1. INSTRUCTIONS TO CONTRACTOR. Contractor shall include RTD’s purchase order number on invoices, packing lists, bills of lading, packages, containers, and correspondence processed under this order. A packing list shall accompany each shipment of goods and, if such shipment completes the purchase order, shall show there: “This shipment completes this order.” RTD will not pay Contractor costs incurred for boxing, crating, shipping insurance, handling, banding, etc., unless previously agreed upon and indicated on the original purchase order. Goods shall be packaged to ensure safe arrival at destination; goods not properly packed may be rejected by RTD.
2. CONTRACTOR’S ACCEPTANCE. This purchase order constitutes an offer by RTD to Contractor to purchase the goods or services covered by the purchase order. In the event of any inconsistency or conflict among these terms and conditions and other documents, the following order of precedence shall apply: (a) these terms and conditions; (b) terms written on the face of or otherwise referenced in the purchase order; and (c) any related purchase or service agreement for which the purchase order form is an attachment. Upon acceptance of this purchase order, shipment of goods or commencement of services, Contractor shall be bound by the provisions of this purchase order, including all provisions set forth in the purchase order whether or not Contractor signs or otherwise acknowledges this purchase order, unless Contractor objects to any specific provisions in a writing delivered to RTD reasonably prior to shipping goods or commencing services.
3. PAYMENTS. Invoices, whether for goods or services, shall be submitted to RTD and shall contain the following information: Contractor’s Legal Name, Purchase Order Number, Total Purchase Order Amount, Item Number, Description of Goods/Services, Quantity, Unit, Unit Price, and Total Amount Due. Submit invoices to: [email protected] Unless otherwise specified, payment will be made on partial deliveries accepted by RTD when the amount due on such deliveries so warrants. Service rates set forth in the purchase order include all profit, wages, salaries, overhead, taxes and other costs and expenses. RTD shall make no payment for work performed at overtime or premium rates unless such work is expressly authorized by RTD.
4. DISCOUNTS. If a prompt payment discount is negotiated, its terms will be specifically identified in the purchase order. For purposes of earning such discount, payment shall be deemed tendered as of the date such payment is placed in the U.S. Mail.
5. TAX EXEMPTION. RTD is a political subdivision of the State of Colorado and is exempt from federal excise tax under 26 U.S.C.A. § 4221-4222 (2002). RTD is exempt from Colorado state sales and state-collected sales taxes (Colorado State: 98-00688). RTD is not exempt from any local sales and use tax levied by a home rule city unless that municipality specifically exempts political subdivisions from payment of such sales and use taxes.
6. DELIVERY, INSPECTION, AND ACCEPTANCE. Time is of the essence in the performance of this purchase order. Delivery of goods shall be FOB destination, unless otherwise specified on the purchase order. Inspection and acceptance by RTD will be at shipping destination, unless otherwise provided. Risk of loss shall remain with Contractor until tender of delivery, installation (if applicable), and acceptance of goods by RTD. Where RTD rightfully rejects or revokes acceptance of goods, in accordance with Article 7, the risk of loss shall be deemed to have remained continuously with Contractor from the beginning. When goods are delivered, certificates or releases signed by representatives of RTD are understood to be a simple acknowledgement of receipt of goods and do not constitute acceptance by RTD of the condition of the materials in whole or in part. RTD reserves the right to return goods delivered in advance of any prescribed delivery schedule.
7. NONCONFORMING GOODS. If the goods ordered fail to conform to the requirements of this purchase order, RTD shall have the right to reject such goods. Goods that have been delivered and rejected may be returned to Contractor for replacement, correction, reimbursement, or credit as RTD may direct; any rejected goods are at Contractor’s risk and expense. Packaging and handling expenses and applicable transportation costs incidental to returned or rejected goods shall be payable by Contractor. Upon non-acceptance, repudiation or rejection of any goods, RTD shall not be liable for any profit Contractor would have made, nor for incidental damages. If, after notice of rejection, Contractor fails to promptly replace or correct such rejected items, such items may be replaced or corrected by RTD at the expense of Contractor.
8. VARIATION IN QUANTITY. No variation in the quantity of any item called for by the purchase order will be accepted unless such variation has been caused by conditions of loading, shipping, packing, or allowances in manufacturing processes, and then only to the extent, if any, specified elsewhere in this purchase order. Variations in quantity not meeting these criteria may render the tender of delivery nonconforming.
9. BRAND NAME OR EQUAL. If an item is identified as "brand name or approved equal" in this purchase order, the purchase description reflects the characteristics and level of quality that will satisfy RTD’s needs. The salient physical, functional, or performance characteristics that "approved equal" products must meet are specified in the purchase order. Unless RTD has clearly indicated in writing that an "equal" product has been approved, and is identified by brand name, if any, and make or model number, the Contractor shall provide the brand name product referenced in the purchase order.
10. NEW MATERIAL. Unless this purchase order specifies otherwise, the Contractor represents that the goods and components, including any former RTD property identified, are new, including recycled (not used or reconditioned), and are not of such age or so deteriorated as to impair their usefulness or safety. If the Contractor believes that furnishing used or reconditioned goods or components will be in RTD's interest, the Contractor shall notify the Contracting Officer in writing. The Contractor's notice shall include the reasons for the request along with a proposal for any cost-savings to RTD if RTD authorizes the use of used or reconditioned goods or components.
11. WARRANTY. Contractor expressly warrants that all goods and services covered by this purchase order shall conform to the Specifications, drawings, samples or other description upon which this purchase order is based; conform to commercially reasonable standards; are fit and sufficient for the purposes intended; are merchantable; are of good material and workmanship and free from defects; and are free of any claim of any third party. RTD’s inspection and acceptance or use of the goods or services furnished under this purchase order shall not affect the Contractor’s obligation under these warranties, and such warranties shall survive RTD’s inspection and acceptance and use. Any inspection, acceptance or payment for goods and services by RTD shall not constitute a waiver by RTD of any warranties. These warranties shall run to RTD, its successors, and assigns.
12. CONTRACTOR REPRESENTATION. Contractor represents and warrants that it has sufficiently informed itself in all matters affecting the performance of the work or the furnishing of the labor, services, goods, supplies, material or equipment as specified in the purchase order. All goods and services supplied shall conform to commercially reasonable standards. All personnel assigned by Contractor to perform services to be furnished under this purchase order shall be capable, skilled, qualified and competent to perform such services. RTD may require Contractor to remove from RTD property or from the work under this purchase order any employee, agent, or representative of Contractor or any of its subcontractors that RTD deems incompetent, careless, or negligent. Contractor further represents and warrants that the prices stated in this purchase order are a complete and correct statement of Contractor’s prices for furnishing the goods and services required by this purchase order and are not less favorable than those currently extended to any other customer for the same or like goods or services in equal or smaller amounts
13. HAZARDOUS MATERIALS. If goods purchased under this purchase order contain hazardous materials or are themselves hazardous, Contractor represents and warrants that Contractor understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials. Contractor is required to provide a Manufacturer’s Safety Data Sheet on all hazardous materials supplied.
14. PROMPT PAYMENT OF SUBCONTRACTORS. The Contractor agrees that (i) it shall pay its subcontractor(s) any undisputed amounts for the satisfactory performance of their work within seven days of the Contractor’s receipt of payment from RTD for such work; (ii) within 30 days after a subcontractor’s work has been satisfactorily completed and accepted by RTD’s Project Manager or by the Contractor, whichever is earlier, the Contractor shall make full payment to the subcontractor of any retainage the Contractor has kept related to such subcontractor’s work, unless a claim is filed against the subcontractor related to such work; (iii) failure to comply with the above may give RTD just cause to impose one or more of the following penalties, until the required payment(s) to the Contractor’s subcontractor(s) is satisfied, unless RTD has given prior written approval to the Contractor for the delay or postponement of payment(s): (1) withhold payments to the Contractor; (2) assess sanctions against the Contractor; (3) assess the subcontractor’s indirect or consequential damages against the Contractor; (4) disqualify the Contractor from future bidding on RTD contracts as non-responsible; (5) enforce the payment bond against the Contractor; (6) pay the subcontractor(s) directly and deduct this amount from any retainage owed to the Contractor; (7) provide notice of default to the Contractor, stating the potential for termination or suspension of the Contract, in whole or in part; (8) issue a stop-work order until the subcontractor(s) is paid, which order shall constitute an unauthorized delay under the Contract that could result in liquidated damages against the Contractor; and (iv) it shall ensure that tiered subcontractors comply with this section and that they insert provisions (i) and (ii) of this section into all lower-tiered subcontractor agreements. For locally funded purchase orders with an SBE goal, on a monthly basis the Contractor shall submit a report of its payments to its SBE subcontractors, using Form E. The Contractor shall ensure that its SBE subcontractors at every tier submit a monthly report of their receipt of payments from the Contractor, using Form E-2. All report forms are attached to the purchase order and shall be submitted to the RTD Small Business Office, 1660 Blake Street – BLK-31, Denver, Colorado 80202 or by email to RTD SBO’s designated compliance officer for this purchase order. For federally funded purchase orders, on a monthly basis the Contractor shall submit to RTD a report of its payments to its non-DBE subcontractors, using Form F. The Contractor shall ensure that its non-DBE subcontractors at every tier submit a monthly report of their receipt of payments from the Contractor, using Form F-2. All report forms are attached to the purchase order. Unless approved by RTD, the Contractor’s failure to comply with this section is a material breach of the purchase order.
15. HOLD HARMLESS. Contractor agrees to defend, indemnify, and hold harmless RTD, its directors, managers, employees, agents and assigns from and against any and all claims, suits, demands, damages, liabilities, settlements, and court awards including costs, expenses, and reasonable attorneys’ fees, to the extent such claims are caused, in whole or in part, by any act or omission of the Contractor, its employees, agents, subcontractors or assignees arising from, related to, in connection with, or in any way involving the good and/or services procured under this purchase order, but not to the extent such claims are caused solely by any act or omission by RTD, its directors, managers, employees, agents, or other contractors or assignees.
16. INSURANCE. (This Article applies if and to the extent that Contractor’s duties under this purchase order require or contemplate performance of services by Contractor’s employees, or persons under contract to Contractor, to be done on property under ownership, possession, or control of RTD.) Contractor shall maintain insurance coverages as specified in the RFQ or purchase order, if any, and shall provide proof of such coverage to RTD prior to commencing work or performance under this purchase order. If no coverages are specified in the RFQ or purchase order, Contractor shall maintain all necessary insurance coverages for the work to be provided under the purchase order, including comprehensive general liability and statutory workers' compensation insurance.
17. COLORADO GOVERNMENTAL IMMUNITY ACT. Notwithstanding any other provision of this purchase order, no term or condition of this purchase order shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions of the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended.
18. NOTICE OF CLAIM OR ACTION FILED. The Contractor shall give RTD through the Contracts and Procurement Manager immediate notice of any suit or action filed or prompt notice of any claim made against the Contractor arising out of the performance of this purchase order. The Contractor shall furnish immediately to the Contracts and Procurement Manager copies of all pertinent papers received by the Contractor. If the amount of the liability claimed exceeds the amount of insurance coverage required by the purchase order, the Contractor shall authorize representatives of RTD to collaborate with counsel for the insurance carrier, if any, in settling or defending such claim.
19. LAWS APPLICABLE. Contractor shall comply with all applicable local, state and federal laws, rules, and regulations, and shall obtain all permits required for any of the work to be performed under this purchase order. Contractor shall comply with Executive Order 11246, Non-Discrimination under Federal Contracts, the provisions of which are by this reference incorporated and made a part of this purchase order. Contractor shall comply with any labor agreements executed by RTD applicable to the work to be performed under this purchase order, copies of which agreements may be obtained from RTD upon written request. Contractor shall, at RTD’s request, discharge any incompetent, dishonest, or uncooperative employee.
20. TERMINATION FOR DEFAULT. RTD’s General Manager, or his or her delegate, may, by written notice to Contractor, terminate this purchase order, in whole or in part, for failure of Contractor to comply with any of the provisions of this purchase order. In such event, Contractor shall be liable for damages, including the excess cost to RTD of procuring replacement goods or services, provided that if it is determined for any reason that Contractor was not in default or, Contractor’s failure to perform is beyond its control, fault, or negligence, the termination shall be deemed to be a termination for convenience under Article 19. In the event of termination for default, the Contractor shall be compensated solely for work satisfactorily performed prior to the effective date of termination.
21. TERMINATION FOR CONVENIENCE. RTD’s General Manager, or his or her delegate, may, by written notice to Contractor, terminate this purchase order, in whole or in part, at any time when it is in the best interest of RTD. If this purchase order is so terminated, Contractor shall be compensated solely for goods inspected, accepted and not subsequently rejected for nonconformity by RTD. If and to the extent that this purchase order is for services and is so terminated, RTD shall be liable only for payment for services rendered to the satisfaction of RTD prior to the effective date of termination. The Contractor shall have no right to recover lost profits on the balance of the work or any other measure of damages.
22. APPROPRIATIONS. All obligations of RTD under this purchase order that require funding are subject to prior annual appropriations of monies expressly made by the Board of Directors of RTD for the purposes of this purchase order. Nothing in this purchase order shall be construed by either the Contractor or RTD as a multiple fiscal year obligation as described by Article X, Section 20 of the Colorado Constitution. If funding is not appropriated by the Board of Directors, RTD may terminate or modify the purchase order as required. Additional funding to the purchase order will be accomplished by a written amendment. No legal liability on the part of RTD for any payment may arise for performance under this purchase order beyond the current funding year, until funds are made available to the Contracting Officer for performance and until the Contractor receives notice of availability.
23. DISPUTES. Except as otherwise provided in this purchase order and/or in any attachments to this purchase order, any dispute arising under this purchase order concerning a question of fact that is not disposed of by agreement shall be decided by RTD’s General Manager, or his or her delegate. Contractor will be notified of the decision in writing. To the extent allowable by law, any such decision shall be final, conclusive, and not subject to judicial review unless shown to be fraudulent, capricious, arbitrary, or so grossly erroneous as to imply bad faith.
24. REMEDIES. Each of the rights and remedies reserved by RTD in this purchase order shall be cumulative and additional to any other or further remedies provided in law or equity or in this purchase order. A waiver by RTD of a breach of any provision of this purchase order shall not constitute a waiver of any other breach of the same or another provision of this purchase order.
25. OFFICIALS AND EMPLOYEES NOT TO BENEFIT. No employee of RTD or any member of its governing body shall have any personal or financial interest, direct or indirect, in this purchase order, or any contract executed subsequently in connection with this purchase order, during his or her respective tenure or for one year thereafter. No director, officer, employee, or agent of RTD shall be interested in any contract or transaction with RTD except in his or her official representative capacity.
26. GRATUITIES. No gratuities (in the form of entertainment, gifts, or otherwise) may be offered to any employee of RTD or any member of its governing body with the intent to obtain favorable treatment under any contract or transaction with RTD. Upon violation of this Article, RTD may, by written notice to Contractor, terminate for default this purchase order and any other purchase order or contract that Contractor has with RTD. In addition, the Contractor may be permanently barred from participating in future purchase orders or contracts with RTD.
27. ASSIGNMENT. Contractor shall not assign, transfer, or encumber, in whole or in part, its obligations under this purchase order or any of its rights, title or interest in the same without prior written consent of RTD.
28. LAWS GOVERNING; JURISDICTION AND VENUE. This purchase order shall be construed pursuant to the laws of the State of Colorado. Jurisdiction and venue for all disputes under this purchase order shall be in the District or County Court in Denver, Colorado.
29. DBE/SBE UTILIZATION. Contractor shall cooperate with RTD with regard to maximum utilization of disadvantaged or small business enterprises and shall use its best efforts to ensure that disadvantaged or small business enterprises shall have the maximum practicable opportunity to compete for subcontract work, if any, under this purchase order.
30. INDEPENDENT CONTRACTOR. The relationship of Contractor to RTD shall be that of an independent contractor and nothing in this purchase order shall be construed as creating any employer/employee, agency, or other relationship of any kind with Contractor or its employees.
31. COMPLIANCE WITH LAWS. Contractor agrees that all goods and services supplied in the performance of this purchase order shall fully comply with all applicable federal, state, or local laws, rules, regulations, or ordinances. Contractor shall, if requested by RTD, supply certification and evidence of such compliance.
32. NONDISCRIMINATION. In connection with this purchase order, the Contractor shall not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability.
33. BACKGROUND CHECKS. (This Article applies to purchase orders for services only.) Contractor shall conduct background investigations on all Contractor employees who will receive access control badges providing access to RTD facilities. Contractor shall be primarily responsible for conducting and examining such background investigations, provided that Contractor’s background investigation shall, at minimum, include a Colorado Bureau of Investigation Criminal History Check covering the previous seven years, an examination of the employee’s employment history covering the previous ten years, and, where appropriate, a complete Colorado Motor Vehicle Driver’s history. Contractor shall evaluate background information according to Contractor’s own policies and procedures; however, RTD shall not accept any Contractor employee whose background information reveals (a) conviction for any theft-related offense; (b) conviction for any sex-related offense; or (c) conviction of assault, domestic violence, or weapons offense. Any documentation concerning the background investigations shall be maintained as confidential by the Contractor, but shall be made available for inspection by RTD on three days’ notice. In all cases where Contractor employees receive access control badges, it shall be the responsibility of the Contractor to return the badges to RTD at the end of the assignment. Contractor shall pay a replacement fee for any access control badge that needs to be replaced. Prior to receiving any access control badges, Contractor shall be required to provide the name of each employee assigned to perform under the purchase order and a certification that Contractor has conducted background investigations for each of those employees. No work shall commence and no access control badges will be issued until certification has been received by RTD. Any subsequent substitution of an employee shall require separate certification, which must be received before a new employee is provided an access control badge. Failure to provide certification or provision of false information under this Article is basis for termination of this purchase order. Each Contractor employee performing work under this purchase order must wear an access control badge when present at any RTD facility. For the purposes of this Article, Contractor’s employees include any agents and subcontractors assigned to perform services under this purchase order.
34. HEADINGS. The headings of these terms and conditions are for reference purposes only and are not restrictive as to content.
35. SEVERABILITY. If any part, term, or provision of this purchase order is held by a court to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of Contractor and RTD shall be construed and enforced as if the purchase order did not contain the particular part, term, or provision held to be invalid.
36. ENTIRE AGREEMENT; MODIFICATIONS. This purchase order (and any related purchase or service agreement for which this purchase order is an attachment) constitutes the entire agreement for sale and purchase of the goods and/or services identified in this purchase order, and is expressly limited to and made conditional upon Contractor’s acceptance of all terms and conditions. Any additional or different terms and conditions contained in any prior quotation or that may be contained in any acknowledgment of this purchase order shall be deemed objected to by RTD without further notice of objection and shall be of no effect nor under any circumstances be binding upon RTD. The terms of this purchase order cannot be changed or qualified except in writing by RTD’s General Manager or his or her delegate.
37. ELECTRONIC SIGNATURES. This purchase order may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, “electronic signature” shall include faxed versions of an original signature, electronically scanned and transmitted versions of an original signature, and digital signatures.
Purchase Order Terms and Conditions
Revision Date: 06.2022
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