Attachment_3__Sample_P-600__1-26__HSA_RFP_only.pdf

Contractor Name P-600 (1-26) Program Name, FYxx-xx (full term) 1 of 31 [revise as necessary] FSP #, [term start date]

City and County of San Francisco Office of Contract Administration

Purchasing Division City Hall, Room 430

1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4685

Agreement between the City and County of San Francisco and

[Insert name of contractor] [Insert agreement number]

This Agreement is made this [insert day] day of [insert month], [insert year], in the City and County of San Francisco (“City”), State of California, by and between [name and full address of Contractor] (“Contractor”) and City.

Recitals

WHEREAS, the Human Services Agency/Disability and Aging Services (“Department”) wishes to procure [insert short description of the services to be provided] from Contractor; and

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

[RFP] WHEREAS, Contractor was competitively selected pursuant to a Request for Proposals (“RFP”) entitled [enter RFP name] issued through Sourcing Event ID [Enter Number]; and

[RFQ] WHEREAS, Contractor was competitively selected pursuant to a Request for Qualifications (“RFQ”) entitled [enter RFQ name] issued through Sourcing Event ID [Enter Number] which resulted in a prequalified pool of suppliers from which Contractor was selected as the highest rank proposer in the prequalified pool or as the highest rank proposer after a solicitation by the Department to the prequalified pool or without a further solicitation to the prequalified pool because the Agreement will have a not-to-exceed amount that is less than or equal to the Minimum Competitive Amount as defined by Section 21.02 of the San Francisco Administrative Code; and

[No Solicitation– Waiver Approved by OCA] WHEREAS, Contractor was selected pursuant to San Francisco Administrative Code Section [Enter Admin Code Section]; pursuant to waiver OCAWVRXXXXXXX granted by the Office of Contract Administration; and

[No Solicitation – Waiver Not Approved by OCA] WHEREAS, Contractor was selected pursuant to San Francisco Administrative Code Section [Enter Admin Code Section] pursuant to a waiver granted by [Enter Dept or Commission approving the waiver]; and

[LBE requirements apply] 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

Program Name, FYxx-xx (full term) 2 of 31 [revise as necessary] FSP #, [term start date]

[LBE requirements waived] WHEREAS, this is a contract for Services and the Local Business Enterprise (“LBE”) subcontracting participation requirement for the Services has been waived pursuant to waiver CMD14BXXXXXXX; and

[Micro LBE Set Aside] WHEREAS, this is a Micro LBE Set Aside Contract as defined by Chapter 14B of the San Francisco Administrative Code; and

[Exempt from 14B] WHEREAS, this Contract is deemed exempt from Chapter 14B of the San Francisco Administrative Code because [enter reason] and, as such, there is no Local Business Enterprise (“LBE”) subcontracting participation requirement for this Agreement; and

WHEREAS, the Contract is funded with Federal dollars, ALN # [Insert ALN number]; and

[Single Contract] WHEREAS, approval for the Agreement was obtained on [insert date of Civil Service Commission action or DHR approval date if under $200K] from the [Civil Service Commission or Department of Human Resources on behalf of the Civil Service Commission] under PSC number [insert PSC number] in the amount of [insert Dollar Amount] for the period of [insert number of years]; and

[Multiple Contracts] WHEREAS, approval for the Agreement was obtained on [insert date of Civil Service Commission action or DHR approval date if under $200K] from the [Civil Service Commission or Department of Human Resources on behalf of the Civil Service Commission] under PSC number [insert PSC number] which authorizes the award of multiple agreements, the total value of which cannot exceed [insert dollar amount] and the individual duration of which cannot exceed [insert number of years]; and

[Exempt from PSC] WHEREAS, this Agreement is for [enter qualifying exemption from PSC policy/Service Now] (as defined by the 2023 PSC Policy of the Civil Service Commission) and, as such, is exempt from Civil Service Commission review;

WHEREAS, the City’s [name of Commission] approved this Agreement on [insert date of Commission meeting] in the amount of [insert Dollar Amount] for the period commencing [Insert Start Date] and ending [Insert End Date]; 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 an elected officer of the City, a board on which an elected officer of the City serves, a state agency on whose board an elected officer of the City’s appointee serves, and/or the Board of Supervisors; and

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 an elected officer of the City, a board on which an elected officer of the City serves, a state agency on whose board an elected officer of the City’s appointee serves, and/or the Board of Supervisors; and

Program Name, FYxx-xx (full term) 3 of 31 [revise as necessary] FSP #, [term start date]

WHEREAS, the City’s Board of Supervisors approved this Agreement by [insert resolution number] on [insert date of Board action] in the amount of [insert Dollar Amount] for the period commencing [Insert Start Date] and ending [Insert End Date]; 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 “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.

1.4 “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.

1.5 “Business Associate” or “BAA” has the meaning given to such term under HIPAA and its implementing regulations, including 42 U.S.C. Section 17938 and 45 C.F.R. Section 160.103, as may be amended from time to time.

1.6 “City” means the City and County of San Francisco, a municipal corporation, acting by and through both its Director of the Office of Contract Administration or the Director’s designated agent, hereinafter referred to as “Purchasing” and the Human Services Agency or Disability and Aging Services.

1.7 “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.

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

1.9 “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.

1.10 “Contractor” means [insert name and full address of contractor].

Program Name, FYxx-xx (full term) 4 of 31 [revise as necessary] FSP #, [term start date]

1.11 “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.

1.12 “Deliverables” means Contractor’s or its subcontractors’ work product, including any partially completed work product and related materials, resulting from the Services provided by Contractor to City during the course of Contractor’s performance of the Agreement, including without limitation, work product described in the “Scope of Services” attached as Appendix A.

1.13 “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.

1.14 “Health Care Component” has the meaning given to such term under HIPAA and its implementing regulations, including 45 C.F.R. Section 164.103, as may be amended from time to time.

1.15 “Hybrid Entity” has the meaning given to such term under HIPAA and its implementing regulations, including 45 C.F.R. Section 164.103, as may be amended from time to time.

1.16 “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 Contractor.

1.17 “Party” and “Parties” means City and Contractor either individually or collectively.

1.18 “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.

1.19 “Services” means the work performed by Contractor 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 Contractor under this Agreement.

Article 2 Term of the Agreement

2.1 Term. The term of this Agreement shall commence on [insert start date] and expire on [insert expiration date], unless earlier terminated as otherwise provided herein.

2.2 Options to Extend. City has the option to renew the Agreement for a period of [write out number number] (#) additional years. City may exercise this option at City’s sole and absolute discretion by modifying this Agreement as provided in Section 11.5, Program Name, FYxx-xx (full term) 5 of 31 [revise as necessary] FSP #, [term start date]

“Modification of this Agreement.” Extensions may be for the whole or partial period provided for above.

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 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. 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.

Contractor’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. City’s payment obligation to Contractor 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 City required to honor, any offered or promised payments to Contractor 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. Contractor shall not commence any work under this Agreement until 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 is Amount spelled out ($XXX,XXX) plus a contingency of Amount spelled out ($XXX,XXX) for an Agreement total that shall not exceed Amount spelled out ($XXX,XXX), 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.

Program Name, FYxx-xx (full term) 6 of 31 [revise as necessary] FSP #, [term start date]

3.3.2 Payment Limited to Satisfactory Services. Contractor is not entitled to any payments until City approves the Services delivered. Payments to Contractor by City shall not excuse Contractor 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 Contractor without delay at no cost to City.

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

3.3.4 Invoicing. Contractor 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 Funding Request of the fiscal year which must be submitted by July 31st. Invoices submitted by Contractor 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.

LBE Payment and Utilization Tracking System. If LBE requirements are waived, delete Section 3.3.5 below and replace with Reserved (LBE Payment and Utilization Tracking System).

3.3.5 LBE Payment and Utilization Tracking System. LBE Subcontracting Participation Requirements apply to this Agreement. Contractor shall: (a) within three (3) business days of City’s payment of any invoice to Contractor, pay LBE subcontractors as provided under Chapter 14B.7(H)(9); and (b) within ten (10) business days of City’s payment of any invoice to Contractor, confirm its payment to subcontractors using City’s Supplier Portal Payment Module, unless instructed otherwise by CMD. Failure to submit all required payment information to 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 Grant Funding. If this agreement is funded either partially or in whole by State or Federal funds AND such funds come with grant terms, include the following section. Otherwise delete Section 3.3.6 below and replace with Reserved (Grant Funded Contracts).

3.3.6 Grant Funded Contracts.

(a) Grant Terms. The funding for this Agreement is provided in full or in part by a Federal or State Grant to City. As part of the terms of receiving the funds, City is https://sfcitypartner.sfgov.org/pages/training.aspx

Program Name, FYxx-xx (full term) 7 of 31 [revise as necessary] FSP #, [term start date] required to incorporate some of the terms into this Agreement. The incorporated terms may be found in Appendix [insert appendix letter], “Grant Terms.” To the extent that any Grant Term is inconsistent with any other provisions of this Agreement such that Contractor is unable to comply with both the Grant Term and the other provision(s), the Grant Term shall apply.

(b) Disallowance. If Contractor requests or receives payment from City for Services, reimbursement for which is later disallowed due to Contractor’s non-compliance with the Grant Terms, Contractor 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 Contractor under this Agreement or any other agreement between Contractor and City.

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

3.3.7 Payment Terms.

(a) Payment Due Date: Unless City notifies the Contractor 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 Contractor or, if Contractor agreed to electronic payment, the date City has posted electronic payment to Contractor.

(b) Reserved (Payment Discount Terms).

3.4 Audit and Inspection of Records. Contractor agrees to maintain and make available to City, during regular business hours, accurate books and accounting records relating to its Services. Contractor 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. Contractor 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. The State of California or any Federal agency having an interest in the subject matter of this Agreement shall have the same rights as conferred upon City by this Section. Contractor 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 contractor or subcontractor who submits a false claim shall be liable to the City for the statutory penalties set forth in that section.

Prevailing Wages. Review the Prevailing Wage Requirements and Applicability Guidance to determine if Prevailing Wage applies and, if so, which law governs. If Prevailing Wage is not https://sfgov1.sharepoint.com/:w:/r/sites/ADM-OCAWaiver/Shared%20Documents/SEP%20Guidance%20Memos/Prevailing%20Wage%20Requirements%20and%20Applicability.docx?d=w6f9c039fe57743018ad2ee2ae833a696&csf=1&web=1&e=HRlYm5

Program Name, FYxx-xx (full term) 8 of 31 [revise as necessary] FSP #, [term start date] applicable to this contract, delete Section 3.6 below and replace with Reserved (Payment of Prevailing Wages).

3.6 Payment of Prevailing Wages

3.6.1 Covered Services. Services to be performed by Contractor 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 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 Contractor and its subcontractors.

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. Contractor agrees that it shall pay not less than the highest general Prevailing Rate of Wages, to all workers employed by Contractor 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. Contractor shall insert in every subcontract for the performance of Covered Services under this Agreement a provision requiring subcontractor 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. Contractor shall prominently post at each job site a sign informing employees that the work is subject to the City’s Prevailing Wage requirements and that these requirements are enforced by OLSE. Contractor 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. Contractor 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 timecards, 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 subcontractor who shall perform any part of Covered Services shall keep a like record of each person engaged in the

Program Name, FYxx-xx (full term) 9 of 31 [revise as necessary] FSP #, [term start date] 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. Contractor shall prepare certified payrolls for the period involved for all employees, including those of subcontractors, who performed Covered Services. [The remaining text of this subsection may be deleted if this is a Covered Contract under Article 102 of the Labor and Employment Code and submission of certified payroll records is deemed by the Department to be unnecessary.] Contractor and each subcontractor performing Covered Services shall electronically submit certified payrolls to City using OLSE’s certified payroll reporting system. Contractor and all subcontractors that will perform Covered Services shall attend a training session on the preparation and electronic submission of certified payroll records provided by City. Contractor and applicable subcontractors shall comply with electronic certified payroll requirements (including training) at no additional cost to City.

3.6.7 Compliance Monitoring. Covered Services performed under this Agreement are subject to compliance monitoring and enforcement of prevailing wage requirements by OLSE. Contractor and any subcontractors 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. Contractor agrees that

(i) OLSE shall have the right to engage in random inspections of job sites and have access to the employees of the Contractor, employee time sheets, inspection logs, payroll records and employee paychecks, and (ii) OLSE may audit such records of Contractor and any subcontractors 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 Contractor, or any subcontractor 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, Contractor shall forfeit, and in the case of any subcontractor so failing or neglecting to pay said wage, Contractor and the subcontractor 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.

Article 4 Services and Resources

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

Program Name, FYxx-xx (full term) 10 of 31 [revise as necessary] FSP #, [term start date]

4.2 Qualified Personnel. Contractor 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. Contractor 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 Contractor.

Contractor shall commit sufficient resources for timely completion within the project schedule.

4.3 Subcontracting. Contractor may subcontract portions of the Services only upon prior written approval of City. Contractor is responsible for its subcontractors 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 subcontractors listed below and/or in Appendices.

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

4.4.1 Independent Contractor. For the purposes of this Section 4.4, “Contractor” shall be deemed to include not only Contractor, but also any agent or employee of Contractor. Contractor acknowledges and agrees that at all times, Contractor is an independent contractor and is wholly responsible for the manner and means by which it performs the Services and work required under this Agreement. Contractor, including its agents and employees, will not represent or hold itself/themselves out to be employees of City at any time. Contractor 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. Contractor is liable for its acts and omissions. Contractor 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 Contractor’s performing Services and work, or any agent or employee of Contractor providing same. Nothing in this Agreement shall be construed as creating an employment or agency relationship between City and Contractor, or any of its agents or employees. Contractor agrees to maintain and make available to City, upon request and during regular business hours, accurate books and accounting records demonstrating Contractor’s compliance with Section 4.4. Should City determine that Contractor is not performing in accordance with the requirements of Section 4.4, City shall provide Contractor with written notice of such failure. Within five (5) business days of Contractor’s receipt of such notice, and in accordance with Contractor policy and procedure, Contractor shall remedy the deficiency. Notwithstanding, if City believes that an action of Contractor warrants immediate

Program Name, FYxx-xx (full term) 11 of 31 [revise as necessary] FSP #, [term start date] remedial action by Contractor, City shall contact Contractor and provide Contractor 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 Contractor 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 Contractor which can be applied against 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 Contractor for City, upon notification of such fact by City, Contractor shall promptly remit such amount due or arrange with City to have the amount due withheld from future payments to Contractor under this Agreement (again, offsetting any amounts already paid by Contractor 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, Contractor shall not be considered an employee of City. Notwithstanding the foregoing, Contractor 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 Contractor 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 Reserved. (Liquidated Damages)

4.7 Reserved. (Performance Bond)

4.8 Reserved. (Fidelity Bond or Crime Insurance)

4.9 Emergency - Priority 1 Service. In case of an emergency that affects any part of the San Francisco Bay Area, Contractor 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. Contractor will make every good faith effort in attempting to deliver Services using all modes of transportation available. In addition, the Contractor shall charge fair and competitive prices for Services ordered during an emergency and not covered under the awarded Agreement.

Article 5 Insurance and Indemnity

5.1 Insurance.

Program Name, FYxx-xx (full term) 12 of 31 [revise as necessary] FSP #, [term start date]

Overview. The following types and amounts of insurance are those most commonly required in City contracts. However, departments should tailor the types and amounts of insurance to the particular risks associated with each contract. Examples of what will trigger higher policy limits and additional types of coverage include: PII, PHI, chemicals, fuel, transport of hazardous waste, heavy equipment, aircraft, and any commodity or service that can cause significant property damage or bodily injury. Departments will need to determine the associated risks and insurance coverage requirements prior to issuing a solicitation. In addition, the Risk Management Division must be consulted prior to any reduction in the amount of insurance coverage required (if lower than minimum limits) or removal of these coverages. Such consultation must be documented when submitting the Agreement for approval. Removals should be indicated with Reserved (Clause Name).

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

General Liability Insurance. General Liability insurance is always required. Add “Policy must include Abuse and Molestation coverage.” where Contractor will provide services for vulnerable populations such as minors, the elderly, and/or disabled/dependent adults.

(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.

Auto Liability Insurance. Auto Liability insurance is required unless the contractor submits a written statement that it will not use any vehicles to perform its contractual obligations, in which case Risk Management consultation is not needed. If not applicable, delete Section (b) below and replace with Reserved (Commercial Auto Liability Insurance).

(b) Commercial Automobile Liability Insurance with limits not less than $1,000,000 each occurrence, “Combined Single Limit” for Bodily Injury and Property Damage, including Owned, Non-Owned and Hired auto coverage, as applicable.

Workers’ Compensation Insurance. Workers’ Compensation insurance is required for any company with employees. If Contractor submits a written statement that Workers’ Compensation insurance is not applicable (due to contractor being an individual, sole proprietor or independent contractor), Risk Management consultation is not needed. Delete Section (c) below and replace with Reserved (Workers’ Compensation Insurance).

(c) Workers’ Compensation Liability Insurance, in statutory amounts, with Employers’ Liability Limits not less than $1,000,000 each accident, injury, or illness.

Professional Liability Insurance. Contractors that must be State licensed as professionals to perform services, i.e., social workers, psychologists, medical professionals, architects, engineers, certified public accountants, attorneys, brokers, etc. If the Contractor is not such a

Program Name, FYxx-xx (full term) 13 of 31 [revise as necessary] FSP #, [term start date] professional, then remove Section (d) below and replace with Reserved (Professional Liability Insurance).

(d) Professional Liability Insurance, applicable to Contractor’s profession, with limits not less than $1,000,000 for each claim with respect to negligent acts, errors or omissions in connection with the Services.

Technology Errors and Omissions Insurance. Contractors that will provide the following services must provide Technology Errors and Omissions Insurance: Application Service Providers, Computer Consultants/Engineers, Data Processing or Programming, Data Hosting Services, Internet Services, Software Developers and Computer Systems Management or Data Analysis Services. If the Contractor does not provide such services, then delete Section (e) below and replace with Reserved (Technology Errors and Omissions Insurance). NOTE:

Limits of insurance may be increased according to the Scope of Work, risk, and/or amount of contract. To determine insurance limits, please see the HSA Cyber Insurance Rubric.

(e) Technology Errors and Omissions Liability Insurance, with limits of $20,000,000 for each claim and each loss. The policy shall at a minimum cover professional misconduct or lack of the requisite skill required for the performance of Services defined in this Agreement and shall also provide coverage for the following risks:

(i) Network security liability arising from the unauthorized access to, use of, or tampering with computers or computer systems, including hacker attacks; and

(ii) Liability arising from the introduction of any form of malicious software including computer viruses into, or otherwise causing damage to, City’s or third person’s computer, computer system, network, or similar computer-related property and the data, software, and programs thereon.

Cyber and Privacy Insurance. Contracts for hardware, software or professional services that create or increase the risk of loss of confidential data must include a requirement for Cyber and Privacy Insurance. If the Contractor does not provide such services, then delete Section (f) below and replace with Reserved (Cyber and Privacy Insurance). NOTE: Limits of insurance may be increased in accordance with the number and type of records potentially at risk as well as vendor’s data retention policy. To determine insurance limits, please see the HSA Cyber Insurance Rubric.

(f) Cyber and Privacy Liability Insurance with limits of not less than $5,000,000-$20,000,000 per claim. Such insurance shall include coverage for liability arising from theft, dissemination, and/or use of confidential information, including but not limited to, bank and credit card account information or personal information, such as name, address, social security numbers, protected health information or other personally identifying information, stored or transmitted in any form.

Pollution Liability Insurance. Pollution Liability Insurance is required if the Contractor is required to perform abatement or disposal of contaminated materials. If the Contractor does

Program Name, FYxx-xx (full term) 14 of 31 [revise as necessary] FSP #, [term start date] not provide such services, then delete Section (g) below and replace with Reserved (Pollution Liability Insurance).

(g) Pollution Liability Insurance applicable to Contractor’s activities and responsibilities under this Agreement with limits not less than $X,000,000 each occurrence, including coverage for on-site third party claims for bodily injury and property damage.

5.1.2 Additional Insured

(a) The Commercial General Liability Insurance policy must include as Additional Insured the City and County of San Francisco, and its Officers, Agents, and Employees.

Commercial Automobile Liability Insurance Additional Insured Endorsement. If Auto Liability Insurance is not required, delete Section (b) below and replace with Reserved (Commercial Automobile Liability Insurance Additional Insured Endorsement).

(b) The Commercial Automobile Liability Insurance policy must include as Additional Insured the City and County of San Francisco and its Officers, Agents, and Employees.

Pollution Additional Insured Endorsement: If Pollution Liability Insurance is not required, delete Section (c) below and replace with Reserved (Pollution Additional Insured Endorsement).

(c) The Commercial Automobile Liability Insurance policy include (i) Auto Pollution Additional Insured including as Additional Insured the City and County of San Francisco and its Officers, Agents, and Employees; and (ii) Form MCS-90 for Motor Carrier Policies of Insurance for Public Liability under Sections 29 and 30 of the Motor Carrier Act of 1980.

Workers Compensation Insurance Waiver of Subrogation. If Workers Compensation Insurance is not applicable or if Contractor is NOT performing the Services on City property and/or premises, delete Section 5.1.3 below and replace with Reserved (Workers Compensation Insurance Waiver of Subrogation). Seek City Risk Manager approval if Contractor is expected to enter City premises but is not willing to provide the waiver of subrogation endorsement.

5.1.3 Waiver of Subrogation. The Workers’ Compensation Insurance policy(ies) shall include a waiver of subrogation in favor of City for all work performed by the Contractor, and its employees, agents and subcontractors.

5.1.4 Primary Insurance

(a) The Commercial General Liability Insurance policy shall provide that such policies are primary insurance to any other insurance available to the Additional Insureds, with respect to any claims arising out of this Agreement, and that the insurance applies separately to each insured against whom claim is made or suit is brought.

Program Name, FYxx-xx (full term) 15 of 31 [revise as necessary] FSP #, [term start date]

Auto Liability Insurance as Primary Insurance. If Auto Liability Insurance is not required, delete Section(b) below and replace with Reserved (Auto Liability Insurance as Primary Insurance).

(b) The Commercial Automobile Liability Insurance policy shall provide that such policies are primary insurance to any other insurance available to the Additional Insureds, with respect to any claims arising out of this Agreement, and that the insurance applies separately to each insured against whom claim is made or suit is brought.

Pollution Liability Insurance as Primary Insurance. If Pollution Liability Insurance is not required, delete Section (c) below and replace with Reserved (Pollution Liability Insurance as Primary Insurance).

(c) The Pollution Liability Insurance policy shall provide that such policies are primary insurance to any other insurance available to the Additional Insureds, with respect to any claims arising out of this Agreement, and that the insurance applies separately to each insured against whom claim is made or suit is brought.

5.1.5 Other Insurance Requirements

(a) Thirty (30) days’ advance written notice shall be provided to City of cancellation, intended non-renewal, or reduction in coverages, except for non-payment for which no less than ten (10) days’ notice shall be provided to City. Notices shall be sent to City address set forth in Section 11.1 entitled “Notices to the Parties.”

(b) Should any of the required insurance be provided under a claims-made form, Contractor shall maintain such coverage continuously throughout the term of this Agreement and, without lapse, be maintained for a period of three (3) years beyond the expiration of this Agreement, to the effect that, should occurrences during the Agreement term give rise to claims made after expiration of the Agreement, such claims shall be covered by such claims-made policies.

(c) Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general annual aggregate limit shall be double the occurrence or claims limits specified above.

(d) Should any required insurance lapse during the term of this Agreement, requests for payments originating after such lapse shall not be processed until City receives satisfactory evidence of reinstated coverage as required by this Agreement, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this Agreement effective on the date of such lapse of insurance.

(e) Before commencing any Services, Contractor shall furnish to City certificates of insurance including additional insured and waiver of subrogation status, as required, with insurers with ratings comparable to A-, VIII or higher, that are authorized to do business in the State of California, and that are satisfactory to City, in form evidencing all

Program Name, FYxx-xx (full term) 16 of 31 [revise as necessary] FSP #, [term start date] coverages set forth above. Approval of the insurance by City shall not relieve or decrease Contractor’s liability hereunder.

(f) If Contractor will use any subcontractor(s) to provide Services, Contractor shall require the subcontractor(s) to provide all necessary insurance and to name the City and County of San Francisco and its officers, agents, and employees, and the Contractor as additional insureds and waive subrogation in favor of City, where required.

5.2 Indemnification.

5.2.1 Contractor shall indemnify and hold 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 Agreement, 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 Agreement applicable to subcontractors; except to the extent 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, experts, and related costs, and City’s costs of investigating any claims against City.

5.2.2 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.

5.2.3 Contractor shall indemnify, defend, 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 Contractor’s Services.

5.2.4 Under no circumstances will City indemnify, defend, or hold harmless Contractor.

Article 6 Liability of the Parties

Program Name, FYxx-xx (full term) 17 of 31 [revise as necessary] FSP #, [term start date]

6.1 Liability of City. CITY’S TOTAL LIABILITY UNDER THIS AGREEMENT, INCLUDING

WITHOUT LIMITATION ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, SHALL BE

LIMITED TO THE PAYMENT OF THE COMPENSATION PROVIDED FOR IN SECTION 3.3.1,

“CONTRACT NOT TO EXCEED AMOUNT,” OF THIS AGREEMENT. NOTWITHSTANDING ANY

OTHER PROVISION OF THIS AGREEMENT, 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 AGREEMENT OR THE

SERVICES PERFORMED IN CONNECTION WITH THIS AGREEMENT.

6.2 Liability for Use of Equipment. City shall not be liable for any damage to persons or property as a result of the use, misuse or failure of any equipment used by Contractor, or any of its subcontractors, or by any of their employees, even though such equipment is furnished, rented or loaned by City.

Liability for Incidental and Consequential Damages.