SE_11404_Attachment_1_-_City_s_Contract_Terms.pdf

October 22, 2026 Sourcing Event 0000011404 P-690 (04-26): Attachment 1 City’s Contract Terms

Sourcing Event 0000011404 Attachment 1

City’s Contract Terms

[Contractor Name] 1 of 36 [Date]

P-615cg (01-26) [PeopleSoft Contract ID]

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

OCA Technology Marketplace Micro-LBE Set Aside Master Agreement for (Enter LBE Certification Category Name and Code) between the City and County of San Francisco

And

[Insert name of contractor]

TC 99421

[Insert PeopleSoft Contract ID]

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 of

Contractor] (“Contractor”) and City.

Recitals

WHEREAS, the Office of Contract Administration (“Department”) seeks to procure, on behalf of the City, information technology products and services on an as-needed basis through the

Technology Marketplace (as defined below) from Contractor; and

WHEREAS, Contractor represents and warrants that it is qualified to deliver the Services and

Goods required by City as set forth under this Agreement; and

WHEREAS, Contractor was competitively selected pursuant to a Request for Proposals

(“RFP”) entitled OCA | TC 99421 Tech Marketplace 3.0 mLBE Set Asides issued through

Sourcing Event ID 0000011404; and

WHEREAS, the Local Business Entity (“LBE”) subcontracting participation requirement with respect to the Services under this Agreement is not applicable because this is a Micro-LBE

Set-Aside Contract (as defined under Chapter 14B of the San Francisco Administrative Code);

and

WHEREAS, approval for the Agreement was obtained on September 18, 2023, from the Civil

Service Commission under PSC 44539-22/23 which authorizes the award of multiple agreements, the total value of which cannot exceed $180,000,000 and the individual duration of which cannot exceed five (5) years.

Now, THEREFORE, the parties agree as follows:

[Contractor Name] 2 of 36 [Date]

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 “Ancillary Artificial Intelligence (AI) Tools” means commercially available, general purpose software or online services, or feature that use artificial intelligence, machine learning, natural language processing, predictive analytics, or similar techniques solely to assist with incidental, administrative, or efficiency-enhancing tasks such as spelling/grammar checking, email drafting, transcription, formatting, or other ancillary, administrative, or efficiency-enhancing functions.

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 “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.

1.7 “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 all City Departments authorized to utilize this Agreement for the purpose of securing the Goods and/or Services described herein .

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

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

1.10 “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.

[Contractor Name] 3 of 36 [Date]

1.11 “Contractor” or “Consultant” means Contractor as defined above and any sub- Contractor(s) providing services under this Agreement (“Sub-Contractor”), accompanying

Purchase Order (as defined under Chapter 21) and corresponding documents of the services to be performed under this Agreement.

1.12 “Core Contract Work” means all work products, analyses, deliverables, professional judgments, or other substantive services the Contractor is obligated to provide under this Agreement. Core Contract Work includes any work requiring the Contractor’s professional expertise, accuracy, discretion, technical judgment, or other specialized skills and/or expertise.

1.13 “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.

1.14 “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, the work product as described in the attached

Appendices and any Purchase Orders executed under this Agreement.

1.15 “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.

1.16 “Goods” or “Commodities” means the products, materials, equipment or supplies to be provided by Contractor under this Agreement.

1.17 “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.

1.18 “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.

1.19 “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.

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

1.21 “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.

[Contractor Name] 4 of 36 [Date]

1.22 “Purchase Order” means the authorization document designated as such by the Purchaser for a procurement resulting from a Technology Marketplace Transaction, whether issued in a paper or electronic format, including blanket purchase orders for purchases involving multiple payments, and shall also include the scope of work for that particular purchase.

1.23 “Services” means the work performed by Contractor under this Agreement including all services, labor, supervision, maintenance, materials, equipment, actions, and other requirements to be performed and furnished by Contractor under this Agreement.

1.24 “Technology Marketplace” means a virtual marketplace comprised of the multiple award pool of contracts made available to City ordering departments and other governmental agencies and jurisdictions for the efficient and cost-effective procurement of IT

Goods and Services.

1.25 “Technology Marketplace Transaction” means an event resulting in a purchase of Goods and/or Services through the Technology Marketplace.

1.26 “Term Sheet” means a document that may be attached to a Purchase Order issued under this Agreement containing terms specific to an individual purchase of Goods and Services under the Technology Marketplace.

Article 2 Term of the Agreement

2.1 Term. The term of this Agreement shall commence on [insert Contract start date] and expire on December 31, 2028, unless earlier terminated as otherwise provided herein.

2.2 Reserved (Options to Extend).

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 Name] 5 of 36 [Date]

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 work.

3.3 Compensation.

3.3.1 Contract Not to Exceed Amount. Contractor shall provide an invoice to the City for Goods delivered and/or Services completed in accordance with the accompanying Purchase Order and corresponding documents. Compensation shall be made for Goods and Services identified in the invoice that the City, in its sole discretion, concludes has been satisfactorily delivered and/or performed. In no event shall the amount of this

Agreement exceed TWO HUNDRED AND THIRTY THOUSAND DOLLARS ($230,000). The breakdown of charges associated with this Agreement appears in the accompanying

Purchase Order and corresponding documents. In no event shall City be liable for interest or late charges for any late payments. City will not honor minimum service order charges for any

Services and Goods covered under this Agreement.

3.3.2 Payment Limited to Satisfactory Services and Delivery of Goods.

Contractor is not entitled to any payments until City approves the Services rendered and Goods delivered. Payments to Contractor by City shall not excuse Contractor from its obligation to replace the unsatisfactory delivery of Services and Goods even if the unsatisfactory character was apparent or could have been detected at the time such payment was made. Non-conforming Goods 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 and Goods 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 Format. Contractor shall invoice City for the Goods/Services provided under this Agreement on a timely basis, and in no event later than 30 days after

[Contractor Name] 6 of 36 [Date] delivery of the Goods/Services or as specified in the accompanying Purchase Order and corresponding documents, except for the last invoice of the fiscal year which must be submitted within 15 days before the end of July. 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, PeopleSoft Supplier Name and ID, complete description of the Goods or Services delivered (including manufacturer name, manufacturer SKU, and product description), sales/use tax (if applicable), unit cost, unit of measure, quantities, extended cost, and contract payment terms. Where Contractor’s pricing is based on a percentage mark-up or discount over manufacturer’s list price, invoices must also include the manufacturer list price and Contractor’s percentage mark-up or discount over manufacturer’s list price. Where Contractor’s pricing is based on a percentage mark-up over cost, invoices must also include Contractor’s cost and Contractor’s percentage mark-up over Contractor’s cost. Invoices that do not include all required information or contain inaccurate information will not be processed for payment.

3.3.5 Reserved (LBE Payment and Utilization Tracking System).

3.3.6 Reserved (Grant Funded Contracts).

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 delivery of Goods and 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 has agreed to electronic payment, the date City posted electronic payment to Contractor.

(b) Payment Discount Terms: The Payment Discount Terms for this

Agreement are as follows: [___] %/[___]Days, Net [___]. [Enter Contractor’s prompt payment terms, if any. If none, then delete this subsection and replace with “Reserved (Payment Discount Terms).The Payment Discount period begins (1) upon date of completion of the delivery of Goods and rendering of the Services or (2) the date of receipt of properly prepared invoices covering such items, whichever is later. Payment is deemed to be made, for the purpose of earning the discount, on the date City issued a check to Contractor or, if

Contractor has agreed to electronic payment, the date City posted electronic payment to

Contractor.

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 and Goods. 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

[Contractor Name] 7 of 36 [Date] 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. 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 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 Contractor under this

Agreement will involve the performance of work covered by Articles 101 through 109 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 Wage 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 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 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

[Contractor Name] 8 of 36 [Date] 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 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. 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 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 Articles 101 through 109, 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. The 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 Reserved (Displaced Worker Protection Act).

Article 4 Services and Goods

[Contractor Name] 9 of 36 [Date]

4.1 Reserved (Primary and Secondary Contractors).

4.2 Reserved (Term Agreement – Indefinite Quantities).

4.3 Qualified Personnel. Contractor represents and warrants that it is qualified to deliver the Services and Goods for which it is contracted to provide through this Agreement, and that all Services and Goods will be delivered 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.

4.4 Services.

4.4.1 Services Contractor Agrees to Perform. Contractor agrees to perform the Services stated in the Appendices attached to this Agreement, and each Purchase Order executed pursuant to this Agreement. Officers and employees of City are not authorized to request and City is not required to compensate for Services beyond those stated. If, during the term of the Agreement, a contract service is determined to be unacceptable for a particular department, and such is documented by Purchasing, Contractor agrees that the service will be canceled and removed from the Agreement without penalty to City. City’s sole obligation to Contractor is payment for Services performed prior to the cancellation date. City shall give Contractor ten (10) days’ notice prior to any cancellation. City will contract for the required service from any source and in the manner as determined by Purchasing. Contractor must notify Purchasing in writing, which can include email, certified mail, or other trackable mail, thirty (30) days in advance of any changes in the Services required in the Agreement.

Any changes made without the approval of Purchasing will constitute a Default.

4.4.2 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. Contractor agrees City shall have the right to communicate directly with any subcontractor(s) in connection with Technology Marketplace

Transactions under this Agreement. Neither Party shall, on the basis of this Agreement, contract on behalf of, or in the name of, the other Party. In connection with performing work under this Agreement, Contractor and any authorized subcontractors shall not enter non-compete agreements prohibited by California Business and Professions Code section 16600 in which either Contractor or subcontractor are prohibited from entering into or starting a similar profession or trade in competition against the other related to the Services Contractor or any subcontractor(s) have agreed to perform under this Agreement. Services performed by

Contractor or any subcontractor(s) outside of the United States must be disclosed to City with all quotes and scopes of work and shall not be permitted without prior written approval of

City. Any agreement made in violation of this provision shall be null and void.

[Contractor Name] 10 of 36 [Date]

4.4.3 Awarded Services. If, during the term of the Agreement, a contract service is determined to be unacceptable for a particular department, and such is documented by Purchasing, it is understood and agreed that the service will be canceled and removed from the Agreement without penalty to City. City’s sole obligation to Contractor is payment for Services performed prior to the cancellation date. City shall give Contractor ten

(10) days’ notice prior to any cancellation. City will contract for the required service from any source and in the manner as determined by Purchasing. Contractor must notify Purchasing in writing, which can include email, certified mail, registered mail, or other trackable mail, thirty

(30) days in advance of any changes in the Services required in the Agreement. Any changes made without the approval of Purchasing will constitute a default.

4.4.4 Independent Contractor; Payment of Employment Taxes and Other

Expenses.

(a) Independent Contractor. For the purposes of this Section 4.4.3, “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 the 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 4.4.3. Should City determine that

Contractor is not performing in accordance with the requirements of Section 4.4.3, 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 remedial action by Contractor, City shall contact Contractor and provide Contractor in writing with the reason for requesting such immediate action.

(b) 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

[Contractor Name] 11 of 36 [Date] 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 4.4.3 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 this section.

4.4.5 Warranty (Services). Contractor warrants to City that the maintenance Services will be performed with the degree of skill and care that is required by current, good and sound professional procedures and practices, and in conformance with generally accepted professional standards prevailing at the time the maintenance Services are performed so as to ensure that all maintenance Services performed are correct and appropriate for the purposes contemplated in this Agreement. Contractor warrants to City that the manufacturer’s warranty and service will be passed on to the City at the time of delivery.

4.5 Goods.

4.5.1 Awarded Goods. If during the term of the Agreement, a contract item is determined to be unacceptable for a particular use, and such is documented by a City Department and as determined by Purchasing, Contractor agrees that the item will be canceled and removed from the Agreement without penalty to City. City’s sole obligation to

Contractor is payment for deliveries made prior to the cancellation date. City shall give Contractor ten (10) calendar days’ notice prior to any cancellation. City will purchase the required replacement item from any source and in the manner as determined by Purchasing.

If a contracted item has been discontinued by the manufacturer or is deemed temporarily unavailable, Contractor shall search the marketplace and find an acceptable equal substitute in the time required for delivery and at the Agreement price. Contractor must notify

Purchasing in writing, which can include email, certified mail, or other trackable mail, of any changes in the description of article, brand, product code or packaging. Any changes made without the approval of City will constitute a Default under this Agreement.

4.5.2 Place of Manufacture. No article furnished hereunder shall have been made in prison or by convict labor, except Goods purchased for use by City’s detention facilities. City may require Contractor to provide within seven (7) business days from the date they are requested to do so, information and documentation requested by Purchaser, including but not limited to: sources of supply, distribution, dealership or agency agreements and authorizations from manufacturer(s) they claim to represent, lines of credit with financial

[Contractor Name] 12 of 36 [Date] institutions for manufacturer(s) they claim to represent, lines of credit with financial institutions and suppliers, numbers of employees, trade references and any other information to determine Contractor’s fitness to supply the Agreement requirements.

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

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

Contractor shall establish quality control measures, as applicable to department’s operations, and promptly provide documented reports to City of any product defects or premature failures.

4.5.5 Inspection. All Goods supplied shall be subject to inspection and acceptance or rejection by Purchasing or any department official responsible for inspection.

Non-conforming or rejected Goods may be subject to reasonable storage fees.

4.5.6 F.O.B. Goods shall be shipped Freight on Board, to any destination named in a Purchase Order issued by City against this Agreement. The cost of shipment must be incorporated into the offered unit costs.

4.5.7 Failure to Deliver. If Contractor fails to deliver Goods of the quality, in the manner or within the time called for by this Agreement, such Goods may be bought from any source by Purchasing. If City is required to pay a price that exceeds the price agreed upon by this Agreement, the excess price will be charged to and collected from Contractor (or sureties on its bond, if bond has been required); or, the City may terminate the Agreement for default; or, the City may return deliveries already made and receive a refund.

4.5.8 Safety Data Sheets. Where required by law or by City, Contractor will include Safety Data Sheets (SDSs) with delivery for applicable items. Failure to include the

SDSs for such items will constitute a material breach of contract and may result in refusal to accept delivery.

4.5.9 Warranty for Goods. Contractor warrants to City that the manufacturer’s warranty and service will be passed on to the City at the time of delivery.

4.6 Assignment. The Services and Goods to be delivered 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.

4.7 Liquidated Damages. By entering into this Agreement, Contractor acknowledges that certain Technology Marketplace Transactions may require that Contractor meet specific dates for providing Deliverables under the Agreement. In such cases, Contractor agrees that its failure to adhere to the schedule specified in the Purchase Order may subject

[Contractor Name] 13 of 36 [Date]

City to actual damages that are impractical or extremely difficult to ascertain. Contractor understands and agrees that City may specify in the Purchase Order, as a reasonable estimate of the loss City will incur because of Contractor's delay, a daily rate of liquidated damages. By accepting the Purchase Order, Contractor agrees that this sum shall not be considered a penalty and is an agreed upon sum of monetary damages sustained by City because of

Contractor's failure to furnish Deliverables to City within the time period fixed or such extensions of time permitted in writing by City.

4.8 Bonding Requirements. The Contractor may be required on a case-by-case basis to furnish a performance bond in a form acceptable to the City, to guarantee the faithful performance of this Agreement. The bonds must be approved as to sufficiency and qualifications of the surety by the Controller and City Attorney.

4.9 Reserved (Fidelity Bond or Crime Insurance).

4.10 Emergency - Priority 1 Service. In case of an emergency that affects any part of the San Francisco Bay Area, Contractor will give City Priority 1 service with regard to the Services and Goods procured under this Agreement unless preempted by State and/or

Federal laws. Contractor will make every good faith effort in attempting to deliver the

Services and Goods using all modes of transportation available. In addition, Contractor shall charge fair and competitive prices for the Services and Goods ordered during an emergency and not covered under the awarded Agreement.

4.11 Annual Usage Reports by Contractor.

4.11.1 Annually no later than February 15 and upon request, Contractor shall prepare and submit to City an electronic report in Microsoft Excel or CSV format identifying the Services and Goods rendered under this Agreement (“Usage Report”).

4.11.2 The Usage Report must detail all Services and Goods performed by Contractor as of the Contract start date through December of the calendar year directly preceding the date of the report.

4.11.3 The Usage Report shall include, at a minimum, the following data:

(1) Name of City department issuing the Purchase Order

(2) Purchase Order ID

(3) Invoice Number and Date

(4) Itemized list of all Services, including the date on which the service was performed, detailed description of the Services, unit cost, quantity, unit of measure, and extended cost.

(5) Itemized list of all Goods delivered, that includes at a minimum:

manufacturer name, manufacturer SKU, detailed product description, unit cost, quantity, unit of measure, and extended cost.

Sample Usage Report (Services)

[Contractor Name] 14 of 36 [Date]

O rd e ri n g

C it y

D e p a rt m e n t

P u rc h a se

O rd e r

ID

In v o ic

N u m b e r

In v o ic e D te

S rv ic e D

S rv ic e s

D e sc ri p ti o

U it C st

Q ty it o f

M e a su re

E x te n d d

C

Sample Usage Report (Goods) rd e ri n g

C it y p a rt m e n t

P u rc h se rd e r

ID

In v o ic

N m b e r

In v o ic e D li v e ry

D

M n u fa ct u re r

M a n u fa ct u re r

S K

P ro d ct sc ri p ti

M n u fa ct u re r

L is t P ri ce it C

Q ty it o f

M e a su re

E x te n d e d C

4.11.4 Upon request, Contractor must also furnish a separate Usage Report for

Services and Goods delivered to City which are not part of this Agreement.

4.11.5 Contractor shall email is Usage Reports to

OCAVendor.Reports@sfgov.org.

4.11.6 Any report files larger than 10MB must be submitted in electronic format on USB drive and mailed to the address shown below with the term Agreement number and “Annual Supplier Reporting” clearly marked on the envelope/packaging.

Contractor shall mail the reports to:

OCA Supplier Reporting

Re: Term Contract No. 99421

City and County of San Francisco Office of Contract Administration – Purchasing

City Hall, Room 430

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

4.11.7 City reserves the right to terminate this Agreement if information requested from and submitted by Contractor fails to satisfy City and/or Contractor is unable to provide the information and/or documentation within the period requested.

Article 5 Insurance and Indemnity

5.1 Insurance.

5.1.1 The following insurance requirements are the minimum coverages required under this Agreement. At the individual purchase level, on a project-by-project basis, mailto:OCAVendor.Reports@sfgov.org

[Contractor Name] 15 of 36 [Date] these requirements may be modified based on the Goods and/or Services the City is procuring under this Agreement. Such modifications may include the type of insurance, the required minimum limits of insurance, as well as exclusions or inclusions related to coverage.

Any such changes will be stated in the accompanying Purchase Order issued under this

Agreement.

5.1.2 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:

(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.

(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.

(c) Workers’ Compensation Insurance, in statutory amounts, with

Employers’ Liability Limits not less than $1,000,000 each accident, injury, or illness.

(d) Reserved (Professional Liability Insurance).

(e) Technology Errors and Omissions Liability Insurance, with limits of $1,000,000 for each claim and each loss. The policy shall at a minimum cover professional misconduct or lack of the requisite skill required for the delivery of the Services and Goods defined in the 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 the

City’s or third person’s computer, computer system, network, or similar computer related property and the data, software, and programs thereon.

(f) Cyber and Privacy Liability Insurance with limits of not less than

$1,000,000 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 electronic form.

(g) Reserved (Pollution Liability Insurance).

5.1.3 Additional Insured

[Contractor Name] 16 of 36 [Date]

(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.

(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.

(c) Reserved (Auto Pollution Additional Insured Endorsement).

5.1.4 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.

5.1.5 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.

(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.

(c) Reserved (Pollution Liability Insurance as Primary Insurance).

5.1.6 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

[Contractor Name] 17 of 36 [Date]

City receives satisfactory evidence of reinstated coverage as required by this Agreement, effective as of the lapse date. If insurance is not reinstated, the City may, at its sole option, terminate this Agreement effective on the date of such lapse of insurance.

(e) Before commencing any Services or delivering any Goods, 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 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 the

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

[Contractor Name] 18 of 36 [Date] 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 and Goods.

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

Contractor.

Article 6 Liability of the Parties

6.1…