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In any contract for Commodities or Services, the Contracting Officer is hereby authorized, with the approval of the City Attorney, to waive future City rights to incidental and consequential damages arising from the performance of the contract, or to agree to limit damages caused by the contractor's negligence to a specified amount. The factors to be evaluated in determining whether damages should be waived or capped in a particular case shall include but are not limited to:
(a) Whether, in light of insurance and bond requirements, the performance of the contract is likely to create undue risk of damages to the City;
(b) Whether the language proposed in the contract waiving future claims to incidental and consequential damages or limiting the contractor's liability for damages caused by the contractors negligence is standard in the industry to which the contract relates;
(c) The best interests of the City.
(Added by Ord. 156-99, File No. 990743, App. 6/2/99)
(Added by Ord. 78-22, File No. 220392, App. 5/20/2022, Eff. 6/20/2022; expired 7/1/2023)
(Former Sec. 21.24 added by Ord. 156-99, File No. 990743, App. 6/2/99; Repealed by Ord. 9-11, File No. 101007, App. 1/7/2011)
Editor’s Note:
Former Sec. 21.24 (“Short-Term Contract Extensions”) expired on 7/1/2023 per the terms of its sunset clause and was removed from the Code at the direction of the Office of the City Attorney.
(a) Procurement. Contracts with a Government Entity are exempt from the solicitation requirements of Chapters 21 and 14B.
(b) Contractor’s Obligations. As set forth in Section 1.25 of this Code, Contracts with a Government Entity are not subject to provisions of the Municipal Code, including but not limited to the Administrative, Labor and Employment, Environment, or Police Codes, imposing obligations or other restrictions on contractors.
(c) Scope. This Section 21.25 applies to all contracts under Chapter 21, however they are titled, including but not limited to any agreement, memorandum of understanding, or similar instrument memorializing mutual obligations between the City and a Government Entity or Government Entities.
(Added by Ord. 107-24, File No. 240301, App. 5/24/2024, Eff. 6/24/2024)
(Former Sec. 21.25 added by Ord. 156-99, File No. 990743, App. 6/2/99; Repealed by Ord. 9-11, File No. 101007, App. 1/7/2011)
(Added by Ord. 222-99, File No. 990877, App. 8/6/99; Repealed by Ord. 9-11, File No. 101007, App. 1/7/2011)
(Added by Ord. 3-03, File No. 021504, App. 1/24/2003; Repealed by Ord. 9-11, File No. 101007, App. 1/7/2011)
(Added by Ord. 76-04, File No. 021505, App. 5/6/2004; Repealed by Ord. 9-11, File No. 101007, App. 1/7/2011)
(Added by Ord. 299-06, File No. 061468, App. 12/12/2006; Ord. 5-07, File No. 061584, App. 1/19/2007; Repealed by Ord. 9-11, File No. 101007, App. 1/7/2011)
(Added by Ord. 169-04, File No. 040540, App. 7/22/2004; Repealed by Ord. 9-11, File No. 101007, App. 1/7/2011)
In the case of any contract for homemaker and chore Services to be awarded pursuant to California Welfare and Institutions Code Sections 12300 et seq., the Purchaser, on the recommendation of the department head concerned and the approval of the board or commission in charge of such department, upon the ground that the public interest would be best served by requiring the inclusion of such provisions in the contract, shall require that each Offeror, as part of its Offer, submit a certified semi-annual audit, and further shall require each offeror to give preference to those homemakers employed under the previous contract to ensure continuity of wages, fringe benefits and seniority rights.
(Added by Ord. 156-99, File No. 990743, App. 6/2/99)
(a) Quantities. Contracts may be made for definite or indefinite quantities of Commodities or Services.
(b) Record Keeping. Any requirements contract shall include a mechanism for maintaining records of all City orders made pursuant to the contract, including inventories of any Commodity subject to a maintenance service agreement.
(Added by Ord. 156-99, File No. 990743, App. 6/2/99)
Whenever a contract for the acquisition of Commodities specifies a particular product, the contract shall allow acquisition of any upgraded comparable equivalent product at an equal or lesser price in lieu of the specified product.
(Added by Ord. 156-99, File No. 990743, App. 6/2/99)
(a) Pricing specifications during the term of a contract for Commodities may require fixed pricing, unspecified pricing, or may combine fixed prices for some Commodities and unspecified pricing for others, as is determined to be in the best interests of the City by the Contracting Officer.
(b) If fixed prices are required by the Solicitation, such fixed prices shall represent the maximum price that the contractor may charge for the Commodities specified in the contract, and the Solicitation shall specify that the contractor must provide for price reductions as a Commodity becomes less expensive and the contractor's costs for that Commodity are reduced.
(c) Contracting Officers are encouraged to include price warranties or "most-favored customer" clauses in contracts, as appropriate, to give the City consistent access to the contractor's lowest prices.
(Added by Ord. 156-99, File No. 990743, App. 6/2/99)
(a) The Board of Supervisors hereby approves the execution of perpetual, nonexclusive software licensing agreements which warrant performance of the software according to specifications and which are for an amount of less than ten million dollars, including any associated escrow agreement for source code or finance agreement, without further Board approval.
(b) Software licensing procurements are not subject to the contracting requirements of the Administrative, Labor and Employment, or Environment Codes, but shall be subject to the requirements established by Section 21.03(j) and Chapter 67. For the purpose of this section, software licensing procurements shall be deemed to include both the licensed software product, any escrow agreement for source code, finance agreements, and support services for such product where support for that product is available only from the licensor.
(c) Agreements for the development of software shall include acceptance testing of the software and/or performance criteria, and shall condition payments on successful completion of the acceptance test or satisfaction of the performance criteria specified in the contract.
(d) Where a vendor has proprietary rights to software or where maintenance of equipment by a particular vendor is required to preserve a warranty, software support and equipment maintenance agreements entered into with that vendor shall be treated as a sole source for the purposes of any contract requirements included in the Municipal Code.
(e) A Contracting Officer is authorized to make payment for software license fees and software support, equipment maintenance and associated escrow and finance fees in advance of receiving services under a contract.
(Added by Ord. 156-99, File No. 990743, App. 6/2/99; amended by Ord. 115-05, File No. 050595, App. 6/17/2005)
No Commodity furnished under any contract made under the provisions of this chapter shall have been made in a prison or by convict labor, except for Commodities made in a prison or by convicts under the supervision and control of the California Department of Corrections and limited to Commodities for use by the City's detention facilities.
(Added by Ord. 156-99, File No. 990743, App. 6/2/99)
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