations Article 2 Contract Amount and Payment Article 3 Term and Termination of Agreement Article 4 Insurance and Indemnity Article 5 Dispute Resolution Article 6 General Provisions

ARTICLE 1 SERVICES AND OBLIGATIONS.

SECTION 1.1 REQUIRED SERVICES. In consideration for the payment of the Contract Amount, Contractor shall provide the Services stated in the Contract Conditions and perform other obligations required of Contractor under this Agreement.

SECTION 1.2 QUALIFICATION, SUPERVISION, AND CONTROL. Contractor represents and shall ensure that it and all persons whom it employs or retains to perform this Agreement have the necessary training, skill, and experience and are qualified to so perform, including having throughout the Contract Term all required licenses, permits, and/or certifications (collectively and separately “License”). Contractor shall provide District with written proof of each License upon District’s request and notify District in writing no later than 10 days after Contractor receives any notice that any such License has been revoked, suspended, placed on probation, or non-renewed. Unless stated otherwise in this Agreement in which case such provisions shall apply to the extent provided therein, Contractor is solely responsible for: (A) all means, methods, techniques, sequences, procedures, safety, and work coordination necessary or proper for Contractor to perform this Agreement; (B) the acts and omissions of Contractor’s officers, employees, agents, and any other persons who Contractor retains to perform this Agreement; and (C) taking all reasonable precautions for the safety and prevention of injury to the person of and/or damage or loss to the property of Contractor’s officers, employees, agents and any persons who Contractor retains to perform this Agreement, to any officers, employees, agents, students, or invitees of District, or to any Third Party. Upon District’s request, Contractor shall remove from performance of the Services any of Contractor’s employees, suppliers, or materialmen whom District has determined are not skilled for the task assigned.

SECTION 1.3 SUSPENSION OF SERVICES. Despite any contrary provision in this Agreement, District shall have the right to suspend, delay, or interrupt any or all Services at any time during the Contract Term by providing written notice to Contractor at least 15 days before the date on which the suspension, delay, or interruption is to begin, and stating the beginning and ending dates thereof (“Suspension Period”). Unless the Parties agree otherwise in writing, the following shall apply upon District’s exercise of the rights under this Section: (A) Contractor shall suspend, delay, or interrupt such Services as stated in District’s notice but shall continue to perform all other Services; (B) Contractor shall not be entitled to any compensation for Services that Contractor would have been required to perform under this Agreement but did not perform during the Suspension Period, and the Contract Amount shall be adjusted to deduct the amount of such compensation and such adjustment shall be set forth in an amendment executed by the Parties; (C) Contractor shall not be entitled to any damage, loss, or cost arising out of, resulting from, or relating to District’s exercise of its right under this Section or the Suspension Period; (D) Contractor shall resume performance of the suspended Services on the next business day following the last day of the Suspension Period; and (E) the Contract Term shall not change.

SECTION 1.4 WORK PRODUCTS AND RIGHTS THERETO. Unless stated otherwise on the Contract Conditions in which case such provisions shall apply to the extent provided therein, this Section shall survive the termination of this Agreement and apply to: (A) any Work that

District provides to Contractor pursuant to or relating to this Agreement (“District Work”); and ((B) any Work that Contractor is required to develop or prepare for District pursuant to this Agreement (“Contractor Work”). “Work” means any data, document, display, drawing, report, material, invention, work, and discovery, including any copyright, right, and interest therein or thereto and whether written, recorded, or electronically stored, and shall include source codes and other codes and information if this Agreement requires Contractor to prepare, create, modify, update, or perform work relating to any website, webpage, and/or computer software, program, or product.

1.4.1 DISTRICT WORK. The following applies to the District Work: (A) the District Work is District’s property and District has all interests and rights thereto; (B) Contractor does not own and shall not claim any interest or right to or in the District Work; (C) District grants to Contractor a limited license during the Contract Term to reproduce and use only those portions of the District Work necessary for Contractor to perform this Agreement; and (D) Contractor shall return any or all District Work to District upon District’s request.

1.4.2 CONTRACTOR WORK. Unless stated otherwise on the Contract Conditions, the following applies to the Contractor Work: (A) Contractor represents that the Contractor Work is Contractor’s original work and does not contain any unlawful matter or infringe upon any Third Party’s copyright, right, or interest; (B) the Contractor Work is an instrument of service and constitutes District’s sole property, and Contractor shall deliver to District the Contractor Work within 30 days of the date of completion of the Services or the date of termination of this Agreement, whichever is earlier; and (C) District shall have the right to, and may authorize others to, use, modify, reproduce, distribute, sell, dispose, and/or disclose, in whole or in part, in any manner, and for any purpose, the Contractor Work.

SECTION 1.5 REQUIRED SUBMITTALS. Contractor shall provide to District each Required Submittal stated in the Contract Conditions and such other documents as Contractor is required to provide to District pursuant to this Agreement (collectively “Required Submittals”), each of which is incorporated into and constitutes a part of this Agreement. If any Required Submittal becomes incorrect or inapplicable or expires during the Contract Term, Contractor shall promptly notify in writing and/or submit to District the corrected, updated, or effective Required Submittal. If Contractor refuses to provide any Required Submittal or corrected, updated, or effective version thereof, District shall have the right to withhold payment of any or all of the Contract Amount until such time that District receives the Required Submittal from Contractor.

SECTION 1.6 COMPLIANCE WITH APPLICABLE LAWS AND GRANT.

1.6.1 GENERALLY. Each Party shall comply with all laws and regulations (collectively “Law”) applicable to its performance of this Agreement, and all Law that it agrees to comply under this Agreement (referred to collectively and separately as “Applicable Law” and shall include amendments and Law that are in effect as of the Effective Date or become effective during the Contract Term). Each Applicable Law is deemed inserted herein;

however, if any conflict or inconsistency exists between a provision in this Agreement and an Applicable Law, the provision in this Agreement shall govern except where such provision is specifically prohibited or void by the Applicable Law in which case the Applicable Law shall govern to the extent provided therein.

1.6.2 GRANT FUNDS. Each Party shall comply with the terms and conditions of each grant (if any) that provides funding to pay for this Agreement and all Law and requirements applicable to such grant. If this Agreement is paid, in part or in whole, with federal grant funds, each Party shall comply with federal laws, regulations, and requirements applicable to such federal grant funds. Contractor represents that it is not debarred, suspended, or otherwise excluded or ineligible to be awarded this Agreement.

Contractor shall comply with federal suspension and debarment regulations, including, but not limited to, regulations implementing Executive Orders 12549 and 12689.

Contractor shall also comply with: (A) applicable federal laws, regulations, and requirements, including but not be limited to, non-discrimination based on race, color, national origin, sex, disability, or age; (B) applicable standards, orders, or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671(q) and the Federal Water Pollution Control Act as amended (33 U.S.C 1251-1387); and (C) Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. Upon District’s request, whether during or after the Contract Term, Contractor shall cooperate with and provide District with documents and information relating to this Agreement that are necessary for District to comply with applicable federal laws, regulations, and requirements. The provisions of this Subsection shall survive the termination of this Agreement.

SECTION 1.7 RECORDS AND INFORMATION.

1.7.1 CONFIDENTIAL MATERIAL. If any documents and/or information (for example and not as a limitation, employee or student record) that are subject to nondisclosure or protection under federal and/or California laws (collectively and separately “Confidential Material”) are provided to or created by Contractor for or pursuant to this Agreement, Contractor shall: (A) not release, disseminate, publish, or disclose the Confidential Material, except as required by law or a court order or as this Agreement may permit; (B) unless specifically permitted by Applicable Law, not use the Confidential Material for any purpose not related to Contractor’s performance of this Agreement;

and (C) protect and secure the Confidential Material, including Confidential Material saved or stored in an electronic form, to ensure that it is safe from theft, loss, destruction, erasure, alteration, and unauthorized viewing, duplication, and use. The provisions of this Subsection shall survive the termination of this Agreement.

1.7.2 STUDENT DATA AND CONFIDENTIALITY. If Contractor’s provision of the Services will require it and its employees to obtain or access from District and/or possess confidential student data (“Data”), including personally identifiable information, in both electronic and non-electronic media and including the entirety of the Data and any portion of the Data, the following shall apply:

1.7.2.1 Compliance with Applicable Law: Contractor acknowledges, on behalf of itself and its employees, that the Data is protected by both federal and state law, including the Family Educational Rights and Privacy Act (“FERPA”), and that Contractor shall comply with such law. Contractor shall assist District in maintaining the privacy of the Data as required by state and federal law, including but not limited to, the Protection of Pupil Rights Amendment, the Children’s Online Privacy Protection, FERPA, and the Student Online Personal Information Protection Act.

1.7.2.2 Data Non-Disclosure. Contractor shall not use or disclose, or allow the use or disclosure of, the Data in any manner not expressly authorized by this Agreement and that Contractor is not being assigned any ownership rights to the Data.

1.7.2.3 Data Access: Contractor shall limit access to the Data to only its employees who are performing the Services and avoid any further access or disclosure by or to its employees. The Data accessed by a Contractor employee may not exceed what is necessary to that employee to perform his/her assigned portion of the Services.

Contractor and its employees will not obtain, access, and/or possess the Data after the termination of this Agreement. Contractor shall review the provisions of this Agreement with all Contractor employees who are given access to the Data, including giving them a copy of these provisions, prior to allowing employees to access the Data. Contractor shall ensure that all employees and subcontractors, if authorized by this Agreement, who perform work under this Agreement have read, understood, and received appropriate instruction as to how to comply with the data protection provisions of this Agreement.

1.7.2.4 Data Security: Contractor shall use sound industry-standard data security policies and practices to prevent the unauthorized or inadvertent disclosure of the Data, including protecting both Data at rest and in transmission. Such practices include, but are not limited to, a data security plan, a data stewardship program, data encryption, utilizing secure connections and hosting, regular security auditing, and employee training.

1.7.2.5 Data Destruction: Contractor shall ensure that all Data in its possession, or in the possession of its employees, whether in electronic or non-electronic media, is completely destroyed upon the termination of this Agreement. Non-electronic media containing Data shall be destroyed by cross-cut shredder, pulverizer, or an incinerator, in keeping with standard industry practices for non-electronic media destruction to ensure confidentiality. Electronic media containing Data, including any system backups, temporary files, or other storage media, shall be destroyed by using industry-standard methods in accordance with the National Institute of Standards and Technology (NIST) Special Publication 800-88 Rev. 1: Guidelines for Media Sanitization, or other reasonably equivalent industry-standard methods.

1.7.2.6 Audit: During the term of the Agreement, and continuing as long as Contractor or its employees have access to and/or possession of Data, District maintains the right to: (1) audit and/or monitor Contractor’s policies, procedures, and systems in place to protect Data privacy and security; and (2) audit and/or monitor Contractor’s destruction of Data.

If Contractor shall have access to “education records” for the District’s students as defined under FERPA, Contractor shall, for the purposes of this Agreement, be designated as a “school official” with “legitimate educational interests” in the District’s education records, as those terms have been defined under FERPA and its implementing regulations, and Contractor shall abide by the limitations and requirements imposed on school officials by FERPA and its implementing regulations. Contractor will use the education records only for the purpose of fulfilling its obligations under this Agreement for District’s and its pupils’ benefit and shall not share the Data with or disclose it to any third party except as provided for in this Agreement, required by law, or authorized in writing by the District.

1.7.3 RECORD RETENTION, INSPECTION, AND AUDIT. Contractor shall maintain accurate books and records of all Services provided under, amounts billed pursuant to, and all documents required of Contractor under this Agreement for at least five years after the date on which this Agreement terminates. Upon District’s written notice to Contractor that a longer retention period is necessary for District to comply with records retention requirements under a court order or federal or state laws, Contractor shall retain such books and records for the period stated in District’s notice. If this Agreement involves the expenditure of $10,000 or more in funds from the State of California, it is subject, for three years after the final payment is made, to the State Auditor’s examination and audit at District’s request or as part of an audit of District. and make them available, Upon District’s request, Contractor shall make the aforementioned books and records available for review, audit, and/or copying by District and/or any federal or state agencies. The provisions of this Subsection shall survive the termination of this Agreement.

SECTION 1.8 INDEPENDENT CONTRACTOR. Contractor is an independent contractor, and it and its officers, employees, and agents are not, and shall not represent themselves as, officers, employees, or agents of District. This Agreement does not and shall not be construed to create an employment or agency relationship, partnership, or joint venture between the Parties.

Contractor and its officers, employees, agents, and any other person performing services for or on behalf of Contractor shall not have any right or claim against District for wages or employee compensation, social security benefits, workers compensation benefits, health benefits, vacation, sick leave, or other employee benefits.

SECTION 1.9 FORCE MAJEURE. A Party is not liable for failing to perform or delaying performance of this Agreement due to events that are beyond the Party’s reasonable control and occurring without its fault or negligence, for example, acts of God such as tornadoes, lightning, earthquakes, hurricanes, floods, or other natural disasters (collectively “Force Majeure”), provided that the Party has promptly notified the other Party in writing of the occurrence of the Force Majeure, except that a Force Majeure shall not excuse District’s payment to Contractor of any portion of the Contract Amount that is due to Contractor where Contractor has performed, in accordance with this Agreement, the Services for which payment is requested, and submitted an invoice and supporting information as required in Section 2.2 below. A Force Majeure shall not include any shortages or lack of labor, equipment, supplies, or materials that Contractor may be unable to obtain due to the impact of COVID-19. Contractor shall not receive any payment for Services that Contractor did not perform during the period in which the Force Majeure occurred.

SECTION 1.10 NON-EXCLUSIVE CONTRACT. Contractor understands and agrees that this Agreement does not constitute an exclusive contract for Contractor to provide services to District. District has or may enter into one or more contracts with third parties to provide services to District that are identical or similar to the Services.

ARTICLE 2 CONTRACT AMOUNT AND PAYMENT.

The provisions set forth in this Article 2 shall apply if District is required to pay Contractor monetary compensation as set forth in Section 2A of the Contract Conditions.

SECTION 2.1 CONTRACT AMOUNT. As full consideration and compensation for Contractor’s performance of the Services and other obligations under this Agreement, District shall pay Contractor the Contract Amount stated in the Contract Conditions. Except as stated in this Agreement or an amendment to this Agreement, Contractor shall not be entitled to any other payment from District. Contractor is responsible for paying all federal, state, and local taxes or contributions, including unemployment insurance, social security, and income taxes.

SECTION 2.2 INVOICE, DECLARATION UNDER PENALTY OF PERJURY, AND

ADDITIONAL INFORMATION. Before Contractor may receive any payment under this Agreement, Contractor shall submit an itemized invoice and other documents as set forth below in this Section to District. Each person submitting and/or signing an invoice on behalf of Contractor declares under penalty of perjury under California laws, and certifies and attests that:

(A) he/she has thoroughly reviewed the claim for payment and know its content; (B) the invoice and supporting information are true, accurate, and complete, and reflect amounts due and Services that Contractor has completed in accordance with this Agreement and the correct amount for those Services; (C) Contractor has complied and is in compliance with all obligations required of Contractor under this Agreement; and (D) he/she is familiar with Penal Code section 72 pertaining to false claims, and knows and understands that submission and/or certification of a false claim may lead to fines, imprisonment, and/or other legal consequences. Upon receiving an invoice and if District objects to it and/or requires additional information, District shall notify

Contractor and Contractor shall provide such information to District within 10 days after Contractor receives District’s notice. If Contractor fails or refuses to provide the additional information, District shall have the right to withhold payment of any or all of the Contract Amount until such time that District receives such information from Contractor.

SECTION 2.3 PAYMENT AND RELEASE. District shall pay the Contract Amount to Contractor in accordance with the Payment Schedule stated in the Contract Conditions. Contractor’s acceptance of any payment under this Agreement shall constitute, effective on the date of acceptance, a release of all claims and liabilities that Contractor has or may have against District for any additional payment for the Services, and/or matters, for which the payment was made. However, District’s payment shall not relieve Contractor of Contractor’s obligations under this Agreement or for deficient or defective Services that District discovers after the payment is made. If Contractor has received any payment to which Contractor is not entitled to under this Agreement or an amendment, Contractor shall refund such payment to District within 30 days of District’s request.

ARTICLE 3 TERM AND TERMINATION OF AGREEMENT.

SECTION 3.1 CONTRACT TERM. This Agreement is effective on the Effective Date and continues in full force and effect thereafter until and including the Termination Date and any extension thereof pursuant to an amendment (“Contract Term”) and, unless this Agreement is terminated during the Contract Term in accordance with Section 3.2 below, shall terminate at 12:00 midnight on the last day of the Contract Term without any notice or action by either Party.

SECTION 3.2 TERMINATION DURING CONTRACT TERM.

3.2.1 GROUNDS FOR TERMINATION. During the Contract Term, this Agreement may only be terminated pursuant to one or more of the following:

3.2.1.1 CAUSE/WITHOUT CAUSE. A Party may terminate this Agreement as marked on the Contract Conditions.

3.2.1.2 CONTRACTOR INSOLVENCY. This Agreement shall terminate effective the day immediately preceding the day on which: (A) there is a filing by or against Contractor to have Contractor adjudged bankrupt or there is a petition for reorganization or arrangement of Contractor under any law relating to bankruptcy; (B) Contractor applies for, consents to, or has an order, judgment, or decree entered by a court for approval of a petition for or appointment of a receiver, trustee, custodian, or liquidator of all or a substantial part of Contractor’s assets; (C) Contractor is unable to, fails to, or admits in writing its inability generally to pay its debts or obligations as they become due; and/or

(D) Contractor makes a general assignment for the benefit of creditors.

Contractor shall provide District with written notice within 15 days of the occurrence of any of the events listed in this Subsection.

3.2.1.3 OTHER GROUNDS. District may terminate this Agreement effective on the date stated in District’s written notice of termination to Contractor pursuant to any of the following: (A) Contractor is required to but fails to provide to District and/or comply with the Fingerprinting Certification or the Sole Proprietor Fingerprinting Addendum; (B) Contractor is required to but fails to provide to District and/or comply with the TB Certification; (C) District and/or any entity from which District receives or is to receive funds to pay for this Agreement reduce or eliminate some or all such funds, or fail or determine not to appropriate sufficient funds to make future payments under this Agreement; (D) a government or issuing agency revokes, suspends, places on probation, or non-renews any License that Contractor must hold to perform this Agreement; (E) Contractor assigns, transfers, or subcontracts any or all of Contractor’s obligations and/or rights under this Agreement in breach of Section 6.3; (F) Contractor fails to maintain and provide written proof of insurance as required on the Contract Conditions and Section 4.1; (G) Contractor is required to provide particular staff as named on the Contract Conditions to perform this Agreement but such staff is not able, not willing, or not available to perform this Agreement; and/or (H) Contractor’s legal rights to exist or conduct business in California has been revoked, terminated, or suspended by the State of California, any governmental agency, or a court.

3.2.2 RIGHTS AND OBLIGATIONS UPON TERMINATION. Upon termination of this Agreement during the Contract Term and provided that District is required to pay Contractor monetary compensation pursuant to this Agreement, the following shall apply and survive the termination of this Agreement: (A) District shall pay Contractor only for Services that Contractor is required to perform pursuant to, and has performed in accordance with, this Agreement before the effective date of termination; (B) Contractor shall submit an invoice within 30 days of the effective date of termination of this Agreement; (C) Article 2 shall apply to Contractor’s invoice and District’s payment under this Subsection; and (D) upon District’s payment, if any has been invoiced by Contractor and is due to Contractor, District is not obligated to make any further payment to Contractor, whether pursuant to contract, law, or equity.

ARTICLE 4 INSURANCE AND INDEMNITY.

SECTION 4.1 INSURANCE.

4.1.1 REQUIRED INSURANCE. Contractor, at its cost, shall maintain in effect insurance as marked on the Contract Conditions and complying, at a minimum, with the requirements stated below. If Contractor is a California public agency, the required coverage may be through self-insurance. District, in its sole discretion, may waive in writing any requirement in this Section 4.1; however, District’s failure to insist or request that Contractor comply with the requirements shall not constitute a waiver on District’s part.

District reserves the right to reject any insurance and/or to require that Contractor obtain insurance through an insurer satisfactory to District.

4.1.1.1 Commercial General Liability (“CGL”), in effect during the Contract Term, coverage for property damage, bodily injury, and personal and advertising injury with limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate. This insurance shall include additional insured coverage as stated in the Contract Conditions.

4.1.1.2 Workers Compensation in accordance with California laws and Employers’ Liability Insurance with a limit of not less than $1,000,000 per accident, both of which shall be in effect during the Contract Term.

4.1.1.3 Commercial Automobile Liability, in effect during the Contract Term, for non-owned and hired automobiles and, if there are any automobiles owned by Contractor, then also covering owned automobiles. Coverage shall be in effect during the Contract Term, with a combined single limit of not less than $1,000,000 per accident if Contractor operates any vehicle to perform the Services and the Services do not include the transportation of District students and/or employees or other persons. If the Services required of Contractor includes the transportation of District students and/or employees or other persons, this insurance shall contain coverage for: (1) a combined single limit of not less than $5,000,000 per accident and (2) additional insured coverage as stated in the Contract Conditions.

4.1.1.4 Professional Liability, in effect during the Contract Term and three years thereafter, with limits of not less than $1,000,000 per claim and $2,000,000 general aggregate, written on a claims-made basis. The obligation to maintain this insurance shall survive the termination of this Agreement.

4.1.1.5 Abuse and Molestation Coverage, in effect during the Contract Term, under the CGL policy referenced above or a separate insurance policy, with limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate. Such coverage shall be on an occurrence basis and, at a minimum, include: (A) abuse, both physical and non-physical; (B) molestation; and (C) negligent employment, investigation, supervision, training, or retention of, or failure to report to proper authorities, a person who committed abuse or molestation. If the abuse and molestation coverage is provided as part of the CGL policy, the CGL policy or an endorsement thereto shall state that the coverage and limits of such coverage are separate from and shall not reduce the limits of the CGL policy. If the abuse and molestation coverage is provided as a separate policy, such policy shall include additional insured coverage as stated in the Contract Conditions.

4.1.2 DEDUCTIBLE OR SELF-INSURED RETENTION. Contractor shall disclose any deductible or self-insured retention for the insurance required in 4.1.1 above. District reserves the right to require that such deductible or self-insured retention be eliminated or reduced, that Contractor obtain a bond or other security guaranteeing payment of losses and costs within the limits of the deductible or self-insured retention, or that Contractor provide other written assurances satisfactory to District.

SECTION 4.2 INDEMNITY

4.2.1 INDEMNITY OBLIGATIONS. The indemnity provisions set forth in the Fingerprinting Certification, the Sole Proprietor Fingerprinting Addendum, and/or the TB Certification, to the extent such document(s) apply to this Agreement as indicated in the Contract Conditions, shall govern to the extent provided therein. In all other respects relating to this Agreement and unless otherwise required by law, each Party’s indemnity, defense, and hold harmless obligations to the other Party under or related to this Agreement shall be governed solely by the provisions of this Section 4.2. A Party (“Indemnitor”) shall:

(A) indemnify and hold harmless the other Party (“Indemnitee”) to the full extent permitted by California laws for any Loss sustained by Indemnitee or a Third Party only in proportion to Indemnitor’s liability based on a Final Determination; and (B) defend and pay for all of Indemnitor’s attorney’s fees and litigation costs related to any Claim or Loss without any right against or from the Indemnitee for indemnity and/or hold harmless of such costs and fees, or any right for defense. “Claim” means any claim, demand, lawsuit, cause of action, action, cross-complaint, cross-action, and/or proceeding arising out of, resulting from, or relating to this Agreement where there has been no Final Determination. “Loss” means any bodily injury, property damage, personal injury, advertising injury, liability, loss, damage, judgment, expense, and/or cost (excluding attorney’s fees and litigation costs that a Party or a Third Party incurred or paid related to a Loss or Claim) arising out of, resulting from, or relating to this Agreement and for which there has been a Final Determination that a Party is or both Parties are liable. “Third Party” means a person who or an entity that is not any of the following: (A) a Party; (B) an owner, director, officer, employee, or agent of Contractor; (C) the governing board and any member thereof, officer, employee, or agent of District; or (D) contracted with (whether directly or through a subcontract of any level) or otherwise retained by a Party to act for or on the Party’s behalf. “Final Determination” means any judgment, order, or decision, each a “Determination,” by a court of competent jurisdiction or a governmental entity with jurisdiction to render the Determination where the Determination is not subject to appeal or the period for an appeal has expired.

4.2.2 REQUIRED NOTICE. A Party who intends to seek or seeks indemnity and/or hold harmless for any Loss from the other Party shall notify the other Party in writing and within a reasonable time after the Party knows or becomes aware of any Claim that may or will result in a Loss, describing, if known or determinable, the pertinent circumstances, all entities and persons involved, and the amount being claimed.

4.2.3 NO LIMITATION BY INSURANCE; SURVIVAL OF OBLIGATIONS. A Party’s obligations under this Section 4.2 are in addition to any defense and indemnity that may be provided to the other Party pursuant to Section 4.1 above and are not limited to or by any insurance that the Party maintains or the lack of insurance but apply to the full extent permitted by California laws and shall survive the termination of this Agreement.

ARTICLE 5 DISPUTE RESOLUTION.

The Parties shall meet and confer in good faith to resolve any disputes between them arising out of, resulting from, or relating to this Agreement, including any Claim or Loss for which a Party seeks indemnity pursuant to Section 4.2 and any dispute relating to this Agreement that arises or occurs after the termination of this Agreement. During any dispute, District’s decision, for the time being, shall prevail and Contractor shall perform this Agreement as District directs without prejudice to a Final Determination, as defined in Section 4.2. During a dispute regarding payment under this Agreement, District shall pay Contractor the portion of the Contract Amount that is undisputed and due to Contractor; if a disputed portion of the Contract Amount is determined in a Final Determination to be due to Contractor, District shall pay such amount to Contractor within 30 days of the date of the Final Determination or such date as stated in the Final Determination or agreed to by the Parties. Except for an action to preserve the status quo and/or prevent irreparable harm, a Party shall not commence any cause of action, action, lawsuit, or proceeding arising out of, resulting from, or relating to this Agreement until after the Party has complied with the provisions of this Article and, in the case of Contractor, comply with applicable laws relating to claims against District. The provisions of this Article shall survive the termination of this Agreement.

ARTICLE 6 GENERAL PROVISIONS.

SECTION 6.1 ENTIRE AGREEMENT, EXECUTION, AMENDMENT, AND WAIVER. This Agreement is a complete and exclusive statement of the Parties’ agreement under Code of Civil Procedure section 1856. The Parties may execute this Agreement and any amendment in counterparts such that each Party’s signature is on a separate page. A copy or an original of this Agreement or an amendment with the Parties’ signatures, whether original or transmitted by electronic means, shall be deemed a fully executed contract. The Parties shall cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to this Agreement. The Parties may amend or waive any provision of this Agreement only by a writing executed by them.

SECTION 6.2 INTERPRETATION; APPLICABLE LAWS AND TIME ZONE; VENUE;

SEVERABILITY; AND SURVIVAL OF TERMINATION. If there is uncertainty of any language in this Agreement, the Parties agree that Civil Code section 1654 shall not apply to interpret the uncertainty. The language of this Agreement shall be interpreted according to its fair meaning and not strictly for or against any Party and under California laws without giving effect to California’s choice of law provisions that may result in the application of the laws of another jurisdiction. All dates and times stated in this Agreement shall be according to Pacific Time. All causes of action, actions, lawsuits, and proceedings arising out of, resulting from, or relating to this Agreement shall be adjudicated in state or federal court in Fresno County, California, provided that District does not hereby waive any immunity to suit. If a court of competent jurisdiction holds any provision of this Agreement void, illegal, or unenforceable, this Agreement shall remain in full force and effect and shall be interpreted as though such invalidated provision is not a part of this Agreement and the remaining provisions shall be construed to preserve the Parties’ intent in this Agreement. Any provision in this Agreement that by its nature applies after, or is specifically stated to survive, the termination of this Agreement shall survive the termination of this Agreement.

SECTION 6.3 ASSIGNMENT, TRANSFER, AND SUBCONTRACT. Without the District’s prior written consent, which consent shall be obtained from the Assistant Superintendent of Business Services or designee, Contractor shall: (A) not assign or transfer to any other person or entity any or all of its obligations and/or rights under this Agreement, including by operation of law or change of control or merger; or B) unless stated in the Contract Conditions, not subcontract with any other person or entity to perform any or all of the Services.

SECTION 6.4 NOTICES. Except as specifically stated otherwise in this Agreement in which case such provision shall govern to the extent provided therein, each Party shall give any notices, demands, and all other communications required or permitted under this Agreement in writing and by one of the following methods to the other Party at…