HomeMy WebLinkAboutPiggybacking San Francisco Airport ContractTHE
GORDUN
GROUP`
February 14, 2013
Mayren Franco
Special Projects Coordinator
City of Miami, Capital Improvements Program
444 SW 2nd Avenue, 8th Floor
Miami, FL 33130
Re: Piggybacking the San Francisco Airport Contract
Dear Ms. Franco:
The Gordian Group's ("Gordian") sole business is developing, implementing and providing
on -going technical support services for Job Order Contracting ("JOC") programs. All of our
approximately 200 public facility and infrastructure clients receive the same services. We provide
the tools and services necessary for each client's JOC program, including a license to our
proprietary JOC information management software. The roles and responsibilities in our contract
with the City of Miami ("City") and our contract with the San Francisco Airport are identical.
Gordian has many client types, including state, municipal, housing, educational, airport, transit,
water/wastewater, etc. The tasks we perform to provide JOC products and services to each type
of client are essentially the same. A copy of the JOC Maintenance and Support Services
applicable to the on -going technical support phase of our services, which is the status of our
contract with the City, is attached for your review. This document is the standard scope of
services for the contract between Gordian and our client.
We appreciate the privilege we have had to provide our JOC products and services to the City.
Please contact me at (800) 874-2291 or d.mahler@thegordiangroup.com if you have any
questions about the services we provide to the City of Miami and the San Francisco Airport.
Sincerely,
DetmAild Thalia,‘)
David L. Mahler
Vice President, Contracts
Attachment
cc: Michael Ledford
Mike Guerra
140 BRIDGES ROAD. SUITE E • MA.ULDIN, SOUTH CAROLINA 29662 • 800/874 2291 • Ft0 864/233-9100
City of Miami
Proposal to Renew the JOC Services Contract
Attachment No. 3
JOC Program Maintenance & Support Services
Program Support
• Provide strategic guidance to the project team
• Monitor program performance, as requested
• Integrate successful experiences from other agencies using JOC
• Identify and consult on major program issues
• Provide guidance and interpretations on procedures
• Assist with interpretation of the Construction Task Catalog® including:
o Resolve Construction Task Catalog® issues
o Manage revisions to the Construction Task Catalog®
• Conduct annual on -site reviews of the JOC program, as requested
• Prepare program evaluations, as requested
Procurement & Document Maintenance Support (On -Site)
• Provide assistance with modifications to the Contract and General Conditions
• . Provide assistance with modifications to the Instructions to Bidders
• Conduct research to identify recurring use of non-prepriced tasks
• Coordinate preparation of updated Construction Task Catalogs®
• Coordinate preparation of updated Technical Specifications
• Conduct informational seminars for local groups, as requested
• Assist with bidding new JOC contracts including:
o Conduct pre -bid meetings with potential contractors
o Assist with bid review and JOC contractor selection, as requested
Procurement & Document Maintenance Support (Off -Site)
• Update and enhance the customized Construction Task Catalog® including:
o Maintain the integrity of the CSI numbering system
o Improve task descriptions
o Develop new tasks for recurring non-prepriced tasks
o Remove outdated tasks that are no longer used or available
o Monitor local area pricing
o Incorporate current construction practices and materials
o Publish a new Construction Task Catalog® for each additional solicitation
• Update and enhance customized Technical Specifications including:
o Develop new specifications for recurring non-prepriced tasks
o Incorporate current construction practices, standards and materials
o Publish new Technical Specifications for each additional solicitation
A3-1
City of Miami
Proposal to Renew the JOC Services Contract
Attachment No. 3 (cont.)
JOC Program Maintenance & Support Services
Training Support
• Update the Training Manual to reflect any changes in procedures
• Conduct JOC procedures refresher training for staff, as requested
• Conduct JOC procedures training for new staff
• Provide hands-on training for new staff in the areas of:
o Project identification and development
o Joint scope meetings
o Project scope development
o Proposal development and preparation
o Proposal review and variance resolution
• Conduct PROGEN®/eGordian® JOC application training including:
o Provide on -site JOC application assistance, as needed or requested
o Provide refresher training for current staff
o Provide on-site/Internet based training for new releases of the JOC application
o Provide on -site/ Internet based training for all new staff
o Provide Internet based training for current and new staff
JOC Application Support
• Provide unlimited access to the PROGEN®/eGordian® JOC application
• Provide JOC application technical support, including:
o Maintain access for existing staff
o Set-up access for new staff
o Provide systems support in connection with the JOC application
• Provide access to all new releases of the JOC application
• Write, test and finalize modifications to existing reports, as requested
• Write, test and finalize new reports, as requested
• Provide toll free 24/7 JOC application telephone support
A3-2
AIRPORT COMMISSION
CITY AND COUNTY OF SAN FRANCISCO
12._O176
RESOLUTION NO,
AUTHORIZATION TO AWARD CONTRACT NO. 9082, JOB ORDER CONTRACT (JOC)
IMPLEMENTATION SERVICES TO THE GORDIAN GROUP, IN AN AMOUNT NOT TO EXCEED
$1,000,000.
WHEREAS, the Airport is developing a Job Order Contracting (JOC) Program to provide a ready source of
labor to perform public work maintenance, repairs, and minor construction projects, on an as -
needed basis that cannototherwise be performed by Airport Maintenance staff, with work assigned
on a task order basis; and
WI-IEREAS, JOC contracting is defined and limited by Chapter 6 of the Administrative Code as a contracting
method for an indefinite quantity contract with a predefined set of bid items, and JOC contracts are
limited to five-year terms, and work is ordered through individual, specific service orders, and no
service order can exceed $400,000; and
WHEREAS, Staff proposes to pilot a JOC program at SFO for a two year period, with a total budget of
$2,000,000, and will return to the Commission to report on its use either at the end of the term, or
once the budget is exhausted; and
WHEREAS, the JOC pilot program will require a JOC Implementation Services contractor to provide a
construction unit bid price book to be used as a basis for the JOC program and will require that
contractor to implement the program; and
WHEREAS, on January 17, 2012, by Resolution Number 12-0005, the Commission gave authorization to
advertise requests for proposals and to negotiate with the highest ranking proposer for JOC
Implementation Services; and,
WHEREAS, after reviewing the unique nature of the proposed JOC Implementation Services, the HRC,
on April 25, 2012, granted a waiver of Administrative Code 1413 subcontracting goals; and
WHEREAS, On April 30, 2012, the Airport issued an RFP for Contract No, 9082, Job Order Contract
Implementation Services; and
WHEREAS, On June 5, 2012, the Airport received one proposal in response to the RFP from The Gordian
Group; and
WHEREAS, Airport Staff has discussed with other City of San Francisco agencies the performance of, and the
agreed -to fees of, The Gordian Group, and was given favorable recommendations and validations
of comparable fees; and
WHEREAS, Staff recommends awarding a contract to The Gordian Group, therefore be it
RESOLVED, that the Commission hereby awards Contract No. 9082, Job Order Contract (JOC) Implementation
Services to The Gordian Group in an amount not to exceed $1,000,000 for a pilot period of two
years and including an optional period of three additional years should the Commission deem the
program to be successful and choose to exercise that option.
I hereby ierl f iilhtlt the jbregoin resolution -was adopted by the tlirport Commission
ztl its meeting?"' At, JS 0 7. 2 1" -
S'i.rctwny
fite6LL-
San Francisco International Airport
MEMORANDUM
August 7, 2012
TO: AIRPORT COMMISSION
Hon. Larry Mazzola, President
Hon. Linda S. Crayton, Vice President
Hon. Eleanor Johns
Hon. Richard J. Guggenhime
Hon. Peter A. Stern
FROM: Airport Director
SUBJECT: Authorization to Award Contract No. 9082, Job Order Contracting (JOC) Implementation Services
to The Gordian Group in amount not to exceed $1,000,000
DIRECTOR'S RECOMMENDATION: AUTHORIZE AWARD OF CONTRACT NO. 9082, JOB ORDER
CONTRACTING (JOC) .iMP!.FMENTATION SERVICES TO THE GORDIAN GROUP, IN AN AMOUNT
NOT TO EXCEED $1,000,000.
Executive Summary
Transmitted herewith for your approval is a proposed resolution authorizing the award of Contract No. 9082, Job
Order Contracting (IOC) Implementation Services to The Gordian Group in an amount not to exceed $1,000,000.
The JOC Implementation Services contract is the first of three steps, needed to begin. the Airport's IOC pilot
program.
In this first step, the IOC Implementation Services contractor will develop the construction unit bid price book to be
used for advertising and bidding JOC construction contracts. The construction unit price book will also later be
utilized for establishing pricing for individual contract service orders within JOC construction contracts. The JOC
Implementation Services contractor will not be reimbursed for JOC program development or for JOC software
licensing fees up frontAll payments for JOC Implementation Services will be based on a percentage licensing fee
which will be appliedto the value of future contract service orders as described in step three below.
The second step will be to advertise and bid specific JOC construction contracts. Award of a IOC construction
contracts will be on a traditional low -bid basis. JOC contract bidders will submit bids by stating the markup fee
they will assess on the various items in the unit -price book. The responsible, responsive contractor submitting the
low bid will be recommended for awardof a contract. It is anticipated that two (2) IOC construction contracts will
be awarded during the Airport's JOC pilot program phase and others may be awarded during Phase II of the JOC
program. All JOC Implementation Services and JOC construction contracting service work will be done in
accordance with the San Francisco Administrative Code section 6.62.
The third step willbe issuing specific contract service orders under :individual JOC contracts. As service orders are
identified, the value of the service order will be based on the unit price book prepared by the JOC Implementation
Services contractor in step one and the contractor's markup amount bid in step two. The JOC Implementation
Services contractor will be reimbursed a licensing fee of up to 5% of the value of each contract service order.
Background
JOC provides a ready source of labor to perform work on an as -needed basis that cannot otherwise be performed by
Airport maintenance staff. Also, it can be used to perform predecessor work for larger projects in the Airport's
AIRPORT COMMISSION CITY AND COUNTY OF SAN FRANCISCO THIS PRINT COVERS CALENDAR ITEM NO. 5-
EDWIN M. .LEE LARRY MAZZOLA LINDA S. CRAYTONELEANOR JOHNS ..............R).CHARD.,L.GUGGENHIME..........._ PETER _A.STERN.._..........JOHN-I-MARTIN..-.•-
MAYOR' PRESIDENT VICE PRESIDENT
AIRPORT DIRECTOR
Post Office Box 8097 San Francisco, California 94128 Tel 650.821.5000 Fax 650.821.5005 www.flysfo.com
Airport Commission -2- August 7, 2012
Capital Improvement Program. Such work may include emergency asphalt replacement, runway maintenance, roof
repairs, underground utility repairs, electrical or mechanical work, architectural improvements, or other work
beyond' the immediate capabilities of Airport personnel.
JOC systems are specifically defined and limited by Chapter 6 of the San Francisco Administrative Code. Pursuant.
to Chapter 6, a JOC contract allows for an indefinite quantity of work to be performed on a predefined set of bid
items that are assigned by contract service orders for the performance of public work maintenance, repair and minor
construction projects. JOC contracts are limited to five-year terms, and work is directed through individual,
specific contract service orders, in amounts not to exceed $400,000. San Francisco Departments of Public Works,
Recreation and Parks, and Public Utilities Commission all have JOC contracting systems and, through them, have
successfully accomplished the immediate, small contracting jobs that are beyond the capabilities of the C.ity's labor
forces. The JOC Implementation Services contract is a performance -based contract with a percentagelicensing fee
paid for successful issuance of construction contract service orders.
On January 1.7, 2012, by Resolution Number 12-0005, the Commission gave authorization to advertise requests for
proposals and to negotiate with the highest ranking proposer for JOC Implementation Services. The Human Rights
Commission, on April 25, 2012, granted a waiver of Administrative Code 14B subcontracting goals. On April 30,'
2012, the Airport issued an RFP for Contract No, 9082, Job Order Contract Implementation Services, and on June
5, 2012, the Airport received only one proposal in response to the RFP from The Gordian. Group. In that proposal,
The Gordian Group offered the software licensing fee of five percent of the value of work ordered through the
Airport's JOC contracting program. Five percent is consistent with fees awarded by DPW, Rec. & Park, and PUC.
For the follow-on award ofJOC construction contracts, Staff proposes to pilot JOC at SFO by recommending the
award of the two JOC construction contracts for an initial period of two years, with a total budget of $2,000,000.
Staff will return to the Commission either at the end of the two years, or once the $2,000,000 budget is exhausted,
to report to the Commission on the performance ofJOC at S.FO. If the pilot program is deemed successful, Staff
will recommend that the program be continued for an additional three years and that the Commission authorize
additional funding for the program.
Before any contract service order is assigned to a JOC construction contract, Airport Maintenance will be given the
first right of refusal to perform the work. Airport Maintenance staff will have to sign -off on the in-house service
request form that it agrees that it cannot perform the service order work to be transferred to JOC contractors.
Furthermore, Staff, with the assistance of The Gordian Group, will be making significant outreach to the San Mateo
Building Trades Council, local unions, and the construction community during JOC construction contract
advertising and during the preparation of the JOC contract service orders to selected JOC construction contractors.
Recommendation
1 recommend that the Commission approve the proposed resolution authorizing the Director to award Contract No.
9082, Job Order Contract (JOC) Implementation Services to The Gordian Group in an amount not to exceed
$1,000,000.
John . Martin
Airport Director
Prepared by: I.var Satero
Deputy Airport Director
Design & Construction
Attachment
City and County of San Francisco
Airport Commission
P.O. Box 8097
San Francisco, California 94128
Agreement between the City and County of San Francisco and
The Gordian Group
Contract No. 9082
This Agreement is made this 7`h day of August, 2012, in the City and County of San Francisco, State of
California, by and between: The Gordian Group, 140 Bridges Road, Suite E, Mauldin, South
Carolina 29662, hereinafter referred to as "Contractor," and the City and County of San Francisco, a
municipal corporation, hereinafter referred to as "City," acting by and through its Airport Commission or
the Commission's designated agent, hereinafter referred to as "Commission."
Recitals
WHEREAS, the Commission wishes to enter into this Agreement for the Contractor to provide Job Order
Contracting Services; and,
WHEREAS, Commission is authorized to enter into all contracts which relate to matters under its
jurisdiction; and
WHEREAS, a Request for Proposal ("RFP") wasissued on April 30, 2012, and City selected Contractor
as the highest qualified scorer pursuant to the RFP; and
WHEREAS, Commission awarded this contract to Contractor on August 7, 2012, pursuant to Resolution
No. 12-0176; and
WHEREAS, approval for this Agreement was obtained when the Civil Service Commission approved
Contract number PSC #4122-11/12 on May 21, 2012; and
WHEREAS, Contractor represents and warrants that it is qualified to perform the services required by
City as set forth under this Contract;
Now, THEREFORE, the parties agree as follows:
1. Certification of Funds; Budget and Fiscal Provisions; Termination in the Event of Non -
Appropriation. This Agreement is subject to the budget and fiscal provisions 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
AIR-500 (5-10)
Page 1 of 26 Contract 9082, August 7, 2012
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.
2. Term of the Agreement. Subject to Section 1, the term of this Agreement shall be a phased,
five-year term. The initial term (Phase 1) will be two (2) years starting on August 27, 2012, and ending on
August 26, 2014. This Agreement may be continued for an additional three-year term for a Phase 2
program starting August 27, 2014, at the sole discretion of the Airport Commission. Notwithstanding the
foregoing, and unless modified by mutual consent, this Agreement shall terminate upon the expenditure
of the not -to -exceed amount specified in Section 5, Compensation.
3. Effective Date of Agreement. This Agreement shall become effective when the Controller has
certified to the availability of funds and Contractor has been notified in writing.
4. Services Contractor Agrees to Perform. The Contractor agrees to perform the services
provided for in Appendix A, "Services to be Provided by Contractor," attached hereto and incorporated
by reference as though fully set forth herein. If Appendix A includes as -needed services, such services
shall be requested by City through the issuance of a written task order signed by City and Contractor,
which task order shall be made a part of and incorporated into the Agreement as though fully set forth
herein without the need for a formal amendment to the Agreement. The task order shall include a
description of the as -needed services, the deliverables, schedule for performance, cost, and method and
timing of payment.
5. Compensation. The Contractor agrees to implement a JOC program for the Airport Commission
and provide a license to the Contractor's proprietary JOC system without any up -front cost. The agreed to
license fee, as set forth in Appendix B, Calculation of Charges, shall be paid to the Contractor when a
JOC contract is awarded by the Airport Commission and an approved invoice is submitted by the
Contractor to the Airport Project Manager. Payments shall be made in monthly payments on or before the
last day of each month for the percentage of the value of work ordered through the JOC program, as set
forth in Appendix B of this Agreement, that the, Airport Project Manager, in his or her sole discretion,
concludes has been performed as of the last day of the immediately preceding month. In no event shall the
amount of this entire Agreement over the five-year term exceed One Million Dollars ($1,000,000.) The
breakdown of costs associated with this Agreement appears in Appendix B, "Calculation of Charges,"
attached hereto and incorporated by reference as though fully set forth herein. No charges shall be
incurred under this Agreement nor shall any payments become due to Contractor until reports, services, or
both, required under this Agreement are received from Contractor and approved by the Airport Project
Manager as being in accordance with this Agreement. City may withhold payment to Contractor in any
instance in which Contractor has failed or refused to satisfy any material obligation provided for under
this Agreement. In no event shall City be liable for interest or late charges for any late payments.
6. Guaranteed Maximum Costs. The City's obligation hereunder shall not at any time exceed the
amount certified by the Controller for the purpose and period stated in such certification. Except as may
be provided by laws governing emergency procedures, officers and employees of the City are not
authorized to request, and the City is not required to reimburse the Contractor for, Commodities or
Services beyond the agreed upon contract scope unless the changed scope is authorized by amendment
and approved as required by law. Officers and employees of the City are not authorized to offer or
promise, nor is the City required to honor, any offered or promised additional funding in excess of the
maximum amount of funding for which the contract is certified without certification of the additional
AIR-500 (5-10)
Page 2 of 26 Contract 9082, August 7, 2012
amount by the Controller. The Controller is not authorized to make payments on any contract for which
funds have not been certified as available in the budget or by supplemental appropriation.
7. Payment; Invoice Format. Invoices furnished by Contractor under this Agreement must be in a
form acceptable to the Controller, and must include a unique invoice number. All amounts paid by City to
Contractor shall be subject to audit by City. Payment shall be made by City to Contractor through the
City's electronic payment program, to which the Contractor agrees to subscribe by accessing the program
at http://sfcontroller.org/index.aspx?page=85 .
8. Submitting False Claims; Monetary Penalties. Pursuant to San Francisco Administrative Code
§21.35, any contractor, subcontractor or consultant who submits a false claim shall be liable to the City
for the statutory penalties set forth in that section. The text of Section 21.35, along with the entire San
Francisco Administrative Code is available on the web at:
http://www.amleaal.com/nxt/gateway.dll?f=templates&fin=default.htm&yid=amlegal:sanfrancisco_ca. A
contractor, subcontractor or consultant will be deemed to have submitted a false claim to the City if the
contractor, subcontractor or consultant: (a) knowingly presents or causes to be presented to an officer or
employee of the City a false claim or request for payment or approval; (b) knowingly makes, uses, or
causes to be made or used a false record or statement to get a false claim paid or approved by the City; (c)
conspires to defraud the City by getting a false claim allowed or paid by the City; (d) knowingly makes,
uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation
to pay or transmit money or property to the City; or (e) is a beneficiary of an inadvertent submission of a
false claim to the City, subsequently discovers the falsity of the claim, and fails to disclose the false claim
to the City within a reasonable time after discovery of the false claim.
9. Disallowance. LEFT BLANK BY AGREEMENT OF THE PARTIES
10. Taxes
a. Payment of any taxes, including possessory interest taxes and California sales and use
taxes, levied upon or as a result of this Agreement, or the services delivered pursuant hereto, shall be the
obligation of Contractor.
b. Contractor recognizes and understands that this Agreement may create a "possessory
interest" for property tax purposes. Generally, such a possessory interest is not created unless the
Agreement entitles the Contractor to possession, occupancy, or use of City property for private gain. If
such a possessory interest is created, then the following shall apply:
1) Contractor, on behalf of itself and any permitted successors and assigns,
recognizes and understands that Contractor, and any permitted successors and assigns, may be subject to
real property tax'assessments on the possessory interest;
2) Contractor, on behalf of itself and any permitted successors and assigns,
recognizes and understands that the creation, extension, renewal, or assignment of this Agreement may
result in a "change in ownership" for purposes of real property taxes, and therefore may result in a
revaluation of any possessory interest created by this Agreement. Contractor accordingly agrees on behalf
of itself and its permitted successors and assigns to report on behalf of the City to the County Assessor the
information required by Revenue and Taxation Code section 480.5, as amended from time to time, and
any successor provision.
3) Contractor, on behalf of itself and any permitted successors and assigns,
recognizes and understands that other events also may cause a change of ownership of the possessory
AIR-500 (5-10)
Page 3 of 26 Contract 9082, August 7, 2012
interest and result in the revaluation of the possessory interest. (See, e.g., Revenue & Tax Code section
64, as amended from time to time). Contractor accordingly agrees on behalf of itself and its permitted
successors and assigns to report any change in ownership to the County Assessor, the State Board of
Equalization or other public agency as required by law.
4) Contractor further agrees to provide such other information as may be requested
by the City to enable the City to comply with any reporting requirements for possessory interests that are
imposed by applicable law.
11. Payment Does Not Imply Acceptance of Work. The granting of any payment by City, or the
receipt thereof by Contractor, shall in no way lessen the liability of Contractor to replace unsatisfactory
work, equipment, or materials, although the unsatisfactory character of such work, equipment or materials
may not have been apparent or detected at the time such payment was made. Materials, equipment,
components, or workmanship that do not conform to the requirements of this Agreement may be rejected
by City and in such case must be replaced by Contractor without delay.
12. Qualified Personnel. Work under this Agreement shall be performed only by competent
personnel under the supervision of and in the employment of Contractor. Contractor will comply with
City's reasonable requests regarding assignment of personnel, but all personnel, including those assigned
at City's request, and must be supervised by Contractor. Contractor shall commit adequate resources to
complete the project within the project schedule specified in this Agreement.
13. Responsibility for Equipment. City shall not be responsible for any damage to persons or
property as a result of the use, misuse or failure of any equipment used by Contractor, or by any of its
employees, even though such equipment be furnished, rented or loaned to Contractor by City.
14. Independent Contractor; Payment of Taxes and Other Expenses
a. Independent Contractor. Contractor or any agent or employee of Contractor shall be
deemed at all times to be an independent contractor and is wholly responsible for the manner in which it
performs the services and work requested by City under this Agreement. Contractor or any agent or
employee of Contractor shall not have employee status with City, nor be entitledto 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 or any agent or employee of Contractor is
liable for the acts and omissions of itself, its employees and its agents. 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 agent or employee of Contractor. Any terms in
this Agreement referring to direction from City shall be construed as providing for direction as to policy
and the result of Contractor's work only, and not as to the means by which such a result is obtained. City
does not retain the right to control the means or the method by which Contractor performs work under this
Agreement.
b. Payment of 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
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Page 4 of 26 Contract 9082, August 7, 2012
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 the preceding two paragraphs
shall be solely for 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,
should any court, arbitrator, or administrative authority determine that Contractor is an employee for any
other purpose, then Contractor agrees to a reduction in City's financial liability so that City's total
expenses under this Agreement are not greater than they would have been had the court, arbitrator, or
administrative authority determined that Contractor was not an employee.
15. Insurance
a. 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 coverage's:
1) Workers' Compensation, in statutory amounts, with Employers' Liability Limits
not less than $1,000,000 each accident, injury, or illness; and
2) Commercial General Liability Insurance with limits not less than $1,000,000
each occurrence Combined Single Limit for Bodily Injury and Property Damage, including Contractual
Liability, Personal Injury, Products and Completed Operations; and
3) 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.
b. Commercial General Liability and Commercial Automobile Liability Insurance policies
must be endorsed to provide:
1) Name as Additional Insured the City and County of San Francisco, its Officers,
Agents, and Employees.
2) That such policies are primary insurance to any other insurance available to the
Additional Insured, with respect to any claims arising out of this Agreement, and that insurance applies
separately to each insured against whom claim is made or suit is brought.
c. Regarding Workers' Compensation, Contractor hereby agrees to waive subrogation
which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City
for all work performed by the Contractor, its employees, agents and subcontractors.
d. All policies shall provide thirty days' advance written notice to the City of reduction or
nonrenewal of coverage or cancellation of coverage for any reason. Notices shall be sent to the City
address in the "Notices to the Parties" section.
e. Should any of the required insurance be provided under a claims -made form, Contractor
shall maintain such coverage continuously throughout the teen of this Agreement and, without lapse, for
AIR-500 (5-10) Page 5 of 26 Contract 9082, August 7, 2012
a period of three years beyond the expiration of this Agreement, to the effect that, should occurrences
during the contract term give rise to claims made after expiration of the Agreement, such claims shall be
covered by such claims -made policies.
f. 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.
g: Should any required insurance lapse during the term of this Agreement, requests for
payments originating after such lapse shall not be processed until the 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.
h. Before commencing any operations under this Agreement, Contractor shall furnish to
City certificates of insurance and additional insured policy endorsements with insurers with ratings
comparable to A-, VI1I or higher, that are authorized to do business in the State of California, and that are
satisfactory to City, in form evidencing all coverage set forth above. Failure to maintain insurance shall
constitute a material breach of this Agreement.
i. Approval of the insurance by City shall not relieve or decrease the liability of Contractor
hereunder.
16. Indemnification. Contractor shall indemnify and save harmless City and its officers, agents and
employees from, and, if requested, shall defend them against any and all loss, cost, damage, injury,
Liability, and claims thereof for injury to or death of a person, including employees of Contractor or loss
of or damage to property, arising directly or indirectly from Contractor's performance of this Agreement,
including, but not limited to, Contractor's use of facilities or equipment provided by City or others,
regardless of the negligence of, and regardless of whether liability without fault is imposed or sought to
be imposed on City, except to the extent that such indemnity is void or otherwise unenforceable under
applicable law in effect on or validly retroactive to the date of this Agreement, and except where such
loss, damage, injury, liability or claim is the result of the active negligence or willful misconduct of City
and is 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 and experts and related costs and
City's costs of investigating any claims against the City. 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. Contractor shall indemnify 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 in consequence of the use by City, or any of its officers or agents, of
articles or services to be supplied in the performance of this Agreement.
17. Incidental and Consequential Damages. Contractor shall be responsible for incidental and
consequential damages resulting in whole or in part from Contractor's acts or omissions. Nothing in this
Agreement shall constitute a waiver or limitation of any rights that City may have under applicable law.
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18. Liability of City. CITY'S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT SHALL
BE LIMITED TO THE PAYMENT OF THE COMPENSATION PROVIDED FOR IN SECTION 5 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.
19. Liquidated Damages. LEFT BLANK BY AGREEMENT OF THE PARTIES
20. Default; Remedies
a. Each of the following shall constitute an event of default ("Event of Default") under this
Agreement:
1) Contractor fails or refuses to perform or observe any term, covenant or condition
contained in any of the following Sections of this Agreement:
8. Submitting False Claims; Monetary 37. Drug -free workplace policy
Penalties.
10. Taxes 53. Compliance with laws
15. Insurance 55. Supervision of minors
24. Proprietary or confidential information of 57. Protection of private information
City
30. Assignment 58. Graffiti removal
2) Contractor fails or refuses to perform or observe any other term, covenant or
condition contained in this Agreement, and such default continues for a period of ten (10) days after
written notice thereof from City to Contractor.
3) Contractor (a) is generally not paying its debts as they become due, (b) files, or
consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy,
insolvency or other debtors' relief law of any jurisdiction, (c) makes an assignment for the benefit of its
creditors, (d) consents to the appointment of a custodian, receiver, trustee or other officer with similar
powers of Contractor or of any substantial part of Contractor's property or (e) takes action for the purpose
of any of the foregoing.
4) A court or government authority enters an order (a) appointing a custodian,
receiver, trustee or other officer with similar powers with respect to Contractor or with respect to any
substantial part of Contractor's property, (b) constituting an order for relief or approving a petition for
relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy, insolvency or other debtors' relief law of any jurisdiction or (c) ordering the
dissolution, winding -up or liquidation of Contractor.
b. On and after any Event of Default, City shall have the right to exercise its legal and
equitable remedies, including, without limitation, the right to terminate this Agreement or to seek specific
performance of all or any part of this Agreement. In addition, City shall have the right (but no obligation)
to cure (or cause to be cured) on behalf of Contractor any Event of Default. City shall have the right to
offset from any amounts due to Contractor under this Agreement or any other agreement between City
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and Contractor all damages, losses, costs or expenses incurred by City as a result of such Event of Default
and any liquidated damages due from Contractor pursuant to the terms of this Agreement or any other
agreement.
c. All remedies provided for in this Agreement may be exercised individually or in
combination with any other remedy available hereunder or under applicable laws, rules and regulations.
The exercise of any remedy shall not preclude or in any way be deemed to waive any other remedy.
21. Termination for Convenience
a. City shall have the option, in its sole discretion, to terminate this Agreement, at any time
during the term hereof, for convenience and without cause. City shall exercise this option by giving
Contractor written notice of termination. The notice shall specify the date on which termination shall
become effective.
b. Upon receipt of the notice, Contractor shall commence and perform, with diligence, all
actions necessary on the part of Contractor to effect the termination of this Agreement on the date
specified by City and to minimize the liability of Contractor and City to third parties as a result of
termination. All such actions shall be subject to the prior approval of City. Such actions shall include,
without limitation:
1) Halting the performance of all services and other work under this Agreement on
the date(s) and in the manner specified by City.
or other items.
2) Not placing any further orders or subcontracts for materials, services, equipment
3) Terminating all existing orders and subcontracts.
4) At City's direction, assigning to City any or all of Contractor's right, title, and
interest under the orders and subcontracts terminated. Upon such assignment, City shall have the right, in
its sole discretion, to settle or pay any or all claims arising out of the termination of such orders and
subcontracts.
5) Subject to City's approval, settling all outstanding liabilities and all claims
arising out of the termination of orders and subcontracts.
6) • Completing performance of any services or work that City designates to be
completed prior to the date of termination specified by City.
7) Taking such action as may be necessary, or as the City may direct, for the
protection and preservation of any property related to this Agreement which is in the possession of
Contractor and in which City has or may acquire an interest.
c. Within thirty (30) days after the specified termination date, Contractor shall submit to
City an invoice, which shall set forth each of the following as a separate line item:
1) The reasonable cost to Contractor, without profit, for all services and other work
City directed Contractor to perform prior to the specified termination date, for which services or work
City has not already tendered payment. Reasonable costs may include a reasonable allowance for actual
overhead, not to exceed a total of ten percent (10%) of Contractor's direct costs for services or other
AIR-500 (5-10) Page 8 of 26 Contract 9082, August 7, 2012
work. Any overhead allowance shall be separately itemized. Contractor may also recover the reasonable
cost of preparing the invoice.
2) A reasonable allowance for profit on the cost of the services and other work
described in the immediately preceding subsection (1), provided that Contractor can establish, to the
satisfaction of City, that Contractor would have made a profit had all services and other work under this
•Agreement been completed, and provided further, that the profit allowed shall in no event exceed five
percent (5%) of such cost.
3) The reasonable cost to Contractor of handling material or equipment returned to
the vendor, delivered to the City or otherwise disposed of as directed by the City.
4) A deduction for the cost of materials to be retained by Contractor, amounts
realized from the sale of materials and not otherwise recovered by or credited to City, and any other
appropriate credits to City against the cost of the services or other work.
d. In no event shall City be liable for costs incurred by Contractor or any of its
subcontractors after the termination date specified by City, except for those costs specifically enumerated
and described in the immediately preceding subsection (c). Such non -recoverable costs include, but are
not limited to, anticipated profits on this Agreement, post -termination employee salaries, post -termination
administrative expenses, post -termination overhead or unabsorbed overhead, attorneys' fees or other costs
relating to the prosecution of a claim or lawsuit, prejudgment interest, or any other expense which is not
reasonable or authorized under such subsection (c).
e. In arriving at the amount due to Contractor under this Section, City may deduct: (1) all
payments previously made by City for work or other services covered by Contractor's fmal invoice; (2)
any claim which City may have against Contractor in connection with this Agreement; (3) any invoiced
costs or expenses excluded pursuant to the immediately preceding subsection (d); and (4) in instances in
which, in the opinion of the City, the cost of any service or other work performed under this Agreement is
excessively high due to costs incurred to remedy or replace defective or rejected services or other work,
the difference between the invoiced amount and City's estimate of the reasonable cost of performing the
invoiced services or other work in compliance with the requirements of this Agreement.
f. City's payment obligation under this Section shall survive termination of this Agreement.
22. Rights and Duties upon Termination or Expiration. This Section and the following Sections
of this Agreement shall survive termination or expiration of this Agreement:
8. Submitting false claims
9. Disallowance
10. Taxes
11. Payment does not imply acceptance of work
13. Responsibility for equipment
14. Independent Contractor; Payment of Taxes
and Other Expenses
15. Insurance
16. Indemnification
17. Incidental and Consequential Damages
18. Liability of City
24. Proprietary or confidential information
of City
26. Ownership of Results
27. Works for Hire
28. Audit and Inspection of Records
48. Modification of Agreement.
49. Administrative Remedy for Agreement
Interpretation.
50. Agreement Made in California; Venue
51. Construction
52. Entire Agreement
56. Severability
57. Protection of private information
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Subject to the immediately preceding sentence, upon termination of this Agreement prior to expiration of
the term specified in Section 2, this Agreement shall terminate and be of no further force or effect.
Contractor shall transfer title to City, and deliver in the manner, at the times, and to the extent, if any,
directed by City, any work in progress, completed work, supplies, equipment, and other materials
produced as a part of, or acquired in connection with the performance of this Agreement, and any
completed or partially completed work which, if this Agreement had been completed, would have been
required to be furnished to City. This subsection shall survive termination of this Agreement.
23. Conflict of Interest. Through its execution of this Agreement, Contractor acknowledges that it is
familiar with the provision of Section 15.103 of the City's Charter, Article III, Chapter 2 of City's
Campaign and Governmental Conduct Code, and Section 87100 et seq. and Section 1090 et seq. of the
Government Code of the State of California, and certifies that it does not know of any facts which
constitutes a violation of said provisions and agrees that it will immediately notify the City if it becomes
aware of any such fact during the term of this Agreement.
24. Proprietary or Confidential Information of City. Contractor understands and agrees that, in the
performance of the work or services under this Agreement or in contemplation thereof, Contractor may
have access to private or confidential information which may be owned or controlled by City and that
such information may contain proprietary or confidential details, the disclosure of which to third parties
may be damaging to City. Contractor agrees that all information disclosed by City to Contractor shall be
held in confidence and used only in performance of the Agreement. Contractor shall exercise the same
standard of care to protect such information as a reasonably prudent contractor would use to protect its
own proprietary data.
25. Notices to the Parties. Unless otherwise indicated elsewhere in this Agreement, all written
communications sent by the parties may be by U.S. mail, e-mail or by fax, and shall be addressed as
follows:
To City: Tony Breslin
Airport Project Manager
San Francisco International Airport
P.O. Box 8097
San Francisco, California 94128
Email: tony.breslin .breslin@flysfo.com
Fax: 650-821-7799
To Contractor: David L. Mahler
Vice President of Finance
The Gordian Group
140 Bridges Road, Suite E
Mauldin, South Carolina 29662
Email: d.mahler a,thegordianzroup.com
Fax: 864-233-9100
Any notice of default must be sent by registered mail.
26. Ownership of Results. Any interest of Contractor or its Subcontractors, in drawings, plans,
specifications, blueprints, studies, reports, memoranda, computation sheets, computer files and media or
other documents prepared by Contractor or its subcontractors in connection with services to be performed
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Page 10 of 26 Contract 9082, August 7, 2012
under this Agreement, shall become the property of and will be transmitted to City. However, Contractor
may retain and use copies for reference and as documentation of its experience and capabilities.
27. Works for Hire. If, in connection with services performed under this Agreement, Contractor or
its subcontractors create artwork, copy, posters, billboards, photographs, videotapes, audiotapes, systems
designs, software, reports, diagrams, surveys, blueprints, source codes or any other original works of
authorship, such works of authorship shall be works for hire as defined under Title 17 of the United States
Code, and all copyrights in such works are the property of the City. If it is ever determined that any works
created by Contractor or its subcontractors under this Agreement are not works for hire under U.S. law,
Contractor hereby assigns all copyrights to such works to the City, and agrees to provide any material and
execute any documents necessary to effectuate such assignment. With the approval of the City, Contractor
may retain and use copies of such works for reference and as documentation of its experience and
capabilities.
28. Audit and Inspection of Records. Contractor agrees to maintain and make available to the City,
during regular business hours, accurate books and accounting records relating to its work under this
Agreement. Contractor will permit City to audit, examine and make excerpts and transcripts from 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 (5) 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 conferred upon City by this Section.
29. Subcontracting. Contractor is prohibited from subcontracting this Agreement or any part of it
unless such subcontracting is first approved by City in writing. Neither party shall, on the basis of this
Agreement, contract on behalf of or in the name of the other party. An agreement made in violation of
this provision shall confer no rights on any party and shall be null and void.
30. Assignment. The services to be performed by Contractor are personal in character and neither
this Agreement nor any duties or obligations hereunder may be assigned or delegated by the Contractor
unless first approved by City by written instrument executed and approved in the same manner as this
Agreement.
31. Non -Waiver of Rights. The omission by either party at any time to enforce any default or right
reserved to it, or to require performance of any of the terms, covenants, or provisions hereof by the other
party at the time designated, shall not be a waiver of any such default or right to which the party is
entitled, nor shall it in any way affect the right of the party to enforce such provisions thereafter.
32. Earned Income Credit (EIC) Forms. Administrative Code section 120 requires that employers
provide their employees with IRS Form W-5 (The Earned Income Credit Advance Payment Certificate)
and the IRS EIC Schedule, as set forth below. Employers can locate these forms at the IRS Office, on the
Internet, or anywhere that Federal Tax Forms can be found. Contractor shall provide EIC Forms to each
Eligible Employee at each of the following times: (i) within thirty (30) days following the date on which
this Agreement becomes effective (unless Contractor has already provided such EIC Fonns at least once
during the calendar year in which such effective date falls); (ii) promptly after any Eligible Employee is
hired by Contractor; and (iii) annually between January 1 and January 31 of each calendar year during the
term of this Agreement. Failure to comply with any requirement contained in subparagraph (a) of this
Section shall constitute a material breach by Contractor of the terns of this Agreement. If, within thirty
(30) days after Contractor receives written notice of such a breach, Contractor fails to cure such breach or,
if such breach cannot reasonably be cured within such period of thirty (30) days, Contractor fails to
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commence efforts to cure within such period or thereafter fails to diligently pursue such cure to
completion, the City may pursue any rights or remedies available under this Agreement or under
applicable law. Any Subcontract entered into by Contractor shall require the subcontractor to comply, as
to the subcontractor's Eligible Employees, with each of the terms of this section. Capitalized terms used
in this Section and not defined in this Agreement shall have the meanings assigned to such terms in
Section 120 of the San Francisco Administrative Code.
33. Local Business Enterprise Utilization; Liquidated Damages
a. The LBE Ordinance. Contractor, shall comply with all the requirements of the Local
Business Enterprise and Non -Discrimination in Contracting Ordinance set forth in Chapter 14B of the
San Francisco Administrative Code as it now exists or as it may be amended in the future (collectively the
"LBE Ordinance"), provided such amendments do not materially increase Contractor's obligations or
liabilities, or materially diminish Contractor's rights, under this Agreement. Such provisions of the LBE
Ordinance are incorporated by reference and made a part of this Agreement as though fully set forth in
this section. Contractor's willful failure to comply with any applicable provisions of the LBE Ordinance
is a material breach of Contractor's obligations under this Agreement and shall entitle City, subject to any
applicable notice and cure provisions set forth in this Agreement, to exercise any of the remedies
provided for under this Agreement, under the LBE Ordinance or otherwise available at law or in equity,
which remedies shall be cumulative unless this Agreement expressly provides that any remedy is
exclusive. In addition, Contractor shall comply fully with all other applicable local, state and federal laws
prohibiting discrimination and requiring equal opportunity in contracting, including subcontracting.
b. Compliance and Enforcement. If Contractor willfully fails to comply with any of the
provisions of the LBE Ordinance, the rules and regulations implementing the LBE Ordinance, or the
provisions of this Agreement pertaining to LBE participation, Contractor shall be liable for liquidated
damages in an amount equal to Contractor's net profit on this Agreement, or 10% of the total amount of
this Agreement, or $1,000, whichever is greatest. The Director of the City's Contract Monitoring
Division (CMD) or any other public official authorized to enforce the LBE Ordinance (separately and
collectively, the "Director of CMD") may also impose other sanctions against Contractor authorized in
the LBE Ordinance, including declaring the Contractor to beirresponsible and ineligible to contract with
the City for a period of up to five years or revocation of the Contractor's LBE certification. The Director
of CMD will determine the sanctions to be imposed, including the amount of liquidated damages, after
investigation pursuant to Administrative Code § 14B.17. By entering into this Agreement, Contractor
acknowledges and agrees that any liquidated damages assessed by the Director of the CMD shall be
payable to City upon demand. Contractor further acknowledges and agrees that any liquidated damages
assessed may be withheld from any monies due to Contractor on any contract with City. Contractor
agrees to maintain records necessary for monitoring its compliance with the LBE Ordinance for a period
of three years following termination or expiration of this Agreement, and shall make such records
available for audit and inspection by the Director of CMD or the Controller upon request.
34. Nondiscrimination; Penalties
a. Contractor Shall Not Discriminate. In the performance of this Agreement, Contractor
agrees not to discriminate against any employee, City and County employee working with such contractor
or subcontractor, applicant for employment with such contractor or subcontractor, or against any person
seeking accommodations, advantages, facilities, privileges, services, or membership in all business,
social, or other establishments or organizations, on the basis of the fact or perception of a person's race,
color, creed, religion, national origin, ancestry, age, height, weight, sex, sexual orientation, gender
identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or
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HIV status (AIDS/HIV status), or association with members of such protected classes, or in retaliation for
opposition to discrimination against such classes.
b. Subcontracts. Contractor shall incorporate by reference in all subcontracts the provisions
of §§12B.2(a), 12B.2(c)-(k), and 12C.3 of the San Francisco Administrative Code (copies of which are
available from Purchasing) and shall require all subcontractors to comply with such provisions.
Contractor's failure to comply with the obligations in this subsection shall constitute a material breach of
this Agreement.
c.. Nondiscrimination in Benefits. Contractor does not as of the date of this Agreement and
will not during the term of this Agreement, in any of its operations in San Francisco, on real property
owned by San Francisco, or where work is being performed for the City elsewhere in the United States,
discriminate in the provision of bereavement leave, family medical leave, health benefits, membership or
membership discounts, moving expenses, pension and retirement benefits or travel benefits, as well as
any benefits other than the benefits specified above, between employees with domestic partners and
employees with spouses, and/or between the domestic partners and spouses of such employees, where the
domestic partnership. has been registered with a governmental entity pursuant to state or local law
authorizing such registration, subject to the conditions set forth in §12B.2(b) of the San Francisco
Administrative Code.
d. Condition to Contract. As a condition to this Agreement, Contractor shall execute the
"Chapter 12B Declaration: Nondiscrimination in Contracts and Benefits" form (form HRC-12B-101) with
supporting documentation and secure the approval of the form by the San Francisco Human Rights
Commission.
e. Incorporation of Administrative Code Provisions by Reference. The provisions of
Chapters 12B and 12C of the San Francisco Administrative Code are incorporated in this Section by
reference and made a part of this Agreement as though fully set forth herein. Contractor shall comply
fully with and be bound by all of the provisions that apply to this Agreement under such Chapters,
including but not limited to the remedies provided in such Chapters. Without limiting the foregoing,
Contractor understands that pursuant to §§12B.2(h) and 12C.3(g) of the San Francisco Administrative
Code, a penalty of $50 for each personforeach calendar day during which such person was discriminated
against in violation of the provisions of this Agreement may be assessed against Contractor and/or
deducted from any payments due Contractor.
35. MacBride Principles —Northern Ireland. Pursuant to San Francisco Administrative Code
§ 12F.5, the City and County of San Francisco urges companies doing business in Northern Ireland to
move towards resolving employment inequities, and encourages such companies to abide by the
MacBride Principles. The City and County of San Francisco urges San Francisco companies to do
business with corporations that abide by the MacBride Principles. By signing below, the person executing
this agreement on behalf of Contractor acknowledges and agrees that he or she has read and understood
this section.
36. Tropical Hardwood and Virgin Redwood Ban. Pursuant to §804(b) of the San Francisco
Environment Code, the City and County of San Francisco urges contractors not to import, purchase,
obtain, or use for any purpose, any tropical hardwood, tropical hardwood wood product, virgin redwood
or virgin redwood wood product.
37. Drug -Free Workplace Policy. Contractor acknowledges that pursuant to the Federal Drug -Free
Workplace Act of 1989, the unlawful manufacture, distribution, dispensation, possession, or use of a
controlled substance is prohibited on City premises. Contractor agrees that any violation of this
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prohibition by Contractor, . its employees, agents or assigns will be deemed a material breach of this
Agreement.
38. Resource Conservation. Chapter 5 of the San Francisco Environment Code ("Resource
Conservation") is incorporated herein by reference. Failure by Contractor to comply with any of the
applicable requirements of Chapter 5 will be deemed a material breach of contract.
39. Compliance with Americans with Disabilities Act. Contractor acknowledges that, pursuant to
the Americans with Disabilities Act (ADA), programs, services and other activities provided by a public
entity to the public, whether directly or through a contractor, must be accessible to the disabled public.
Contractor shall provide the services specified in this Agreement in a manner that complies with the ADA
and any and all other applicable federal, state and local disability rights legislation. Contractor agrees not
to discriminate against disabled persons in the provision of services, benefits or activities provided under
this Agreement and further agrees that any violation of this prohibition on the part of Contractor, its
employees, agents or assigns will constitute a material breach of this Agreement.
40. Sunshine Ordinance. In accordance with San Francisco Administrative Code §67.24(e),
contracts, contractors' bids, responses to solicitations and all other records of communications between
City and persons or firms seeking contracts, shall be open to inspection immediately after a contract has
been awarded. Nothing in this provision requires the disclosure of a private person or organization's net
worth or other proprietary financial data submitted for qualification for a contract or other benefit until
and unless that person or organization is awarded the contract or benefit. Information provided which is
covered by this paragraph will be made available to the public upon request.
41. Public Access to Meetings and Records. If the Contractor receivesa cumulative total per year
of at least $250,000 in City funds or City -administered funds and is a non-profit organization as defined
in Chapter 12L of the San Francisco Administrative Code, Contractor shall comply with and be bound by
all the applicable provisions of that Chapter. By executing this Agreement, the Contractor agrees. to open
its meetings and records to the public in the manner set forth in § § 12L.4 and 12L.5 of the Administrative
Code. Contractor further agrees to make -good faith efforts to promote community membership on its
Board of Directors in the manner set forth in §12L.6 of the Administrative Code. The Contractor
acknowledges that itsmaterial failure to comply with any of the provisions of this paragraph shall
constitute a material breach of this Agreement. The Contractor further acknowledges that such material
breach of the Agreement shall be grounds for the City to terminate and/or not renew the Agreement,
partially or in its entirety.
42. Limitations on Contributions. Through execution of this Agreement, Contractor acknowledges
that it is familiar with section 1.126 of the City's Campaign and Governmental Conduct Code, which
prohibits any person who contracts with the City for the rendition of personal services, for the furnishing
of any material, supplies or equipment, for the sale or lease of any land or building, or for a grant, loan or
loan guarantee, from making any campaign contribution to (1) an individual holding a City elective office
if the contract must be approved by the individual, a board on which that individual serves, or the board
of a state agency on which an appointee of that individual serves, (2) a candidate for the office held by
such individual, or (3) a committee controlled by such individual, at any time from the commencement of
negotiations for the contract until the later of either the termination of negotiations for such contract or six
(6) months after the date the contract is approved. Contractor acknowledges that the foregoing restriction
applies only if the contract or a combination or series of contracts approved by the same individual or
board in a fiscal year have a total anticipated or actual value of $50,000 or more. Contractor further
acknowledges that the prohibition on contributions applies to each prospective party to the contract; each
member of Contractor's board of directors; Contractor's chairperson, chief executive officer, chief
financial officer and chief operating officer; any person with an ownership interest of more than twenty
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(20) percent in Contractor; any subcontractor listed in the bid or contract; and any committee that is
sponsored or controlled by Contractor. Additionally, Contractor acknowledges that Contractor must
inform each of the persons described in the preceding sentence of the prohibitions contained in Section
1.126. Contractor further agrees to provide to City the names of each person, entity or committee
described above.
43. Requiring Minimum Compensation for Covered Employees
a. Contractor agrees to comply fully with and be bound by all of the provisions of the
Minimum Compensation Ordinance (MCO), as set forth in San Francisco Administrative Code Chapter
12P (Chapter 12P), including the remedies provided, and implementing guidelines and rules. The
provisions of Sections 12P.5 and 12P.5.1 of Chapter 12P are incorporated herein by reference and made a
part of this Agreement as though fully set forth. The text of the MCO is available on the web at
www.sffov.org/olse/mco . A partial listing of some of Contractor's obligations under the MCO is set forth
in this Section. Contractor is required to comply with all the provisions of the MCO, irrespective of the
listing of obligations in this Section.
b. The MCO requires Contractor to pay Contractor's employees a minimum hourly gross
compensation wage rate and to provide minimum compensated and uncompensated time off. The
minimum wage rate may change from year to year and Contractor is obligated to keep informed of the
then -current requirements. Any subcontract entered into by Contractor shall require the subcontractor to
comply with the requirements of the MCO and shall contain contractual obligations substantially the
same as those set forth in this Section. It is Contractor's obligation to ensure that any subcontractors of
any tier under this Agreement comply with the requirements of the MCO. If any subcontractor under this
Agreement fails to comply, City may pursue any of the remedies set forth in this Section against
Contractor.
c. Contractor shall not take adverse action or otherwise discriminate against an employee or
other person for the exercise or attempted exercise of rights under the MCO. Such actions, if taken within
ninety (90) days of the exercise or attempted exercise of such rights, will be rebuttably presumed to be
retaliation prohibited by the MCO.
d. Contractor shall maintain employee and payroll records as required by the MCO. If
Contractor fails to do so, it shall be presumed that the Contractor paid no more than the minimum wage
required under State law.
e. The City is authorized to inspect Contractor's job sites and conduct interviews with
employees and conduct audits of Contractor.
f. Contractor's commitment to provide the Minimum Compensation is a material element of
the City's consideration for this Agreement. The City in its sole discretion shall determine whether such a
breach has occurred. The City and the public will suffer actual damage that will be impractical or
extremely difficult to determine if the Contractor fails to comply with these requirements. Contractor
agrees that the sums set forth in Section 12P.6.1 of the MCO as liquidated damages are not a penalty, but
are reasonable estimates of the loss that the City and the public will incur for Contractor's noncompliance.
The procedures governing the assessment of liquidated damages shall be those set forth in Section
12P.6.2 of Chapter 12P.
g. Contractor understands and agrees that if it fails to comply with the requirements of the
MCO, the City shall have the right to pursue any rights or remedies available under Chapter 12P
(including liquidated damages), under the terms of the contract, and under applicable law. If, within thirty
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(30) days after receiving written notice of a breach of this Agreement for violating the MCO, Contractor
fails to cure such breach or, if such breach cannot reasonably be cured within such period of thirty (30)
days, Contractor fails to commence efforts to cure within such period, or thereafter fails diligently to
pursue such cure to completion, the City shall have the right to pursue any rights or remedies available
under applicable law, including those set forth in Section 12P.6(c) of Chapter 12P. Each of these remedies
shall be exercisable individually or in combination with any other rights or remedies available to the City.
h. Contractor represents and warrants that it is not an entity that was set up, or is being used,
for the purpose of evading the intent of the MCO.
i. If Contractor is exempt from the MCO when this Agreement is executed because the
cumulative amount of agreements with this department for the fiscal year is less than $25,000, but
Contractor later enters into an agreement or agreements that cause contractor to exceed that amount in a
fiscal year, Contractor shall thereafter be required to comply with the MCO under this Agreement. This
obligation arises on the effective date of the agreement that causes the cumulative amount of agreements
between the Contractor and this department to exceed $25,000 in the fiscal year.
44. Requiring Health Benefits for Covered Employees
Contractor agrees to comply fully with and be bound by all of the provisions of the Health Care
Accountability Ordinance (HCAO), as set forth in San Francisco Administrative Code Chapter 12Q,
including the remedies provided, and implementing regulations, as the same may be amended from time
to time. The provisions of section 12Q.5.1 of Chapter 12Q are incorporated by reference and made a part
of this Agreement as though fully set forth herein. The text of the HCAO is available on the web at
www.sfgov.org/olse . Capitalized terms used in this Section and not defined in this Agreement shall have
the meanings assigned to such terms in Chapter 12Q.
a. For each Covered Employee, Contractor shall provide the appropriate health benefit set
forth in Section 12Q.3 of the HCAO. If Contractor chooses to offer the health plan option, such health
plan shall meet the minimum standards set forth by the San Francisco Health Commission.
b. Notwithstanding the above, if the Contractor is. a small business as defined in Section
12Q.3(e) of the HCAO, it shall have no obligation to comply with part (a) above.
c. . Contractor's failure to comply with the HCAO shall constitute a material breach of this
agreement. City shall notify Contractor if such a breach has occurred. If, within thirty (30) days after
receiving City's written notice of a breach of this Agreement for violating the HCAO, Contractor fails to
cure such breach or, if such breach cannot reasonably be cured within such period of thirty (30) days,
Contractor fails to commence efforts to cure within such period, or thereafter fails diligently to pursue
such cure to completion, City shall have the right to pursue the remedies set forth in 12Q.5.1 and
12Q.5(f)(1-6). Each of these remedies shall be exercisable individually or in combination with any other
rights or remedies available to City.
d. Any Subcontract entered into by Contractor shall require the Subcontractor to comply
with the requirements of the HCAO and shall contain contractual obligations substantially the same as
those set forth in this Section. Contractor shall notify City's Office of Contract Administration when it
enters into such a Subcontract and shall certify to the Office of Contract Administration that it has
notified the Subcontractor of the obligations under the HCAO and has imposed the requirements of the
HCAO on Subcontractor through the Subcontract. Each Contractor shall be responsible for its
Subcontractors' compliance with this Chapter. If a Subcontractor fails to comply, the City may pursue the
remedies set forth in this Section against Contractor based on the Subcontractor's failure to comply,
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provided that City has first provided Contractor with notice and an opportunity to obtain a cure of the
violation.
e. Contractor shall not discharge, reduce in compensation, or otherwise discriminate against
any employee for notifying City with regard to Contractor's noncompliance or anticipated noncompliance
with the requirements of the HCAO, for opposing any practice proscribed by the HCAO, for participating
in proceedings related to the HCAO, or for seeking to assert or enforce any rights under the HCAO by
any lawful means.
f. Contractor represents and warrants that it is not an entity that was set up, or is being used,
for the purpose of evading the intent of the HCAO.
g. Contractor shall maintain employee and payroll records in compliance with the California
Labor Code and Industrial Welfare Commission orders, including the number of hours each employee has
worked on the City Contract.
h. Contractor shall keep itself informed of the current requirements of the HCAO.
i. Contractor shall provide reports to the City in accordance with any reporting standards
promulgated by the City under the HCAO, including reports on Subcontractors and Subtenants, as
applicable.
j. Contractor shall provide City with access to records pertaining to compliance with
HCAO after receiving a written request from City to do so and being provided at least ten business clays
to respond.
k. Contractor shall allow City to inspect Contractor's job sites and have access to
Contractor's employees in order to monitor and determine compliance with HCAO.
1. City may conduct random audits of Contractor to ascertain its compliance with HCAO.
Contractor agrees to cooperate with City when it conducts such audits.
m. If Contractor is exempt from the HCAO when this Agreement is executed because its
amount is less than $25,000 ($50,000 for nonprofits), but Contractor later enters into an agreement or
agreements that cause Contractor's aggregate amount of all agreements with City to reach $75,000, all the
agreements shall be thereafter subject to the HCAO. This obligation arises on the effective date of the
agreement that causes the cumulative amount of agreements between Contractor and the City to be equal
to or greater than $75,000 in the fiscal year.
45. First Source Hiring Program
a. Application of Administrative Code Provisions by Reference. The provisions of
Chapter 83 of the San Francisco Administrative Code apply to this Agreement. Contractor shall comply
fully with, and be bound by, all of the provisions that apply to this Agreement under such Chapter,
including but not limited to the remedies provided therein. Capitalized terms used in this Section and not
defined in this Agreement shall have the meanings assigned to such terms in Chapter 83.
b. First Source Hiring Agreement. As an essential term of, and consideration for, any
contract or property contract with the City, not exempted by the FSHA, the Contractor shall enter into a
first source hiring agreement ("agreement") with the City, on or before the effective date of the contract or
AIR-500 (5-10) Page 17 of 26 , Contract 9082, August 7, 2012
property contract. Contractors shall also enter into an agreement with the City for any other work that it
performs in the City. Such agreement shall:
1) Set appropriate hiring and retention goals for entry level positions. The employer
shall agree to achieve these hiring and retention goals, or, if unable to achieve these goals, to establish
good faith efforts as to its attempts to do so, as set forth in the agreement. The agreement shall take into
consideration the employer's participation in existing job training, referral and/or brokerage programs.
Within the discretion of the FSHA, subject to appropriate modifications, participation in such programs
maybe certified as meeting the requirements of this Chapter. Failure either to achieve the specified goal,
or to establish good faith efforts will constitute noncompliance and will subject the employer to the
provisions of Section 83.10 of this Chapter.
2) - • Set first source interviewing, recruitment and hiring requirements, which will
provide the San Francisco Workforce Development System with the first opportunity to provide qualified
economically disadvantaged individuals for consideration for employment for entry level positions.
Employers shall consider all applications of qualified economically disadvantaged individuals referred by
the System for employment; provided however, if the employer utilizes nondiscriminatory screening
criteria, the employer shall have the sole discretion to interview and/or hire individuals referred or
certified by the San Francisco Workforce Development System as being qualified economically
disadvantaged individuals. The duration of the first source interviewing requirement shall be determined
by the FSHA and shall be set forth in each agreement, but shall not exceed ten (10) days. During that
period, the employer may publicize the entry level positions in accordance with the agreement. A need for
urgent or temporary hires must be evaluated, and appropriate provisions for such a situation must be made
in the agreement.
3) Set appropriate requirements for providing notification of available entry level
positions to the San Francisco Workforce Development System so that the System may train and refer an
adequate pool of qualified economically disadvantaged individuals to participating employers.
Notification should include such information as employment needs by occupational title, skills, and/or
experience required, the hours required, wage scale and duration of employment, identification of entry
level and training positions, identification of English language proficiency requirements, or absence
thereof, and the projected schedule and procedures for hiring for each occupation. Employers should
provide both long-term job need projections and notice before initiating the interviewing and hiring
process. These notification requirements will take into consideration any need to protect the employer's
proprietary information.
4) Set appropriate record keeping and monitoring requirements. The First Source
Hiring Administration shall develop easy -to -use forms and record keeping requirements for documenting
compliance with the agreement. To the greatest extent possible, these requirements shall utilize the
employer's existing record keeping systems, be non -duplicative, and facilitate a coordinated flow of
information and referrals.
5) Establish guidelines for employer good faith efforts to comply with the first
source hiring requirernents of this Chapter. The FSHA will work with City departments to develop
employer good faith effort requirements appropriate to the types of contracts and property contracts
handled by each department. Employers shall appoint a liaison for dealing with the development and
implementation of the employer's agreement. In the event that the FSHA finds that the employer under a
City contract or property contract has taken actions primarily for the purpose of circumventing the
requirernents of this Chapter, that employer shall be subject to the sanctions set forth in Section 83.10 of
this Chapter.
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6) Set the term of the requirements.
7) Set appropriate enforcement and sanctioning standards consistent with this
Chapter.
8) Set forth the City's 'obligations to develop training programs, job applicant
referrals, technical assistance, and information systems that assist the employer in complying with this
Chapter.
9) Require the developer to include notice of the requirements of this Chapter in
leases, subleases, and other occupancy contracts.
c. Hiring Decisions. Contractor shall make the final determination of whether an
Economically Disadvantaged Individual referred by the System is "qualified" for the position.
d. Exceptions. Upon application by Employer, the First Source Hiring Administration may
grant an exception to any or all of the requirements of Chapter 83 in any situation where it concludes that
compliance with this Chapter would cause economic hardship.
e. Liquidated Damages. Contractor agrees:
1) To be liable to the City for liquidated damages as provided in this section;
2) To be subject to the procedures governing enforcement of breaches of contracts
based on violations of contract provisions required by this Chapter as set forth in this section;
3) That the contractor's commitment to comply with this Chapter is a material
element of the City's consideration for this contract; that the failure of the contractor to comply with the
contract provisions required by this Chapter will cause harm to the City and the public which is
significant and substantial but extremely difficult to quantity; that the harm to the City includes not only
the financial cost of funding public assistance programs but also the insidious but impossible to quantify
harm that this community and its families suffer as a result of unemployment; and that the assessment of
liquidated damages of up to $5,000 for every notice of a new hire for an entry level position improperly
withheld by the contractor from the first source hiring process, as determined by the FSHA during its first
investigation of a contractor, does not exceed a fair estimate of the financial and other damages that the
City suffers as a result of the contractor's failure to comply with its first source referral contractual
obligations.
4) That the continued failure by a contractor to comply with its first source referral
contractual obligations will cause further significant and substantial harm to the City and the public, and
that a second assessment of liquidated damages of up to $10,000 for each entry level position improperly
withheld from the FSHA, from the time of the conclusion of the first investigation forward, does not
exceed the financial and other damages that the City suffers as a result of the contractor's continued
failure to comply with its first source referral contractual obligations;
5) That in addition to the cost of investigating alleged violations under this Section,
the computation of liquidated damages for purposes of this section is based on the following data:
(a) The average length of stay on public assistance in San Francisco's
County Adult Assistance Program is approximately 41 months at an average monthly grant of $348 per
month, totaling approximately $14,379; and
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(b) In 2004, the retention rate of adults placed in employment programs
funded under the Workforce Investment Act for at least the first six months of employment was 84.4%.
Since qualified individuals under the First Source program face far fewer barriers to employment than
their counterparts in programs funded by the Workforce Investment Act, it is reasonable to conclude that
the average length of employment for an individual whom the First Source Program refers to an employer
and who is hired in an entry level position is at least one year;
Therefore, liquidated damages that total $5,000 fdr first violations and $10,000
for subsequent violations as determined by FSHA constitute a fair, reasonable, and conservative attempt
to quantify the harm caused to the City by the failure of a contractor to comply with its first source
referral contractual obligations.
6) That the failure of contractors to comply with this Chapter, except property
contractors, may be subject to the debarment and monetary penalties set forth in Sections 6.80 et seq. of
the San Francisco Administrative Code, as well as any other remedies available under the contract or at
law; and violation of the requirements of Chapter 83 is subject to an assessment of liquidated damages in
the amount of $5,000 for every new hire for an Entry Level Position improperly withheld from the first
source hiring process. The assessment of liquidated damages and the evaluation of any defenses or
mitigating factors shall be made by the FSHA.
f. Subcontracts. Any subcontract entered into by Contractor shall require the subcontractor
to comply with the requirements of Chapter 83 and shall contain contractual obligations substantially the
same as those set forth in this Section.
46. Prohibition on Political Activity with City Funds. In accordance with San Francisco
Administrative Code Chapter 12.G, Contractor may not participate in, support, or attempt to influence any
political campaign for a candidate or for a ballot measure (collectively, "Political Activity") in the
performance of the services provided under this Agreement. Contractor agrees to comply with San
Francisco Administrative Code Chapter 12.G and any implementing rules and regulations promulgated by
the City's Controller. The terms and provisions of Chapter 12.G are incorporated herein by this reference.
In the event Contractor violates the provisions of this section, the City may, in addition to any other rights
or remedies available hereunder, (i) terminate this Agreement, and (ii) prohibit Contractor from bidding
on or receiving any new City contract for 'a period of two (2) years. The Controller will not consider
Contractor's use of profit as a violation of this section.
47. Preservative -treated Wood Containing Arsenic. Contractor may not purchase preservative -
treated wood products containing arsenic in the performance of this Agreement unless an exemption from
the requirements of Chapter 13 of the San Francisco Environment Code is obtained from the Department
of the Environment under Section 1304 of the Code. The term "preservative -treated wood containing
arsenic" shall mean wood treated with a preservative that contains arsenic, elemental arsenic, or an
arsenic copper combination, including, but not limited to, chromated copper arsenate preservative,
ammoniacal copper zinc arsenate preservative, or ammoniacal copper arsenate preservative. Contractor
may purchase preservative -treated wood products on the list of environmentally preferable alternatives
prepared and adopted by the Department of the Environment. This provision does not preclude Contractor
from purchasing preservative -treated wood containing arsenic for saltwater immersion. The term
"saltwater immersion" shall mean a pressure -treated wood that is used for construction purposes or
facilities that are partially or totally immersed in saltwater.
48. Modification of Agreement. This Agreement may not be modified, nor may compliance with
any of its terms be waived, except by written instrument executed and approved in the same manner as
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this Agreement. Contractor shall cooperate with Department to submit to the Director of HRC any
amendment, modification, supplement or change order that would result in a cumulative increase of the
original amount of this Agreement by more than 20% (HRC Contract Modification Form).
49. Administrative Remedy for Agreement Interpretation. Should any question arise as to the
meaning and intent of this Agreement, the question shall, prior to any other action or resort to any other
legal remedy, be referred to Purchasing who shall decide the true meaning and intent of the Agreement.
50. Agreement Made in California; Venue. The formation, interpretation and, performance of this
Agreement shall be governed by the laws of the State of California Venue for all litigation relative to the
formation, interpretation and performance of this Agreement shall be in San Francisco.
51. Construction. All paragraph captions are for reference only and shall not be considered in
construing this Agreement.
52. Entire Agreement. This contract sets forth the entire Agreement between the parties, and
supersedes all other oral or written provisions. This contract may be modified only as provided in Section
48, "Modification of Agreement."
53. Compliance with Laws. Contractor shall keep itself fully informed of the City's Charter, codes,
ordinances and regulations of the City and of all state, and federal laws in any manner affecting the
performance of this Agreement, and must at all times comply with such local codes, ordinances, and
regulations and all applicable laws as they may be amended from time to time.
54. Services Provided by Attorneys. Any services to be provided by a law firm or attorney must be
reviewed and approved in writing in advance by the City Attorney. No invoices for services provided by
law firms or attorneys, including, without limitation, as subcontractors of Contractor, will be paid unless
the provider received advance written approval from the City Attorney.
55. Supervision of Minors. LEFT BLANK BY AGREEMENT OF THE PARTIES
56. Severability. Should the application of any provision of this Agreement to any particular facts or
circumstances be found by a court of competent jurisdiction to be invalid or unenforceable, then (a) the
validity of other provisions of this Agreement shall not be affected or impaired thereby, and (b) such
provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and
shall be reformed without further action by the parties to the extent necessary to make such provision
valid and enforceable.
57. Protection of Private Information. Contractor has read and agrees to the terns set forth in San
Francisco Administrative Code Sections 12M.2, "Nondisclosure of Private Information," and 12M.3,
"Enforcement" of Administrative Code Chapter 12M, "Protection of Private Information," which are
incorporated herein as if fully set forth. Contractor agrees that any failure of Contactor to comply with the
requirements of Section 12M.2 of this Chapter shall be a material breach of the Contract. In such an
event, in addition to any other remedies available to it under equity or law, the City may terminate the
Contract, bring a false claim action against the Contractor pursuant to Chapter 6 or Chapter 21 of the
Administrative Code, or debar the Contractor.
58. Graffiti Removal. Graffiti is detrimental to the health, safety and welfare of the community in
that it promotes a perception in the community that the laws protecting public and private property can be
disregarded with impunity. This perception fosters a sense of disrespect of the law that results in an
increase in crime; degrades the community and leads to urban blight; is detrimental to property values,
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business opportunities and the enjoyment of life; is inconsistent with the City's property maintenance
goals and aesthetic standards; and results in additional graffiti and in other properties becoming the target
of graffiti unless it is quickly removed from public and private property. Graffiti results in visual pollution
and is a public nuisance. Graffiti must be abated as quickly as possible to avoid detrimental impacts on
the City and County and its residents, and to prevent the further spread of graffiti. Contractor shall
remove all graffiti from any real property owned or leased by Contractor in the City and County of San
Francisco within forty eight (48) hours of the earlier of Contractor's (a) discovery or notification of the
graffiti or (b) receipt of notification of the graffiti from the Department of Public Works. This section is
not intended to require a Contractor to breach any lease or other agreement that it may have concerning its
use of the real property. The term "graffiti" means any inscription, word, figure, marking or design that is
affixed, marked, etched, scratched, drawn or painted on any building, structure, fixture or other
improvement, whether permanent or temporary, including by way of example only and without limitation,
signs, banners, billboards and fencing surrounding construction sites, whether public or private, without
the consent of the owner of the property or the owner's authorized agent, and which is visible from the
public right-of-way. "Graffiti" shall not include: (1) any sign or banner that is authorized by, and in
compliance with, the applicable requirements of the San Francisco Public Works Code, the San Francisco
Planning Code or the San Francisco Building Code; or (2) any mural or other painting or marking on the
property that is protected as a work of fine art under the California Art Preservation Act (California Civil
Code Sections 987 et seq.) or as a work of visual art under the Federal Visual Artists Rights Act of 1990
(17 U.S.C. §§ 101 et seq.).
Any failure of Contractor to comply with this section of this Agreement shall constitute an Event
of Default of this Agreement.
59. Food Service Waste Reduction Requirements. Effective June 1, 2007, Contractor agrees to
comply fully with and be bound by all of the provisions of the Food Service Waste Reduction Ordinance,
as set forth in San Francisco Environment Code Chapter 16, including the remedies provided, and
implementing guidelines and rules. The provisions of Chapter 16-are incorporated herein by reference and
made a part of this Agreement as though fully set forth. This provision is a material term of this
Agreement. By entering into this Agreement, Contractor agrees that if it breaches this provision, City will
suffer actual damages that will be impractical or extremely difficult to determine; further, Contractor
agrees that the sum of one hundred dollars ($100) liquidated damages for the first breach, two hundred
dollars ($200) liquidated damages for the second breach in the same year, and five hundred dollars ($500)
liquidated damages for subsequent breaches in the same year is reasonable estimate of the damage that
City will incur based on the violation, established in light of the circumstances existing at the time this
Agreement was made. Such amount shall not be considered a penalty, but rather agreed monetary
damages sustained by City because of Contractor's failure to comply with this provision.
60. Slavery Era Disclosure. LEFT BLANK BY AGREEMENT OF THE PARTIES
61. Cooperative Drafting. This Agreement has been drafted through a cooperative effort of both
parties, and both parties have had an opportunity to have the Agreement reviewed and revised by legal
counsel. No party shall be considered the drafter of this Agreement, and no presumption or rule that an
ambiguity shall be construed against the party drafting the clause shall apply to the interpretation or
enforcement of this Agreement.
62. Dispute Resolution Procedure. LEFT BLANK BY AGREEMENT OF THE PARTIES
remedies.
63. Airport Intellectual Property. Pursuant to Resolution No. 01-0118, adopted by the Airport
Commission on April 18, 2001, the Airport Commission affirmed that it will not tolerate the unauthorized
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Page 22 of 26 Contract 9082, August 7, 2012
use of its intellectual property, including the SFO logo, CADD designs, and copyrighted publications. All
proposers, bidders, contractors, tenants, permittees, and others doing business with or at the Airport
(including subcontractors and subtenants) may not use the Airport intellectual property, or any intellectual
property confusingly similar to the Airport intellectual property, without the Airport Director's prior
consent.
64. Labor Peace / Card Check Rule. Without limiting the generality of other provisions herein
requiring Contractor to comply with all Airport Rules, Contractor shall comply with the Airport's Labor
Peace / Card Check Rule, adopted on February 1, 2000, pursuant to Airport Commission Resolution No.
00-0049 (the "Labor Peace / Card Check Rule"). Capitalized terms not defined in this provision are
defined in the Labor Peace/Card Check Rule. To comply with the Labor Peace/Care Check Rule,
Contractor shall, among other actions: (a) Enter into a Labor Peace/Care Check Rule Agreement with any
Labor Organization which requests such an agreement and which has registered with the Airport Director
or his / her designee, within thirty (30) days after Labor Peace/Care Check Rule Agreement has been
requested; (b) Not less than thirty (30) days prior to the modification of this Agreement, Contractor shall
provide notice by mail to any Labor Organization or federation of labor organizations which have
registered with the Airport Director or his / her designee (registered labor organization"), that Contractor
is seeking to modify or extend this Agreement; (c) Upon issuing any request for proposals, invitations to
bid, or similar notice, or in any event not less than thirty (30) days prior to entering into any Subcontract,
Contractor shall provide notice to all registered Labor Organizations that Contractor is seeking to enter
into such Subcontract; and (d) Contractor shall include in any subcontract with a Subcontractor
performing services pursuant to any covered Contract, a provision requiring the Subcontractor performing
services pursuant to any covered Contract, a provision requiring the Subcontractor to comply with the
requirements of the Labor Peace/Card Check Rule. If Airport Director determines that Contractor violated
the Labor Peace/Card Check Rule, Airport Director shall have the option to terminate this Agreement, in
addition to exercising all other remedies available to him / her.
65. Job Order Contract (JOC) System License.
a. The Contractor's implementation of the Airport Commission's JOC program includes a
license to the Contractor's proprietary JOC System and other related materials. The Contractor hereby
grants to the Airport Commission, and the Airport Commission hereby accepts from the Contractor for
the term of this Agreement, a non-exclusive right, privilege and license to the Contractor's Job Order
Contracting System and other related proprietary materials (collectively referred to as "Proprietary
Information") to be used for the sole purpose of operating the Airport Commission's JOC program. The
parties hereby agree that Proprietary Information shall include, but is not limited to, the eGordian®
software, and support documentation, Construction Task Catalog® (also commonly referred to as a unit
price book), training materials and other proprietary materials provided by the Contractor. In the event
this Agreement expires or terminates as provided herein, this JOC System License shall terminate and the
Airport Commission shall retum to the Contractor all Proprietary Information in the Airport
Commission's possession.
b. The Airport Commission acknowledges that disclosure of Proprietary Information will result
in irreparable harm to the Contractor for which monetary damages would be an inadequate remedy and
agrees that no such disclosure shall be made to anyone without first receiving the written consent of the
Contractor. The Airport Commission further acknowledges and agrees to respect the copyrights,
registrations, trade secrets and other proprietary rights of the Contractor in the Proprietary Information
during and after the term of this Agreement and shall at all times maintain complete confidentiality with
regard to the Proprietary Information provided to the Airport Commission, subject to federal and state
laws related to public records disclosure.
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c. The parties agree that the Airport Commission shall be authorized to distribute Proprietary
Information to the JOC construction contractors awarded contracts through the Airport Commission's
JOC program provided the Airport Commission includes a license in the JOC construction contracts
similar in form to this JOC System License. The Contractor agrees to grant a license to each construction
contractor that is awarded a JOC construction contract by the Airport Commission, provided the JOC
construction contractor pays the Contractor the contractor license fee in effect when the Commission
awards a JOC construction contract and provided the Airport Commission includes licensing language in
the JOC construction contract similar in form to this JOC System License.
d. The parties agree that Sections 26 and 27 of this Agreement do not apply to Proprietary
Information.
e. Upon expiration or termination of this Agreement as provided herein, the Contractor shall
provide all data generated by the Airport Commission in a form accessible by a standard database
program, such as Microsoft® Access®.
f. In the event of a conflict in terms and conditions between this JOC System License and any
other terms and conditions of this Agreement or any purchase order or similar purchasing document
issued by the Airport Commission, this JOC System License shall take precedence.
66. Federal Non -Discrimination Provisions. Contractor for itself, its personal representatives,
successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree
that Contractor shall maintain and operate the Airport facilities and services in compliance with all
requirements imposed pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the
Secretary, Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of
Transportation — Effectuation of Title VI of the Civil Rights Act of 1964, as said regulations may be
amended. Contractor, for itself, its personal representatives, successors in interest, and assigns, agrees that
Contractor in its operation at and use of San Francisco International Airport, covenants that (1) no person
on the grounds of race, color, national origin or sex shall be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination in the use of said facilities; (2) that in the
construction of any improvements on, over, or under the Airport and the furnishing of services thereon,
no person on the grounds of race, color, national origin or sex shall be excluded from participation or
denied the benefits of, or otherwise be subject to discrimination, (3) that Contractor shall use all City
premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, DOT, Subtitle A — Office of the Secretary of Transportation, Part 21, Nondiscrimination in
Federally -Assisted Programs of the Department of Transportation — Effectuation of Title VI of the Civil
Rights Act of 1964, and as said Regulations may be amended. These Regulations are incorporated as
though fully set forth herein. Contractor agrees to include the above statements in any subsequent contract
that it enters into with subcontractors and cause those agreements to similarly include the statements, and
cause those businesses to include the statements in further agreements.
Failure by the contractor to comply with the requirements of this section is a material breach of this
contract, which may result in the termination of this contract or such other remedy as the Airport deems
appropriate.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day first mentioned
above.
CITY
AIRPORT COMMISSION
CITY AND COUNTY OF
SAN FRANCISCO
By: •�
John L. Martm, irport Dir ctor Ca
Attest:
By
Jeramatti, Secretary
Ai
Commission
Resolution No: 12-0176
Adopted on: August 7, 2012
Approved as to Form:
Dennis J. Herrera
City Attorney
By
CONTRACTOR
By signing this Agreement, I certify that I comply
with the requirements of the Minimum
Compensation Ordinance, which entitle Covered
Employees to certain minimum hourly wages and
compensated and uncompensated time off.
I have read and understood paragraph 35, the City's
statement urging companies doing business in
Northern Ireland to move towards resolving
employment inequities, encouraging compliance
with the MacBride Principles, and urging San
Francisco companies to do business with
corporations that abide by the MacBride Principles.
d, MakL
Authorized Signature.
David L. Mahler
Printed Name
Vice President of Finance
Title
The Gordian Group
Company Name
53805
City Vendor Number
140 Bridges Road, Suite E
Address
Mauldin, South Carolina 29662
City, State, ZIP
800-874-2291
Telephone Number
58-1900371
Federal Employer ID Number
AIR-500 (5-10)
Page 25 of 26 Contract 9082, August 7, 2012
Appendices
A: Services to be provided by Contractor
B: Calculation of Charges
AIR-500 (5-10)
Page 26 of 26 Contract 9082, August 7, 2012
Appendix A
Services to be provided by Contractor
A. DESCRIPTION OF SERVICES
This Appendix A attached to, and incorporated by reference in the Agreement made on August 7,
2012 between the City and County of San Francisco, acting by and through its Airport Commission
(Commission), and The Gordian Group (Contractor) to provide Job Order Contract Implementation
Services at the San Francisco International Airport.
The Contractor shal I provide all labor, II rdleri al, equipment, services, software and supplies necessary
to provide job order contract implementation services as detailed below:
1. Program Development, Implementation and Support: Contractor will be responsible for the
development, implementation and on -going support of the Airport Commission's customized
JOC program. The Contractor is required to prepare for, and participate in informational
meetings with San Mateo and San Francisco Building Trades Councils, local unions and the
construction community during the development of the bid book.
2. Contract Documents: Contractor will be responsible for preparing the JOC documents that will
be used by the Airport Commission to procure the JOC construction contractors including:
a. Unit Price Book: Contractor must prepare a Unit Price Book containing at least 60,000 to
100,000 unit prices covering material, equipment and labor costs for various units of
construction, and adjusting these costs to current market conditions. The use of generic
factors to localize prices is not acceptable. Unit prices for demolition shall be provided for
each construction task. Therefore every cost to install an item or unit shall be accompanied
by a corresponding cost to remove the same item or unit.
b. Technical Specifications: Contractor must prepare and publish technical specifications
describing the materials, performance and installation requirements for each of the
construction tasks listed in the unit price book. Where available, the Airport Commission's
standard specifications will be incorporated into the Technical Specifications.
c. Contractual Tenns and Conditions and Bid Forms: Contractor must prepare, in conjunction
with Airport Commission staff, contractual terms and conditions and bid forms which
incorporate JOC language and forms with all appropriate Airport Commission contract
language and fonns.
3. Information Management System: Contractor will be responsible for providing the Airport
Commission with a comprehensive intemet-based JOC information management system for an
unlimited number of Airport Commission and JOC contractor users. The JOC information
AIR 500 (5-10)
Page 1 of 2 Contract 9082
Appendix A, Services to be provided by Contractor
management system must be used currently by a minimum of three (3) similar clients and must
be capable of providing full project tracking, developing cost proposals, preparing independent
Airport Commission estimates, generating all project documentation, providing project
scheduling, budgeting and cost control, tracking LBE participation, and generating customized
reports. Contractor must incorporate current Airport Commission forms and documentation into
the information management system.
4. Procurement Support: Contractor will be responsible for providing Airport Commission with
procurement support to market the Airport Commission JOC Program to potential JOC
contractors. The Contractor will be required to organize and conduct pre -bid meetings with the
intending bidders as well as make presentations on behalf of the Airport Commission with
various business and contracting organizations. Contractor staff assigned to perform procurement
support must have extensive JOC procurement experience.
5. Training Program: Contractor will be responsible for developing and conducting a training •
program for the Airport Commission and JOC contractor staff to ensure that the JOC program
functions properly. The training program must include specialized training courses that will
involve all parties utilizing and administering the JOC program. The training program must
include extensive training on the use of the JOC Information Management System. All training
must be "hands on" with functional use and individual performance as the objective. Actual
Airport Commission projects must be included in the training program.
6. On -Going Technical Support: Contractor will be responsible for providing extensive on -going
technical support to the Airport Commission. Expectations include assisting the Airport
Commission with program execution, analysis of task order proposals, troubleshooting and
continuous system monitoring. On -going technical support includes providing updated contract
documents, assisting with the procurement of additional JOC contractors, providing Airport
Commission with access to all updates and revisions to the Information Management System,
and providing Airport Commission with access to all updates and revisions to the Information
Management System, and providing training for new Airport Commission and JOC contractors
during the term of the contract. Providing on -going technical support is considered a vital
component to ensuring a successful Airport Commission JOC program.
B. Reports
Contractor shall submit written reports as requested by the Design & Construction Division. Format
for the content of such reports shall be determined by the Design & Construction Division. The
timely submission of all reports is a necessary and material term and condition of this Agreement.
The reports, including any copies, shall be submitted on recycled paper and printed on double -sided
pages to the maximum extent possible.
C. Department Liaison
In performing the services provided for in this Agreement, Contractor's liaison with the Design &
Construction Division will be Tony Breslin, Airport Project Manager.
AIR-500 (5-10)
Page 2 of 2 Contract 9082
Appendix A, Services to be provided by Contractor
Appendix B
Calculation of Charges
This is an Appendix attached to, and incorporated by reference in the Agreement made on August 7, 2012
between the City and County of San Francisco, acting by and through its Airport Commission
(Commission), and The Gordian Group (Contractor) providing for Job Order Contract Implementation
Services for the San Francisco International Airport. The Contractor agrees to implement a JOC program
for the Airport Commission and provide a license to the Contractor's proprietary JOC system without any
up -front cost. The below agreed to license fee shall be paid to the Contractor when a JOC contract is
awarded by the Airport Commission and an approvedinvoice is submitted by the Contractor to the
Airport Project Manager.
A. General
1. For the complete and satisfactory performance of the services detailed in Appendix A of this
Agreement, the City will pay the following JOC System License Fee:
Phase I License Fees - (2-Year Pilot Program) and Phase II License Fees (Year 3 through
Year 5):
a. Five percent (5%) of the value of the cumulative amount of Work ordered through the JOC
program up to and including eight million dollars ($8,000,000).
b. One and ninety-five hundredths percent (1.95%) of the value of the work ordered through the
JOC program in excess of eight million dollars (8,000,000)
Phase lT License Fees (Year 3 through Year 5):
The Commission shall receive credit toward the eight million dollars ($8,000,000) for the value
of work ordered during Phase 1.
2. No charges shall be incurred under this Agreement nor shall any payments become due to the
Contractor until reports, services, or both required under this Agreement are received from the
Contractor and approved by the Commission as being in accordance with this Agreement. In no
event shall the Commission be liable for interest or late charges for any late payments.
3. Compensation for work performed under this Agreement will be on a value of work order
through the JOC program basis as stated above. Such compensation shall be allowable only to
the extent that costs incurred, or otherwise established prices, are consistent with the Federal Cost
Principles (Title 48, Code of Federal Regulations, Part 31).
AIR-500 (5-10)
Page 1 of 3 Contract 9082
Appendix B, Calculation of Charges
B. Method of Payment
1. Unless approved otherwise by the Commission, and as stated above, the Contractor's services
shall be invoiced on a monthly basis and payment will be made within thirty (30) days of receipt
of an acceptable invoice with satisfactory backup documentation, approved by the Airport Project
Manager. As used herein, the term "invoice" shall include the Contractors bill or written request
for payment under this Agreement for services performed. All invoices shall be made in writing.
2. Unless approved otherwise by the Airport's Project Manager, the Contractor shall, within three
(3) days after receipt of payment by the Airport specified in this Agreement pay to all of its
immediate subconsultants (or their respective assignees) the amounts to which they are entitled,
after deducting any prior payments and any amounts clue and payable to the Contractor by those
subconsultants.
3. The Contractor shall invoice for the Work performed in conformance with procedures approved
by the Commission and the then current rate agreement.
a. _Such invoices shall segregate current costs from previously invoiced costs.
b. Costs for individual labor shall be segregated by task and subtasks, if any.
c. Notwithstanding the above, in no case shall the Contractor invoice include costs which
Airport has disallowed or otherwise indicated that it will not recognize.
4. Such invoices shall be as a minimum, (i) mechanically accurate, (ii) substantially vouchered and;
properly supported and (iii) in compliance with Contractor's and subconsultants' generally
accepted accounting principles
5. The Airport's Project Manager reserves the right to withhold payment(s) otherwise due the
Contractor in the event of the Contractors material non-compliance with any of the provisions of
this Agreement, including, but not limited to, the requirements imposed upon the Contractor in
Article 15, Insurance, and Article 16, Indemnification. The Airport shall provide notice of
withholding, and may continue the withholding until the Contractor has provided evidence of
compliance which is acceptable to the Airport.
7. All invoices shall be made in writing and delivered or mailed to the Airport as follows:
By US mail:
By Personal Delivery
or Express Mail:
Tony Breslin, Airport Project Manager
San Francisco International Airport
Design and Construction Division (Contract 9082)
P.O. Box 8097
San Francisco, CA 94128
Tony Breslin, Airport Project Manager
San Francisco International Airport
Airport Commission/Singapore Building
Design and Construction Division (Contract 9082)
710 N. McDonnell Road, 2"d Floor
San Francisco, CA 94128
AIR-500 (5-10)
Page 2 of 3 Contract 9082
Appendix B, Calculation of Charges
C. Other Direct Cost
1. All travel expenses and cost for vehicle rentals, contractor meals, and per diem into or outside the
San Francisco Bay Area shall be subject to written approval by SFO. No administration charge
may be added to the amount to be reimbursed as other direct costs. No reimbursement shall be
provided for faxing documents. No mileage reimbursement shall be provided for automobile trips
within the San Francisco Bay Area (less than fifty (50) miles from SFO). No reimbursement shall
be provided for contractor meals, accommodations, long distance, and cellular telephone charges
within the San Francisco Bay Area (less than fifty (50) miles from SFO). Specialists, Project
Executives, and others that are based out of town, who are not assigned to the jobsite office, must
have written approval by SFO in order to be reimbursed for salary costs and travel expenses.
Regional (remote) executive's travel expenses to visit the local job office are not reimbursable.
Part-time jobsite personnel who are shared with other out-of-town clients are not reimbursed for
travel expenses.
2. Any ODC expenses in excess of $500 shall be pre -approved by the Project Manager.
AIR-500 (5-10)
Page 3 of 3 Contract 9082
Appendix B, Calculation of Charges
Proposal Offering
And Acceptance and Award
RFP #110911
FORM D
JOB -ORDER -CONTRACTING CONSTRUCITON SYSTEM WITH RELATED ACCESSORIES AND SUPPLIES.
Proposal Offering (To be Completed Only by Proposer) . •
In compliance with the Request for proposal (RFP) for JOB -ORDER -CONTRACTING CONSTRUCITON SYSTEM
WITH RELATED ACCESSORIES AND SUPPLIES, the undersigned warrants that I/we have examined the RFP and,
being familiar with all the instructions, terms and conditions, general specifications, expectations, technicalspecifications,
service expectations and any special terms, do hereby offer and agree to furnish the defined services/products in
compliance with all terms, conditions of the RFP, any applicable amendments of RFP, and all Proposer's response
documentation. Proposer further understands they are the sole offeror herein and that the performance of any sub-
contractors employed by the Proposer in fulfillment of this offer is the sole responsibility of the Proposer.
Company Name: The Gordian Group, Inc. Date: 11/4/2011
Company Address: 140 Bridges Road, Suite E
City: Mauldin
State: SC Zip: 2966E
Contact Person: David L. Mahler Title: Vice President of Finance
Authorized Signature (ink only): _bCl t tA,(,Q, 0` • f ` 1 cx4 J
(Name printed or typed)
Contract Acceptance and Award (To be completed only by NJPA)
Your proposal offering is hereby accepted and awarded. As the awarded Proposer, you are now bound to provide the
defined goods and services contained in your proposal offering according to all terms, conditions, and pricing set forth in
the RFP, any amendments to the RFP, and the Proposer's Response. The effective date of this Contract shall be
1 ti , ?moo , 20 I ( and continue for four years AND which is subject to annual renewal at the option of both
parties.
National Joint Powers Allianc
(NJPA)
NJPA Authorized signature: (.�-✓u.�
Title: t C:C4,rice6 ice! Ize: cict—
Awarded this Z-p
NJPA Authorized signature.
Title: baa►'Gt
Executed this ?. b
day of e-D ec.ub4-11,in_- Zo 1 t
IQaP 1-1/4tset. ,
(Name printed or typed)
Contract Number # 110911-- 661
(Name printed or typed)
day of Contract Number # 110911 — 65
Page 37 of 42