Agreement is entered into this date day of Month, 2017, by and
between HARTNELL COMMUNITY COLLEGE DISTRICT, hereinafter referred to
as “District” and CONTRACTOR'S NAME, hereinafter referred to as
The District has need for certain work, services, labor and/or
materials to be provided for the benefit of the District for valuable
District finds the Contractor possesses the qualifications and
abilities to perform the needed work, services, labor and/or
materials for the District; and
consideration of the mutual covenants, terms and conditions, and
stipulations hereinafter, expressed and intending to be legally
bound, and in consideration of the mutual benefits to be derived
therefrom, the parties hereto agree as follows:
hereby engages Contractor to perform and Contractor hereby agrees to
perform the services described in detail in Exhibit A
hereto and incorporated herein by this reference. Services to be
provided are generally described as follows:
For purposes of this
contract, the following definitions shall apply:
shall mean the services provided by CONTRACTOR'S NAME.
AND TERMINATION. The
term of this Agreement is from Date, to Date. Either party may,
at its option, terminate this Agreement upon giving thirty (30) days
advance notice in writing to the other party in the manner herein
specified by Paragraph 19, “Notices.” Should such termination
occur, both parties agree to use all reasonable efforts to mitigate
their expenses and obligations thereunder. Prior to such termination
which could not be avoided by reasonable efforts, payment shall occur
for all satisfactory services rendered and expenses incurred, but not
in excess of the agreed-upon maximum payable. Such termination shall
be in addition to, and not in lieu of, any other legal remedies
provided by this contract or by law. No work set forth in this
contract shall commence until this contract is fully executed by all
The District shall pay
the Contractor as full consideration for complete and faithful
performance of the Contractor’s obligations as set forth in Exhibit
B “Compensation” attached hereto and incorporated herein by this
reference, or as set forth by this Agreement.
The total amount
payable to Contractor under this Agreement shall not exceed the sum
of SUM ($Numerical sum) as specified in Exhibit B attached hereto
and incorporated herein by this reference.
of Contractor Invoices.
Contractor will invoice District for services described in Exhibit A
and in the amounts as set forth in Exhibit B, on a monthly basis on
or about the last working day of the month, for services rendered in
that month. Invoices are payable by the District within thirty (30)
days of receipt of the invoice by the District. In order to resolve
any dispute regarding any invoice submitted, the time period for
payment shall be extended by a reasonable amount of time. Should a
delay in payment occur beyond a reasonable time period, Contractor,
at its discretion, may suspend performing services under this
Agreement until payment is current.
Each party shall undertake a cooperative role in taking effective
actions and timely execution of documents as appropriate for the
mutual benefit of achieving the objectives of this Agreement.
District understands and acknowledges that any delay in actions
necessary to meet District’s obligations under this Agreement, may
result in additional fees levied by the Contractor or the
Contractor’s inability to meet specific obligations or deadlines
required to fulfill this Agreement. The outcome of such an event
shall not be considered non-performance by Contactor.
In no event shall
either party be liable for any indirect, incidental, or consequential
damages or damages for loss of profits, revenue, data, or use
incurred by either party or any third party, whether in an action in
contract or tort, statute, or otherwise, even if the other party has
been advised of the possibility of such damages. Contractor’s
liability to the District or any other third party, for damages
hereunder shall in no event exceed the amount of fees paid by
District under this Agreement for the particular service provided
giving rise to the claim. The provisions of this Agreement allocate
the risks between Contractor and District.
CONTRACTOR.It is expressly understood and agreed
that this Agreement is not intended and shall not be construed to
create the relationship of agent, servant, employee, partnership,
joint venture, or association between the parties. It is understood
that this Agreement is by and between independent contractors. As
such, District shall not be responsible for payment of unemployment
insurance, workers’ compensation insurance, Social Security or
Medicare taxes or contributions of Federal or State income tax
withholding for or on behalf of Contractor or any of Contractor’s
HARMLESS AND INDEMNIFICATION.
agrees to defend, indemnify, and hold harmless Contractor, its
officers, agents, and employees from and against any and all
liability, loss, expense, attorney’s fees, or claims for injury,
death, or damages arising from or as a result of the negligent or
intentional acts or omissions of District in the performance of this
agrees to defend, indemnify, and hold harmless District, its Board
members, officers, agents, and employees from and against any and all
liability, loss, expense, attorney’s fees, or claims for injury,
death, or damages arising from or as a result of the negligent or
intentional acts or omissions of Contractor in the performance of
parties will each maintain general liability insurance with combined
single limit coverage of not less than One Million Dollars
($1,000,000) during the term of this Agreement and any extensions
thereof. Such insurance will be maintained with an insurance company
or companies authorized to do insurance business in the State of
California, and with respect to District, a company authorized to do
business with joint powers agencies formed by college districts or
other educational institutions for the purpose of liability insurance
coverage, or by a system of self-insurance. The insurance policies
in force will not be altered, reduced, or terminated without a prior
ninety (90) day written notice to the other party as specified in
Paragraph 19 “Notices.”
Contractor shall endeavor to file a current Certificate of Insurance
upon execution of this Agreement and with each renewal of policy
throughout the term of this Agreement. In the event that liability
insurance is terminated or altered, each party, in its sole
discretion, will have the right to terminate this Agreement upon
written notification to the other as specified in such termination to
take effect immediately upon delivery of the written notification.
& ASSURANCES. Contractor assures that Contractor
possesses the required licenses or expertise to perform all of the
services which it has agreed to perform pursuant to this Agreement.
Contractor will maintain appropriate or required licensure in full
force and effect during the term of this Agreement.
Contractor warrants that Contractor’s services shall be performed
by personnel possessing competency consistent with applicable
industry standards. No other representation, express or implied, and
no warranty or guarantees are included or intended in this Agreement,
or in any report, opinion, deliverable work product, document, or
otherwise. Furthermore, no guarantee is made as to the efficacy or
value of any services performed. This section sets forth the only
warranties provided by the consultant concerning the services and
related work product. This warranty is made expressly in lieu of all
other warranties, express or implied, including, without limitation,
any implied warranties of fitness for a particular purpose,
merchantability, non-infringement, title, or otherwise.
Contractor and its
officers, employees, agents, and subcontractors shall comply with any
and all federal, state, and local laws that provide for the
confidentiality of records and other information. Contractor shall
not disclose any confidential records or other confidential
information received from the District or prepared in connection with
the performance of this Agreement, unless Contractor is specifically
authorized in writing to disclose such records or information.
Contractor shall promptly transmit to District any and all requests
for disclosure of any such confidential records or information.
Contractor shall not use any confidential information gained by
Contractor in the performance of this Agreement except for the sole
purpose of carrying out Contractor’s obligations under this
shall prepare and maintain all reports and records utilized to
perform services under this Agreement that may be required by
federal, state, or District rules and regulations and shall furnish
those reports and records upon request.
shall surrender to the District all reports and records that may be
required by federal, state or District rules and regulations related
to services performed under this Agreement. The District shall
retain such records for a period of at least three (3) years after
Contractor’s receipt of final payment under this Agreement or any
extension thereof. Should any litigation, claim, negotiation, audit
exception, or other action relating to this Agreement be pending at
the end of the retention period, the District shall retain said
reports and records until such action is resolved.
shall permit access by the District and by representatives of any
federal or state agency providing funds for, or as a result of,
services performed under this Agreement, upon reasonable notice at
any time, but in any case no less than twenty-four (24) hours notice,
to reports, records, and other sources of information as the
inspecting party may deem appropriate for their purposes.
AND ASSIGNS. This Agreement and the rights,
privileges, duties, and obligation of the parties hereunder, to the
extent assignable or delegable, shall be binding upon and inure to
the benefit of the parties and their respective successors, permitted
assigns, and heirs.
BREACH OF CONTRACT. Should either party
breach this Agreement, the non-breaching party shall notify the
breaching party of said breach in writing as specified in Paragraph
19 “Notices.” Breaching party shall have fifteen (15) days in
which to cure said breach or the non-breaching party may terminate
the contract as specified herein as well as avail itself of any and
all other legal remedies.
No waiver of any breach of this contract shall be construed to
be a waiver of any other breach or any subsequent breach. All
remedies afforded in this contract shall be taken and construed as
cumulative; that is, in addition to every other remedy provided
herein or by law. The failure of the parties to enforce at any time
any of the provisions of this Agreement, or require at any time
performance by the other party of any of the provisions thereof,
shall in no way be construed to be a waiver of such provisions nor in
any way affect the validity of this Agreement or any part thereof or
the right of the parties to thereafter enforce each and every such
AMENDMENTS/ADDENDUM. This Agreement may
not be modified; neither amended nor written directions provided
within the general scope of any services under this contract, except
in writing signed by a duly authorized representative of each party
as stipulated by Paragraph 19, “Notice.” No other act, usage, or
custom shall be deemed to amend or modify this Agreement.
Any notice, demand, amendment, request, consent, approval, or
communication that either party desires or is required to give to the
other party or any other person shall be in writing and either served
personally or sent by prepaid, first-class mail. Either party may
change its address by notifying the other party of the change of
address. Notice shall be deemed communicated within seventy-two (72)
hours (three (3) days) from the time of mailing if mailed as
specified in this paragraph. Any notice, demand, amendment, request,
consent, approval, or communication that either party desires or is
required to give to the other party shall be addressed as follows:
Hartnell Community College District
Attention: Vice President of Administrative
411 Central Avenue
Salinas, CA 93901
City, State ZIP
OF CONSTRUCTION. The parties hereto participated
jointly in the negotiation and preparation of this Agreement.
Accordingly, it is agreed that no rule of construction shall apply
against any party or in favor of any party. This Agreement shall be
construed as if the parties jointly prepared this Agreement, and any
uncertainty or ambiguity shall not be interpreted against any one
party and in favor of the other.
If any provision of this Agreement shall be held invalid or
unenforceable by a court of competent jurisdiction, such holdings
shall not invalidate or render unenforceable any other provisions of
Each party acknowledges and agrees that the rights granted to the
other party in this Agreement are non-exclusive and, that without
limiting the generality of the foregoing, nothing in this Agreement
shall be deemed or construed to prohibit either party from
contemplating, or participating in, similar business arrangements as
those described herein, with other parties.
District and Contractor shall each have the right to use all data,
reports, or records collected or generated under this Agreement only
in the context and for the purposes intended, without written
permission by the other party. Nothing in this Agreement shall
prohibit or limit the use of ideas, adaptations, formats, concepts,
know-how, methods, models, data, techniques, skill knowledge, or
experience utilized, developed or gained by either party in
connection with this Agreement. The Agreement shall not create any
rights or benefits to any persons or entities other than the District
and for one (1) year after the term of this Agreement, District will
not solicit the employment of, or employ the Contractor’s
personnel, without the Contractor’s prior written consent.
the performance of this Agreement, neither the District nor the
Contractor will unlawfully discriminate, harass, or allow harassment
against any employee or student on the basis of sex, race, color,
ancestry, religious creed, national origin, disability (including HIV
and AIDS), medical condition (including cancer), age, marital status,
or sexual orientation. Both parties will ensure that the evaluation
and treatment of their employees and all persons requesting and
receiving services, are free from such discrimination and harassment.
AGREEMENT. This Agreement represents the entire
Agreement between the two parties hereto with respect to the subject
matter herein and supersedes any other agreements, restrictions,
representations, or warranties, if any, between the parties hereto
with regard to the subject matter herein, notwithstanding amendments
duly made in writing and signed by both parties. No waiver,
alteration, or modification of any of the provisions herein shall be
binding on any party unless in writing and signed by the party
against whom enforcement of such waiver, alteration, or modification
& BINDING EFFECT.
party shall assign, subcontract, or transfer any of its rights or
obligations under this Agreement to a third party without prior
written consent of the other party, which consent shall not be
unreasonably withheld or delayed. If there is a valid assignment,
subcontract, or transfer, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
SUSPENSION, AND OTHER REPRESENTATION.
as required by Executive Orders 12549 and 12689, that Contractor and
its principles are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from covered
transactions by any federal department or agency, are not presently
indicted, criminally or civilly charged by a governmental entity, and
have not, within a three (3) year period preceding this Agreement,
been convicted or had a civil judgment rendered against them for
commission of fraud or criminal offense in connection with obtaining
or performing a public transaction or contract, or had one or more
public transactions terminated for cause or default, nor have any
appropriated funds been paid by or on behalf of the contractor to any
person for influencing or attempting to influence any employee or
officer of the federal government or in connection with the making of
any federal grant or cooperative agreement.
that it will or will continue to provide a drug-free workplace as
required by the Drug-Free Workplace Act of 1998.
and all disputes that may arise out of or relate to obtaining
services, products, or other Agreements or any other relationship
involving District and Contractor, whether occurring prior to, as
part of, or after the signing of this document, shall first be
resolved by good faith negotiations between the parties with the
assistance of non-binding mediation. District shall notify
Contractor of any dispute arising under this Agreement as specified
under Paragraph 19 “Notices.” Contractor shall continue to
perform under this Agreement during any dispute. In the event either
party determines that they are not able to resolve the dispute
through negotiation and mediation, then the dispute shall be
submitted to, and resolved by final and binding arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Negotiation, mediation, and arbitration
shall be the exclusive means of dispute resolution between District
and Contractor and their respective agents, employees, beneficiaries,
or members. Arbitration shall be before a single arbitrator who
shall apply California substantive law. Any party may bring an
action in any court of competent jurisdiction in the County of
Monterey, state of California, if necessary; (i) to compel
arbitration under this arbitration provision, or (ii) to obtain
preliminary relief in support of claims to be prosecuted in
arbitration, or (iii) to enter a judgment of any award rendered
pursuant to such arbitration.
FEES. In the event of arbitration and/or any action
at law or in equity (including but not limited to specific
performance) between District and Contractor arising out of this
Agreement or to enforce any of the provisions or rights hereunder,
the prevailing party in such arbitration, action, or proceeding shall
be paid all reasonable attorneys’ fees and costs including, without
limitation, court costs, expert witness fees, investigation costs, to
enforce such rights by the other party, such fees to be set by the
court and to be included in the judgment entered in such proceeding.
Neither party shall be liable for nonperformance, defective
performance, or late performance of any of its obligations under this
Agreement to the extent and for such periods of time as such
nonperformance, defective performance, or late performance is due to
reasons outside either party’s control, including acts of God, war
(declared or undeclared), terrorism, action of any governmental
authority, civil disturbances, riots, revolutions, vandalism,
accidents, fire, floods, explosions, sabotage, nuclear incidents,
lightning, weather, earthquakes, storms, sinkholes, epidemics,
failure of transportation infrastructure, disruption of public
utilities, supply chain interruptions, information systems
interruptions or failures, breakdown of machinery or strikes (or
similar nonperformance, defective performance or late performance of
employees, suppliers or subcontractors); provided, however, that in
any such event, each party shall use its good faith efforts to
perform its duties and obligations under this Agreement.
All components and
representations contained herein are incorporated by reference.
Should elements of Agreement and/or proposal be in disagreement, then
Agreement shall control. The following documents attached hereto, as
well as any and all components and representations contained in the
proposal, are expressly incorporated herein by reference and made a
A – Scope of Work
B - Compensation
Headings or captions on the paragraphs, sections, or subsections
of this Agreement are solely for convenience and reference only, and
shall not be interpreted to explain, modify, amplify, or aid in the
interpretation, construction, meaning, or validity of the provisions
of this Agreement or affect any rights, obligations, or
responsibilities of the parties arising hereunder.
NUMBER, AND GENDER. Each tense, number and gender in
this Agreement shall include any other tense, number, or gender where
the context and the parties hereto or the context and references
herein shall require.
IS OF THE ESSENCE. Time is of the essence for each
and every provision of this Agreement.
LAW. The laws of the State of California shall govern
the validity, performance, and enforcement of this Agreement.
Any and all disagreements between the parties hereto shall be
adjudicated in the courts of Monterey County, Salinas, California.
EXECUTION IN COUNTERPARTS. This Agreement
may be executed in counterparts. Each counterpart executed as
original or facsimile of original, shall have the full force and
effect of an original.
An individual executing this Agreement on behalf of an entity
hereby represents and warrants that he or she has the requisite
authority to enter into this Agreement on behalf of such entity and
bind the entity to the terms and conditions of same.
WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives effective on the
date first above-written.