Milpitas_PO_Terms_and_Conditions.pdf

ATTACHMENT A

MILPITAS STANDARD PURCHASE ORDER TERMS AND CONDITIONS

Milpitas PO Terms and Conditions R20241015 Page 1 of 2

1. DEFINITIONS. “City” shall mean the City of Milpitas. “Vendor” shall mean the provider of the goods and/or services, including its officers, agents, employees or subcontractors, as specified in this purchase order (PO). The PO includes these standard terms and conditions and any attachments hereto. City and Vendor are sometimes hereinafter individually referred to as a “Party” and collectively as the “Parties.”

2. ENTIRE AGREEMENT. Unless otherwise stated in this PO, this PO contains all the agreements, representations, and understandings of the Parties hereto, and supersedes and replaces any previous understandings, commitments, or agreements, whether oral or written.

This PO evidences City acceptance of Vendor’s offer to provide the goods and/or services as specified herein. Any other terms or conditions included in any shrink-wrap or boot-screen license agreements, quotes, invoices, acknowledgments, bills of lading, or other forms utilized or exchanged by the Parties are not incorporated into this agreement or binding upon the Parties unless the Parties expressly agree in writing or unless otherwise provided for in this PO. In the event of conflict between these standard terms and conditions and the provisions in any attachments hereto, these standard terms and conditions shall control.

3. ACCEPTANCE. Vendor’s provision of the goods and/or services specified in this PO shall constitute acceptance by Vendor of this PO.

4. SCHEDULE/TIME OF PERFORMANCE. Vendor shall supply the PO goods and/or services in accordance with the specified schedule and term. Time is of the essence for this PO. If the delivery schedule shown on this PO cannot be met, Vendor shall inform City of the Vendor’s best possible delivery for City consideration. City shall have the right, at its sole discretion, to cancel the entire order or the undelivered portion as applicable. If City accepts delayed delivery, the time of payment shall be extended accordingly.

5. PRICE. The prices invoiced for this PO shall be no higher than the prices stated on the PO. If the Vendor's established price for any item upon the date of delivery is lower than the price shown on this PO, Vendor shall charge City the lower price. Any Vendor pricing that will exceed the pricing stated in this PO must be approved by City in writing as an amendment to this PO prior to Vendor providing such goods and/or services. Vendor is solely responsible for any overage not preapproved by the City in writing. Furthermore, Vendor shall work with the City upon request to demonstrate that prices charged to the City are fair and reasonable compared to prices Vendor charges to other public entities for the same or substantially similar goods and services.

6. DISCOUNT PERIODS. Payment discount periods, if applicable, shall be calculated from the later of the date this PO is executed or the date City receives an acceptable invoice to the date City’s payment is sent.

7. INVOICING/PAYMENT. Vendor shall invoice the City within 30 days of shipping or service delivery, but not more frequently than monthly, unless otherwise noted on this PO. All invoices must be electronically transmitted to AccountsPayable@milpitas.gov, the City Accounts Payable Vendor portal. City will pay Vendor on Net 30 days’ payment terms unless otherwise provided herein. The period of computation will commence on the date of receipt by City of a correctly completed invoice.

Payment may be withheld, in whole or in part, due to deficiencies in Vendor performance or delivered goods. Payment of an invoice by City shall be without prejudice to any and all claims City may have against Vendor in connection with such goods or services. City pays invoices on a weekly basis and such practice may result in minor deviations from payment terms cited herein.

8. SHIPPING/TITLE AND RISK OF LOSS. Unless otherwise specified in this PO, all goods shall be delivered “free on-board destination” to the location specified herein without charge for boxing, crating, carting, or storage. Goods shall be suitably packed (a) to secure the lowest transportation costs, (b) in accordance with the requirements of common carriers, (c) in such a manner as to prevent damage from weather or transportation and (d) with environmentally sustainable packing materials when practicable. The City PO number shall be plainly marked on all invoices, packages, bills of lading, and shipping orders. Packing lists shall accompany each box or package shipment. City’s count or weight shall be final and conclusive on any shipments not accompanied by packing lists. Shipments for two or more destinations, when so directed by City, shall be shipped in separate boxes or containers for each destination at no extra charge. Title to and risk of loss on all goods shall pass to City only upon delivery by Vendor in the manner specified herein and City acceptance of such goods.

9. WARRANTIES. Vendor warrants all goods and services for a period of 12 months following City start of use OR 18 months from City’s receipt, whichever occurs first. Vendor warrants (a) all goods and services shall be free of all liens, claims, security interest, or encumbrances; (b) shall conform to applicable specifications, drawings, descriptions, and samples; and (c) will be merchantable, of good workmanship and material, and free from defect. Unless manufactured or performed pursuant to a detailed design furnished by City, Vendor assumes all design responsibility. Vendor warrants neither purchase, use or resale, nor delivery or performance thereof shall violate any patent, copyright, or similar rights. Vendor’s warranties shall run to City and shall not be deemed to be exclusive. Warranties set forth herein are cumulative with any other warranties provided by Vendor. City’s inspection, approval, acceptance, use of, or payment for all or any part of the goods or services shall in no way affect its warranty rights, whether or not a breach of warranty became, or should have become, evident at the time. City’s failure to enforce any warranty right does not constitute a waiver of such right.

10. CITY ACCEPTANCE/REJECTION OF GOODS. All goods and services received by City under this PO are subject to City’s acceptance.

City shall have the right, at its sole discretion, to reject or revoke acceptance of any goods and/or services that do not conform to these warranties or specifications. Transportation expenses for rejected goods, both to and from City, shall be at the expense of Vendor. Rejected goods are not to be replaced except upon specific written instruction from City.

City shall have the right, at its sole option, to cancel the remainder, if any, of the PO by notifying the Vendor. Vendor shall be liable to City for all damages proximately caused by breach of any of the foregoing warranties, including incidental damages.

11. RETURNS. City reserves the right to return for full credit any excess items over the quantities specified herein. Vendor shall bear the cost of transportation both ways.

12. FORCE MAJEURE. The Parties agree that the ability of the Parties to provide, use, or pay for the goods and/or services as applicable under this PO may be limited if business activities are subject to local, state, or federal mandates and advisories for managing public health and safety or other force majeure. The Parties agree that the provision of goods and/or services and the payment for such goods and/or services may be postponed or suspended following execution of this PO by the City and that the Parties are not required to act on this PO until said force majeure has been resolved.

13. ADDITIONAL FEES. Unless otherwise required by law or provided herein, Vendor assumes exclusive liability for, and shall pay before delinquency, all sales, use, excise, and other taxes, charges, or contributions of any kind now or hereafter imposed on or with respect to the provision of goods and services provided in connection with performance of this PO. Vendor is solely responsible for any wages, salaries, or other remunerations paid to persons employed by, contracted with, or retained by the Vendor to provide such goods or services.

14. NO WAIVER. No exercise or failure to exercise by City of its rights hereunder shall constitute a waiver of any rights it may have for breach of contract. City's waiver of or failure to enforce its rights on account of Vendor's failure or delay in performing any obligation of Vendor hereunder, or on account of Vendor's breach of contract in any respect, shall not constitute a waiver of any subsequent failure, delay, or breach.

15. COMPLIANCE WITH LAW. Vendor shall comply with all applicable laws and regulations of the federal, state, and local government, including, but not limited to, wage laws, nondiscrimination, and filing requirements. City shall assist Vendor, as requested, in obtaining and maintaining all permits required of Vendor by federal, state, and local regulatory agencies.

16. CALIFORNIA LABOR CODE/PREVAILING WAGE. Vendor and all subcontractors shall comply with all applicable California Labor Code mailto:APInvoiceProcessor@milpitas.gov

ATTACHMENT A

MILPITAS STANDARD PURCHASE ORDER TERMS AND CONDITIONS

Milpitas PO Terms and Conditions R20241015 Page 2 of 2 provisions, which include, but are not limited to, prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections

1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815), contractor registration (Labor Code Sections 1725.5 and 1771.1), and debarment of contractors and subcontractors (Labor Code Sections 1777.1). Vendor shall defend, indemnify, and hold City, its officials, officers, employees, and agents free and harmless from any claims, liabilities, costs, penalties, or interest arising out of any failure or alleged failure to comply with the applicable laws. Any stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor that affect Vendor’s performance of services, including any delay, shall be Vendor’s sole responsibility and Vendor shall indemnify the City from liability arising out of the same. Vendor shall include these requirements, as applicable, in each subcontract entered into for the furtherance of this PO so that such requirements are binding on each subcontractor.

17 INSURANCE REQUIREMENTS. Vendor shall have and maintain insurance policies as specified herein, which may include commercial general liability, automobile liability, workers’ compensation, professional errors and omissions, cybersecurity liability, sexual abuse and molestation liability, and other coverages as applicable. These insurance requirements are subject to amendment or waiver if approved in writing by the City. Vendor shall provide City with a copy of applicable certificates and/or endorsements before work commences under this PO.

All policies, endorsements, certificates, and/or binders shall be subject to review and approval by the City as to form and content.

18. INDEMNIFICATION. To the fullest extent permitted by law, Vendor shall defend, indemnify, and hold harmless City, its officials, officers, agents, and employees from and against any and all claims, loss, liabilities, expenses, or damages, including without limitation claims for injuries or death to persons, damage to or destruction of property, interference with use of property, patent infringement, fees for use of patented items, or any claim of the Vendor or subcontractors for wages or benefits which arise in connection with Vendor’s acts or omissions in the performance of this PO or for Vendor’s breach of any of its obligations under this PO. The foregoing indemnity includes, but is not limited to, the cost of prosecuting or defending such action with legal counsel acceptable to City and City’s attorneys’ fees incurred in such an action.

19. SUBSTITUTIONS/CHANGES. No substitutions are acceptable unless expressly accepted in writing by City. City shall have the right by written notice to change the extent of the work covered by this PO, the time or place of delivery, the method of shipment or packaging, or to suspend work. If any such change affects the cost of or time to deliver or perform under this PO, an adjustment in price, delivery, or both will be made as City determines to be equitable. Vendor shall deliver to City a statement showing the effect of any such changes in the cost of or time for performance within ten (10) calendar days after receipt of such notice from City. Failure of Vendor to submit the statement within the above time limit shall constitute its consent to perform the change without increase in compensation or time for performance. Vendor may request changes;

however, no such change shall be effective unless accepted in writing by the City. Any material change in this PO must be reflected in an amendment to this PO.

20. TERMINATION FOR DEFAULT OR CONVENIENCE. City may, by written notice to Vendor, terminate this PO in whole or in part for Vendor’s failure to fulfill its obligations as specified herein. If this PO is terminated for default, the City, in addition to all other rights afforded by law for Vendor’s default, shall have the right to charge Vendor the amount by which the costs of fabricating or procuring the cancelled goods or services from another source exceed the compensation specified herein, and City may set off any such charge against any amounts payable to Vendor under this PO or otherwise. City may, by not less than thirty (30) days’ written notice to Vendor, terminate this PO for convenience and without cause. In the event of such termination for convenience, Vendor will be paid for those goods delivered and services performed pursuant to this PO to the satisfaction of City up to the date of termination.

21. LAW/VENUE. This PO shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this PO, the action shall be brought in a state or federal court situated in the County of Santa Clara, State of California.

22. SURVIVAL OF PROVISIONS. The unenforceability, invalidity, or illegality of any provision(s) of this PO shall not render the other provisions unenforceable, invalid, or illegal.

23. NOTICE. Notice may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the Parties to the addresses set forth in the PO.

24. ASSIGNMENT AND THIRD-PARTY BENEFICIARIES. Nothing herein shall be construed to give any rights or benefits to anyone other than the City and the Vendor. Vendor shall not assign, sublet, or transfer this PO, or any rights or interest hereunder, without the express written consent of the City, which may be withheld for any reason.

25. INDEPENDENT CONTRACTOR. Vendor is retained as an independent contractor and is not an employee, agent, joint venturer, or partner of City. As an independent contractor, Vendor shall obtain no rights to retirement benefits or other benefits which accrue to City’s employees, and Vendor hereby expressly waives any claim it may have to any such rights. Both Parties acknowledge that Vendor is not an employee for state or federal tax purposes. Vendor shall retain the right to perform services for others during the term of this PO.

26. DAMAGE TO CITY FACILITIES. Damage to City or public facilities or to private property caused by the Vendor or Vendor’s subcontractors during delivery, installation, or performance of the work specified in this PO shall be the sole responsibility of the Vendor. Vendor shall repair and/or replace in kind at no cost to the City.

27. WAGE THEFT. Vendor, and any subcontractor Vendor employs to complete the work under this PO, shall comply with all applicable federal, state, and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code, and the City of Milpitas Ordinances and Policies pertaining to Minimum Wage and Wage Theft.

28. CONFLICTS OF INTEREST. Vendor shall avoid all conflicts of interest or appearances of conflicts of interest in the performance of this

PO.

https://www.milpitas.gov/688/Minimum-Wage https://www.milpitas.gov/DocumentCenter/View/2251/Ordinance-No-295-PDF