SFMTA-2027-20-LOC_Attachment_A_-_City_s_PO_Terms.pdf

P-250c (10-24) PO Supplemental Terms for Commodities 1

A. Commercial Terms

1. Cash Discounts—Terms of Payment. The discount period will start upon date of completion of delivery of all items on any Purchase Order or other authorization certified by the City’s Controller, or upon date of receipt of properly prepared invoices covering such deliveries, whichever is later. Payment is deemed to be made, for the purpose of earning the discount, on the date of mailing the City’s check. No additional charge shall accrue against City in the event City does not make payment within any time specified by bidder.

2. Place of Manufacture. No article furnished hereunder shall have been made in prison or by convict labor, except articles purchased for use by City’s detention facilities.

3. Electrical Products. Goods must comply with all applicable laws, ordinances and other legal requirements, including (among others) the Cal-OSHA regulations in Title 8 of the Code of Regulations and, for electrical products, Sections 110.2 and 110.3 (B) of the S.F. Electrical Code.

4. Condition of Articles. Articles offered and furnished must be new and previously unused, and of manufacturer’s latest model, unless otherwise specified herein.

5. Inspection. All articles supplied shall be subject to inspection and acceptance or rejection by Purchasing or any department official responsible for inspection. Non-conforming or rejected goods may be subject to reasonable storage fees.

6. F.O.B. Point. F.O.B destination in San Francisco, freight prepaid and allowed, unless otherwise specified.

7. Failure to Deliver. If Contractor fails to deliver an article and/or service of the quality, in the manner or within the time called for by this Purchase Order, such article and/or service may be bought from any source by Purchasing and if a greater price than the Purchase Order price be paid, the excess price will be charged to and collected from Contractor or sureties on its bond if bond has been required; or, the City may terminate the Purchase Order for default; or, the City may return deliveries already made and receive a refund.

8. Safety Data Sheets. Where required by law, Contractor will include Safety Data Sheets (SDSs) with delivery for applicable items. Failure to include the SDSs for such items will constitute a material breach of contract and may result in refusal to accept delivery.

9. Taxes. City is exempt from federal taxes except on articles for resale. Contractor will enter state and local sales or use tax, and excise tax if applicable, on invoices.

B. General Contract Conditions

10. Budget and Fiscal Provisions. This Purchase Order is subject to the budget and fiscal provisions of the City’s Charter. Charges will accrue only after prior written authorization certified by the Controller, and the amount of City’s obligation hereunder shall not at any time exceed the amount certified for the purpose and period stated in such advance authorization.

This section controls against any and all other provisions of this Purchase Order.

11. Guaranteed Maximum Costs. The City's payment obligation to Contractor cannot at any time exceed the amount certified by the Controller for the purpose and period stated in such certification. Absent an authorized Emergency per the City’s Charter or applicable Code, no City representative is authorized to offer or promise, nor is the City required to honor, any offered or promised payments to Contractor under this Purchase Order in excess of the certified maximum amount without the Controller having first certified the additional promised amount and the Contractor and City having modified this Purchase Order as authorized by amendment and approved as required by law. The Controller is not authorized to make payments on any Purchase Order for which funds have not been certified as available in the budget or by supplemental appropriation.

12. Submitting False Claims; Monetary Penalties.. Pursuant to San Francisco Administrative Code §21.35, any Contractor, subcontractor or consultant who submits a false claim shall be liable to the City for the statutory penalties set forth in that section. A Contractor, subcontractor or consultant will be deemed to have submitted a false claim to the City if the Contractor, subcontractor or consultant: (a) knowingly presents or causes to be presented to an officer or employee of the City a false claim or request for payment or approval; (b) knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim paid or approved by the City; (c) conspires to defraud the City by getting a false claim allowed or paid by the City; (d) knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the City; or (e) is a beneficiary of an inadvertent submission of a false claim to the City, subsequently discovers the falsity of the claim, and fails to disclose the false claim to the City within a reasonable time after discovery of the false claim.

13. Hold Harmless and Indemnification. Contractor shall indemnify and save harmless City and its officers, agents and employees from, and, if requested, shall defend them from and against any and all liabilities (legal, contractual, or otherwise), losses, damages, costs, expenses, or claims for injury or damages (collectively, “Claims”), arising from or in any way connected with Contractor’s performance of the Purchase Order, including but not limited to, any: (i) injury to or death of a person, including employees of City or Contractor; (ii) loss of or damage to property; (iii) violation of local, state, or federal common law, statute or regulation, including but not limited to privacy or personal identifiable information, health information, disability and labor laws or regulations; (iv) strict liability imposed by any law or regulation; or (v) losses arising from Contractor’s execution of subcontracts not in accordance with the requirements of this Purchase Order applicable to subcontractors except to the extent that such indemnity is void or otherwise unenforceable under applicable law, and except where such Claims are the result of the active negligence or willful misconduct of City and are not contributed to by any act of, or by any omission to perform some duty imposed by law or agreement on Contractor, its subcontractors or either’s agent or employee. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and City’s costs of investigating any claims against the City. In addition to Contractor’s obligation to indemnify City, Contractor specifically acknowledges and agrees that it has an immediate and independent obligation to defend City from any claim which actually or potentially falls within this indemnification provision, even if the allegations are or may be groundless, false or fraudulent, which obligation arises at the time such Claim is tendered to Contractor by City and continues at all times thereafter. Contractor shall indemnify and hold City harmless from all loss and liability, including attorneys’ fees, court costs and all other litigation expenses for any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark, and all other intellectual property claims of any person or persons arising directly or indirectly from the receipt by City, or any of its officers or agents, of articles or services to be supplied in the performance of this Purchase Order. Under no circumstances will City indemnify or hold harmless Contractor.

14. Liability of City. CITY'S PAYMENT OBLIGATIONS UNDER THE PURCHASE

ORDER SHALL BE LIMITED TO THE PAYMENT OF THE COMPENSATION PROVIDED

UNDER THIS PURCHASE ORDER. NOTWITHSTANDING ANY OTHER PROVISION

OF THIS PURCHASE ORDER, IN NO EVENT SHALL CITY BE LIABLE, REGARDLESS

OF WHETHER ANY CLAIM IS BASED ON CONTRACT OR TORT, FOR ANY SPECIAL,

CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT

LIMITED TO, LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS

PURCHASE ORDER OR THE SERVICES PERFORMED IN CONNECTION WITH THIS

PURCHASE ORDER.

15. Termination and Termination for Convenience. In the event Contractor fails to perform any of its obligations under this Purchase Order, in addition to any other remedies available to City, this Purchase Order may be terminated and all of Contractor's rights hereunder ended.

Termination will be effective after ten days’ written notice to Contractor. No new work will be undertaken, and no new deliveries will be made, after the date of receipt of any notice of termination, or five days after the date of the notice, whichever is earlier. In the event of such termination, Contractor will be paid for those goods delivered and services performed, or deliveries made, under this Purchase Order to the satisfaction of the City, up to the date of termination. However, City may offset from any such amounts due Contractor any liquidated damages or other costs City has or will incur due to Contractor’s nonperformance. Any such offset by City will not constitute a waiver of any other remedies City may have against Contractor for financial injury or otherwise. City shall have the option, in its sole discretion, to terminate this Purchase Order, at any time during the term hereof, for convenience and without cause. City shall exercise this option by giving Contractor written notice of termination. The notice shall specify the date on which termination shall become effective. In the event of such termination, Contractor will be paid for those services performed, or deliveries made, pursuant to this Purchase Order to the satisfaction of the City up to the date of termination. In no event shall City be liable for costs incurred by Contractor or any of its subcontractors after the termination date specified by City. Such non-recoverable costs include, but are not limited to, anticipated profits on this contract, post-termination employee salaries, post-termination administrative expenses, or any other cost which is not reasonable or authorized under this section. This section shall not prevent Contractor from recovering costs necessarily incurred in discontinuing further work, or canceling further deliveries, under the Purchase Order after receipt of the termination notice.

16. Alcohol and Drug-Free Workplace Policy. City reserves the right to deny access to, or require Contractor to remove from, City facilities personnel of any Contractor or subcontractor who City has reasonable grounds to believe has engaged in alcohol abuse or illegal drug activity which in any way impairs City's ability to maintain safe work facilities or to protect the health and well-being of City employees and the general public. City shall have the right of final approval for the entry or re-entry of any such person previously denied access to, or removed from, City facilities. Illegal drug activity means possessing, furnishing, selling, offering, purchasing, using or being under the influence of illegal drugs or other controlled substances for which the individual lacks a valid prescription. Alcohol abuse means possessing, furnishing, selling, offering, or using alcoholic beverages, or being under the influence of alcohol.

17. Compliance with Americans with Disabilities Act. Contractor acknowledges that, pursuant to the Americans with Disabilities Act (ADA), programs, services and other activities provided by a public entity to the public, whether directly or through a contractor, must be accessible to the disabled public. Contractor shall provide the Services in a manner that complies with the Americans with Disabilities Act (ADA), including but not limited to Title II's program access requirements, and all other applicable federal, state and local disability rights legislation.

18. Use of City Opinion. Contractor shall not quote, paraphrase, or otherwise refer to or use any opinion of City, its officers of agents, regarding Contractor or Contractor’s performance under this Purchase Order without prior written permission of Purchasing.

19. Contract/Purchase Order Interpretation; Choice of Law/Venue; Assignment. Should any questions arise as to the meaning and intent of the Purchase Order, the matter shall be referred to Purchasing, who shall decide the true meaning and intent of the contract. The formation, interpretation and performance of this Purchase Order shall be governed by the laws of the State of California. Venue for all litigation relative to the formation, interpretation and performance of this Purchase Order shall be in San Francisco. This Purchase Order may be assigned only with the written approval of Purchasing by written instrument executed and approved in the same manner as this Agreement.

20. Proposal, Quotation and Attachments. This Purchase Order incorporates by reference the provisions of any related bid request issued by City, any bid submitted by Contractor, or both.

This Purchase Order incorporates by reference the provision of any attachments.

21. Provisions Controlling. Contractor agrees that in the event of conflicting language between this Purchase Order and Contractor's printed form, the provisions of this Purchase Order shall take precedence. This section shall supersede any language in the Contractor’s terms and conditions attempting to nullify City terms and conditions or to resolve language conflicts in favor of the Contractor’s terms and conditions.

PO Supplemental Terms for Commodities 2

22. No Auto-renewal. In no event shall the obligations of the City auto renew, even if other terms state so. Any renewal must be duly and legally authorized.

C. Non-Commercial Terms

23. Nondisclosure of Private, Proprietary or Confidential Information. If this Purchase Order requires City to disclose "Private Information" to Contractor within the meaning of San Francisco Administrative Code Chapter 12M, Contractor and subcontractor shall use such information only in accordance with the restrictions stated in Chapter 12M and in this Purchase Order and only as necessary in performing the services. Contractor is subject to the enforcement and penalty provisions in Chapter 12M. In the performance of services, Contractor may have access to City's proprietary or confidential information, the disclosure of which to third parties may damage City. If City discloses proprietary or confidential information to Contractor, such information must be held by Contractor in confidence and used only in performing the Purchase Order. Contractor shall exercise the same standard of care to protect such information as a reasonably prudent contractor would use to protect its own proprietary or confidential information.

24. Consideration of Criminal History in Hiring and Employment Decisions.

a. Contractor agrees to comply fully with and be bound by all of the provisions of Article 142, “City Contractor/Subcontractor Consideration of Criminal History in Hiring and Employment Decisions,” of the San Francisco Labor & Employment Code (“Article 142”), including the remedies provided, and implementing regulations, as may be amended from time to time. The provisions of Article 142 are incorporated by reference and made a part of this Purchase Order as though fully set forth herein. The text of the Article 142 is available on the web at www.sf.gov/olse-fco. Contractor is required to comply with all of the applicable provisions of Article 142, irrespective of the listing of obligations in this Section. Capitalized terms used in this Section and not defined in this Purchase Order shall have the meanings assigned to such terms in Article 142.

b. The requirements of Article 142 shall only apply to a Contractor’s or subcontractor’s operations to the extent those operations are in furtherance of the performance of this Purchase Order, shall apply only to applicants and employees who would be or are performing work in furtherance of this Purchase Order, and shall apply when the physical location of the employment or prospective employment of an individual is wholly or substantially within the City of San Francisco. Article 142 shall not apply when the application in a particular context would conflict with federal or state law or with a requirement of a government agency implementing federal or state law.

25. Local Business Enterprise and Non-Discrimination in Contracting Ordinance.

Contractor, shall comply with all the requirements of the Local Business Enterprise and Non- Discrimination in Contracting Ordinance set forth in Chapter 14B of the San Francisco Administrative Code as it now exists or as it may be amended in the future (collectively the “LBE Ordinance”). Contractor is subject to the enforcement and penalty provisions in Chapter 14B.

26. Nondiscrimination Requirements.

a. Non Discrimination in Contracts. Contractor shall comply with the provisions of Articles 131 and 132 of the San Francisco Labor & Employment Code. Contractor shall incorporate by reference in all subcontracts the provisions of § 131.2 (a), §131.2(c)-(k), and §132.3 of the San Francisco Labor & Employment Code and shall require all subcontractors to comply with such provisions. Contractor is subject to the enforcement and penalty provisions in Articles 131 and 132.

b. Nondiscrimination in the Provision of Employee Benefits. San Francisco Labor & Employment Code § 131.2. Contractor does not as of the date of this Purchase Order, and will not during the term of this Purchase Order, in any of its operations in San Francisco, on real property owned by San Francisco, or where work is being performed for the City elsewhere in the United States, discriminate in the provision of employee benefits between employees with domestic partners and employees with spouses and/or between the domestic partners and spouses of such employees, subject to the conditions set forth in San Francisco Labor & Employment Code §131.2.

27. Tropical Hardwood and Virgin Redwood Ban. Pursuant to San Francisco Environment Code Section 804(b), the City urges Contractor not to import, purchase, obtain, or use for any purpose, any tropical hardwood, tropical hardwood wood product, virgin redwood or virgin redwood wood product. Contractor shall comply with San Francisco Environment Code Chapter 8, which provides that except as expressly permitted by the application of Sections 802(b) and 803(b) of the San Francisco Environment Code, Contractor shall not provide any items to the City in performance of this Purchase Order which are tropical hardwoods, tropical hardwood wood products, virgin redwood or virgin redwood wood products. Contractor is subject to the penalty and enforcement provisions of Chapter 8.

28. Resource Conservation. Contractor agrees to comply fully with the provisions of Chapter 5 of the San Francisco Environment Code (“Resource Conservation”), as amended from time to time. Said provisions are incorporated herein by reference.\

29. Sunshine Ordinance. Contractor acknowledges that this Purchase Order and all records related to its formation, Contractor's performance under this Agreement, and City's payment are subject to the California Public Records Act, (California Government Code §6250 et. seq.), and the San Francisco Sunshine Ordinance, (San Francisco Administrative Code Chapter 67). Such records are subject to public inspection and copying unless exempt from disclosure under federal, state or local law.

30. Limitations on Contributions. By executing this Purchase Order, Contractor acknowledges its obligations under Section 1.126 of the City’s Campaign and Governmental Conduct Code, which prohibits any person who contracts with, or is seeking a contract with, any department of City for the rendition of personal services, for the furnishing of any material, supplies or equipment, for the sale or lease of any land or building, for a grant, loan or loan guarantee, or for a development agreement, from making any campaign contribution to (i) a City elected official if the contract must be approved by that official, a board on which that official serves, or the board of a state agency on which an appointee of that official serves; (ii) a candidate for that City elective office; or (iii) a committee controlled by such elected official or a candidate for that office, at any time from the submission of a proposal for the contract until the later of either the termination of negotiations for such contract or twelve months after the date City approves the contract. The prohibition on contributions applies to each prospective party to the contract; each member of Contractor’s board of directors; Contractor’s chairperson, chief executive officer, chief financial officer and chief operating officer; any person with an ownership interest of more than ten percent (10%) in Contractor; any subcontractor listed in the bid or contract; and any committee that is sponsored or controlled by Contractor. Contractor certifies that it has informed each such person of the limitation on contributions imposed by Section 1.126 by the time it submitted a proposal for the contract, and has provided the names of the persons required to be informed to the City department with whom it is contracting.

31. Health Care Accountability Ordinance (“HCAO”) [Service contracts including agreements between a Tenant or Subtenant lasting 1 year or more only]. Contractor shall comply with San Francisco Labor & Employment Code Article 121. Contractor shall choose and perform one of the Health Care Accountability options set forth in San Francisco Labor & Employment Code §121.3. Contractor is subject to the enforcement and penalty provisions in Article 121.

32. First Source Hiring Program [if Purchase Order is greater than $50,000 and if Contractor has an office in Alameda, San Francisco or San Mateo counties] Contractor must comply with all of the provisions of the First Source Hiring Program, Chapter 83 of the San Francisco Administrative Code, that apply to this Purchase Order, and Contractor is subject to the enforcement and penalty provisions in Chapter 83.

33. Prohibition on Use of Public Funds for Political Activity. In performing the services, Contractor shall comply with San Francisco Administrative Code Chapter 12G, which prohibits funds appropriated by the City for this Purchase Order from being expended to participate in, support, or attempt to influence any political campaign for a candidate or for a ballot measure.

Contractor is subject to the enforcement and penalty provisions in Chapter 12G.

34. Preservative-Treated Wood Products. Contractor shall comply with the provisions of San Francisco Environment Code Chapter 13, which requires that each Contractor purchasing preservative-treated wood products on behalf of the City, shall only purchase such products from the list of alternatives adopted by the Department of the Environment pursuant to Section 1302 of Chapter 13, unless otherwise granted an exemption by the terms of that Chapter.

35. Food Service Waste Reduction Requirements. Contractor shall comply with the Food Service Waste Reduction Ordinance, as set forth in San Francisco Environment Code Chapter 16, including but not limited to the remedies for noncompliance provided therein.

36. Slavery Era Disclosure. [This paragraph applies if this Purchase Order is for financial services, insurance, or textiles.] Contractor shall comply with San Francisco Administrative Code Chapter 12Y, San Francisco Slavery Era Disclosure Ordinance, including but not limited to Contractor's affirmative duty to research and disclose evidence of Contractor, its parent or subsidiary entity, or its Predecessor Company's Participation in the Slave Trade or receipt of Profits from the Slave Trade. Contractor is subject to the enforcement and penalty provisions in Chapter 12Y.

37. Consideration of Salary History. Contractor shall comply with San Francisco Labor and Employment Code Article 141, the Consideration of Salary History Ordinance or “Pay Parity Act.” Contractor is prohibited from considering current or past salary of an applicant in determining whether to hire the applicant or what salary to offer the applicant to the extent that such applicant is applying for employment to be performed on or in furtherance of this Purchase Order, and whose application, in whole or part, will be solicited, received, processed or considered, whether or not through an interview, in City or on City property. The ordinance also prohibits employers from (1) asking such applicants about their current or past salary or

(2) disclosing a current or former employee’s salary history without that employee’s authorization unless the salary history is publicly available. Contractor is subject to the enforcement and penalty provisions in Article 141. Information about and the text of Article 141 is available on the web at www.sf.gov/olse-sho. Contractor is required to comply with all of the applicable provisions of Article 141, irrespective of the listing of obligations in this Section.

38. Sugar-Sweetened Beverage Prohibition. Contractor agrees that it will not sell, provide, or otherwise distribute Sugar-Sweetened Beverages, as defined by San Francisco Administrative Code Chapter 101, as part of its performance of this Purchase Order.

39. Minimum Compensation Ordinance ("MCO”) -- Service Contracts only. Contractor shall pay covered employees no less than the minimum compensation required by San Francisco Labor & Employment Code Article 111. Contractor is subject to the enforcement and penalty provisions in Article 111. By signing and executing this Purchase Order, Contractor certifies that it complies with Article 111.

40. Gas Powered Landscaping Equipment. Contractor shall not sell to the City, nor use in the performance of services under this Purchase Order, any Gas-Powered Landscaping Equipment, pursuant to San Francisco Administrative Code Chapter 12E. “Gas-Powered Landscaping Equipment” means any Small Off-Road Equipment (as defined in Title 13, Division 3, Chapter 9, Article 1 of the California Code of Regulations) that is powered by an internal combustion or rotary engine using gasoline, alcohol, or other liquid or gaseous fluid.

41. MacBride Principles--Northern Ireland. The provisions of San Francisco Administrative Code §12F are incorporated herein by this reference and made part of this Purchase Order. By accepting this Purchase Order, Contractor confirms that Contractor has read and understood that the City urges companies doing business in Northern Ireland to resolve employment inequities and to abide by the MacBride Principles, and urges San Francisco companies to do business with corporations that abide by the MacBride Principles.

http://www.sf.gov/olse-fco http://www.sf.gov/olse-sho

PO Supplemental Terms for Commodities 3

City and County of San Francisco P-250 Purchase Order Supplemental Terms for Commodities

1. Additional Goods.

If, in the satisfaction of governmental interests it is necessary to purchase additional Goods from Contractor, additional Goods may be added to this Agreement by mutual agreement of the Parties in accordance with Chapter 21 of the San Francisco Administrative Code.

2. Reserved. (Regulatory Requirements)

3. Delivery

Contractor must comply with the following delivery requirements.

A. Notice of Delivery: Prior to all deliveries, Contractor shall provide scheduled delivery dates to the ordering department. Any deliveries made without prior scheduling will be rejected by the department with no additional costs incurred.

B. Hours of Delivery All deliveries shall be made and accepted at the City location indicated by the ordering department between the hours of 8:00 A.M. and 2:00 P.M. (adjust hours if needed)

C. Substitutions: No substitutions will be allowed unless approved in advance in writing by City.

D. Emergency Deliveries: Emergency deliveries shall be delivered by best means possible. Should the emergency delivery cause City to incur additional costs not contemplated by this Agreement, Contractor shall obtain City’s prior approval.

Contractor shall notify City of the estimated time of delivery.

E. Back Orders: Contractor shall notify the ordering department immediately if it is unable to deliver the items and/or quantity ordered. Contractor must notify and obtain approval from the ordering department prior to delivery of any back-ordered items. Department may reject back-ordered items at no additional costs incurred to City. In the event that back-ordered items are delayed in excess of five (5) working days, City reserves the right to reject partial shipment or cancel the item(s) ordered from the Agreement, at no additional cost incurred to City.

F. Packing Slips: All deliveries must include a packing slip and must provide the following information:

1. Complete description including manufacturer’s name and part number

2. Quantity ordered

3. Purchase Order ID

4. Back-ordered items and amount back-ordered

5. Date back-ordered items will be delivered

P-250c (07-24) PO Supplemental Terms for Commodities 4