02_Att_1_City_s_Contract_Terms_PED_10.02.26.pdf

Sourcing Event ID 11697 October 02, 2026 PWP-690 (4-26); Attachment 1 City’s Contract Terms

ATTACHMENT 1

CITY CONTRACT TERMS

[Consultant Name] 1 of 36 [Agreement Date] PW-606 (1-26) [Contract ID]

City and County of San Francisco San Francisco Public Works

49 South Van Ness Avenue, Suite 1600 San Francisco, CA 94103

Agreement between the City and County of San Francisco and

[Name of Consultant]

[Contract/Project Title]

This Agreement is made this [DAY] of [MONTH] [YEAR] in the City and County of San Francisco (“City”), State of California, by and between [CONSULTANT] (“Consultant”) and City.

Recitals

WHEREAS the Port of San Francisco (“Department”) wishes to procure professional pre-construction engineering and design services for the Waterfront Resilience Program (“WRP”) – [Northern/Southern] Waterfront from Consultant; and

WHEREAS Consultant represents that it is qualified to perform the Services required by City as set forth under this Agreement; and

WHEREAS, Consultant was competitively selected pursuant to a Request for Proposals (“RFP”) entitled Request for Proposals for Pre-Construction Engineering and Design Services Port of San Francisco – Waterfront Resilience Program issued through Sourcing Event ID 00000XXXXX; and

WHEREAS, this is a contract for Services and there is a Local Business Enterprise (“LBE”) subcontracting participation requirement with respect to the Services, as defined further herein; and

WHEREAS, approval for the Agreement was obtained on June 01, 2026, from the Civil Service Commission under [(DHRPSC0006192 or DHRPSC0006276)]; and

WHEREAS, the City’s Port Commission approved this Agreement by [Resolution number] on [Date of Commission action]; and

WHEREAS, the City’s [Board of Supervisors] approved this Agreement by [Resolution number] on [Date of Board action]; and

WHEREAS, the Department has filed Ethics Form 126f2 (Notice of Submission of Proposal) because this Agreement has a value of $100,000 or more in a fiscal year and will require the approval of the Board of Supervisors; and

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WHEREAS, the Department will file Ethics Form 126f4 (Notification of Contract Approval) within five days of execution of the Agreement because this Agreement has a value of $100,000 or more in a fiscal year and will require the approval of the Board of Supervisors; and

Now, THEREFORE, the parties agree as follows:

Article 1 Definitions The following definitions apply to this Agreement:

1.1 “Agreement” means this contract document, including all attached appendices, and all applicable City Ordinances and Mandatory City Requirements specifically incorporated into this Agreement by reference as provided herein.

1.2 “Appendices” means the appendices listed in Article 14 (“Appendices”) herein.

1.3 “City” or “the City” means the City and County of San Francisco, a municipal corporation, acting by and through Port of San Francisco.

1.4 “Artificial Intelligence” or “Artificial Intelligence Model” means an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.

1.5 “Artificial Intelligence System” means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.

1.6 “City Data” means all data collected, used, maintained, processed, stored, and/or generated by or on behalf of City in connection with this Agreement. City Data includes, without limitation, Confidential Information and Deliverable Data.

1.7 “CMD” means the Contract Monitoring Division of the City.

1.8 “Confidential Information” means confidential City information including, but not limited to, personal identifiable information (“PII”), protected health information (“PHI”), or individual financial information (collectively, “Proprietary or Confidential Information”) that is subject to local, state or federal laws restricting the use and disclosure of such information.

Confidential Information includes, without limitation, City Data.

1.9 “Consultant” means [Consultant Name and address], the entity providing professional consulting services under this Agreement.

1.10 “Deliverable Data” means any data that is required to be delivered to City as a Deliverable, or as a part of a Deliverable, under this Agreement.

1.11 “Deliverables” means Consultant’s or its subconsultants’ work product, including any partially completed work product and related materials, resulting from the Services provided by Consultant to City during the course of Consultant’s performance of the

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Agreement, including without limitation, the work product described in the “Scope of Services” attached as Appendix A.

1.12 “Generative Artificial Intelligence” means Artificial Intelligence that can generate derived synthetic content, such as text, images, video, and audio, that emulates the structure and characteristics of the Artificial Intelligence’s training data.

1.13 “Mandatory City Requirements” means those City laws set forth in the San Francisco Municipal Code, including the duly authorized rules, regulations, and guidelines implementing such laws that impose specific duties and obligations upon Consultant.

1.14 “Party” and “Parties” means the City and Consultant either individually or collectively.

1.15 “Personal Identifiable Information (PII)” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household. Personal information includes, but is not limited to, the following if it identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular individual or household as further defined in the California Consumer Privacy Act.

1.16 “Quality Assurance/Quality Control (QA/QC)” means the quality assurance and quality control process, including any QA/QC plan required under Appendix A, used to support delivery of Services and Deliverables that are technically sound, complete, coordinated, and consistent with the Project’s scope, requirements, and design intent.

1.17 “Services” means the work performed by Consultant under this Agreement as specifically described in the “Scope of Services” attached as Appendix A, including all services, labor, supervision, materials, equipment, actions and other requirements to be performed and furnished by Consultant under this Agreement.

1.18 “Solicitation” means the City's request for proposals (RFP), request for qualifications (RFQ) or other procurement document issued for the Services.

1.19 “Task Order” means a written work assignment issued under this Agreement that identifies the specific Services authorized by the City, including the applicable scope, Deliverables, schedule, staffing, budget or compensation, and authorization to proceed.

Article 2 Term of the Agreement

2.1 Term. The term of this Agreement shall commence on the issuance date of the

Notice to Proceed and expire after 3652 calendar days, unless earlier terminated as otherwise provided herein.

2.2 Options to Extend. City has the option to extend the Agreement subject to appropriate required approvals, including but not limited to approval by the Civil Service Commission. City may exercise this option at City’s sole and absolute discretion by modifying this Agreement as provided in Section 11.5, “Modification of this Agreement.” Extensions may be for the whole or partial period provided for above.

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Article 3 Financial Matters

3.1 Certification of Funds; Budget and Fiscal Provisions.

3.1.1 Termination in the Event of Non-Appropriation. This Agreement is subject to the budget and fiscal provisions of Section 3.105 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 Agreement will terminate without penalty, liability or expense of any kind to the City at the end of any fiscal year if funds are not appropriated for the next succeeding fiscal year. If funds are appropriated for a portion of the fiscal year, this Agreement will terminate, without penalty, liability or expense of any kind at the end of the term for which funds are appropriated. The City has no obligation to make appropriations for this Agreement in lieu of appropriations for new or other agreements. City budget decisions are subject to the discretion of the Mayor and the Board of Supervisors.

Consultant’s assumption of risk of possible non-appropriation is part of the consideration for this Agreement.

THIS SECTION CONTROLS AGAINST ANY AND ALL OTHER PROVISIONS OF THIS AGREEMENT.

3.1.2 Maximum Costs. The City’s payment obligation to Consultant cannot at any time exceed the amount certified by City’s Controller for the purpose and period stated in such certification. Absent an authorized emergency per the City 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 Consultant under this Agreement in excess of the certified maximum amount without the Controller having first certified the additional promised amount and the Parties having modified this Agreement as provided in Section 11.5, “Modification of this Agreement.”

3.2 Authorization to Commence Work. Consultant shall not commence any work under this Agreement until the City has issued formal written authorization to proceed, such as a purchase order, task order or notice to proceed. Such authorization may be for a partial or full scope of services.

3.3 Compensation.

3.3.1 Contract Not to Exceed Amount. The amount of this Agreement shall not exceed [whole dollar amount], the breakdown of which appears in Appendix B, “Calculation of Charges.” City shall not be liable for interest or late charges for any late payments. City will not honor minimum service order charges for any Services covered by this Agreement.

(a) Calculation of Task Order Compensation and Contract Not to Exceed Amount. The City will pay Consultant on a task-order basis for Services it performs under this Agreement. The total amount of the Task Orders awarded under this agreement shall not exceed (“NTE”) [whole dollar amount in numbers and words in bold]. This amount is based on the City’s estimated spend for the contract term. Should the City’s actual spend exceed its estimated spend for the contract term, the City may in its sole discretion increase the contract NTE for the contract term. City shall not be liable for interest or late charges for any late payments. City will not honor minimum service order charges for any Services covered by this Agreement. Consultant’s compensation for the Services it performs under Task Orders shall

[Consultant Name] 5 of 36 [Agreement Date] be based on either: (a) a negotiated lump-sum price (that includes all direct hourly labor rates, overhead, profit, and all other costs) for the Task Order; or (b) a negotiated number of hours per Task Order subject to a total not to exceed amount (using the hourly labor rates set forth in Appendix B and Appendix C plus a fixed profit). The City may withhold a portion of payment as a reasonable retention until the conclusion of the Task Order. Consultant’s compensation for Task Orders shall be based on the following:

(b) Direct Hourly Labor Rates. The direct hourly labor rates in Appendix C are fixed negotiated rates and shall not change for the first 12 months after the Effective Date of this Agreement. Thereafter, during the term of this Agreement, Consultant may request annual escalation based on the annual percentage change in the Consumer Price Index for All Urban Consumers for the San Francisco-Oakland-Hayward area (CPI-U). No direct hourly rate may be increased without prior written approval of the Port. Consultant must request any escalation of these direct hourly labor rates no later than 30 Days before the anniversary of the Effective Date of this Agreement, and failure to timely do so may result in a denial of the request. Any requests for escalation of direct hourly labor rates must include evidence of the change in the CPI-U, evidence of payroll documentation, and an updated Appendix B for the Port’s approval. The Port will review all requests for escalation of direct hourly labor rates within 30 Days of receipt and notify Consultant of either an approval or denial. If approved, the new rates will become effective as of the date of the approval, but no earlier than the anniversary of the Effective Date of this Agreement. In no event will the start of the new rates be backdated. Subsequent rate escalations will be effective no less than one year after the most recent prior rate escalation.

(c) Overhead Rates.

(i) The overhead rates in Appendix D shall be billed at that fixed level until 12 months after the Effective Date of this Agreement. Thereafter, during the term of this Agreement, the overhead rates in Appendix D may be adjusted annually with prior written approval from the Port and will be effective as of the date of the approval. The Consultant’s and subconsultants’ overhead rates are subject to audit in compliance with Federal Acquisition Regulation (FAR) Part 31 for all firms with a proposed contract value exceeding $500,000.

(ii) The overhead billing rates in Appendix D, including any adjustment to such rates as provided for above, are subject to readjustment to reflect actual rates as described in this paragraph. Within 180 Days of the end of Consultant’s fiscal year that immediately follows the expiration or any earlier termination of this Agreement, Consultant shall submit Consultant’s and all subconsultants’ actual rates during the term of this Agreement to the Project Manager. For each rate paid to the Consultant that exceeds the Consultant’s or any subconsultant’s actual rate, the Consultant shall reimburse to the City the total difference between the rate paid and Consultant’s or subconsultant’s actual rate during the term of this Agreement. Consultant shall reimburse City within 30 Days of written notice from City seeking reimbursement. For each actual overhead rate of Consultant or subconsultant that exceeds the rate paid to Consultant, City shall pay to Consultant the difference between the actual rate and the rate paid during the term of the Agreement. City shall reimburse Consultant within 60 Days of City’s receipt of all of Consultant’s actual rates. Nothing in this paragraph shall limit City’s right to audit and inspect Consultant’s rates as provided above.

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(d) Profit

(i) The Parties shall negotiate a profit as a lump sum amount for each Phase (Management & Coordination Services, Plan Development, and Project Development), and it shall be no greater than 10%, applied to the total cost of the Task Order of each Phase. It is understood and agreed that the profit is a fixed amount that cannot be exceeded because of any differences between the estimated number of hours required to perform the Services in a Task Order and the actual number of hours required to perform the work. In no event shall payments to the Consultant exceed the total amount of the Task Order.

The Port may approve an increase in the profit only if such increase is required due to an increase in the Services or to additional work that increases the Services. The profit shall not be increased for Consultant’s additional level of effort to complete the Services. It is further understood and agreed that the profit is only due and payable for Task Order work for which the Port has given notice to proceed and for which the Consultant has satisfactorily completed.

(ii) The profit will be prorated and paid monthly in proportion to the Services satisfactorily completed. A payment for an individual month shall include that approved portion of the profit allocable to the Task Order work satisfactorily completed during said month and not previously paid. Any portion of the profit not previously paid in the monthly payments shall be included in the final payment. The method of proration may be adjusted by the Port to reflect deletions or amendments in the project work that are approved as herein described.

(iii) If the Services are reduced, that reduction shall be memorialized in an amendment to the Task Order, and the profit for that work shall be reduced, as negotiated by the Parties, but such reduction shall not be less than the proportional value of the reduced Services.

(e) Reimbursable Costs. This Agreement is subject to federal regulations concerning the reimbursement and audit of expenses, costs and overhead as set forth in the “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” 2 CFR Part 200 (Federal Cost Requirements). The Consultant acknowledges that it is familiar with the Federal Cost Requirements. Consultant shall not seek reimbursement and the City shall not pay reimbursement to Consultant for costs (including but not limited to direct costs, indirect costs, and overhead) that are not compensable under the Federal Cost Requirements. Consultant understands and acknowledges that the City shall not reimburse Consultant for Consultant’s costs under this Agreement that are not reimbursable to City from its funding agencies in accordance with the Federal Cost Requirements. All payments to Consultant under this Agreement are subject to audit and adjustment in accordance with the requirements and standards set out in the Federal Cost Requirements.

3.3.2 Payment Limited to Satisfactory Services. Consultant is not entitled to any payments until City approves the Services delivered. Payments to Consultant by City shall not excuse Consultant from its obligation to replace the unsatisfactory Services even if the unsatisfactory character was apparent or could have been detected at the time such payment was made. Non-conforming Services may be rejected by City and in such case must be replaced by Consultant without delay at no cost to City.

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3.3.3 Withhold Payments. If Consultant fails to provide the Services in accordance with Consultant’s obligations under this Agreement, City may withhold any and all payments due to Consultant until such failure to perform is cured, and Consultant shall not stop work as a result of City’s withholding of payments as provided herein.

3.3.4 Invoicing. Consultant shall invoice the City for the Services provided under this Agreement on a timely basis, and in no event later than 30 days after delivery of the Services or as specified in Appendix B, Calculation of Charges, except for the last invoice of the fiscal year which must be submitted within 15 days before the end of July. Invoices submitted by Consultant must be in a form acceptable to the Controller and City and include a unique invoice number and a specific invoice date. Payment shall be made by City as specified in Section 3.3.7, or in such alternate manner as the Parties have mutually agreed upon in writing.

All invoices must show the PeopleSoft Purchase Order ID Number, PeopleSoft Supplier Name and ID, Item numbers (if applicable), complete description of Services performed, sales/use tax (if applicable), contract payment terms and contract price. Invoices that do not include all required information or contain inaccurate information will not be processed for payment.

(a) Electronic Payment and Invoice Submission

(i) The City utilizes a commercial product through its banking partner to pay City Consultants electronically. Consultants shall sign up to receive electronic payments to be paid under this Agreement. To sign up for electronic payments, visit SF City Partner at sfgov.org.

(ii) At the option of the City, Consultant may be required to submit invoices directly in the City’s financial and procurement system. Refer to https://sfcitypartner.sfgov.org/pages/training.aspx for more information.

3.3.5 Prompt Payment of Subconsultants

(a) LBE Payment and Utilization Tracking System. LBE Subcontracting Participation Requirements apply to a contract awarded pursuant to this Solicitation, the Awarded Consultant shall: (a) within three (3) business days of City’s payment of any invoice to Consultant, pay LBE subconsultants as provided under Chapter 14B.7(H)(9); and (b) within ten

(10) business days of City’s payment of any invoice to Consultant, confirm its payment to subconsultants using the City’s Supplier Portal Payment Module, unless instructed otherwise by CMD. Failure to submit all required payment information to the City’s Supplier Portal Payment Module with each payment request may result in the withholding of twenty (20%) of subsequent payments due. Self-Service Training is located at this link:

https://sfcitypartner.sfgov.org/pages/training.aspx.

(b) Subconsultant Prompt Payment. Except as otherwise required by Chapter 14B of the Administrative Code, and consistent with the provisions of Section 6.42(f) of the Administrative Code, Consultant shall pay its subconsultants within seven calendar days after receipt of each progress payment from the City, unless otherwise agreed to in writing by both Consultant and the subconsultant. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from Consultant to a subconsultant, the Consultant may withhold the disputed amount, but shall pay the undisputed amount. If Consultant violates the provisions of Section 6.42(f), then Consultant shall pay to the https://sfcitypartner.sfgov.org/pages/index.aspx https://sfcitypartner.sfgov.org/pages/index.aspx https://sfcitypartner.sfgov.org/pages/training.aspx https://sfcitypartnersfgov.org/pages/training.aspx

[Consultant Name] 8 of 36 [Agreement Date] subconsultant directly the penalty specified in Section 6.42(f). This provision does not create a private right of action against the City.

3.3.6 Grant Funded Contracts.

(a) Grant Terms. The funding for this Agreement may be provided in full or in part by a Federal or State Grant to the City. To the extent that any Grant Term is inconsistent with any other provisions of this Agreement such that Consultant is unable to comply with both the Grant Term and the other provision(s), the Grant Term shall apply.

(b) Disallowance. If Consultant requests or receives payment from City for Services, reimbursement for which is later disallowed due to Consultant’s non-compliance with the Grant Terms, Consultant shall promptly refund the disallowed amount to City upon City’s request. At its option, City may offset the amount disallowed from any payment due or to become due to Consultant under this Agreement or any other agreement between Consultant and City.

(c) Subgrantees. Consultant shall insert each Grant Term into each lower tier subcontract. Consultant is responsible for compliance with the Grant Terms by any subconsultant, lower-tier subconsultant or service provider.

3.3.7 Payment Terms.

(a) Payment Due Date. Unless City notifies the Consultant that a dispute exists, Payment shall be made within 30 calendar days, measured from (1) the rendering of the Services or (2) the date of receipt of the invoice, whichever is later. Payment is deemed to be made on the date City issued a check to Consultant or, if Consultant agreed to electronic payment, the date City has posted electronic payment to Consultant.

(b) Reserved (Payment Discount Terms).

3.4 Audit and Inspection of Records. Consultant agrees to maintain and make available to the City, during regular business hours, accurate books and accounting records relating to its Services. Consultant will permit City to audit, examine and make copies of such books and records, and to make audits of all invoices, materials, payrolls, records or personnel and other data related to all other matters covered by this Agreement, whether funded in whole or in part under this Agreement. Consultant shall maintain such data and records in an accessible location and condition for a period of not less than five years after final payment under this Agreement or until after final audit has been resolved, whichever is later. Consultant shall include the same audit and inspection rights and record retention requirements in all subcontracts.

3.5 Submitting False Claims. The full text of San Francisco Administrative Code Section 21.35, including the enforcement and penalty provisions, is incorporated into this Agreement. Any Consultant or subconsultant who submits a false claim shall be liable to the City for the statutory penalties set forth in that section.

3.6 Payment of Prevailing Wages.

3.6.1 Covered Services. Services to be performed by Consultant under this Agreement will involve the performance of work covered by Articles 101 through 107 of the San Francisco Labor and Employment Code, as applicable, including without limitation the

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California Labor Code provisions incorporated therein (collectively, “Covered Services”), all of which is incorporated into this Agreement as if fully set forth herein and will apply to any Covered Services performed by Consultant and its subconsultants.

3.6.2 Wage Rates. The latest prevailing wage rates for private employment on public contracts as determined by the San Francisco Board of Supervisors, as such prevailing wage rates may be changed during the term of this Agreement, are hereby incorporated as provisions of this Agreement. Consultant agrees that it shall pay not less than the highest general Prevailing Rate of Wages to all workers employed by Consultant who perform Covered Services under this Agreement. Copies of the Prevailing Rate of Wages as fixed and determined in accordance with Labor and Employment Code Section 103.2 are available from the City’s Office of Labor Standards and Enforcement (“OLSE”) and are on file at the Department’s principal office or at the job site and shall be made available to any interested party on request.

3.6.3 Subcontract Requirements. Consultant shall insert in every subcontract for the performance of Covered Services under this Agreement a provision requiring subconsultant to pay all persons performing labor in connection with Covered Services under the subcontract not less than the highest general prevailing rate of wages as determined by the Board of Supervisors for such labor and services.

3.6.4 Job Site Notices and Records. Consultant shall prominently post at each job-site a sign informing employees that the work is subject to City’s Prevailing Wage requirements and that these requirements are enforced by OLSE. Consultant shall also maintain a sign-in and sign-out sheet in a format prescribed by OLSE showing which employees are present on the job site.

3.6.5 Payroll Records. Consultant shall keep or cause to be kept, for a period of four years from the date of completion of the subject work, complete and accurate payroll records for all workers performing Covered Services, including without limitations time cards, trust fund reports, apprenticeship agreements, accounting ledgers, tax forms, proof of payment, and superintendent and foreperson daily logs for all trades workers performing work.

Such records shall include the name, address and social security number of each worker who provided Covered Services, including apprentices, their classification, a general description of the Services each worker performed each day, the rate of pay (including rates of contributions for, or costs assumed to provide fringe benefits), daily and weekly number of hours worked, deductions made and actual wages paid. Every subconsultant who shall perform any part of Covered Services shall keep a like record of each person engaged in the execution of Covered Services under the subcontract. All such records shall at all times be available for inspection of and examination by City and its authorized representatives.

3.6.6 Certified Payrolls. Consultant shall prepare certified payrolls for the period involved for all employees, including those of subconsultants, who performed Covered Services. Consultant and each subconsultant performing Covered Services shall electronically submit certified payrolls to City using OLSE’s certified payroll reporting system. Consultant and all subconsultants that will perform Covered Services shall attend a training session on the preparation and electronic submission of certified payroll records provided by City. Consultant and applicable subconsultants shall comply with electronic certified payroll requirements (including training) at no additional cost to City.

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3.6.7 Compliance Monitoring. Covered Services performed under this Agreement are subject to compliance monitoring and enforcement of prevailing wage requirements by OLSE. Consultant and any subconsultants performing Covered Services will cooperate fully with OLSE and other City employees and agents authorized to assist in the administration and enforcement of the prevailing wage requirements. Consultant agrees that (i) OLSE shall have the right to engage in random inspections of job sites and have access to the employees of the Consultant, employee time sheets, inspection logs, payroll records and employee paychecks, and (ii) OLSE may audit such records of Consultant and any subconsultants as it reasonably deems necessary. Failure to comply with these requirements may result in penalties and forfeitures pursuant to the California Labor Code, including Section 1776(h), as amended from time to time, and San Francisco Labor and Employment Code Article 101 through 107, as applicable.

3.6.8 Remedies. Should Consultant, or any subconsultant performing Covered Services, fail or neglect to pay to the persons who perform Covered Services under this Agreement or subcontract for the Covered Services, the general prevailing rate of wages as herein specified, Consultant shall forfeit, and in the case of any subconsultant so failing or neglecting to pay said wage, Consultant and the subconsultant shall jointly and severally forfeit, back wages due plus the penalties set forth in the San Francisco Labor and Employment Code and/or California Labor Code Section 1775. City, when certifying any payment which may become due under the terms of this Agreement, shall deduct from the amount that would otherwise be due on such payment the amount of said forfeiture.

3.7 Apprentices.

3.7.1 Consultant and its subconsultants of every tier that provide Covered Services under this Agreement (as defined in Section 10.20 above) shall, as a material term of the Agreement, comply with the requirements of the State Apprenticeship Program (as set forth in the California Labor Code, Division 3, Chapter 4 [commencing at Section 3070], and Section 1777.5 of the Labor Code) and Administrative Code Section 6.22(n). Consultant shall be solely responsible for securing compliance with Labor Code Section 1777.5 for all apprentice able occupations.

3.7.2 Consultant shall include in all of its subcontracts the obligation for subconsultants to comply with the requirements of the State Apprenticeship Program.

3.7.3 Should Consultant fail to comply with the apprenticeship requirements of Labor Code Section 1777.5, Consultant shall be subject to the penalties prescribed in Labor Code Section 1777.7. The interpretation and enforcement of Labor Code Section 1777.5 shall be in accordance with rules and procedures prescribed by the California Apprenticeship Council.

3.7.4 Consultant, if not signatory to a recognized apprenticeship training program under Labor Code, Chapter 4, shall provide to the City with all progress payment requests, starting with the second such request, satisfactory evidence that it has contributed to the appropriate apprenticeship fund(s). Consultant shall require its subconsultants who are not signatories to provide such evidence to the City as a condition precedent for qualifying for payment from the City.

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3.7.5 Consultant shall comply with all requests by the City to provide proof that Consultant and all of its subconsultants at every tier providing Covered Services are in compliance with the State Apprenticeship Program, including proof that Consultant and all of its subconsultants at any tier providing Covered Services contributed to the appropriate apprenticeship fund(s).

Article Services and Resources

4.1 Services Consultant Agrees to Perform. Consultant agrees to perform the

Services stated in Appendix A, “Scope of Services.” Officers and employees of the City are not authorized to request and the City is not required to compensate for Services beyond those stated.

4.1.1 Task Order Procedures. Consultant shall perform the Services under Task Orders the Port issues in accordance with the process described below.

(a) Task Order Requirements. The Port will define requirements for Task Orders.

(b) Task Order Scope of Work. The Task Order scope of work, cost and estimated time to perform the task fully will be agreed upon in advance of the start of work on the task in accordance with the terms and conditions of this Agreement, generally following the procedures outlined below. The cost of preparing invoices, including required LBE forms, and the Consultant Task Order proposal must be incorporated into the overhead rate (as approved in Appendix D). Separately from overhead, project management time required by a particular Task Order may incorporate, but not be limited to, preparation of meeting materials, summary of meeting notes, and a task monitoring system (e.g., bi-weekly project reports or monthly status updates).

(c) Presentations. In the performance of assigned tasks, the Consultant, if requested by City, shall prepare graphic and written presentations, and participate in presentations of said material to various City departments, commissions, and interested community groups.

(d) Current Workload and Available Resources. The Consultant covenants that its current workload and the workload of its subconsultants will not affect the commencement and the progress of the work under a Task Order. The Consultant shall have all the necessary professional, technical and support personnel, including those of the subconsultants, available, ready and mobilized to perform actual work within two weeks of the receipt of NTP on a particular Task Order. In addition, the Consultant shall make good faith efforts to have all contracts signed with subconsultants within three weeks of NTP for the overall Contract. Consultant shall provide copies of said subcontracts to the Port upon request.

(e) Transmittal of Work Product. When requested by the Port’s Project Manager, and after completion of each task and subtask, the Consultant shall transmit to the Port all Work Product (duplicates and originals) produced or accumulated in the course of its and its subconsultants’ work on this Agreement. The Consultant’s Project Manager shall have thoroughly reviewed and approved all Work Product and signed off as such prior to transmitting them to the Port.

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(f) The Port’s Responsibilities Regarding Submittals. The Port will review and comment on Consultant’s submittals generally within two calendar weeks of submittal. The Port and Consultant will establish a timetable of submittals and reviews in the initial coordination meetings and include such a timetable in the approved Task Order. The Port’s review and comments of Consultant submittals shall in no way relieve the Consultant of its independent responsibility to perform its own quality checks and review, nor shall any comment or review by the Port relieve the Consultant of its independent responsibility to provide submittals and deliverables in full compliance with local, state and federal codes, regulations and standards. If Consultant considers certain Port review comments or directives, either written or oral, to require work efforts not included in the Task Order, the Consultant shall within five business days of discovering the perceived extra work provide the Port with either a written Consultant Request for Information under subsection 4.3.3 below, or a Consultant Proposal to perform additional work under the Task Order, which contains all of the information required by subsection 4.3.4 below for a Consultant Task Order Proposal.

4.1.2 Task Order Request. The Port will provide Consultant a Task Order request that includes the following: (a) the scope of Services, including any Deliverables; (b) the deadline to respond to the Task Order request (i.e., deadline to prepare and submit Task Order proposal); and (c) the expected timeline (including any milestones) to complete the task.

4.1.3 Consultant Request for Information. Upon receiving a Task Order request, Consultant shall request in writing any information or data it requires to complete the proposal and perform the Services under the Task Order. The Parties will reach agreement as to the availability and delivery time for this data and information during initial task negotiations.

4.1.4 Consultant Task Order Proposal. By no later than the deadline set forth in the Task Order request, Consultant shall prepare and submit to the Port a Task Order proposal that includes, at minimum, the following items:

(a) A work plan that includes the following: (i) a detailed description, by task, and, if applicable, subtask of the scope of Services to be performed under the Task Order; (ii) Consultant’s approach to perform the Services and complete the Task Order; and (iii) any information or data Consultant requires to perform the Task Order.

(b) A schedule to complete the Task Order, including key milestone dates to complete each task, subtask, and Deliverable, as applicable.

(c) A list of personnel and subconsultants Consultant proposes to work on each Task Order; and, for each personnel and subconsultant, a description of the task(s) or subtask(s) they will perform.

(d) A detailed cost estimate for each task, subtask or Deliverable showing:

(i) Estimated number of hours and direct hourly labor rates (as listed in Appendix C) for each personnel and subconsultant proposed to work on the Task Order. The following labor costs are not allowed and shall not be included in Consultant’s cost estimates: labor to prepare monthly invoices, and labor to fill out required LBE forms. Overtime labor hours will not be allowed without prior written approval. If overtime is approved, it will be billed at the billing rates listed and not at one and one-half times the billing rate;

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(ii) Overhead, including salary burden costs (% rates as listed in Appendix D) for both Consultant and Subconsultants; to arrive at this cost, the overhead rate is multiplied by the cost in (i) above;

(iii) Estimated reasonable reimbursable expenses;

(iv) Profit as follows: Profit will be negotiated on a Task Phase basis after contract award and will not exceed 10%.

4.1.5 Negotiation of Cost and Profit. The Port Project Manager will review the Task Order proposal and negotiate with Consultant pricing for the Task Order, which shall be a fixed profit to perform the work of each subtask and task and a total not-to-exceed price for the Task Order.

4.1.6 Record of Negotiations. The Port’s Project Manager will document the negotiations and any agreement in a Record of Negotiations.

4.1.7 Notice to Proceed. The Port will issue and send to Consultant a Task Order Form, written notice to proceed (NTP), and Task Order number. Consultant shall not commence work under any Task Order until it receives a corresponding NTP and purchase order from the Port.

4.2 Qualified Personnel. Consultant represents and warrants that it is qualified to perform the Services for which it is contracted to provide through this Agreement, and that all Services will be performed by competent personnel with the degree of skill and care required by current and sound professional procedures and practices. Consultant will comply with City’s reasonable requests regarding assignment and/or removal of personnel, but all personnel, including those assigned at City’s request, must be supervised by Consultant. Consultant shall commit sufficient resources for timely completion within the project schedule.

4.3.1 Substitution of Key Personnel. The Consultant and Port mutually agree that personnel identified in the Consultant’s RFP submittal will be the personnel assigned to work on Port projects barring circumstances beyond the Consultant’s control such as voluntary or involuntary terminations of the assigned staff.

(a) Should any assigned key staff need replacement, such replacement shall be subject to the Port’s approval and represent no cost increase to the Port.

Replacement staff shall be equally or more qualified than the replaced staff. All staff required to perform contracted work shall be identified and approved by the Port’s assigned Project Manager prior to commencement of work.

(b) Any personnel changes must be approved in writing by the Port in advance of commencement of work. Consultant’s failure to secure such written approval may result in disapproval of billing charges for applicable completed work. Hourly rate increases for key employees due to promotions will be subject to the Port’s review on a case-by-case basis, and only after the first two years of the contract. The Port may reject these proposed rate increases based on the state of local economic conditions such as the city budget. On-going certified payroll records shall be required to document any authorized Port approved promotional staffing changes. The Port reserves the right to request replacement of promoted staff with equally qualified staff at the same billing rates included in this Agreement for that classification.

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(c) If new personnel classifications are added at a later date, Consultant’s billing rates shall not exceed the predetermined rates established by this Agreement. If such classifications are not included on the Port’s rate schedule, then the Port reserves the right to review such classifications as to reasonableness of fees and make adjustments accordingly.

4.3 Subcontracting. Consultant may subcontract portions of the Services only upon prior written approval of City. Consultant is responsible for its subconsultants throughout the course of the work required to perform the Services. All subcontracts must incorporate the terms of Article 10 “Additional Requirements Incorporated by Reference” of this Agreement, unless inapplicable. Neither Party shall, on the basis of this Agreement, contract on behalf of, or in the name of, the other Party. Any agreement made in violation of this provision shall be null and void. City’s execution of this Agreement constitutes its approval of the subconsultants listed in Appendix C.

4.4 Independent Consultant; Payment of Employment Taxes and Other Expenses.

4.4.1 Independent Consultant. For the purposes of this Section 4.4, “Consultant” shall be deemed to include not only Consultant, but also any agent or employee of Consultant. Consultant acknowledges and agrees that at all times, Consultant is an independent Consultant and is wholly responsible for the manner and means by which it performs the Services and work required under this Agreement. Consultant, including its agents and employees, will not represent or hold itself/themselves out to be employees of City at any time.

Consultant shall not have employee status with City, nor be entitled to participate in any plans, arrangements, or distributions by City pertaining to or in connection with any retirement, health or other benefits that City may offer its employees. Consultant is liable for its acts and omissions. Consultant shall be responsible for all obligations and payments, whether imposed by federal, state or local law, including, but not limited to, FICA, income tax withholdings, unemployment compensation, insurance, and other similar responsibilities related to Consultant’s performing Services and work, or any agent or employee of Consultant providing same. Nothing in this Agreement shall be construed as creating an employment or agency relationship between City and Consultant, or any of its agents or employees. Consultant agrees to maintain and make available to City, upon request and during regular business hours, accurate books and accounting records demonstrating Consultant’s compliance with Section

4.4. Should City determine that Consultant is not performing in accordance with the requirements of Section 4.4, City shall provide Consultant with written notice of such failure.

Within five (5) business days of Consultant’s receipt of such notice, and in accordance with Consultant policy and procedure, Consultant shall remedy the deficiency. Notwithstanding, if City believes that an action of Consultant warrants immediate remedial action by Consultant, City shall contact Consultant and provide Consultant in writing with the reason for requesting such immediate action.

4.4.2 Payment of Employment Taxes and Other Expenses. Should City, in its discretion, or a relevant taxing authority such as the Internal Revenue Service or the State Employment Development Division, or both, determine that Consultant is an employee for purposes of collection of any employment taxes, the amounts payable under this Agreement shall be reduced by amounts equal to both the employee and employer portions of the tax due (and offsetting any credits for amounts already paid by Consultant which can be applied against

[Consultant Name] 15 of 36 [Agreement Date] this liability). City shall then forward those amounts to the relevant taxing authority. Should a relevant taxing authority determine a liability for past Services performed by Consultant for City, upon notification of such fact by City, Consultant shall promptly remit such amount due or arrange with City to have the amount due withheld from future payments to Consultant under this Agreement (again, offsetting any amounts already paid by Consultant which can be applied as a credit against such liability). A determination of employment status pursuant to Section 4.4 shall be solely limited to the purposes of the particular tax in question, and for all other purposes of this Agreement, Consultant shall not be considered an employee of City.

Notwithstanding the foregoing, Consultant agrees to indemnify and hold harmless City and its officers, agents and employees from, and, if requested, shall defend them against any and all claims, losses, costs, damages, and expenses, including attorneys’ fees, arising from Section 4.4

4.5 Assignment. The Services to be performed by Consultant are personal in character. This Agreement may not be directly or indirectly assigned, novated, or otherwise transferred unless first approved by City by written instrument executed and approved in the same manner as this Agreement. Any purported assignment made in violation of this provision shall be null and void.

4.6 Standard of Care. Consultant acknowledges and agrees that Consultant shall perform its services under this Agreement in accordance with the professional standard of care applicable to professionals providing similar services for projects of similar type, size and complexity in the San Francisco Bay Area.

4.6.1 Design Corrections and Damages. Consultant shall be responsible to the City for all costs, losses, or damages to the extent caused by Consultant’s negligent acts, errors, or omissions in performing the services under this Agreement. If the City identifies a potential design error, omission, or flaw, Consultant shall promptly review the matter and, if the issue results from Consultant’s negligent breach of the professional standard of care, Consultant shall provide all necessary corrections, revisions, or supplemental documents at no cost to the City.

Consultant’s responsibility under this section is limited to direct damages incurred by the City.

4.7 Reserved (Liquidated Damages).

4.8 Reserved (Performance Bond).

4.9 Reserved (Fidelity Bond).

4.10 Emergency - Priority 1 Service. In case of an emergency that affects any part of the San Francisco Bay Area, Consultant will give the City and County of San Francisco Priority 1 service with regard to the Services procured under this Agreement unless preempted by State and/or Federal laws. Consultant will make every good faith effort in attempting to deliver Services using all modes of transportation available. In addition, the Consultant shall charge fair and competitive prices for Services ordered during an emergency and not covered under the awarded Agreement.

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Article 5 Insurance and Indemnity

5.1 Insurance.

5.1.1 Required Coverages. Without in any way limiting Consultant’s liability pursuant to the “Indemnification” section of this Agreement, Consultant must maintain in force, during the full term of the Agreement, insurance in the following amounts and coverages:

(a) Commercial General Liability Insurance with limits not less than $1,000,000 each occurrence for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations. Policy must include Abuse and Molestation coverage.

(b) Commercial Automobile Liability Insurance with limits not less than…