recognition data, and (iii) shall expressly apply any releases, consents, or policies required by applicable law to UKG, its affiliates and its authorized subcontractors.
10.2 FS/FR Responsibility. CUSTOMER AGREES TO BE RESPONSIBLE FROM ANY AND ALL DAMAGES, LOSSES,
LIABILITIES, COSTS, PENALTIES, AND FINES ACTUALLY AWARDED TO A THIRD PARTY AS A RESULT OF SUCH A FS/FR EQUIPMENT CLAIM. UPON RECEIPT OF NOTICE OF SUCH AN EQUIPMENT CLAIM, UKG SHALL BE ENTITLED TO
PARTICIPATE IN THE DEFENSE OF SUCH CLAIM AND TO EMPLOY COUNSEL AT ITS OWN EXPENSE TO ASSIST IN THE HANDLING OF SUCH CLAIM, ON A MONITORING AND A NON-CONTROLLING BASIS; (II) CUSTOMER SHALL NOT SETTLE
ANY EQUIPMENT CLAIM ON ANY TERMS OR IN ANY MANNER THAT ADVERSELY AFFECTS THE RIGHTS OF UKG WITHOUT ITS PRIOR WRITTEN CONSENT; AND (III) UKG SHALL PROVIDE REASONABLE COOPERATION AND ASSISTANCE AT CUSTOMER’S SOLE COST AND EXPENSE.
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MSA v2024.08.02 US.EN PS Direct Page 24 of 25
Exhibit 3-A
Purchased Equipment Description
This Purchase Equipment Description is supplemental to the Equipment Addendum and contains additional or different terms with respect to the purchase of Equipment and related Support Services by Customer.
1. Definitions.
In this Exhibit 3-A, capitalized terms shall have the meanings set out below:
“Initial Term” – means the initial billing term of the Equipment Support Service as set forth in Section 4.2 below. “Renewal Term” – means the renewal billing term of the Equipment Support Service as set forth in Section 4.2 below. “Term” – means the Initial Term and any Renewal Terms, together.
2. Invoicing of Purchased Equipment and Support Services. UKG shall invoice Customer for purchased Equipment and Equipment Support Services upon shipment of such purchased Equipment.
3. Renewal and Termination.
3.1 Upon expiry of the Initial Term, the term of the Equipment Support Services will renew for successive Renewal Terms unless either Party notifies the other in writing of its intent not to renew at least thirty (30) days prior to expiry of the then-current Initial Term or a Renewal Term.
3.2 The fees for Equipment Support Services may change on the commencement of each applicable Renewal Term, provided that UKG gives Customer at least thirty (30) days’ prior written notice of such change through the renewal quote or invoice, and the fees for the same quantity of such Equipment and the same Equipment Support Service may increase as set forth in the Order over the previous year. The increased fees will be set forth in the applicable invoice.
4. Support Services.
4.1 Option. Customer may purchase the following Equipment Support Services packages:
(a) Depot Exchange Service;
(b) Depot Repair Service; or
(c) Device Software Maintenance.
Each package includes access to UKG online and phone support services. All Equipment of the same type, including spare Equipment (described in Section 6.3 of the Addendum), must be covered by the same Equipment Support Services package.
If Customer requests Equipment support from UKG for Equipment not covered by Equipment Support Services, UKG’s perevent rates will apply.
4.2 Term. Unless expressly agreed by the Parties in writing, the Initial Term and each Renewal Term of Equipment Support Services for purchased Equipment is one (1) year, with the Initial Term commencing upon the expiration of the warranty period described in Section 5 below and the Renewal Term commencing on the expiry of the Initial Term or the previous Renewal Term.
5. Warranty. Unless otherwise expressly agreed in writing, UKG warrants that purchased Equipment, under normal usage and with regular recommended Equipment Support Service, shall be free from defects in materials and workmanship, as set forth in the Equipment Documentation, for a period of ninety (90) days from the date of delivery of the purchased Equipment. This warranty is provided to Customer only, and does not apply to any Equipment: (a) damage or malfunction resulting from misuse, neglect, tampering, modification or replacement of any UKG components on any boards supplied with the Equipment, unusual physical or electrical stress, or any other cause besides normal and intended use; (b) use, installation or maintenance by Customer that does not conform to the applicable Equipment Documentation; or (c) malfunctions resulting from the use of a badge not approved by UKG. UKG’s entire liability for a breach of this warranty shall be for UKG, at its option and cost, to repair or replace the affected Equipment, and, if UKG is unable to repair or replace within a reasonable time, then upon return of such Equipment to UKG, UKG will refund the amount Customer paid for the affected Equipment as depreciated on a straightline basis over a five (5) year period. 2689
MSA v2024.08.02 US.EN PS Direct Page 25 of 25
Exhibit 3-B
Equipment Rental Description
This Equipment Rental Description is supplemental to the Equipment Addendum and contains additional or different terms with respect to Equipment rented by Customer.
1. Definitions.
In this Exhibit 3-B, capitalized terms shall have the meanings set out below:
“Billing Start Date” – means the date Equipment Rental Fees begin to accrue, as set forth on the Order. “Billing Frequency” – means the invoice frequency of Equipment Rental Fees, as set forth on the Order. “Equipment Rental Fees”– means the fees payable to UKG for rented Equipment, as applicable that are set forth on the Order.
“Initial Term” – means the initial billing term of the rented Equipment as set forth on the Order which commences on the Billing Start Date.
“Renewal Term” – means the renewal billing term of the rented Equipment as set forth on the Order. “Term” – means the Initial Term and any Renewal Terms, together.
2. Payment and Invoicing.
UKG shall invoice Customer on the Billing Frequency indicated on the Order. The billing period of the Equipment Rental Fees will start on the Billing Start Date and will continue for the Initial Term. The Equipment Rental Fees include the cost of the Depot Exchange Service (as described below) for such Equipment.
3. Renewal and Return
3.1 On expiry of the Initial Term and expiry of each Renewal Term, each as indicated on the Order, the Term of the rented Equipment will automatically renew for the duration indicated on the Order as the Renewal Term unless either Party notifies the other in writing of its intent not to renew at least thirty (30) days prior to expiry of the then-current Initial Term or a Renewal Term.
3.2 The fees for rented Equipment may increase on the commencement of each applicable Renewal Term, provided that UKG gives Customer at least thirty (30) days’ prior written notice of such change through the renewal quote or invoice. The fees for the same quantity of such Equipment may increase over the previous year as set forth in the Order. The increased fees will be set forth in the applicable invoice.
3.3 Within thirty (30) days of the date of termination or expiration of the Term, Customer shall, at Customer’s expense, return all rented Equipment to UKG in the same condition as it was in when originally received by Customer, reasonable wear and tear excepted. Customer shall pay UKG the then-current list price of any rented Equipment that Customer fails to return as required under this Addendum.
4. Ownership. Rented Equipment is and shall remain the sole and exclusive personal property of UKG and will not become a fixture if attached to other equipment or real property. Customer shall not do or allow to occur anything which might adversely affect UKG’s right, title or interest in the Equipment. Customer shall not sell or otherwise encumber rented Equipment and shall not make any alterations or remove rented Equipment from the place where such Equipment is originally installed without UKG’s prior written consent.
5. Support Services. The Depot Exchange Service applies to all rented Equipment at no additional cost.
6. Warranty. Unless otherwise expressly agreed in writing, rented Equipment is provided “AS IS” with all faults UKG’s sole obligation for defective equipment shall be for UKG, at its option and cost, to repair or replace the affected Equipment, and, if UKG is unable to repair or replace within a reasonable time, then upon return of such Equipment to UKG, UKG will refund prepaid rental fees made by the Customer for use of affected Equipment after such return date. 2690
124 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
UKG Perpetual Software Terms and Conditions Contract
2691
1 UKG PERPETUAL SOFTWARE COMMERCIAL TERMS AND CONDITIONS (2024.08.02)
UKG TERMS
A PARTICIPATING PUBLIC AGENCY (“CUSTOMER”), BY SIGNING AN ORDER FORM OR PURCHASE ORDER WITH UKG Kronos Systems LLC (“UKG”), AGREES TO THE APPLICATION OF THESE TERMS AND CONDITIONS FOR PERPETUAL SOFTWARE LICENSE,
SOFTWARE SUPPORT SERVICES AND RELATED PROFESIONAL SERVICES OFFERINGS SET FORTH ON SUCH ORDER FORM (OR PURCHASE ORDER) WHICH REFERENCES THESE TERMS AND CONDITIONS.
SECTION A: GENERAL TERMS AND CONDITIONS. This Section apply for all transactions.
SECTION B: TERMS AND CONDITIONS FOR SOFTWARE LICENSES, SOFTWARE AND EQUIPMENT SUPPORT SERVICES, AND EDUCATIONAL AND PROFESSIONAL SERVICES. This Section apply for all transactions except Workforce Ready and the Workforce Central SaaS offering ( not including the professional and educational services governed by this Section).
SECTION A: GENERAL TERMS AND CONDITIONS
1. APPLICATION OF THESE TERMS
These terms and conditions apply to each order accepted by UKG Kronos Systems LLC (“UKG”) from an eligible Participating Public Agency (“Customer”) for all Software, Professional and Educational Services, Support and such other Kronos offerings, as specified on an order form (an “Order”).
In addition to the terms set forth in this Section A: General Terms and Condition and Section B shall apply to the Software licenses and purchased Equipment, support services, and professional and educational services.
All orders are subject to the approval of UKG. This Agreement and the Order Form shall supersede the pre-printed terms of any Customer purchase order or other Customer ordering document, and no such Customer pre-printed terms shall apply to the items ordered.
2. APPLICABLE LAWS
This Agreement shall be governed by the state law in which Customer is based, provided however, if such jurisdiction has adopted the Uniform Computer Information Transactions Act (UCITA), or such other similar law, the parties expressly agree to "opt-out" of and not be governed by UCITA or such other similar law. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of this Agreement.
3. EXPORT
Customer acknowledges that the Equipment and Software may be restricted by the United States Government or by the country in which the Equipment or Software is installed from export to certain countries and certain organizations and individuals, and agrees to comply with such laws.
Customer agrees to comply with all applicable laws of all of the countries in which the Equipment and Software may be used by Customer.
Customer’s obligations hereunder shall survive the termination or expiration of the Order Form. Customer must obtain UKG prior written consent before exporting the Software.
4. CONFIDENTIAL INFORMATION
“Confidential Information" is defined as information that is: i) disclosed between the parties after the date of this Agreement that is considered confidential or proprietary to the disclosing party; and ii) identified as “confidential” at the time of disclosure, or would be reasonably obvious to the receiving party to constitute confidential information because of legends or other markings, by the circumstances of disclosure or the nature of the information itself.
Additionally, Customer acknowledges and agree that the Software (and Software documentation), and the Specifications shall be deemed to be UKG’ Confidential Information and trade secret. Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties (except the parent company or the wholly owned subsidiaries of the receiving party who have a need to know) the other party’s Confidential Information, or use it for any purpose not explicitly set forth herein, without the prior written consent of the other party. Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any subsidiary or affiliate of such Party, or (b) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and who are under obligations of non-disclosure agreement at least as stringent as this section 4, or (c) by law (including the applicable public record laws), or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this Section 4, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction. The obligation of confidentiality shall survive for three (3) years after the disclosure of such Confidential Information.
This Agreement imposes no obligation upon either party with respect to the other party’s Confidential Information which the receiving party can establish by legally sufficient evidence: (a) was rightfully possessed by the receiving party without an obligation to maintain its confidentiality prior to receipt from the disclosing party, (b) is generally known to the public without violation of this Agreement; (c) is obtained by the receiving party in good faith from a third party having the right to disclose it without an obligation with respect to confidentiality; (d) is independently developed by the receiving party without use of the disclosing party’s confidential information, which can be shown by tangible evidence.
5. TAXES
If Customer presents to UKG a validly issued tax-exempt certificate, or other sufficient evidence of tax exemption, Customer shall not be liable for those taxes for which Customer is exempt. Otherwise, Customer agrees to pay all other applicable duties and customs fees relating to this Agreement , as well as all taxes levied or based on the products, services or other charges hereunder, including federal, state and local sales and excise taxes, and any taxes or amount in lieu thereof paid or payable by UKG, exclusive of taxes based on UKG net income or business privilege. 2692
2 6. TRAVEL EXPENSES
Customer agrees to reimburse UKG for all pre-approved, reasonable and necessary travel incurred by UKG in the performance of its obligations under this Agreement provided that such travel complies with the then current UKG Travel and Expense Policies (such policies are available upon request) or such other mutually agreed policies or mutually agreed between the parties in the statement of work. Customer further agrees to pay any travel expenses such as airfare, lodging, meals and local transportation, incurred by UKG in the performance of its obligations under this Agreement provided such expenses comply with the Agreement. Customer will be billed by UKG for such travel expenses and payment thereof shall be due net
30. 7. GENERAL
(a) The invalidity or illegality of any provision of this Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect. (b) Customer shall not assign this Agreement or the license to the Software without the prior written consent of UKG and any purported assignment, without such consent, shall be void.
(c) Neither Party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (other than a failure to comply with payment obligations) where and to the extent that such failure or delay results from an unforeseeable event beyond a party’s reasonable control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power failure; material shortages or unavailability or other delay in delivery not resulting from the responsible party’s failure to timely place orders therefor, or lack of or delay in transportation (each a “Force Majeure Event”).
(d) All notices given under this Agreement shall be in writing and sent postage pre-paid, if to UKG, to the UKG address on the Order Form, or if to Customer, to the billing address on the Order Form.
(e) The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. (f) The parties agree that the Order signed by both parties and expressly reference this Agreement, which is delivered via fax or electronically delivered via email it shall constitute a valid and enforceable agreement. (g) This Agreement and any information expressly incorporated herein (including information contained in any referenced URL), together with the applicable Order Form, constitute the entire agreement between the parties for the products and services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement.
This Agreement may be amended only in writing signed by authorized representatives of both parties. Customer understands and acknowledges that while UKG may disclose to customers certain confidential information regarding general product development direction, potential future products and/or product enhancements under consideration, Customer is not entitled to any products or product enhancements other than those contained on the Order Form. Customer has not relied on the availability of any future version of the Software or Equipment identified on an Order Form, nor any other future product in executing this Agreement.
(h) Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (c)(1)(2) of the Commercial Computer Software Restricted Rights clause at FAR 52.227-19, as applicable. Manufacturer/distributor is UKG Incorporated, 297 Billerica Road, Chelmsford, MA. (i) The JBoss® Enterprise Middleware components embedded in the Software are subject to the End User License Agreement found at http://www.redhat.com/licenses/jboss_eula.html.
(j) Customer may pay an invoice by credit card if the amount is not greater than $50,000.00. (k) UKG agrees to comply with any applicable federal, state and local laws and regulations. (l) Additionally, UKG agrees to be liable for tangible property damage or personal injury to the extent caused by the negligence or willful misconduct of its employees.
SECTION B
TERMS AND CONDITIONS FOR SOFTWARE LICENSES, SOFTWARE SUPPORT SERVICES,
AND EDUCATIONAL AND PROFESSIONAL SERVICES
This Section B applies to Software licensed, Equipment purchased, support services for Software and Equipment, and educational and professional services, when such items are identified on the Order which expressly references this Agreement.
1. PAYMENT AND DELIVERY
Unless otherwise set forth in this Agreement, payment terms are indicated on the Order Form or other contemporaneous ordering document containing product-specific payment terms signed by the parties. Delivery terms are as stated on the Order Form (“Delivery”). UKG will invoice Customer for products upon Delivery. Unless otherwise set forth on the Order Form, Professional and Educational Services are provided on a time and materials basis, invoiced monthly as rendered.
2. GENERAL LICENSE TERMS
UKG owns or has the right to license the Software. The Software and Software documentation are confidential and may not be disclosed to a third party without UKG’ written consent. The Software contains proprietary trade secret technology. Unauthorized use and copying of such Software is prohibited by law, including United States and foreign copyright law. The price Customer pays for a copy of the Software constitutes a license fee that entitles Customer to use the Software as set forth below. UKG grants to Customer a non-exclusive, nontransferable, perpetual (except as provided herein) license to use the Software. This license may be terminated by UKG by written notice to Customer upon any material breach of this Agreement by Customer which remains uncured for a period of thirty (30) days after such written notice from UKG. Upon such termination of this license by UKG, Customer will have no further right to use the Software and will return the Software media to UKG and destroy all copies of the Software (and related documentation) in Customer’s possession or control. This license is subject to all of the terms of this Section B.
3. FEE BASED LIMITATIONS
Customer recognizes and agrees that the license to use the Software is limited, based upon the amount of the license fee paid by Customer.
Limitations, which are set forth on the Order Form, may include the number of employees, simultaneous or active users, Software product modules, Software features, computer model and serial number and partition, and/or the number of telephone lines or terminals to which the Software is permitted to be connected. Customer agrees to: i) use the Software only for the number of employees, simultaneous or active users, computer model, partition and serial number, and/or terminals permitted by the applicable license fee; ii) use only the product modules and/or features 2693
3 permitted by the applicable license fees; and iii) use the Software only in support of Customer’s own business. Customer agrees not to increase the number of employees, simultaneous or active users, partitions, terminals, products modules, features, or to upgrade the model, as applicable, unless and until Customer pays the applicable fee for such increase/upgrade. Customer may not relicense or sublicense the Software to, or otherwise permit use of the Software (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Software without the express prior written consent of UKG.
4. OBJECT CODE ONLY
Customer may use the computer programs included in the Software (the “Programs”) in object code form only, and shall not reverse compile, disassemble or otherwise convert the Programs into uncompiled or unassembled code. The Programs include components owned by third parties.
Such third party components are deemed to be Software subject to this Section B. Customer shall not use any of the Programs (or the data models therein) except solely as part of and in connection with the Software and as described in the published documentation for such Software.
5. PERMITTED COPIES
Customer may copy the Programs as reasonably necessary to load and execute the Programs and for backup and disaster recovery and testing purposes only, except for additional copies of the Teletime Software and the UKG iSeries (which must be licensed separately). All copies of the Programs or any part thereof, whether in printed or machine readable form and whether on storage media or otherwise, are subject to all the terms of this license, and all copies of the Programs or any part of the Programs shall include the copyright and proprietary rights notices contained in the Programs as delivered to the Customer.
6. UPDATES
In the event that UKG supplies Service Packs, Point Releases and Major Releases (including legislative updates if available) of the Software (collectively referred to as “Updates”), such Updates shall be part of the Software and the provisions of this license shall apply to such Updates and to the Software as modified thereby.
7. ACCEPTANCE
For Customer’s initial purchase of each Equipment and Software product UKG shall provide an acceptance test period (the “Test Period”) that commences upon Installation. Installation shall be defined as: a.) the Equipment, if any, is mounted; b.) the Software is installed on Customer’s server(s); and c.) implementation team training, if any, is complete. During the Test Period, Customer shall determine whether the Equipment and Software meet the UKG published electronic documentation, ("Specifications").
The Test Period shall be for 30 days. If Customer has not given UKG a written deficiency statement specifying how the Equipment or Software fails to meet the Specifications (“Deficiency Statement”) within the Test Period, the Equipment and Software shall be deemed accepted. If Customer provides a Deficiency Statement within the Test Period, UKG shall have 30 days to correct the deficiency, and Customer shall have an additional 30 days to evaluate the Equipment and Software. If the Equipment or Software does not meet the Specifications at the end of the second 30 day period, either Customer or UKG may terminate this Agreement. Upon any such termination, Customer shall return all Equipment and Software (and related documentation) to UKG, and UKG shall refund any monies paid by Customer to UKG for the returned Equipment and Software. Neither party shall then have any further liability to the other for the products that were the subject of the Acceptance Test.
8. LIMITED WARRANTY
UKG warrants that all UKG Equipment and Software media shall be free from defects in materials and workmanship, for a period of ninety (90) days from Delivery. In the event of a breach of this warranty, Customer’s remedy shall be UKG’ repair or replacement of the deficient Equipment and/or Software media, at UKG’ option, provided that Customer’s use, installation and maintenance thereof have conformed to the Specifications. This warranty is extended to Customer only and shall not apply to any Equipment (or parts thereof) or Software media in the event of:
(a) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including modification or replacement of any UKG components on any boards supplied with the Equipment), unusual physical or electrical stress or causes other than normal and intended use; (b) failure of Customer to provide and maintain a suitable installation environment, as specified in the Specifications; or (c) malfunctions resulting from the use of badges or supplies not approved by UKG.
When using and applying the information generated by UKG products, Customer is responsible for ensuring that Customer complies with requirements of federal and state law where applicable. If Customer is licensing Workforce Payroll Software or Workforce Absence Management Software: (i) Customer is solely responsible for the content and accuracy of all reports and documents prepared in whole or in part by using such Software, (ii) using such Software does not release Customer of any professional obligation concerning the preparation and review of such reports and documents, (iii) Customer does not rely upon UKG, Best Software, Inc. or such Software for any advice or guidance regarding compliance with federal (and state laws where applicable) or the appropriate tax treatment of items reflected on such reports or documents, and (iv) Customer will review any calculations made by using such Software and satisfy itself that those calculations are correct.
9. PROFESSIONAL AND EDUCATIONAL SERVICES
(a) ENGAGEMENTS
Unless otherwise indicated on the Order, Professional and Educational Services (“Professional Services”) shall be provided on a time and material basis and described in a statement of work. If a dollar limit is stated in the Order Form or any associated statement of work (“SOW”), the limit shall be deemed an estimate for Customer's budgeting and UKG' resource scheduling purposes. After the dollar limit is expended, UKG will continue to provide Professional Services on a time and materials basis, if a Change Order or Schedule of Services for continuation of the Professional Services is signed by both parties.
(b) WARRANTY
UKG warrants that all professional and educational services performed under this Agreement shall be performed in a professional and competent manner. In the event that UKG breaches this warranty, and Customer so notifies UKG within 30 days of receipt of invoice for the applicable services, the Customer’s remedy and UKG’ liability shall be to re-perform the services which were deficient in a manner so as to conform to the foregoing warranty, at no additional cost to Customer.
(c) UKG PROFESSIONAL/EDUCATIONAL SERVICES POLICIES
UKG’ then-current Professional/Educational Services Policies shall apply to all Professional and/or Educational Services purchased under the applicable SOW.
10. SOFTWARE SUPPORT SERVICES
2694
4 The following terms and conditions shall govern the Software support services provided by UKG to Customer.
10.1 SUPPORT OPTIONS
Customer may select from the following Software support purchase options: Gold (or Gold Plus) and Platinum (or Platinum Plus) support (“Service Type”), each providing different service coverage periods and/or service offerings, as specified herein (“Service Offerings”) and in the UKG Support Service Policies (defined below). Customer must purchase the same Service Type for all of the Software specified on the Order Form, (however, if Customer is purchasing support services for Visionware Software, Customer may only purchase Gold Service Type for the Visionware Software).
All Updates shall be provided via remote access.
10.2 TERM OF SOFTWARE SUPPORT
Unless otherwise indicated on the Order Form, support service shall commence on the Software Delivery date and shall continue for an initial term of one (1) year. Support service may be renewed for additional one (1) year terms on the anniversary date of its commencement date by mutual written agreement of the parties or by UKG sending Customer an invoice for the applicable renewal term and Customer paying such invoice prior to the commencement of such renewal term. After the one year initial term of this Agreement, the Service Offerings provided and the Service Coverage period are subject to change by UKG with sixty (60) days advance written notice to Customer. For the initial two (2) renewal years the annual support fee, for the same products and service type, will not increase by more than 4% over the prior year’s annual support fee.
10.3 GOLD SERVICE OFFERINGS
Customer shall be entitled to receive:
(i) Updates for the Software (not including any Software for which UKG charges a separate license fee), provided that Customer’s operating system and equipment meet minimum system configuration requirements, as reasonably determined by UKG. If Customer requests UKG to install such Updates or to provide retraining, Customer agrees to pay UKG for such installation or retraining at UKG’ pricing set forth in this Agreement. (ii) Telephone and/or electronic access to the UKG Global Support Center for the logging of requests for service during the Service Coverage Period.
The Service Coverage Period for the Gold Service Offering is 8:00 a.m. to 8:00 p.m., local time, Monday through Friday, excluding UKG holidays. (iii) Web-based support including access to Software documentation, FAQ’s, access to UKG knowledge base, Customer forums, and e-case management. Such offerings are subject to modification by UKG. Current offerings can be found at https://www.ukg.com/support-policies-andservices . (iv) Web-based remote diagnostic technical assistance which may be utilized by UKG to resolve Software functional problems and user problems during the Service Coverage Period.
(v) Access to specialized content as and when made available by UKG such as technical advisories, learning quick tips, brown bag seminars, technical insider tips, SHRM e-Learning, HR Payroll Answerforce and service case studies.
10.4 PLATINUM AND PLUS SERVICE OFFERINGS:
Platinum: In addition to the Service Offerings specified for the Gold Service Offering above, the Service Coverage Period for the Platinum Service Offering is 24 hours a day, seven days a week, 365 days a year.
Plus option: In addition to the Service Offerings specified for the Gold Service Offering above, Customers purchasing the Plus option shall receive the services of a dedicated, but not exclusive, UKG Technical Account Manager (“TAM”) for one production instance of the Software. Customers purchasing the Gold-Plus option shall designate up to one primary and one secondary backup technical contacts (“Technical Contacts”) to be the sole contacts with the TAM, while Customers purchasing the Platinum-Plus option shall designate up to two primary and three secondary backup Technical Contacts. Upon request, Customer may designate additional and/or backup Technical Contacts. Customer is required to place all primary Technical Contacts through UKG product training for the Software covered under this Section B at Customer’s expense.
Customers purchasing the Platinum-Plus option shall also receive a one day per year visit to be performed at the Customer location where the Software is installed. During this onsite visit, UKG shall work with Customer to identify ways to help Customer increase functionality or maximize utilization of the Software in Customer’s specific environment. Customer must be utilizing the then-current version of the Software.
10.5 PAYMENT
Customer shall pay annual support charges for the initial term in accordance with the payment terms on the Order Form and for any renewal term upon receipt of invoice. Customer shall pay additional support charges, if any, and time and material charges upon receipt of invoice
10.6 ADDITION OF SOFTWARE
Additional Software purchased by Customer as per the ordering procedure set out in the agreement during the initial or any renewal term shall be added to the Support Services at the same support option as the then current Software support coverage in place under these terms. Customer agrees to pay the charges for such addition as per the Order.
10.7 RESPONSIBILITIES OF CUSTOMER
Customer agrees (i) to provide UKG personnel with full, free and safe access to Software for purposes of support, including use of UKG’ standard remote access technology, if required; (ii) to maintain and operate the Software in an environment and according to procedures which conform to the Specifications; and (iii) not to allow support of the Software by anyone other than UKG without prior written authorization from UKG. Failure to utilize UKG’ remote access technology may delay UKG’ response and/or resolution to Customer’s reported Software problem. If Customer requires the use of a specific remote access technology not specified by UKG, then Customer must purchase the Plus option to receive support and provide UKG personnel with full, free and safe access to the remote access hardware and/or software. .
10.8 DEFAULT
Customer shall have the right to terminate UKG support services in the event that UKG is in breach of the support services warranty set forth below and such breach is not cured within fifteen (15) days after written notice specifying the nature of the breach. In the event of such termination, UKG shall refund to Customer on a pro-rata basis those pre-paid annual support fees associated with the unused portion of the support term. UKG reserves the right to terminate or suspend support service in the event the Customer is in default under this Agreement with UKG and such default is 2695
5 not corrected within fifteen (15) days after written notice. In addition, the support services will terminate and all charges due hereunder will become immediately due and payable in the event that Customer ceases to do business as a going concern or has its assets assigned by law.
10.9 WARRANTY
UKG warrants that all support services shall be performed in a professional and competent manner.
11. UKG SUPPORT SERVICE POLICIES
UKG’ then-current Support Services Policies shall apply to all Support Services purchased and may be accessed at: https://www.ukg.com/supportpolicies-and-services (“Support Policies”). In the event of a conflict between the Support Policies and this Agreement, the terms of this Agreement shall prevail.
12. TRAINING POINTS
Training Points which are purchased by Customer may be redeemed for an equivalent value of instructor-led training sessions offered by Kronos.
Available instructor-led session, information is available upon request and each session has the Training Points value indicated. Training Points are invoiced when used by the Customer. Points may be redeemed at any time within 12 months of the date of the applicable Order Form, at which time they shall expire. Training Points may not be exchanged for other UKG products and/or services.
13. KNOWLEDGEPASS EDUCATION SUBSCRIPTION:
The parties hereby agree that the following terms shall apply to Customer’s purchase of the UKG KnowledgePass Education Subscription only, if specified on the Order Form:
Scope: The KnowledgePass Education Subscription is available to customers who are licensing UKG’ Workforce Central and iSeries Timekeeper Software products and who are maintaining such products under a support plan with UKG. The KnowledgePass Education Subscription provides access via the internet to certain educational offerings provided by UKG (the “KnowledgePass Content”), including:
Product and upgrade information for project teams and end users Hands-on interactive instruction on common tasks
Self-paced tutorials covering a range of topics
Job aids
Knowledge assessment and reporting tools to measure progress Webinars
Term of Subscription: The annual KnowledgePass Education Subscription shall run co-terminously with Customer’s Software Support, and shall renew for additional one (1) year terms provided Customer renews its KnowledgePass Education Subscription as provided below.
Payment: Customer shall pay the annual subscription charge for the initial term of the KnowledgePass Education Subscription in accordance with the payment terms on the Order Form. UKG will send Customer a renewal invoice for renewal of the KnowledgePass Education Subscription at least forty five (45) days prior to expiration of the then current term. KnowledgePass Education Subscription shall renew for an additional one (1) year term if Customer pays such invoice before the end of the initial term or any renewal term.
The KnowledgePass Subscription is available when the Customer subscribe on annual basis.
Limitations: Customer recognizes and agrees that the KnowledgePass Content is copyrighted by UKG. Customer is permitted to make copies of the KnowledgePass Content provided in *pdf form solely for Customer’s internal use and may not disclose such KnowledgePass Content to any third party other than Customer’s employees. Customer may not edit, modify, revise, amend, change, alter, customize or vary the KnowledgePass Content without the written consent of UKG, provided that Customer may download and modify contents of Training Kits solely for Customer’s internal use.
Train-the-Trainer Program (TTT): Certification under the Train-the-Trainer Program is valid only for the point release of the Software for which the TTT Program is taken, and covers only the Customer employee who completes the TTT Program.
14. INDEMNIFICATION
UKG agrees to indemnify Customer and to hold it harmless from and against any and all claims, costs, fees and expenses (including reasonable legal fees) relating to actual or alleged infringement of United States or Canadian patents or copyrights asserted against Customer by virtue of Customer's use of the Software as delivered and maintained by UKG, provided that: i) UKG is given prompt written notice of any such claim and has sole control over the investigation, preparation, defense and settlement of such claim; and, ii) Customer reasonably cooperates with UKG in connection with the foregoing and provides UKG with all information in Customer's possession related to such claim and any further assistance as reasonably requested by UKG. UKG will have no obligation to indemnify Customer to the extent any such claim is based on the use of the Software with software or equipment not supplied by UKG. Should any or all of the Software as delivered and maintained by UKG become, or in UKG' reasonable opinion be likely to become, the subject of any such claim, UKG may at its option: i) procure for Customer the right to continue to use the affected Software as contemplated hereunder; ii) replace or modify the affected Software to make its use non-infringing; or iii) should such options not be available at reasonable expense, terminate this Agreement with respect to the affected Software upon thirty (30) days prior written notice to Customer. In such event of termination, Customer shall be entitled to a pro-rata refund of all fees paid to UKG for the affected Software, which refund shall be calculated using a five year straight-line depreciation commencing with the date of the relevant Order. Additionally, UKG agrees to be liable for tangible property damage or personal injury to the extent caused by the negligence or willful misconduct of its employees.
15. LIMITATION OF LIABILITY
CUSTOMER'S EXCLUSIVE REMEDIES AND UKG' SOLE LIABILITY FOR ANY UKG BREACH OF THIS AGREEMENT ARE EXPRESSLY STATED HEREIN. EXCEPT AS PROVIDED IN THIS AGREEMENT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED.
EXCEPT FOR i) UKG' INDEMNIFICATION OBLIGATIONS SET FORTH IN ARTICLE 16 ABOVE; (II) CUSTOMER’S CLAIMS FOR TANGIBLE
PROPERTY DAMAGE OR PERSONAL INJURY TO THE EXTENT CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE 2696
6 OTHER PARTY’S EMPLOYEES, IN NO EVENT SHALL UKG' OR ITS PARENTS', SUBSIDIARIES', AFFILIATES', OR THIRD PARTY LICENSOR'S
LIABILITY TO A CUSTOMER, HOWSOEVER CAUSED, EXCEED THE VALUE OF THE ORDER WHICH GIVES RISE TO THE CLAIM, AND IN
NO EVENT WILL UKG OR ITS PARENTS, SUBSIDIARIES AFFILIATES OR THIRD PARTY LICENSORS BE LIABLE FOR LOST PROFITS, LOST
DATA OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR CUSTOMER’S SPECIFIC USE OF, OR INABILITY TO SO USE, ANY EQUIPMENT, SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT.
16. TERMINATION OF ORDER FORM OR SOW
(a) Termination for breach. For any breach of this Agreement by UKG in relation with that Customer which cannot be cured by repair, replacement or re-performance, Customer shall have the right to terminate this the Order Form or applicable SOW upon thirty (30) days prior written notice to UKG, provided UKG has not cured such breach during such thirty (30) day period. Upon such termination, Customer shall be entitled to pursue its remedies at law or in equity subject to the terms of this Agreement. (b) Termination for non-appropriation of funds. Should the funding for the services ordered by Customer be discontinued, Customer shall have the right to terminate the Order Form relating to such services ordered upon a 30 days written advance notice to UKG. In such event, the Customer agrees to pay for the products delivered and the services performed under the terms of the Agreement prior to the receipt by UKG of the termination notice. 2697
125 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
APPENDIX 9 – THIRD PARTY TERMS AND CONDITIONS
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126 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
BSI End User License Agreement (Workforce Central and UKG Pro Workforce Management)
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End User License Agreement for BSI On-Demand Service
1. Sublicense. Subject to the terms and conditions of this End User License Agreement, UKG Kronos Systems, LLC (“Kronos") grants Customer the non-exclusive and non-transferrable right to access and use the On-Demand Service(s) set forth on the applicable Order Form, as made available to Kronos through its third party licensor Business Software, Inc. (“BSI”), in conjunction with Customer’s licensed use of Kronos’ software (“Software”). This Sublicense includes Customer’s right to use all applicable user documentation made available to Kronos by BSI for such On-Demand Service(s). Customer acknowledges and agrees that BSI is the exclusive provider of the On-Demand Service(s) and is a third party beneficiary of this Sublicense Agreement. Customer agrees that Kronos or BSI may directly enforce all such terms and conditions herein against Customer as if Customer had entered into such Sublicense Agreement with BSI.
This Sublicense Agreement is revocable based on Customer breach, and Kronos or BSI shall be entitled to injunctive relief, upon the breach of any material term, condition or obligation set forth therein.
Notwithstanding anything to the contrary set forth herein, the parties agree that Customer may allow its Affiliates to access and use the On-Demand Service(s) to be provided hereunder, solely for the internal business purposes of processing, reporting and filing Customer’s and its Affiliates’ data and for no other purpose whatsoever; provided that each such Affiliate is contractually bound by the terms and conditions of this Agreement and Customer ensures that each such Affiliate complies therewith. Customer assumes full responsibility and liability for any actions or omissions on the part of its Affiliates. Moreover, Customer agrees to defend, indemnify and hold Kronos and its third party licensor, BSI, harmless from any claims, losses, actions or damages relating to or arising from the use of the On-Demand Service(s) by such Affiliates.
2. Term and Termination. The Services shall be deemed to start on the earlier of: a) ninety (90) days from Kronos’ receipt of the relevant Order Form; or, b) the date Customer is authorized to “go live” with the Services for production purposes, (the “Start Date”) and shall continue for a minimum of one (1) year and shall be automatically renewable except in the event that either party provides written notice of non-renewal within sixty (60) days of the anniversary date of the present term. This Agreement is coterminous with, and will automatically terminate upon, the termination or expiration for any reason of, the license granted to Customer to access and use the Software. Kronos may suspend or terminate the Services or the Agreement upon a material breach of the Agreement by the Customer if such breach is not cured within fifteen (15) days after receipt of written notice. Notwithstanding the foregoing, Kronos may suspend or terminate the Services or the Agreement immediately upon notice in the event of any Customer breach of Sections 1, 4, 8-10 of this Agreement. In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to comply with such request within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other.
If the Agreement is terminated for any reason:
(a) Customer shall pay Kronos within thirty (30) days all fees accrued for the Services prior to the date of termination; (b) Customer’s right to access and use the Services shall be revoked and be of no further force or effect; (c) Within fifteen (15) days of termination Customer will retrieve Customer’s historical data in accordance with previously established system access procedures and applicable state and federal laws.
After such time period, Kronos shall have no further obligation to store and/or make available Customer’s historical data and may delete same. If Customer requires additional data conversion services from Kronos, 2700
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these services may be contracted from Kronos at Kronos’ then published rates. (d) Customer agrees to timely return all Kronos-provided materials related to the Services to Kronos at Customer’s expense or, alternatively, upon prior written approval of Kronos, provide Kronos with an officer’s certification of the destruction thereof; and (e) all provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.
3. Fees. In consideration of the delivery of the Services, Customer shall pay Kronos the Monthly Service Fees, the Training Fees and any additional one time or recurring fees relating to the On-Demand Services as set forth on the Order Form. All fees payable for the Services shall be sent to the attention of Kronos as specified on the invoice. Unless otherwise indicated on an Order Form, payment for all items shall be due 30 days following date of invoice. Except as expressly set forth in this Agreement, all amounts paid to Kronos are non-refundable. Customer is responsible for all applicable federal, state, country, provincial or local taxes relating to the Services (including without limitation GST and/or VAT if applicable), excluding taxes based on Kronos’ income or business privilege. If any amount owing under this or any other agreement for Services is thirty (30) or more days overdue, Kronos may, without limiting Kronos’ rights or remedies, suspend Services until such amounts are paid in full. Kronos will provide at least seven (7) days’ prior written notice that Customer’s account is overdue before suspending Services. After the later of (i) one (1) year after the effective date of this Agreement, or (ii) expiration of the Initial Term, Kronos may change the Monthly Service Fee rates no more frequently than once per calendar year by notifying Customer in writing at least sixty (60) days prior to the effective date of such rate increase.
4. Sublicense Restrictions. Customer acknowledges and agrees that the right to use the On-Demand Service(s) is limited based upon the amount of the Monthly Service Fees paid by Customer. Customer agrees to use only the modules and/or features for the number of Authorized Users as described on the Order Form. Customer may not license, relicense or sublicense the On-Demand Services, or otherwise permit use of the On-Demand Services (including timesharing or networking use) by any third party.
Customer may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of Kronos. No license, right, or interest in any Kronos trademark, trade name, or service mark, or those of Kronos’ licensors or Suppliers, is granted hereunder.
Customer may only allow its Authorized Users to access and use the On-Demand Service(s) in conjunction with Kronos’ Software and only for Customer’s internal business purposes of processing, reporting and filing Customer’s data and for no other purpose whatsoever. Customer acknowledges and agrees that Kronos or BSI may suspend access to an On-Demand Service, at any time, if Kronos or BSI believes (a) the use of same represents a threat to BSI’s or its third party providers’ network function or integrity; (b) for online service maintenance; (c) for non-payment; or (d) if required by law.
5. Customer Data. Customer shall own all Customer Data and posts or other inputs into the On-Demand Services by Customer or others acting on behalf of or through Customer. Kronos acknowledges that all of the Customer Content is deemed to be the Confidential Information of Customer. Notwithstanding the foregoing, Customer hereby grants Kronos and BSI and those third party providers used by Kronos or BSI in the provision of the On-Demand Services, the non-exclusive, worldwide right to access, use, copy, transmit, process and display Customer Data, solely to facilitate the provision, operation and support of an On-Demand Service. Customer acknowledges and agrees that Customer Data may be transferred for such purposes outside of the country or other jurisdiction where such Customer is located.
6. Customer Obligations. Customer accepts sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data. Customer shall provide and maintain its own 2701
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Internet access and all necessary telecommunications equipment, software and other materials at its location necessary to access and use an On-Demand Service.
7. Kronos Obligations. Kronos shall use commercially reasonable, industry standard, efforts to make each On-Demand Service available and accessible to Authorized Users of a Customer and, provided Customer adheres to the support procedures described in Exhibit 1 hereto, apply any maintenance support to an OnDemand Service (including but not limited to updates and changes) at no charge to Customer as such maintenance support is made available by BSI to Kronos. Customer agrees that Kronos may install such updates automatically as part of the On-Demand Service. Customer acknowledges and agrees that from time to time an On-Demand Service may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades (“Scheduled Downtime”), malfunctions in an On-Demand Service and causes beyond the control of, or not reasonably foreseeable by, BSI or its third party providers, including acts of God, acts of government, acts of terror, strikes or other labor problems, the interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). BSI shall provide at least twenty-four (24) hours advance notice to customer and Customers in the event of any Scheduled Downtime. Training shall be available for Customers’ Authorized Users in the capabilities and use of the On-Demand Service(s) based on BSI's then current rates and terms therefor. Confidentiality. Each Party acknowledges that it may have access to, or receive, information or material of the other, related to, among other things, such Party’s business, products, support or services, that is (i) confidential or proprietary or of value to such other Party; or (ii) a trade secret of such Party, deriving economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use (collectively “Proprietary Information”). BSI’s Proprietary Information includes, but is not limited to, its documentation, formulas, methods, know-how, processes, designs, products, proposed products, training methodology, training materials, information disclosed during training, services, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the On-Demand Services, the Access Protocols, Support, Vendor Support, information located in the secured portions of BSI’s website, the terms and pricing under this Agreement and all information related to the foregoing. Except as otherwise provided herein, each Party covenants that it will not reveal, disclose, or make available, in any manner or form, any portion of the other Party’s Proprietary Information, or any information related thereto, to any person, other than its employees, agents, contractors and advisors, but only if (i) such disclosure is on a need-to-know and confidential basis; and (ii) the recipient of such disclosure is (a) not a Direct Competitor of the other Party; and (b) is located in the United States of America. In connection with the foregoing, each Party shall ensure, via lawfully binding written contract, that any person to whom it is permitted to disclose, reveal, deliver, assign or transfer any portion of the other Party’s Proprietary Information agrees to obligations of confidentiality, nondisclosure and limitations on use, which are consistent with, and no less protective than, those set forth herein, and each Party agrees to be responsible to the other for any breach of said obligations by the recipient of such Party’s disclosure. The foregoing obligations will not apply if and to the extent that: (i) the information was already known to the non-disclosing Party (“Recipient”), without obligation to keep it confidential, as evidenced by such Party’s own written records created prior to its receipt of the information from the disclosing Party (“Owner”); (ii) the information was received by Recipient in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (iii) the information is independently developed by Recipient without use of any Proprietary Information received from Owner; (iv) the information was or becomes publicly known other than by a breach of this Agreement or other action by Recipient; (v) the information was approved for disclosure by written agreement of the Parties after its disclosure to Recipient; or (vi) the information is disclosed by Recipient pursuant to a requirement of a governmental 2702
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agency or by operation of law, but only if Recipient has first exhausted all reasonable legal remedies for maintaining the confidentiality and non-disclosure of such information, which will include giving Owner as much advance notice of the possibility of such disclosure as practical so that the Owner may also attempt to stop such disclosure or obtain a protective order concerning such disclosure. If such a protective order or other remedy for maintaining the confidentiality of Owner’s Proprietary Information is not obtained, or if Owner waives compliance with the provisions hereof, Recipient agrees to disclose only that portion of Owner’s Proprietary Information which Recipient is advised by opinion of legal counsel is legally required to be disclosed.
8. Customer Representations and Warranties. Customer represents and warrants that it shall not: (i) make an On-Demand Service available to anyone other than an Authorized User; (ii) license, sell, rent, lease, transfer, assign, distribute, host, outsource, or otherwise commercially exploit, an On-Demand Service; (iii) use an On-Demand Service in a manner that could harm or impair another’s use of, or in an attempt to gain unauthorized access to, any service, data, account or network; (iv) use any automated process or service to access or use an On-Demand Service, such as a BOT, spider or periodic caching of information stored by BSI, or falsify any e-mail header information when using an On-Demand Service; (v) remove, modify or tamper with any regulatory or legal notice or link that is incorporated into an On-Demand Service; (vi) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of an On-Demand Service or access or use an On-Demand Service in order to directly or indirectly support, maintain, enhance, improve, modify or develop a similar or competitive product, service or offering; (vii) copy, reproduce, republish, download, post or transmit, by any form or means, any part of an On-Demand Service; (viii) access, read, view, extract, add to, delete, mine or modify any data made available by BSI and set forth in any database contained in an On-Demand Service; (ix) transmit, re-transmit or store materials on or through an On-Demand Service that are harmful to any portion of such On-Demand Service or in violation of any applicable laws or regulations, including, without limitation, laws relating to infringement of intellectual property and the proprietary rights of others; (x) utilize less than industry standard security measures, including, at a minimum, and, without limitation, maintenance of firewalls, intrusion prevention systems and other standard technological protections, to restrict any person other than an Authorized User from accessing an On-Demand Service; or (xi) fail to comply with any applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of an OnDemand Service, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which the OnDemand Service is controlled, operated or provided.
9. Infringement. If a third party makes a claim against Customer that an On-Demand Service directly infringes any United States patent or copyright or trademark (“IP Claim”), Kronos will defend Customer against the IP Claim and pay any and all costs, damages and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement signed by BSI directly arising out of such IP Claim; provided that: (i) Customer promptly asserts a claim or demand in writing for defense and indemnification to Kronos no later than ten (10) days after Customer’s receipt of notification of a potential claim; (ii) Kronos may assume sole control of the defense of such claim and all related settlement negotiations; and (iii) Customer provides Kronos with the assistance, information and authority necessary to defend, respond, investigate and/or resolve such claim. However, to the extent that an IP Claim arises from Kronos’ or BSI’s adherence to Customer’s express instructions or from any materials provided to Kronos or BSI by Customer, Customer shall indemnify and defend Kronos against any and all losses, damages, liabilities, fines, penalties, and expenses (including reasonable legal fees) resulting directly therefrom. Notwithstanding the foregoing, neither Kronos nor BSI will have any 2703
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liability for any claim of infringement based on the combination of an On-Demand Service (or any part thereof) with products, systems or services not provided by Kronos or BSI; the modification of an OnDemand Service (or any part thereof) by any person other than Kronos or BSI or, even if by Kronos or BSI, in order to comply with or base them upon: (1) designs provided by or at the direction of Customer; or (2) specifications or other information provided by or at the direction of Customer; or use of an On-Demand Service (or any part thereof) in a manner not permitted or contemplated hereunder or in contravention of any law, rule or regulation or any obligation of Customer to Kronos. If, due to an IP Claim or the threat of an IP Claim, (i) an On-Demand Service (or part thereof) is held by a court of competent jurisdiction, or in Kronos’ reasonable judgment may be held, to infringe by such a court, or (ii) Customer receives a valid court order enjoining Customer from using any part of an On-Demand Service, or in Kronos’ reasonable judgment Customer may receive such an order, Kronos will, in its reasonable judgment, and at its expense, (a) procure for Customer the right to continue using such On-Demand Service (or part thereof) or (b) replace or modify such On-Demand Service (or part thereof) to make it noninfringing while yielding substantially equivalent results. If neither of the above options are or would be available on a basis that Kronos believes to be commercially reasonable, then Kronos may terminate this Agreement. This Section states Kronos’ entire liability and Customer’s exclusive remedy for any claim of infringement.
Customer shall defend Kronos, its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the “Kronos Indemnified Parties”) harmless, from and against any and all Claims arising out of: (a) Customer’s use of the Services or that of Customer’s employees, agents or subcontractors or others who have access to the Services; (b) Customer’s modification or combination of the Services with other services, software or equipment not furnished by Kronos, provided that such Customer modification or combination is the cause of such infringement and was not authorized by Kronos; or, (c) a claim that the Customer Content infringes in any manner any intellectual property right of any third party, or any of the Customer Content contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person’s right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person. Customer will have sole control of the defense of any such action and all negotiations for its settlement or compromise. Kronos will cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of any such action. Customer will indemnify and hold harmless the Kronos Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claims by a court of applicable jurisdiction or as a result of Customer’s settlement of such a Claim.
10. Representations, Warranties & Indemnity. Kronos warrants that it (i) has the power and authority to enter into this Agreement; (ii) will provide the On-Demand Service(s) in a manner consistent with generally accepted industry standards; (iii) will notify Customer promptly upon discovery of any unauthorized use, copying or disclosure of Customer Data and will reasonably cooperate with Customer in the investigation and prosecution of same; and (iv) each On-Demand Service, when Properly Interfaced, will perform substantially in accordance with its documentation under normal use. EXCEPT AS
OTHERWISE SET FORTH HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE ON-DEMAND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, CONTRACTUAL, STATUTORY OR OTHERWISE. THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY OF SERVICE
AND NON-INFRINGEMENT, AND ALL SUCH OTHER WARRANTIES, ARE HEREBY EXPRESSLY DISCLAIMED BY KRONOS, BSI AND THEIR THIRD PARTY PROVIDERS. WITHOUT LIMITING THE
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REPRESENT OR WARRANT THAT (I) THE OPERATION OR USE OF THE ON-DEMAND SERVICE(S) WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (II) THE ON-DEMAND SERVICE(S) WILL CONNECT, OR BE COMPATIBLE WITH, VENDOR’S OR CUSTOMERS’ SYSTEMS, NETWORK OR ENVIRONMENT; OR (III) THE ON-DEMAND SERVICE(S), OR THE SYSTEMS THAT MAKE THEM AVAILABLE, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER
ACKNOWLEDGES THAT (A) KRONOS, BSI AND THEIR THIRD PARTY PROVIDERS CANNOT
CONTROL, OR GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY OR NON-CORRUPTION OF,
ANY INFORMATION TRANSMITTED THROUGH, OR STORED IN ANY SYSTEM CONNECTED TO, COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND (B) ACCESS TO THE ONDEMAND SERVICE(S) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET. Upon breach of any warranty contained in this Section, (i) Customer’s sole and exclusive remedy will be to require Kronos to exercise commercially reasonable efforts to repair or replace the nonconforming portion of the On-Demand Service, and (ii) Kronos’ obligation will be limited to exercising commercially reasonable efforts to repair or replace the nonconforming portion of the On-Demand Service, or if Kronos fails to make such repair or replacement in a commercially reasonable time frame or such repair or replacement is commercially impracticable, then making an equitable refund of a portion of the fees paid by Customer with respect to the nonconforming portion of such On-Demand Service.
11. Limitation of Liability. Any other provision of this Agreement to the contrary notwithstanding, the aggregate and cumulative liability of Kronos, BSI and their third party providers for any losses or damage, whether direct or indirect, arising out of this Agreement from any cause whatsoever, including, without limitation, any cause of action sounding in contract, tort or strict liability, will be limited to actual, direct damages incurred, but in no event will exceed the total amount actually paid by Customer in the twelve (12) month period immediately preceding the event giving rise to such claim (the “Liability Cap”).
Neither Kronos, BSI nor any of their third party providers will be liable for lost profits or other consequential damages, cover damages, or for any claims against Customer by a Customer or any other third party, even if any such party was advised of the possibility of same. Under no circumstances will Kronos, BSI or any of their third party providers be liable hereunder for special damages, general damages, incidental damages, indirect damages, or exemplary or punitive damages. Anything in this Agreement to the contrary notwithstanding, Customer acknowledges and agrees that Customer will be solely responsible for the use and operation of the On-Demand Services and the use and accuracy of all output resulting from such use or operation (including, without limitation, the accuracy of taxes located by the On-Demand Services, and the timeliness and accuracy of all tax calculations, payments, filings and reports, except to the extent directly caused by detectable defects or errors in the On-Demand Service that were not the result of inaccurate information or data provided by an authority, agency, governing body or other similar organization; provided that Customer provided written notice to Kronos of the existence of such defect(s) and/or error(s) immediately upon discovery thereof and Customer reasonably cooperated with Kronos and BSI in the resolution thereof) (hereafter, “Defects or Errors”). Notwithstanding anything to the contrary stated herein, Kronos, BSI and their third party providers will have no liability to Customer or any third party, regardless of the cause thereof, for any errors or delays in the output of an On-Demand Service (including, without limitation, errors or delays in located taxes, calculations, payments, filings or reports, or liability to taxing authorities or the employees of Customer for underpayments or nonpayments, interest or penalties).
12. Definitions. The following terms used in this Sublicense Agreement are to be defined as follows:
“Affiliates” means (i) all business units and divisions of Customer and (ii) any entity controlled by, controlling, or under common control with Customer; where “controlled”, “controlling” and “control” mean 2705
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the ownership of at least fifty percent (50%) of the voting securities in an entity. An entity will be deemed to be an “Affiliate” only so long as such control exists. Upon request, Customer agrees to confirm the Affiliate status of a particular entity. Authorized User(s)” means those employees of Customer or an Affiliate of Customer who have a legitimate internal business need to access, use, or know information concerning, an On-Demand Service who are bound, through written contract, to obligations of confidentiality, nondisclosure and limitations on use, which are consistent with, and no less protective than, those set forth in this Agreement. “Customer Data” means any personally identifiable data, such as an address, record or telephone number, provided by a Customer or an Affiliate of Customer for use in, or to facilitate the performance of, an On-Demand Service. “On-Demand Service” means (i) a service sublicensed hereunder as made available by BSI to Kronos, including any subsequent releases thereof; (ii) any tools, files, software or other offline components made available by BSI in connection therewith to, when properly installed, facilitate the connection or use of an On-Demand Service; and (iii) any documentation related to the foregoing.
13. General. This Agreement shall be governed by Massachusetts law. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the Agreement. The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect. Customer shall not assign the Agreement or the license to the Services without the prior written consent of Kronos and any purported assignment, without such consent, shall be void. Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, including war, strikes, lockouts, fire, flood, storm or other acts of God. Both parties agree to use their best efforts to minimize the effects of such failures or delays. All notices given under the Agreement shall be in writing and sent postage pre-paid, if to Kronos, to the Kronos address on the Order Form, or if to Customer, to the billing address on the Order Form. No action, regardless of form, may be brought by either party more than two (2) years after the cause of action has arisen. Customer acknowledges and agrees that to the extent a remedy is provided under this Agreement, then Customer will be limited to such remedy. Use of the Service includes the ability to enter into agreements and/or to make transactions electronically. CUSTOMER ACKNOWLEDGES THAT WHEN
IT INDICATES ACCEPTANCE OF AN AGREEMENT AND/OR TRANSACTION ELECTRONICALLY, THAT
ACCEPTANCE WILL CONSTITUTE ITS LEGAL AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. THIS ACKNOWLEDGEMENT THAT
CUSTOMER INTENDS TO BE BOUND BY SUCH ELECTRONIC ACCEPTANCE APPLIES TO ALL
AGREEMENTS AND TRANSACTIONS CUSTOMER ENTERS INTO THROUGH THE SERVICE, SUCH AS ORDERS, CONTRACTS, STATEMENTS OF WORK, AND NOTICES OF CANCELLATION. This Agreement , together with the applicable Order Form, constitute the entire agreement between the parties for the Services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of the Agreement.
This Agreement may be amended only in writing signed by authorized representatives of both parties.
Customer:
By:___________________________
Name:________________________
Title:__________________________
Dated: ________________________
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EXHIBIT 1 -SUPPORT SERVICE PROCEDURES
Customer shall cooperate with Kronos in connection with any support requests or support services rendered on its behalf. Without limiting the generality of the foregoing, Customer shall provide on a timely basis any information reasonably requested by Kronos in connection with providing the support services, including but not limited to the following information:
Name of the Customer
Name, phone/fax number and e-mail address of the person reporting the Case Case Priority
Description of impact to Customer
Problem description (input, output received and output expected, plus any prior actions leading to the final input)
Description of initial problem analysis performed by Customer Case number in Customer’s call/problem tracking system
Provide the following attachments:
Trace information, dumps, test results
System to system message analysis
Technical Notes sent to the Customer
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127 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
BSI End User License Agreement (UKG Ready)
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End User License Agreement for BSI On-Demand Service
1. Sublicense. Subject to the terms and conditions of this End User License Agreement, Kronos SaaShr, Inc. (“Kronos SaaShr") grants Customer the non-exclusive and non-transferrable right to access and use the On-Demand Service(s) set forth on the applicable Order Form, as made available to Kronos SaaShr through its third party licensor Business Software, Inc. (“BSI”), in conjunction with Customer’s licensed use of Kronos SaaShr’s software (“Software”). This Sublicense includes Customer’s right to use all applicable user documentation made available to Kronos SaaShr by BSI for such On-Demand Service(s). Customer acknowledges and agrees that BSI is the exclusive provider of the On-Demand Service(s) and is a third party beneficiary of this Sublicense Agreement. Customer agrees that Kronos SaaShr or BSI may directly enforce all such terms and conditions herein against Customer as if Customer had entered into such Sublicense Agreement with BSI. This Sublicense Agreement is revocable based on Customer breach, and Kronos SaaShr or BSI shall be entitled to injunctive relief, upon the breach of any material term, condition or obligation set forth therein.
Notwithstanding anything to the contrary set forth herein, the parties agree that Customer may allow its Affiliates to access and use the On-Demand Service(s) to be provided hereunder, solely for the internal business purposes of processing, reporting and filing Customer’s and its Affiliates’ data and for no other purpose whatsoever; provided that each such Affiliate is contractually bound by the terms and conditions of this Agreement and Customer ensures that each such Affiliate complies therewith. Customer assumes full responsibility and liability for any actions or omissions on the part of its Affiliates. Moreover, Customer agrees to defend, indemnify and hold Kronos SaaShr and its third party licensor, BSI, harmless from any claims, losses, actions or damages relating to or arising from the use of the On-Demand Service(s) by such Affiliates.
2. Term and Termination. The Services shall be deemed to start on the earlier of: a) ninety (90) days from Kronos SaaShr’s receipt of the relevant Order Form; or, b) the date Customer is authorized to “go live” with the Services for production purposes, (the “Start Date”) and shall continue for a minimum of one (1) year and shall be automatically renewable except in the event that either party provides written notice of non-renewal within sixty (60) days of the anniversary date of the present term. This Agreement is coterminous with, and will automatically terminate upon, the termination or expiration for any reason of, the license granted to Customer to access and use the Software. Kronos SaaShr may suspend or terminate the Services or the Agreement upon a material breach of the Agreement by the Customer if such breach is not cured within fifteen (15) days after receipt of written notice. Notwithstanding the foregoing, Kronos SaaShr may suspend or terminate the Services or the Agreement immediately upon notice in the event of any Customer breach of Sections 1, 4, 8-10 of this Agreement. In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to comply with such request within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other.
If the Agreement is terminated for any reason:
(a) Customer shall pay Kronos SaaShr within thirty (30) days all fees accrued for the Services prior to the date of termination; (b) Customer’s right to access and use the Services shall be revoked and be of no further force or effect; (c) Within fifteen (15) days of termination Customer will retrieve Customer’s historical data in accordance with previously established system access procedures and applicable state and federal laws. 2709
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After such time period, Kronos SaaShr shall have no further obligation to store and/or make available Customer’s historical data and may delete same. If Customer requires additional data conversion services from Kronos SaaShr, these services may be contracted from Kronos SaaShr at Kronos SaaShr’s then published rates. (d) Customer agrees to timely return all Kronos SaaShr-provided materials related to the Services to Kronos SaaShr at Customer’s expense or, alternatively, upon prior written approval of Kronos SaaShr, provide Kronos SaaShr with an officer’s certification of the destruction thereof; and (e) all provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.
3. Fees. In consideration of the delivery of the Services, Customer shall pay Kronos SaaShr the Monthly Service Fees, the Training Fees and any additional one time or recurring fees relating to the On-Demand Services as set forth on the Order Form. All fees payable for the Services shall be sent to the attention of Kronos SaaShr as specified on the invoice. Unless otherwise indicated on an Order Form, payment for all items shall be due 30 days following date of invoice. Except as expressly set forth in this Agreement, all amounts paid to Kronos SaaShr are non-refundable. Customer is responsible for all applicable federal, state, country, provincial or local taxes relating to the Services (including without limitation GST and/or VAT if applicable), excluding taxes based on Kronos SaaShr’s income or business privilege. If any amount owing under this or any other agreement for Services is thirty (30) or more days overdue, Kronos SaaShr may, without limiting Kronos SaaShr’s rights or remedies, suspend Services until such amounts are paid in full.
Kronos SaaShr will provide at least seven (7) days’ prior written notice that Customer’s account is overdue before suspending Services. After the later of (i) one (1) year after the effective date of this Agreement, or (ii) expiration of the Initial Term, Kronos SaaShr may change the Monthly Service Fee rates no more frequently than once per calendar year by notifying Customer in writing at least sixty (60) days prior to the effective date of such rate increase.
4. Sublicense Restrictions. Customer acknowledges and agrees that the right to use the On-Demand Service(s) is limited based upon the amount of the Monthly Service Fees paid by Customer. Customer agrees to use only the modules and/or features for the number of Authorized Users as described on the Order Form.
Customer may not license, relicense or sublicense the On-Demand Services, or otherwise permit use of the On-Demand Services (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of Kronos SaaShr. No license, right, or interest in any Kronos SaaShr trademark, trade name, or service mark, or those of Kronos SaaShr’s licensors or Suppliers, is granted hereunder.
Customer may only allow its Authorized Users to access and use the On-Demand Service(s) in conjunction with Kronos SaaShr’s Software and only for Customer’s internal business purposes of processing, reporting and filing Customer’s data and for no other purpose whatsoever. Customer acknowledges and agrees that Kronos SaaShr or BSI may suspend access to an On-Demand Service, at any time, if Kronos SaaShr or BSI believes (a) the use of same represents a threat to BSI’s or its third party providers’ network function or integrity; (b) for online service maintenance; (c) for non-payment; or (d) if required by law.
5. Customer Data. Customer shall own all Customer Data and posts or other inputs into the On-Demand Services by Customer or others acting on behalf of or through Customer. Kronos SaaShr acknowledges that all of the Customer Content is deemed to be the Confidential Information of Customer. Notwithstanding the foregoing, Customer hereby grants Kronos SaaShr and BSI and those third party providers used by Kronos SaaShr or BSI in the provision of the On-Demand Services, the non-exclusive, worldwide right to access, use, copy, transmit, process and display Customer Data, solely to facilitate the provision, operation and support of an On-Demand Service. Customer acknowledges and agrees that Customer Data may be transferred for such purposes outside of the country or other jurisdiction where such Customer is located. 2710
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6. Customer Obligations. Customer accepts sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data. Customer shall provide and maintain its own Internet access and all necessary telecommunications equipment, software and other materials at its location necessary to access and use an On-Demand Service.
7. Kronos SaaShr Obligations. Kronos SaaShr shall use commercially reasonable, industry standard, efforts to make each On-Demand Service available and accessible to Authorized Users of a Customer and, provided Customer adheres to the support procedures described in Exhibit 1 hereto, apply any maintenance support to an On-Demand Service (including but not limited to updates and changes) at no charge to Customer as such maintenance support is made available by BSI to Kronos SaaShr. Customer agrees that Kronos SaaShr may install such updates automatically as part of the On-Demand Service. Customer acknowledges and agrees that from time to time an On-Demand Service may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades (“Scheduled Downtime”), malfunctions in an On-Demand Service and causes beyond the control of, or not reasonably foreseeable by, BSI or its third party providers, including acts of God, acts of government, acts of terror, strikes or other labor problems, the interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). BSI shall provide at least twenty-four (24) hours advance notice to customer and Customers in the event of any Scheduled Downtime. Training shall be available for Customers’ Authorized Users in the capabilities and use of the On-Demand Service(s) based on BSI's then current rates and terms therefor. Confidentiality. Each Party acknowledges that it may have access to, or receive, information or material of the other, related to, among other things, such Party’s business, products, support or services, that is (i) confidential or proprietary or of value to such other Party; or (ii) a trade secret of such Party, deriving economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use (collectively “Proprietary Information”). BSI’s Proprietary Information includes, but is not limited to, its documentation, formulas, methods, know-how, processes, designs, products, proposed products, training methodology, training materials, information disclosed during training, services, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the On-Demand Services, the Access Protocols, Support, Vendor Support, information located in the secured portions of BSI’s website, the terms and pricing under this Agreement and all information related to the foregoing. Except as otherwise provided herein, each Party covenants that it will not reveal, disclose, or make available, in any manner or form, any portion of the other Party’s Proprietary Information, or any information related thereto, to any person, other than its employees, agents, contractors and advisors, but only if (i) such disclosure is on a need-to-know and confidential basis; and (ii) the recipient of such disclosure is (a) not a Direct Competitor of the other Party; and (b) is located in the United States of America. In connection with the foregoing, each Party shall ensure, via lawfully binding written contract, that any person to whom it is permitted to disclose, reveal, deliver, assign or transfer any portion of the other Party’s Proprietary Information agrees to obligations of confidentiality, nondisclosure and limitations on use, which are consistent with, and no less protective than, those set forth herein, and each Party agrees to be responsible to the other for any breach of said obligations by the recipient of such Party’s disclosure. The foregoing obligations will not apply if and to the extent that: (i) the information was already known to the nondisclosing Party (“Recipient”), without obligation to keep it confidential, as evidenced by such Party’s own written records created prior to its receipt of the information from the disclosing Party (“Owner”); (ii) the information was received by Recipient in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (iii) the information is independently developed by Recipient without use of any Proprietary Information received from Owner; (iv) the information was or 2711
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becomes publicly known other than by a breach of this Agreement or other action by Recipient; (v) the information was approved for disclosure by written agreement of the Parties after its disclosure to Recipient; or (vi) the information is disclosed by Recipient pursuant to a requirement of a governmental agency or by operation of law, but only if Recipient has first exhausted all reasonable legal remedies for maintaining the confidentiality and non-disclosure of such information, which will include giving Owner as much advance notice of the possibility of such disclosure as practical so that the Owner may also attempt to stop such disclosure or obtain a protective order concerning such disclosure. If such a protective order or other remedy for maintaining the confidentiality of Owner’s Proprietary Information is not obtained, or if Owner waives compliance with the provisions hereof, Recipient agrees to disclose only that portion of Owner’s Proprietary Information which Recipient is advised by opinion of legal counsel is legally required to be disclosed.
8. Customer Representations and Warranties. Customer represents and warrants that it shall not: (i) make an On-Demand Service available to anyone other than an Authorized User; (ii) license, sell, rent, lease, transfer, assign, distribute, host, outsource, or otherwise commercially exploit, an On-Demand Service; (iii) use an On-Demand Service in a manner that could harm or impair another’s use of, or in an attempt to gain unauthorized access to, any service, data, account or network; (iv) use any automated process or service to access or use an On-Demand Service, such as a BOT, spider or periodic caching of information stored by BSI, or falsify any e-mail header information when using an On-Demand Service; (v) remove, modify or tamper with any regulatory or legal notice or link that is incorporated into an On-Demand Service; (vi) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of an On-Demand Service or access or use an On-Demand Service in order to directly or indirectly support, maintain, enhance, improve, modify or develop a similar or competitive product, service or offering; (vii) copy, reproduce, republish, download, post or transmit, by any form or means, any part of an On-Demand Service; (viii) access, read, view, extract, add to, delete, mine or modify any data made available by BSI and set forth in any database contained in an On-Demand Service; (ix) transmit, re-transmit or store materials on or through an On-Demand Service that are harmful to any portion of such On-Demand Service or in violation of any applicable laws or regulations, including, without limitation, laws relating to infringement of intellectual property and the proprietary rights of others; (x) utilize less than industry standard security measures, including, at a minimum, and, without limitation, maintenance of firewalls, intrusion prevention systems and other standard technological protections, to restrict any person other than an Authorized User from accessing an On-Demand Service; or (xi) fail to comply with any applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of an On-Demand Service, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which the On-Demand Service is controlled, operated or provided.
9. Infringement. If a third party makes a claim against Customer that an On-Demand Service directly infringes any United States patent or copyright or trademark (“IP Claim”), Kronos SaaShr will defend Customer against the IP Claim and pay any and all costs, damages and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement signed by BSI directly arising out of such IP Claim; provided that: (i) Customer promptly asserts a claim or demand in writing for defense and indemnification to Kronos SaaShr no later than ten (10) days after Customer’s receipt of notification of a potential claim; (ii) Kronos SaaShr may assume sole control of the defense of such claim and all related settlement negotiations; and (iii) Customer provides Kronos SaaShr with the assistance, information and authority necessary to defend, respond, investigate and/or resolve such claim. However, to the extent that an IP Claim arises from Kronos SaaShr’s or BSI’s adherence to Customer’s express instructions or from any materials provided to Kronos SaaShr or BSI by Customer, 2712
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Customer shall indemnify and defend Kronos SaaShr against any and all losses, damages, liabilities, fines, penalties, and expenses (including reasonable legal fees) resulting directly therefrom. Notwithstanding the foregoing, neither Kronos SaaShr nor BSI will have any liability for any claim of infringement based on the combination of an On-Demand Service (or any part thereof) with products, systems or services not provided by Kronos SaaShr or BSI; the modification of an On-Demand Service (or any part thereof) by any person other than Kronos SaaShr or BSI or, even if by Kronos SaaShr or BSI, in order to comply with or base them upon: (1) designs provided by or at the direction of Customer; or (2) specifications or other information provided by or at the direction of Customer; or use of an On-Demand Service (or any part thereof) in a manner not permitted or contemplated hereunder or in contravention of any law, rule or regulation or any obligation of Customer to Kronos SaaShr. If, due to an IP Claim or the threat of an IP Claim, (i) an On-Demand Service (or part thereof) is held by a court of competent jurisdiction, or in Kronos SaaShr’s reasonable judgment may be held, to infringe by such a court, or (ii) Customer receives a valid court order enjoining Customer from using any part of an On-Demand Service, or in Kronos SaaShr’s reasonable judgment Customer may receive such an order, Kronos SaaShr will, in its reasonable judgment, and at its expense, (a) procure for Customer the right to continue using such On-Demand Service (or part thereof) or (b) replace or modify such OnDemand Service (or part thereof) to make it noninfringing while yielding substantially equivalent results. If neither of the above options are or would be available on a basis that Kronos SaaShr believes to be commercially reasonable, then Kronos SaaShr may terminate this Agreement. This Section states Kronos SaaShr’s entire liability and Customer’s exclusive remedy for any claim of infringement.
Customer shall defend Kronos SaaShr, its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the “Kronos SaaShr Indemnified Parties”) harmless, from and against any and all Claims alleging that: (a) Customer’s use of the Services or that of Customer’s employees, agents or subcontractors or others who have access to the Services; (b) Customer’s modification or combination of the Services with other services, software or equipment not furnished by Kronos SaaShr, provided that such Customer modification or combination is the cause of such infringement and was not authorized by Kronos SaaShr; or, (c) a claim that the Customer Content infringes in any manner any intellectual property right of any third party, or any of the Customer Content contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person’s right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person. Customer will have sole control of the defense of any such action and all negotiations for its settlement or compromise. Kronos SaaShr will cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of any such action. Customer will indemnify and hold harmless the Kronos SaaShr Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claims by a court of applicable jurisdiction or as a result of Customer’s settlement of such a Claim.
10. Representations, Warranties & Indemnity. Kronos SaaShr warrants that it (i) has the power and authority to enter into this Agreement; (ii) will provide the On-Demand Service(s) in a manner consistent with generally accepted industry standards; (iii) will notify Customer promptly upon discovery of any unauthorized use, copying or disclosure of Customer Data and will reasonably cooperate with Customer in the investigation and prosecution of same; and (iv) each On-Demand Service, when Properly Interfaced, will perform substantially in accordance with its documentation under normal use. EXCEPT AS OTHERWISE SET
FORTH HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE ON-DEMAND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, CONTRACTUAL, STATUTORY OR OTHERWISE. THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY OF SERVICE AND 2713
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NON-INFRINGEMENT, AND ALL SUCH OTHER WARRANTIES, ARE HEREBY EXPRESSLY DISCLAIMED BY KRONOS SAASHR, BSI AND THEIR THIRD PARTY PROVIDERS. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, KRONOS SAASHR, BSI AND THEIR THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (I) THE OPERATION OR USE OF THE ONDEMAND SERVICE(S) WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (II) THE ONDEMAND SERVICE(S) WILL CONNECT, OR BE COMPATIBLE WITH, VENDOR’S OR CUSTOMERS’ SYSTEMS, NETWORK OR ENVIRONMENT; OR (III) THE ON-DEMAND SERVICE(S), OR THE SYSTEMS THAT MAKE THEM AVAILABLE, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CUSTOMER ACKNOWLEDGES THAT (A) KRONOS SAASHR, BSI AND THEIR THIRD PARTY
PROVIDERS CANNOT CONTROL, OR GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY OR
NON-CORRUPTION OF, ANY INFORMATION TRANSMITTED THROUGH, OR STORED IN ANY
SYSTEM CONNECTED TO, COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND (B)
ACCESS TO THE ON-DEMAND SERVICE(S) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND
OTHER PROBLEMS INHERENT IN THE USE OF COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET. Upon breach of any warranty contained in this Section, (i) Customer’s sole and exclusive remedy will be to require Kronos SaaShr to exercise commercially reasonable efforts to repair or replace the nonconforming portion of the On-Demand Service, and (ii) Kronos SaaShr’s obligation will be limited to exercising commercially reasonable efforts to repair or replace the nonconforming portion of the On-Demand Service, or if Kronos SaaShr fails to make such repair or replacement in a commercially reasonable time frame or such repair or replacement is commercially impracticable, then making an equitable refund of a portion of the fees paid by Customer with respect to the nonconforming portion of such On-Demand Service.
11. Limitation of Liability. Any other provision of this Agreement to the contrary notwithstanding, the aggregate and cumulative liability of Kronos SaaShr, BSI and their third party providers for any losses or damage, whether direct or indirect, arising out of this Agreement from any cause whatsoever, including, without limitation, any cause of action sounding in contract, tort or strict liability, will be limited to actual, direct damages incurred, but in no event will exceed the total amount actually paid by Customer in the twelve (12) month period immediately preceding the event giving rise to such claim (the “Liability Cap”). Neither Kronos SaaShr, BSI nor any of their third party providers will be liable for lost profits or other consequential damages, cover damages, or for any claims against Customer by a Customer or any other third party, even if any such party was advised of the possibility of same. Under no circumstances will Kronos SaaShr, BSI or any of their third party providers be liable hereunder for special damages, general damages, incidental damages, indirect damages, or exemplary or punitive damages. Anything in this Agreement to the contrary notwithstanding, Customer acknowledges and agrees that Customer will be solely responsible for the use and operation of the On-Demand Services and the use and accuracy of all output resulting from such use or operation (including, without limitation, the accuracy of taxes located by the On-Demand Services, and the timeliness and accuracy of all tax calculations, payments, filings and reports, except to the extent directly caused by detectable defects or errors in the On-Demand Service that were not the result of inaccurate information or data provided by an authority, agency, governing body or other similar organization; provided that Customer provided written notice to Kronos SaaShr of the existence of such defect(s) and/or error(s) immediately upon discovery thereof and Customer reasonably cooperated with Kronos SaaShr and BSI in the resolution thereof) (hereafter, “Defects or Errors”). Notwithstanding anything to the contrary stated herein, Kronos SaaShr, BSI and their third party providers will have no liability to Customer or any third party, regardless of the cause thereof, for any errors or delays in the output of an On-Demand Service (including, without limitation, errors or delays in located taxes, calculations, payments, filings or reports, or liability to taxing authorities or the employees of Customer for underpayments or nonpayments, interest or penalties). 2714
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12. Definitions. The following terms used in this Sublicense Agreement are to be defined as follows:
“Affiliates” means (i) all business units and divisions of Customer and (ii) any entity controlled by, controlling, or under common control with Customer; where “controlled”, “controlling” and “control” mean the ownership of at least fifty percent (50%) of the voting securities in an entity. An entity will be deemed to be an “Affiliate” only so long as such control exists. Upon request, Customer agrees to confirm the Affiliate status of a particular entity. Authorized User(s)” means those employees of Customer or an Affiliate of Customer who have a legitimate internal business need to access, use, or know information concerning, an On-Demand Service who are bound, through written contract, to obligations of confidentiality, nondisclosure and limitations on use, which are consistent with, and no less protective than, those set forth in this Agreement. “Customer Data” means any personally identifiable data, such as an address, record or telephone number, provided by a Customer or an Affiliate of Customer for use in, or to facilitate the performance of, an OnDemand Service. “On-Demand Service” means (i) a service sublicensed hereunder as made available by BSI to Kronos SaaShr, including any subsequent releases thereof; (ii) any tools, files, software or other offline components made available by BSI in connection therewith to, when properly installed, facilitate the connection or use of an On-Demand Service; and (iii) any documentation related to the foregoing.
13. General. This Agreement shall be governed by Massachusetts law. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the Agreement. The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect. Customer shall not assign the Agreement or the license to the Services without the prior written consent of Kronos SaaShr and any purported assignment, without such consent, shall be void. Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, including war, strikes, lockouts, fire, flood, storm or other acts of God. Both parties agree to use their best efforts to minimize the effects of such failures or delays. All notices given under the Agreement shall be in writing and sent postage pre-paid, if to Kronos SaaShr, to the Kronos SaaShr address on the Order Form, or if to Customer, to the billing address on the Order Form. No action, regardless of form, may be brought by either party more than two (2) years after the cause of action has arisen. Customer acknowledges and agrees that to the extent a remedy is provided under this Agreement, then Customer will be limited to such remedy. Use of the Service includes the ability to enter into agreements and/or to make transactions electronically. CUSTOMER ACKNOWLEDGES THAT WHEN
IT INDICATES ACCEPTANCE OF AN AGREEMENT AND/OR TRANSACTION ELECTRONICALLY, THAT
ACCEPTANCE WILL CONSTITUTE ITS LEGAL AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. THIS ACKNOWLEDGEMENT THAT CUSTOMER
INTENDS TO BE BOUND BY SUCH ELECTRONIC ACCEPTANCE APPLIES TO ALL AGREEMENTS AND
TRANSACTIONS CUSTOMER ENTERS INTO THROUGH THE SERVICE, SUCH AS ORDERS, CONTRACTS, STATEMENTS OF WORK, AND NOTICES OF CANCELLATION. This Agreement, together with the applicable Order Form, constitute the entire agreement between the parties for the Services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of the Agreement. This Agreement may be amended only in writing signed by authorized representatives of both parties.
Customer:
By:___________________________
Name:________________________
Title:__________________________
Dated: ________________________
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EXHIBIT 1 -SUPPORT SERVICE PROCEDURES
Customer shall cooperate with Kronos SaaShr in connection with any support requests or support services rendered on its behalf. Without limiting the generality of the foregoing, Customer shall provide on a timely basis any information reasonably requested by Kronos SaaShr in connection with providing the support services, including but not limited to the following information:
1. Name of the Customer
2. Name, phone/fax number and e-mail address of the person reporting the Case
3. Case Priority
4. Description of impact to Customer
5. Problem description (input, output received and output expected, plus any prior actions
6. leading to the final input)
7. Description of initial problem analysis performed by Customer
8. Case number in Customer’s call/problem tracking system
9. Provide the following attachments:
10. Trace information, dumps, test results
11. System to system message analysis
12. Technical Notes sent to the Customer
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128 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
Passport Addendum (UKG Pro Workforce Management)
2717
01APR22
Passport Addendum
This is an Addendum to the INSERT APPLICABLE AGREEMENT NAME (the "Agreement") between INSERT APPLICABLE CUSTOMER LEGAL ENTITY NAME("Customer'') and UKG Kronos Systems, LLC ("UKG").
Whereas:
A Customer and UKG entered into the Agreement to govern the delivery and other terms applicable to the products to be provided to Customer by UKG;
B By this Addendum, Customer and UKG wish to agree the supplemental terms under which certain products shall be provided to Customer by Passport Corporation; C As between UKG and Passport Corporation, UKG shall be responsible for invoicing Customer for the products to be provided to Customer by Passport Corporation.
The parties hereby agree to amend the Agreement by inserting the following provisions:
1. If the Customer purchases any Passport Corporation products and/or services via UKG (the “Passport Products”), the terms in this Addendum shall apply in respect of such products and/or services in addition to the terms of this Agreement (and in relation to any conflict or inconsistency in connection with such products and/or services, the terms of this Addendum shall prevail).
2. In connection with the delivery of the Passport Products:
2.1. all references in the Agreement to the applicable contracting UKG group entities shall be read as referring instead to Passport Corporation, save that
2.2. in connection with the payment terms applicable to the provided Passport Products, all references in the Agreement to the applicable contracting UKG group entity/ies shall remain as referring instead to the applicable contracting UKG group entity/ies.
3. Notwithstanding anything to the contrary in the Agreement:
3.1. Passport does not offer Seasonal Licences;
3.2. Passport does not offer any Equipment products or associated services;
3.3. Passport does not offer any Success Plans or associated services;
3.4. Passport does not offer any Educational Services, (incl uding KnowledgeMap products) with the exception of fee-based train-the-trainer webinars;
3.5. Passport does not utilize AtomSphere Service or Boomi Software;
3.6. Passport does not offer MPLS/Site-to-cloud SFTP connections;
3.7. Passport does not offer a Key Performance Indicator (KPI) Builder;
3.8. Passport application updates: Maintenance updates will be automatically applied as needed.
New software releases will be applied according to the schedule agreed with the Customer;
3.9. Passport application maintenance period: Customer will choose one of the following days of the week for their Maintenance Period: Saturday, Sunday, Wednesday or Thursday;
3.10. UKG will provide the first line of support services and the other support services relating to the Passport Product shall be provided by Passport Corporation directly as set forth in the SOW
3.11. Customer hereby acknowledges that installation services and other services will also be provided directly by Passport Corporation
3.12. the sub-processors used in the delivery of the Passport Products shal l be as set out below (and not those referred to in section 5 of the Agreement):
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Category Common Name Legal Entity Data Processed Locations Processed Cloud Provider Expedient
Expedient, Inc.
1 Allegheny Square, Suite
600 Pittsburgh, PA 15212
May include all
customer data
Customer Data
Encrypted at rest
Cloud Provider Azure
Microsoft Corporation
One Microsoft Way
Redmond, Washington
Does not include
any customer data
Customer Data
Encrypted at rest
Email Delivery
Service Expedient
Expedient, Inc.
1 Allegheny Square, Suite
600 Pittsburgh, PA 15212
Emails notifications
from SaaS service
US Email delivery
system
At least 30 days before any new sub-processor will carry out processing activities on Customer Data on behalf of Customer, Passport will provide Customer a notice of that change. Customer may object to any such new sub-processor by terminating Passport Products delivered under the Agreement upon written notice to UKG and Passport, such written notice to be provided within 60 days of being informed of the engagement of the sub-processor. This termination right is Customer’s sole and exclusive remedy if Customer objects to any new sub-processor.
4. In connection with the delivery of the Passport Products, the Agreement shall be further modified as follows:
4.1. Section 10.2 Effects of Termination Item c shall be replaced with the following:
Customer’s right to use the Service will end as of the effective date of termination.
Notwithstanding such termination, Customer will have thirty (30) days after the effective date of termination to request specific data from Passport or request a copy of their database which will allow the Customer to so extract Customer Data. If Customer requires a longer period of access to the Service after termination to retrieve Customer Data, such access will be subject to additional Fees. Extended access and use of the Services will be subject to the terms of this Agreement.
4.2. Sections 11.1 and 11.2 of Article 11 (Indemnification) shall be deleted (being instead addressed separately in section 6 of this Addendum below).
4.3. Service Level Agreement
Reporting Claims Process
Passport will provide Customer with Availability metrics within one (1) business day upon customer request
4.4. Cloud Guidelines
Only one standard production tenant is included. Additional partial copy non-production tenants limited to 18 months of data available for purchase on an annual basis.
KPIs are available upon request and subject to applicable fees.
All SFTP managed service account logins use public key authentication or username/password to secure files in transit.
Only a SOC 2 report is published by Passport. Complementary user entity control are available within the SOC report. Passport does not maintain ISO27001 and 27018 compliance certifications. Customer agrees not to upload payment card information, as the service is not certified for PCI DSS. Passport is HIPPA compliant and is permitted to store health information.
5. In connection with any alleged loss, failure or delay arising out of or in connection with the Passport Products (howsoever caused) UKG shall (at its option) use reasonable endeavours to: (i) recover applicable costs or losses directly from Passport Corporation on behalf of Customer, and pass any applicable recovered amounts to Customer; or (ii) assign to Customer such of UKG’s rights as may be 2719
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necessary to enable Customer to claim applicable costs or losses directly from Passport Corporation.
6. UKG represents to Customer that Passport has provided certain assurances to UKG customers in the following terms, and that UKG shall, following applicable notice from Customer, endeavour to enable Customer to benefit from such assurances as applicable.
3. Passport Indemnity for Customers
3.1. Passport will, on demand by UKG, defend any Customer from and against any and all legal claims alleging that the permitted uses of the Passport service, technology or applications infringe or misappropriate any legitimate copyright or patent. In all such cases, Passport will indemnify and hold harmless the Customer against any liabilities, obligations, costs or expenses (including, without limitation, reasonable attorneys’ fees) actually awarded to a third party by a court of applicable jurisdiction as a result of such claim, or as a result of Passport’s settlement of such a claim. In the event that a final injunction is obtained against Customer’s use of the applicable Passport product(s) by reason of infringement or misappropriation of any such copyright or patent, or if in Passport’s opinion, the Service is likely to become the subject of a successful claim of infringement or misappropriation, Passport (at its option and expense) will use commercially reasonable efforts to either (a) procure for Customer the right to continue using the applicable Passport product(s) as provided in the Agreement, or (b) replace or modify the applicable Passport product(s) so that they become non-infringing but remains substantively similar to the affected product(s). Should neither (a) nor (b) be commercially reasonable, either Customer or Passport ma y terminate the Passport Products delivered under the Agreement, at which time Passport will provide a refund to Customer of the PEPM Fees paid by Customer for the infringing elements of the product(s) covering the period of their unavailability.
3.2. Passport will have no liability to indemnify or defend a Customer: (a) to the extent there has been a material delay in the demand by UKG following UKG having been notified of the applicable claim; or (b) to the extent the alleged infringement or misappropriation is based on: (i) a modification of the applicable Passport product(s) undertaken by anyone other than Passport , or not undertaken at Passport’s direction and in accordance with such direction; (ii) use of the applicable Passport product(s) other than as authorized by this Agreement; or (iii) use of the applicable Passport product(s) in conjunction with any other equipment, service or software not provided by Passport, where the applicable Passport product(s) would not otherwise infringe, misappropriate or otherwise become the subject of the claim.
3.3. The parties agree that the limitations and exclusions of liability in the Reselling Agreement shall not apply to the indemnity provided by Passport in this section 3.
7. Customer hereby acknowledges that, for the products and services provided by Passport Corporation, UKG is hereby acting solely as a reseller and (save for UKG’s obligations in section 5 and/or 6 above (as applicable), and save for anything that cannot by applicable law be lawfully limited or excluded) disclaims any liability with respect to the products and servi ces that are provided by Passport Corporation under this Agreement. Customer shall indemnify, defend and hold harmless UKG for any losses, claims or damages, which arise from or relate to any breach or alleged breach of Passport Corporation's representations and warranties made under the Agreement.
8. All other terms and conditions of the Agreement shall remain in full force and effect.
9. Passport Corporation shall be a third party beneficiary under the Agreement and this Addendum.
AGREED AND ACCEPTED
CUSTOMER
By: _____________________
Name: _____________________
Title: _____________________
Date: _____________________
UKG
By: _____________________
Name: _____________________
Title: _____________________
Date: _____________________
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129 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
Passport Addendum (Workforce Central)
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1 Rev 28APR22
Passport Addendum
for Workforce Central
This is an Addendum to the agreement governing the license of Workforce Central software applications whether on a perpetual license basis or in a software as a service model (the “Agreement”) between , having a principal place of business at (“Customer”) and from UKG Kronos Systems, LLC, a UKG Company or its affiliates (collectively “UKG”).
The parties hereby agree to amend the Agreement by inserting the following provisions:
1. In addition to the terms of this Agreement, should the Customer purchase and order Passport Corporation Products and/or services, the following terms shall apply:
A. Notwithstanding the Support Service terms of the Agreement, UKG will provide the first line of support services and the other support services relating to the Passport Product shall be provided by Passport Corporation directly as set forth in the SOW. Customer hereby acknowledge that installation services and other services will also be provided directly by Passport Corporation.
2. For the products and services provided by Passport Corporation, UKG is hereby acting solely as a reseller and disclaims any liability with respect to the products and services that are provided by Passport Corporation under this Agreement. Customer shall indemnify, defend and hold harmless UKG for any losses, claims or damages, which arise from or relate to any breach or alleged breach of such Passport Corporation's representations and warranties made under this Agreement, provided that Customer is promptly notified of any such claims. Subject to the terms of this Section, Customer shall have the sole right to defend such claims at its own expense. UKG shall provide, at Customer's expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request.
3. All other terms and conditions of the Agreement shall remain in full force and effect.
4. Passport Corporation shall be a third party beneficiary under this Agreement.
AGREED AND ACCEPTED
CUSTOMER
By:
Name:
Title:
Date:
UKG
By:
Name:
Title:
Date:
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130 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
UKG SMS Addendum
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Rev 06012022
UKG WORKFORCE SMS ADDENDUM
This is an Addendum to the agreement governing the UKG scheduling product for which Customer is purchasing the UKG Workforce SMS service (i.e., the Workforce Central Software as a Service Terms and Conditions Agreement, UKG Sales Software License and Service Agreement, UKG Dimensions Agreement or Workforce Dimensions Agreement, as applicable) (the “Agreement”) between (“Customer”) and UKG Kronos Systems, LLC, a UKG Company (“UKG”).
The parties hereby agree that the following terms and conditions are supplemental terms and conditions to the Agreement and are applicable to UKG Workforce SMS service (“Workforce SMS”):
Description. Workforce SMS is a subscription based service, provided solely for Customer’s internal use, by which: (i) Customer may notify employees who are permitted to use a UKG scheduling product, via mobile technology (SMS) of the existence of one or more available work shifts, and (ii) employees’ responses are tracked in order that Customer may fill those available work shifts more efficiently. Each exchanged message (notice, response, confirmation, denial) shall be considered an “Interaction.”
Implementation. To initiate and setup administration of the required mobile communications with the mobile carriers, UKG will perform the standard implementation of Workforce SMS, including configuration, as described in the statement of work signed by the Customer. Any additional professional services for non-standard implementation services will be subject to a separate Order Form or a separate statement of work mutually agreed upon by both parties, including any additional associated fees and expenses. UKG may, at its sole discretion, update and enhance the features available through Workforce SMS and applicable UKG scheduling product.
Payment. UKG will invoice Customer for the Workforce SMS implementation/configuration professional services fees set forth in the applicable statement of work and Order Form, pursuant to the payment terms set forth therein. UKG will invoice Customer for Workforce SMS usage based on the maximum number of Annual Interactions Customer has chosen to purchase (the “Annual Interaction Usage Fee”). The Annual Interaction Usage Fee will cover Workforce SMS usage by managers and employeesthrough and including the expiration of the twelve month annual usage term (the “Annual Use Term”), or until the maximum number of Interactions purchased by Customer has been used, whichever occurs first. The Annual Use Term shall begin upon Order execution.
If prior to the expiration of the Annual Use Term Customer has used the maximum number of Interactions covered by the Annual Interaction Usage Fee, UKG will charge the Customer for any excess Interactions used on a per Interaction basis (the “Excess Interaction Rate”). UKG will invoice Customer each month at the applicable Excess Interaction Rate for the remainder of the Annual Use Term for excess Interactions used and payment will be due within thirty (30) days of the date of such invoice. Workforce SMS volume purchase options and the method for calculating the applicable Annual Interaction Usage Fee and Excess Interaction charges are described more fully at:
http://www.kronos.com/Legal/Workforce-SMS-pricing
The Customer’s Annual Interaction Usage Fee for the Annual Use Term shall be set forth in the applicable Order Form. If Customer purchases additional Annual Interactions during the Annual Use Term, the Annual Use Term for such additional Annual Interactions will be for twelve months from the date of such Order execution.
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Restrictions on Workforce SMS Services; Additional Responsibilities. Customer agrees that Workforce SMS has not been designed for, and may not be used as, a means to connect with country specific emergency services such as 911, E911, 000, 112 and 999. UKG shall have no liability for any delays, failures or unavailability of Workforce SMS due to transmission or other delays, errors or problems beyond UKG’s control, or any other interruptions caused by the mobile communications network and/or mobile devices. Customer acknowledges that Workforce SMS pricing quoted on the applicable Order Form covers Interactions occurring in or between the counties as listed in the Pricing URL list above and that additional fees may apply for Interactions in or between other countries. Unused Interactions expire at the end of the Annual Usage Term and are not eligible for credit. Use of the Workforce SMS subscription service is subject to the terms set forth in the Agreement as well as the Acceptable Use Policy found at:
http://www.kronos.com/Legal/TwilioAUP and Customer agrees to defend, indemnify and hold harmless UKG, its employees agents and subcontractors from all loss, damage or injury that may result from Customer’s failure to abide by such Policy. Customer acknowledges that communications occurring through Workforce SMS may be subject to standard mobile carrier policies or government regulatory requirements for mobile communications. UKG may discontinue Workforce SMS upon one hundred twenty (120) days prior written notice to Customer.
In the event of discontinuation during the initial or renewal Annual Use Term, UKG will refund or credit the Customer for the unused portion of the previously paid Annual Interaction Usage Fee.
Otherwise, Customer’s payment of professional services and/or Interaction usage fees shall be nonrefundable.
Security for Workforce SMS: Workforce SMS service relies upon a third party hosted communication platform and interactions with worldwide telecommunications networks to deliver SMS messages not under the control of UKG. Accordingly, notwithstanding any other provision of the Agreement or this Addendum to the contrary, Customer understands and acknowledges the exclusive statement of the security and privacy provided is: UKG will undertake commercially reasonable measures to protect the security and privacy of data transmitted through the Workforce SMS service, however the security and privacy of such SMS data cannot be guaranteed in this global network involving many third parties.
Renewal and Termination. The initial Annual Use Term is twelve months. Upon the expiration of that twelve month period and upon each anniversary date thereafter, the term of this Addendum and the Annual Use Term shall automatically renew for an additional twelve month period unless Customer has provided forty-five (45) days prior written notice to UKG of its decision not to renew at the end of the then current term.
AGREED AND ACCEPTED
CUSTOMER: UKG:
By: By:
Name: Name:
Title: Title:
Date: Date:
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131 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
UKG EZCall Provider Scheduling Agreement
2726
UKG EZCall Provider Scheduling
Software as a Service (SaaS) Agreement
(“Customer”) and UKG Kronos Systems, LLC, a UKG company (“UKG”), agree that the terms and conditions set forth below shall apply to the UKG supply of the SaaS offering based upon the UKG EZCall Provider Scheduling platform and as specified on a UKG Order Form expressly referencing the UKG EZCall agreement and signed by the parties. For purposes of this Agreement the term Customer shall also include its Affiliates.
1. DEFINITIONS
“Affiliate” means any corporation or other business entity that controls or is controlled by or is under common control with Customer excluding any entity that is a competitor of UKG and any entity located outside the United States and Canada. “Control” means ownership of at least fifty percent (50%) of the voting capital stock or other interest having voting rights with respect to the election of the board of directors or similar governing authority.
“Agreement” means these terms and conditions, and any amendments thereto, and the Order Form(s). “Billing Start Date” means the date the billing of the Annual Service Fees commences as indicated on the applicable Order Form. The Billing Start Date of the Annual Service Fees for any Services ordered by Customer after th e date of this Agreement shall be the date the applicable Order Form is executed by UKG and Customer. “Confidential Information” means any non-public information of a party or its Suppliers relating to such entity’s business activities, financial affairs, technology, marketing or sales plans that is disclosed pursuant to this Agreement and reasonably should have been understood by the receiving party to be proprietary and confidential to the disclosing party or its Suppliers because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself. “Customer Content” means all content that Customer, or others acting on behalf of or through Customer, posts or otherwise inputs in the Services.
“Documentation” means technical publications published by UKG relating to the features, functionality and use of the Services. “Hosting Environment” means the cloud infrastructure and platform services provided by UKG’s Supplier for the hosting environment. “Initial Term” means the initial term of the Services as indicated on the Order Form. “Minimum Contract Value” means the Annual Service Fees to be invoiced for the Initial Term or a Renewal Term, as applicable. “Annual Service Fee(s)” means the annual fees for the Services as described in an Order Form. “Order Form” means an order form mutually agreed upon by UKG and Customer setting forth the items ordered by Customer and to be provided by UKG and the fees to be paid by Customer. “Personally Identifiable Data” means information concerning individually identifiable employees of Customer that is protected against disclosure under applicable law or regulation.
“Policies” means the following policies of UKG’s Supplier and all restrictions described on the AWS Site, and any other policy or terms referenced in or incorporated into this Agreement, as each may be updated from time to time. Policies do not include whitepa pers or other marketing materials referenced on the AWS Site.
“Acceptable Use Policy” means the Policy available at http://aws.amazon.com/aup “Site Terms” means the terms of use available at http://aws.amazon.com/terms/ “Service Terms” means the rights and restrictions for particular Supplier Services available at http://aws.amazon.com/serviceterms. Current Supplier Services include: Elastic Compute Cloud / EC2 (servers), Route 53 (DNS), Simple Email Service (Transactional Emails), Simple Storage Service / S3 (Static Content). “Trademark Use Guidelines” means the guidelines and license available at http://aws.amazon.com/trademark-guidelines/ “Privacy Policy” means the privacy policy available at http://aws.amazon.com/privacy “AWS Site” means the web site located at http://aws.amazon.com “Renewal Term” means the renewal term of the Services as indicated on the Order Form. “Services” means accessibility to the commercially available and applicable module(s) of the UKG EZCall software applications specified on the Order Form signed by Customer by means of access to the password protected customer area of a website owned or operated by UKG or its Supplier, and all such services, items and offerings accessed by Customer therein or provided by UKG in connection thereto.
“Supplier” means any contractor, subcontractor or licensor of UKG providing software, equipment and/or services to UKG which are incorporated into or otherwise related to the Services. “Term” means the Initial Term and any Renewal Terms thereafter.
2. SERVICES, HOSTING, IMPLEMENTATION AND SUPPORT
2.1 Ownership. The parties acknowledge that, as between UKG and Customer, UKG shall own all right, title and interest in and to the Services and all tangible or intangible works and materials developed by UKG in connection with the Services, including but not limited to systems, solutions, processes, formulae, designs, inventions, algorithms, documentation, computer source and/or object cod e. This Agreement does not transfer or convey to Customer or any third party, and Customer acknowledges that it does not have any right, title or interest in or to the foregoing, or any associated intellectual property rights, but only a limited license and right to u se the Services in accordance with this Agreement.
2.2 Services. UKG grants to Customer a limited, nonexclusive, nontransferable, non-assignable, without right to sublicense, and revocable right to use for its internal business purposes, the Services, including without limitation the applicable UKG EZCall software 2727
application module(s) and all associated Documentation. The Services are limited to the number of users identified on the Order Form(s). Customer agrees not to increase the number of users unless and until Customer pays the applicable fee for such increase.
2.3 Hosting. The Services rely upon a Hosting Environment that is provided by UKG’s Supplier. Accordingly, notwithstanding any other provision of the Agreement to the contrary, Customer understands and acknowledges that the use of the Hosting Environme nt and the exclusive statement of the security protections provided for i) the Hosting Environment, and ii) all associated data, is found within the Privacy Policy and at the AWS Site. Without limiting the generality of the foregoing, Customer will adhere to all laws, rules and regulations applicable to Customer’s use of the Services, and is directed to the Policies, including those specifically defined above.
Customer agrees to defend, indemnify and hold harmless UKG, its employees, agents and subcontractors from all loss, damage or injury that may result from Customer’s failure to abide by such Policies.
2.4 Implementation Services. UKG will provide the Implementation Services per a mutually agreed upon Statement of Work.
2.5 Support. Customer shall submit requests for support by e-mail using a customer support e-mail address provided by UKG. UKG agrees to respond to such requests for support, and provide reasonable resolution thereto, in a timely fashion (“Customer Services”).
Customer Services shall include improvements, patches and upgrades to the Services, as such are generally made available to UKG’s customers. UKG may provide data conversion, data transfer services and other types of services at UKG’s then-current hourly fees.
Remote end-user training and a training manual is provided at no additional charge. Additional onsite support is available upon request, subject to UKG’s then-current hourly fees and payment of actual expenses, including reasonable travel, meal and lo dging costs (if necessary).
3. CUSTOMER’S OBLIGATIONS.
3.1 Use of Services. Customer will not (a) sell, assign, transfer, or sublicense the Services, (b) cause or permit modification, disassembly, de-compilation, or reverse engineering of the Services, (c) use the Services to provide time-sharing or service-bureau services, either for profit or not, (d) allow third-parties to access or use the Services, (e) copy or give copies of the Service to any other party including its parent, sister organizations, subsidiaries, or contractors except as permitted hereunder, (f) use, or allow the use of, the services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations, (g) use the Service in any manner which could damage, disable, overburden, or impair UKG’s or UKG’s Supplier’s website or interfere with any other party’s use and enjoyment of the Service, (h) use the Service or any feature o f UKG’s or UKG’s Supplier’s website or services to post, send or receive messages or material that are unrelated to the Services or which are damaging or defamatory, (i) upload files containing any virus, Trojan horse, worm, spyware, spam ware, malware, time bomb or similar code designed to disrupt the operation of, permit unauthorized access to, erase or modify any aspect of the Service or any of UKG’sor its other customers’ data or (j) perform any security integrity review, penetration test, load test, denial of service simula tion or vulnerability scan, (k) use any tool designed to automatically emulate the actions of a human user (e.g., robots), or (l) develop or promote a product or offering similar in purpose to any UKG products and services.
3.2 Customer’s Account. Customer is responsible for all activities that occur under Customer’s account, regardless of whether the activities are undertaken by Customer, its employees or a third party (including Customer’s contractors or agents) and, excep t to the extent caused by UKG’s breach of this Agreement, UKG is not responsible for unauthorized access to Customer’s account. Customer will promptly contact UKG if Customer believes an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen.
3.3 Customer Content. Customer is solely responsible for the development, content, operation, maintenance, and use of the Customer Content. For example, Customer is solely responsible for: (a) compliance of Customer Content with the Policie s, and the law; (b) any claims relating to Customer Content; and (c) properly handling and processing notices sent to Customer (or any Customer affiliates) by any person claiming that Customer Content violates such person’s rights, including notices pursua nt to the Digital Millennium Copyright Act or any similar law.
4. DATA PRIVACY. UKG’s Supplier of the Hosting Environment participates in the safe harbor programs described in its Privacy Policy. Customer consents to UKG’s Supplier’s collection, use and disclosure of information associated with the Service in accordance with the Privacy Policy, and to the processing and the transfer of Customer Content in the Services.
5. FEES AND PAYMENT
5.1 Fees. Customer shall pay UKG the Setup Fees, the Annual Service Fees and any additional one time, set-up or recurring fees, all as defined on the Order Form. All payments and fees shall be due 30 days following date of invoice unless otherwise indicate d on an Order Form.
5.2 Setup Fee. The Setup Fees are one time fees that shall be invoiced as indicated on the applicable Order Form.
5.3 Annual Service Fees. Annual Service Fees commence on the Billing Start Date and are invoiced annually in advance. Support Services are included in the Annual Service Fees.
5.4 Reconciliation at Renewal. For the three (3) month period prior to which UKG sends the renewal invoice for the Annual Service Fees, UKG will determine the number of Customer users actually using the Services, and Customer agrees to pay the Annual Service Fee for the following year in an amount equal to Customer’s then current per user fee for the maximum number of users who use d the Service during that three (3) month period.
5.5 Taxes. Customer is responsible for all applicable taxes relating to the goods and services provided by UKG hereunder (including without limitation GST and/or VAT if applicable), excluding taxes based on UKG’s income or business privilege. Except as expressly set forth in the Agreement, all amounts paid to UKG are non-refundable. 2728
5.6 Increases. At the later of (i) one (1) year after the effective date of this Agreement, or (ii) expiration of the Initial Term, and at each annual anniversary of that date thereafter, UKG may increase the Annual Service Fee rates in an amount not to exceed four percent (4%). The increased Annual Service Fees will be reflected in the invoice following the effective date of such in crease without additional notice.
6. TERM, SUSPENSION, TERMINATION AND TRANSITION
6.1 Term. At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms until terminated in accordance with the provisions hereof.
6.2 Temporary Suspension. UKG may suspend Services immediately upon written notice to Customer if: (a) any amount owing under this Agreement is thirty (30) or more days overdue and UKG has provided Customer at least seven (7) days’ prior written notice that Customer’s account is overdue, or (b) Customer breaches any Policies.
6.3 Termination
(a) Customer may terminate the Services and this Agreement for convenience upon ninety (90) days prior written notice subje ct to Customer’s payment of the Minimum Contract Value. UKGmay terminate the Services and this Agreement to be effective at the expiration of the then current Term upon no less than sixty (60) days prior written notice. (b) Either party may terminate the Services and the Agreement upon a material breach of the Agreement by the other party if such breach is not cured within fifteen (15) days after receipt of written notice. (c) In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to provide adequate assurances, in the requesting party’s reasonable discretion, within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upo n written notice to the other party.
6.4 Effect of Termination
(a) If the Agreement is terminated for any reason, Customer shall pay UKG within thirty (30) days of such termination, all fees accrued under this Agreement prior to the effective date of such termination, as well as the Minimum Contract Value. (b) Notwithstanding the foregoing, if Customer terminates for an uncured breach of the Agreement by UKG, UKG shall refund Customer any pre-paid and unused fees for Services not delivered by UKG. (c) In addition, upon the effective date of termination or expiration of this Agreement for any reason:
(i) Customer’s right to access and use the Services shall be revoked; (ii) No more than fifteen (15) days after termination, UKG will provide to Customer, at no charge to Customer, the Customer Content in the format then in use for the Services. After such time period, UKGshall have no further obligation to store or make available the Customer Content and will securely delete any or all Customer Content without liability; (iii) Customer agrees to timely return all UKG-provided materials related to the Services to UKG at Customer’s expense or, alternatively, destroy such materials and provide UKG with an officer’s certification of the destruction thereof; and (iv) All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.
7. LIMITED WARRANTY; DISCLAIMERS OF WARRANTY
7.1 UKG represents and warrants to Customer that the Services, under normal operation as specified in the Documentation and when used as authorized herein, will perform substantially in accordance with such Documentation during the Term.
7.2 UKG’ sole obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty is limited to UKG’s reasonable commercial efforts to correct the non-conforming Services at no additional charge to Customer. In the event that UKG is unable to correct material deficiencies in the Services arising during the Warranty Period, after using UKG’s commercially reasonable efforts to do so, Customer shall be entitled to terminate the then remaining Term of the Agreement as Customer’s sole and exclusive remedy. UKG’s obligations hereunder for breach of warranty are conditioned upon Customer notifying UKG of the deficiency in writing, and providing UKG with evidence of such deficiency to enable UKG to reproduce or verify the same.
7.3 EXCEPT AS PROVIDED FOR IN THIS SECTION 7, UKG HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS,
GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR
UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING CUSTOMER
CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED EXCEPT TO THE EXTENT PROHIBITED BY LAW. UKG MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICES NOR ANY RESULTS TO BE ACHIEVED THEREFROM.
8. INDEMNIFICATION
8.1 UKG shall defend Customer and its respective directors, officers, and employees (collectively, the “Customer Indemnified Parties”), from and against any and all notices, charges, claims, proceedings, actions, causes of action and suits, brought by a third party (each a “Claim”) alleging that the permitted uses of the Services infringe or misappropriate any United States or Canadian copyright or patent and will indemnify and hold harmless the Customer Indemnified Parties against any liabilities, obligations, costs or exp enses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claim by a co urt of applicable jurisdiction or as a result of UKG’s settlement of such a Claim. In the event that a final injunction is obtained against 2729
Customer’s use of the Services by reason of infringement or misappropriation of such copyright or patent, or if in UKG’s opinion, the Services are likely to become the subject of a successful claim of such infringement or misappropriation, UKG, at UKG’s option and expense, will use commercially reasonable efforts to (a) procure for Customer the right to continue using the Services as provided in the Agreement, (b) replace or modify the Services so that the Services become non -infringing but remain substantively similar to the affected Services, and if neither (a) or (b) is commercially feasible, to (c) terminate the Agreement and the rights granted hereunder after provision of a refund to Customer of the Monthly Service Fees paid by Customer for the infringing elements of the Services co vering the period of their unavailability.
8.2 UKG shall have no liability to indemnify or defend Customer to the extent the alleged infringement is based on: (a) a modification of the Services by anyone other than UKG; (b) use of the Services other than in accordance with the Documentation for such Service or as authorized by the Agreement; (c) use of the Services in conjunction with any data, equipment, service or software not provided by UKG, where the Services would not otherwise itself be infringing or the subject of the claim; or (d) use of the Services by Customer other than in accordance with the terms of the Agreement.
8.3 Customer shall defend UKG, its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the “UKG Indemnified Parties”) harmless, from and against any and all Claims alleging that: (a) Customer’s modification or combination of the Services with other services, software or equipment not furnished by UKG, provided that such Customer modification or combination is the cause of such infringement and was not authorized by UKG; or, (b) a claim that the Customer Content infringes in any manner any intellectual property right of any third party, or any of the Customer Content contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person’s right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person. Customer will have sole control of the defense of any such action and all negotiations for its settlement or compromise. UKG will cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of any such action. Customer will indemnify and hold harmless the UKG Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claims by a court of applicable jurisdiction or as a result of Customer’s settlement of such a Claim.
8.4 The Indemnified Party(ies) shall provide written notice to the indemnifying party promptly after receiving notice of such Claim. If the defense of such Claim is materially prejudiced by a delay in providing such notice, the purported indemnifying party shall be relieved from providing such indemnity to the extent of the delay’s impact on the defense. The indemnifying party shall have sole con trol of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the applicable Indemnified Parties without the prior written consent of the other party. The Indemnified Parties shall cooperate fully, at the indemnifying party ’s request and expense, with the indemnifying party in the defense, settlement or compromise of any such action. The indemnified party may retain its own cou nsel at its own expense, subject to the indemnifying party’s rights above.
9. LIMITATION OF LIABILITY
9.1 EXCEPT FOR UKG’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY OF UKG OR UKG’S SUPPLIERS TO CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION
WITH THE AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY UKG FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH SUCH CLAIM ARISES.
9.2 EXCEPT FOR UKG’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL UKG OR UKG’S SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL,
PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR
REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS,
NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED
TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS
ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF
WHETHER UKG OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE.
10. CONFIDENTIAL INFORMATION
10.1 Each Party shall protect the Confidential Information of the other Party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such Party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither Party shall disclose to third parties the other Party’s Confidential Information, or use it for any purpose not explicitly authorized herein, without the prior written consent of the other Party.
10.2 Notwithstanding the foregoing, a party may disclose Confidential Information to the ext ent required: (a) to any subsidiary or affiliate of such Party, or (b) to any consultants, contractors, and counsel who have a need to know in connection with the A greement and have executed a non-disclosure agreement with obligations at least as stringent as this Section 15, or (c) by law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this Section 15, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction. 2730
10.3 This Agreement imposes no obligation upon either Party with respect to the other Party’s Confidential Information which the receiving Party can establish: (a) is or becomes generally known through no breach of the Agreement by the receiving party, or (b) is already known or is independently developed by the receiving party without use of or reference to the Confidential Informatio n.
11. GENERAL
11.1 This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any conflict of law provisions. The parties waive the application of the United Nations Commission on Internationa l Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the Agreement and waive and “opt out” of the Uniform Computer Information Transactions Act (UCITA), or such other similar law.
11.2 The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The part ies intend for the remaining unaffected provisions to remain in full force and effect.
11.3 Customer shall not assign the Agreement or the rights to use the Services without the prior written consent of UKG and any purported assignment, without such consent, shall be void.
11.4 Neither Party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (other than a failure to comply with payment obligations) where and to the extent that such failure or delay results from an unforeseeable event beyond a party’s reasonable control, including but not limited to, acts of war; acts o f nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failu re of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power failure; material shortages or unavailability or other delay in delivery not resulting from t he responsible party’s failure to timely place orders therefor, or lack of or delay in transportation.
11.5 All notices given under the Agreement shall be in writing and sent postage pre-paid, if to UKG, to the UKG address on the Order Form, or if to Customer, to the billing address on the Order Form.
11.6 No action regardless of form, may be brought by either party more than two (2) years after the cause of action has arisen.
11.7 The parties agree that if the Agreement is accepted by the parties and that acceptance is delivered via fax or electronically delivered via email or the internet it shall constitute a valid and enforceable agreement.
11.8 This Agreement and any information expressly incorporated by reference herein, together with the applicable Order Form, constitute the entire agreement between the parties for the Services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement. This Agreement may be amended only in writing signed by authorized representatives of both parties. Customer understands and acknowledges that while UKG may disclose to customers certain confidential information regarding general Service or product development direction, potential future Services, products or product enhancements under consideration, Customer is not entitled to any Services, products or product enhancements other than those contained on the Order Form. Customer has not relied on the availability of any future version of the Services identified on an Order Form, nor any other future product in executing the Agreement.
DATED:
CUSTOMER: UKG
BY:______________________________ BY:
NAME:___________________________ NAME:___________________________ TITLE: ___________________________ TITLE: ___________________________ 2731
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APPENDIX 10 – SPD-SP044 TRADE SECRET AFFIDAVIT
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APPENDIX 11 – ADDENDUM ACKNOWLEDGEMENTS
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Cobb County Addendum #1
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APPENDIX 12 – UKG SUPPORTING ATTACHMENTS
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UKG Attachment 1 – UKG Product Overview
Ultimate Kronos Group (UKG) goes beyond traditional HCM software, offering an unparalleled solution that empowers participating agencies to boost employee experience, reduce manual processes, and stay compliant. Our comprehensive suite covers the entire employee lifecycle, from onboarding to retirement, encompassing human resources, payroll, and workforce management. UKG solutions excel in several key areas:
By combining these elements, UKG's Suite of Solutions helps participating agencies create a data-driven approach to building a positive work environment, fostering employee engagement, and achieving better business outcomes. UKG offers a best-of-breed solution that empowers participating agencies to efficiently support employees, reduce manual processes, and ensure compliance. Our hire-to-retire solutions, encompassing human resources, payroll, and workforce management functionalities, ensure maximum efficiency and empower your workforce.
Please see below for general product and functional overviews of UKG’s suite of HCM solutions:
• Human Resources
• Payroll
• HR Service Delivery
• Time
• Workforce Strategy Solutions
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Human Resources
Human Resources encompasses essential functions such as employee records, organizational data management, and analytics. It provides the framework for a participating agency to manage their workforce data efficiently, ensuring compliance with HR regulations, and supporting day-to-day HR operations. Employee and manager self-service connect employees to relevant information and resources they need to work more effectively.
• Human Resources (People Center) is designed to improve the work experience for HR, managers, and all employees. Here are some key features:
o Comprehensive Human Resources: UKG Human Resources tracks all HR-related information about employees, including personal details, employment history, performance reviews, benefits choices, and time and labor data. Additionally, this record may be used to store custom fields and dates, asset assignments, work related injury data, certifications, licenses, and more.
o Engage Employees: Employees have direct access to HR-related tools and data from any device. This improves productivity and engagement by providing timely information and access to self-service features.
o Timely Compliance Updates: UKG helps participating agencies stay compliant with employment and payroll regulations, making it easier to record essential information for government reporting and analysis in the United States and territories.
• Recruiting: UKG Recruiting streamlines the talent acquisition process by automating job postings, candidate sourcing, and applicant tracking. It enables HR teams to efficiently identify, assess, and communicate with potential hires to select the best-fit candidates. This not only saves time and reduces manual effort, but also ensures a more effective recruitment process, leading to better hires and improved team performance.
o Inviting Candidate Experience: The platform crafts an inviting candidate experience, making it easy for applicants to apply from any device while reflecting the participating agency’s brand and culture. This seamless process encourages engagement and trust from the very first interaction but also makes the audience feel the ease of use and convenience, ensuring a comfortable and stress-free application process that reflects the participating agency’s culture.
o Streamlined Talent Processes: UKG Recruiting allows recruiters to keep pace with candidates at different stages within the recruiting pipeline. Intuitive talent analytics help continuously improve processes, ensuring efficient talent sourcing, tracking, and evaluation. Communications, including emails, collaborative interview scheduling, text messaging, and shared internal candidate evaluations and notes allow recruiters and hiring managers to stay in lock step during every phase of the recruitment process.
Integrations for background checks, assessments, and more provide peace of mind that the recruiting process remains compliant with agency policies. The creation and 2740
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acceptance of offer letters is supported using branded templates, allowing the hiring team and candidate to have a fully electronic experience. • Onboarding: Onboarding is a crucial part of the employee journey, and UKG's Onboarding tools play a significant role in creating a personalized and impactful connection for new hires. These modules simplify and automate the onboarding process, ensuring a smooth transition for new employees and rehires. HR teams can efficiently manage tasks such as collecting necessary documentation, completing compliance forms and custom agency documentation, and creating personalized welcome materials. With collaborative technologies, UKG Onboarding helps new hires connect to their agency in a way that is both personal and impactful, even before day one.
This not only enhances the employee experience but also boosts productivity and engagement. • Position Control/Management: Offers several key features to help agencies efficiently manage position changes while maintaining compliance and providing insight into staffing to make informed decision-making. Here are some highlights:
o Reporting Hierarchy Structure: Establish a reporting hierarchy for positions that report to other positions.
o Managing Multiple Roles: Easily manage employees working in multiple roles or positions within a single location.
o Simplified Relationships: UKG simplifies relationships between jobs, positions, employees, and the overall organizational structure.
o Reduced Administrative Tasks: Position control/management tools reduce manual administrative HR tasks, eliminating the need for manual position data entry. o Real-Time Visibility: Gain real-time visibility into position data for better informed, inthe-moment management and planning. o Compliance Mitigation: Align positions with necessary training and credentials to ensure adherence to federal, state, and local labor laws. • Benefits: UKG Benefits simplifies the management of employee benefits programs. UKG Benefits allows administrators to manage new hire(s) and open enrollment, enable electronic submission and tracking of qualifying life events, calculate employee and employer contributions with effective dating, and provide self-service portals for employees to access and manage their benefit selections. This capability ensures accurate and efficient benefits management and supports employee well-being by helping them select the plan that fits their needs. Here are some key features:
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• Benefits Administrator Tools: allows participating agencies to configure the solution to support diverse benefit programs, automate processes, and engage employees. Advanced configuration capabilities allow flexible plan design and benefits calculations. Effective communication with employees during enrollment simplifies administration.
• Intuitive Enrollment Process: enables employees to view and select benefits options via an intuitive shopping experience. They can set filtering preferences, compare plans side by side, edit beneficiary and dependent information, and gain a holistic view of their options. Passive enrollment is supported to assist employees who wish to make limited or no changes to their benefit elections.
• Robust Reporting: Multiple configurable reports are available to track new hire and open enrollment progress and trends, provide point-in-time benefit census data, and ease the burden of carrier billing reconciliation.
• Affordable Care Act (ACA): UKG ACA simplifies Affordable Care Act compliance by streamlining the collection of employees’ hours, automating policies, and monitoring critical metrics. Here are some key features:
o Measurement Periods: UKG ACA tracks measurement, administration, and stability periods. This informing administrators as employees become eligible or lose eligibility. o Compliance Reporting: Intuitive year-end processes simplified with auto-population of 1095-C and 1094 forms with up-to-date codes maintained by UKG. 1095-C forms are made available to employees electronically and may also be printed. • Performance Management: UKG Performance tools provide targeted growth opportunities to employees, with a continuous, collaborative performance management experience that also delivers actionable insights for keeping your talent engaged. With UKG’s employee performance management solution, you can assess individual or team performance, automate employee reviews, identify areas for improvement, and develop and retain top talent. Here are some highlights:
o Goal and Objective Setting: The module provides an organized framework for aligning the participating agency's core objectives with individual goals. Users can measure their own success, track progress, and adjust goals and competencies as needed to fit workforce requirements.
o Competency Assessment and Development: The platform assesses competencies and skills, helping employees develop and grow. It ensures alignment between individual capabilities and organizational needs.
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o Configurable Performance Reviews: UKG’s configurable templates allow administrators to determine the elements and workflow of a performance review for multiple groups:
Customize rating scales
Determine weights, averages, and final performance grade as desired Identify multiple review participants, including peer, manager, and administrative contributors.
o Incident Tracking: Disciplinary actions and incident reports may be tracked within the UKG solution, providing visibility to the full talent history of an employee. o Reporting and Analytics: Robust reporting tools allow HR professionals to gain insights into performance metrics, identify trends, enhancing transparency and accountability and make data-driven decisions.
• UKG Succession Planning supports creation and management of succession planning by tracking high-potential employees and succession plans for individuals and positions or jobs. • Learning delivers and manages training and development programs. UKG Learning offers online courses, assessments, and certification tracking to enhance employee skills and knowledge. This capability ensures that employees have access to relevant courses, promoting professional development and tracking compliance. Here are some key features:
o Consumable, On-Demand Content: Learning delivers engaging content that employees can access when and where it’s convenient for them. This feature ensures that ongoing learning becomes an integral part of work.
o Tailored Learning Academy: Participating agencies can quickly deploy a training academy with their unique branding and configure the solution to meet specific business needs. Customization is essential for effective learning experiences. o Real-Time Insights: Learning provides real-time insights into employee progress and course completion. This visibility helps participating agencies track learning outcomes and adjust strategies as needed.
• Compensation allows participating agencies to create compensation plans, reward employees thoughtfully, and align individual contributions with business performance. Utilizing configurable merit matrices, UKG Compensation provides visibility into proposed salary changes and/or one-time payouts, allowing leadership to evaluate current and future compensation, compa-ratios, and performance rankings in one editable experience. Workflow of approvals moves these proposed changes through the appropriate channels, culminating in effective dated pay changes that streamline the compensation evaluation process through to payroll. 2743
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Payroll
Using UKG’s automated payroll solution, you can streamline payroll processing to increase productivity, improve payroll accuracy, and gain greater control of your payroll processes – in house and on your schedule.
• Flexible Configuration: UKG solutions provide access to earning and deduction settings, allowing on-the-fly configuration and modification as needed. Multiple pay cycles are supported, allowing each employee group to be processed on the participating agency’s schedule. Off cycle and manual checks may also be issued as needed.
• AI-powered Recommendations: The platform offers advanced tools to enhance payroll management by proactively identifying and resolving errors. Prior payroll comparisons, variance reporting, and other proactive alerts allow payroll administrators to focus on anomalies rather than cross-checking each pay statement.
• Robust Reporting: Reporting is crucial to delivering accurate pay statements. UKG Payroll allows administrators real-time insights into their payroll data at every stage of the process, from initiation to post-payroll reporting. General ledger data is passed to the participating agency’s accounting system in the proper format and is also available for reporting within the UKG solution.
• Payment Services: UKG provides payment services to include check printing and mailing, direct deposit file submission, tax filing and fund disbursement, and wage attachment fund disbursement.
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HR Service Delivery
HR Service Delivery is a comprehensive solution that lets HR Teams execute a sophisticated strategy for people operations and document management.
• People Assist Knowledgebase: This employee self-service portal empowers employees to find answers to HR questions, access agency policies and handbooks, and search or browse through agency created Articles. This reduces the burden on HR for basic inquiries and allows employees to access information on their own schedule. Articles may be limited to a select audience, ensuring that employees only see information relevant to their role.
• People Assist: With People Assist, agencies can deploy an automated case management and knowledge management platform with support for complex business processes, while gaining critical operational insights.
o Knowledgebase: It provides employees with tailored guidance in the form of highly customized knowledge base articles and quick personalized customer service with selfservice options. This employee self-service portal empowers employees to find answers to HR questions, access agency policies and handbooks, and search or browse through agency created Articles. This reduces the burden on HR for basic inquiries and allows employees to access information on their own schedule. Articles may be limited to a select audience, ensuring that employees only see information relevant to their role. o Process Automation: Create configurable processes to include assignable tasks, forms, and approvals. Use conditional workflows to automatically route items to appropriate parties, ensuring efficient and complete workforce processes.
• Document Manager: With Document Manager, participating agencies can deploy a sophisticated document management platform where they can manage certifications, licenses, forms, and media files across the workforce while complying with legal requests, government regulations, and data retention guidelines. It enables employees to acknowledge and sign documents while also delivering document management notifications and reminders. o Smart Document Generation: This automates the creation of personalized documents based on templates. Fill in the blanks with relevant data, and the system generates a polished document, saving HR time and ensuring consistency. o eSignature: This allows for electronic signatures on important documents. No more printing, signing, scanning, and emailing – get approvals quickly and securely online.
• HR Compliance Assist: This knowledge portal helps participating agencies navigate the complexities of HR data compliance on a global scale.
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Workforce Management
Workforce Management solution designed to optimize control over labor costs, manage leave, improve scheduling efficiency, and ensure they have the right people in the right place at the right time. Here's a breakdown of how UKG helps with each aspect.
• Time:
o Data Collection (Terminals): UKG offers devices that engage your employees with an easy-to-use interface. Our innovative timekeeping terminals capture time using an embedded card reader with one of many supported badge or card formats. Advanced technology supports touch-free convenience, and optional biometric authentication prevents time theft. The large, responsive capacitive touchscreen offers user-friendly self-service capabilities for employees to submit transfers, view schedules, submit requests and more.
o Timekeeping: UKG’s timekeeping solutions play a crucial role in workforce management by assisting participating agencies take care of your workforce. UKG tools that help you build a culture of belonging, provide guidance and offer autonomy while also fostering organizational adaptability. Our timekeeping solutions help customers:
o Engagement and Self-Service: Our tools enhance engagement and empower employees through self-service features.
o Accurate Time Tracking: Whether for hourly or salaried employees, UKG captures and calculates time with precision.
o Error Reduction: Automated time tracking helps flag exceptions and minimize payroll errors.
o Complex Pay Rules: Configurable parameters accommodate complex work environments, government policies, and union agreements. o Project and Labor Allocation: Allocate time to specific grants, projects, and labor categories. This includes monitor project-specific time spent by employees, helping with cost allocation, grant, and project budgeting.
o Regulatory Compliance: UKG ensures compliance with guidelines such as FLSA by adjusting pay rules, meal-break guidelines, and employee attestations. o Inclusivity: Our solutions meet WCAG 2.0 Level AA accessibility guidelines. o Overtime Management: Set alerts and controls to manage overtime costs and ensure compliance with labor laws.
o Fatigue Management: Real-time analytics allow participating agencies to gain visibility into fatigue patterns and data to help reduce burnout, avoid compliance violations, and increase productivity.
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• Absence Management:
o Absence Management: Absence Management is built to manage leave and attendance efficiently. It automates processes such as automating accrual policies, submitting and approving time off request, requesting a leave of absence, checking FMLA eligibility, and more. This solution helps participating agencies lower costs, maintain productivity, and stay compliant with labor laws and regulations. Here are its key features:
o Accruals Management: Accurately calculate and deduct paid time off based on your paid time off policies. Accrual balances are calculated in real-time and balances can be readily visible to employees using a timekeeping terminal, mobile device, tablet or computer. Takings are automatically calculated and rules such as taking limits are enforced through configurable policies. Leave Liability detail is always current because calculations are based on time worked and deducted as soon as they are entered and saved in the system.
o Attendance Management: Functionality designed to manage incidental absences and align to organizational policies and union collective bargaining agreements. Attendance Management in the UKG solution relieves administrative burdens, provides visibility to all stakeholders, and helps maintain compliance across the agency. Fair and consistent administration of your policies and CBAs ensures all employees are treated equitably.
Frontline supervisors receive notifications when employees have been excessively tardy, leaving early or developed patterns of absenteeism. Additionally, employees are recognized and actions taken to reward perfect attendance in accordance with your policies. Automation using the UKG solution removes discretion and subjectivity. o Leave Management: Assists customers required to meet compliance regulations associated with the administration of Federal, State and local policies running concurrently or consecutively with organizational programs. Ensure compliance by checking eligibility based on leave reasons and types, generating appropriate paperwork, and notifications to follow-up on documents that may be past due. Tracking of intermittent leave takings and notifications of excessive takings are automated for HR’s visibility and controls regarding excessive frequency and duration of leave. Accurate leave management ensures time is taken according to policies and employee rights are respected.
• Scheduling:
o Scheduling: UKG Scheduling provides participating agencies with efficient tools to manage employee schedules, optimize workforce allocation, and streamline staffing processes. Whether it’s creating shifts, handling shift swaps, or ensuring proper coverage, UKG Scheduling helps participating agencies maintain productivity and balance employee well-being. Here are some key features:
o Basic Scheduling: Create simple schedules for teams with predictable work patterns. 2747
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o Scheduler: Build more complex schedules with features like skill-based scheduling, availability management, shift swapping, and conflict resolution. o Advanced Scheduling: Leverage AI and machine learning for optimized scheduling based on forecasts, historical data, and employee preferences. o Healthcare Scheduling: Manage complex scheduling needs specific to healthcare staffing, including on-call scheduling, skills-based matching, and shift swaps. o Public Safety Scheduling: Use the UKG rules-based solution assists in creating employee schedules that align qualifications, certifications, and availability with staffing demands while adhering to agency policies, labor agreements, and HR rules. Optimize the scheduling, communications, and deployment of public safety personnel and other critical resources. Features and benefits include:
Accurate roster and personnel scheduling: The UKG solution empowers participating agencies to prebuild schedules and rosters. Track employee certifications and qualifications. Automatically relay scheduling communications. You can also support different business and union rules for various departments, ensuring staffing decisions are always validated against rules.
o Overtime Management: Objective, rules-based assignment of overtime. Overtime positions are automatically assigned based on rules you configure. Employees are listed objectively in entitlement order, and all employee overtime activity is tracked for auditing purposes.
o Integrated communication: Scheduling and communication functionality is integrated in the UKG solution, thus eliminating manual phone calls and expediting scheduling. The right employees are contacted in the right order, and all communications are automatically tracked.
o Improved productivity: Automate position, shift and vacation bidding. Free supervisors and administrative personnel by ensuring fair and accurate auctions. Configurable queue bids or preference bids ensure you conform to applicable department policies and union rules.
o Improved emergency response: Identify and contact certified, qualified and available employees by phone, text and email for quick scheduling and deployment. Vacant positions are automatically filled. The UKG solution also tracks hours related to emergency response and prepopulates the built-in FEMA report for faster completion, submission and reimbursement.
• Activities:
o UKG Pro Workforce Management Activities is a powerful solution that addresses the challenges of tracking labor against activities. With a focus on people in everything it does, UKG’s Workforce Management Activities for participating agencies to gain real2748 149 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
time visibility into organizational data to power more intelligent decision making, optimize efficiency, increase employee productivity, and ultimately improve operational performance. Here’s how it benefits participating agencies:
Key Benefits for Managers:
Identify and deploy your most productive performers
Gain real-time visibility into items that are a work in progress Streamline operations by identifying and removing bottlenecks Quickly reallocate and optimize critical labor resources to meet production deadlines
Assess critical KPIs such as productivity, efficiency, and direct vs. indirect time
Simplify system interaction with the logical guided workflow for your people with pre-built templates
Develop accurate labor standards by understanding variances between actual and standard performance
Automate reconciliation of labor hours to payroll
Key Features of UKG Activities:
Stay in sync with external Enterprise Resource Planning (ERP) systems through bi-directional interface capabilities providing seamless communication and preserving data integrity. Improved accuracy by introducing logic to show only necessary fields with Smart Forms Robust API integration powered by Boomi with easier access to API set expansions
Accurate activity selection with new business structure framework Activity data directly integrated into employee timecard Activity exceptions highlight relevant missing data such as orphan, idle, or missing result
3rd party integration with ERP systems which only sends and receives what is relevant or changed
Enables employees to view and track relevant, tailored information to their specific role and location on the device of their choice Visibility into allocated versus actual hours
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• Forecasting:
o Forecasting informs effective scheduling by making accurate and timely predictions. Its self-tuning and patented Machine Learning (ML) algorithm automatically learns from trends and data unique to each participating agencies. With unprecedented forecast accuracy, it identifies validated patterns, creates best-fit schedules, and optimizes workforce planning. Here are some key features:
o Demand Forecasting: Predict future staffing needs based on historical data, sales trends, and upcoming events.
o Labor Cost Forecasting: Estimate future labor costs based on projected staffing needs and labor rates.
• Strategic Workforce Planning:
o Strategic Workforce Planning helps participating agencies predict, analyze, and address gaps between their current frontline workforce and future human capital needs. It accurately calculates long-term workforce requirements, facilitates effective decisionmaking, and promotes participating agencies alignment and agility. Here are some key features:
o Skills Gap Analysis: Identify gaps between current employee skills and future business needs.
o Workforce Modeling: Simulate different workforce scenarios to make informed decisions about staffing levels and strategies.
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Workforce Strategy Solutions
These strategic solutions go beyond just core HR, Payroll and Workforce Management functionalities and delve into creating a positive work environment while leveraging data for better decision-making.
Here's how each element contributes:
• Great Place to Work:
o Hub: This is a data-driven platform that analyzes your HR data and employee sentiment surveys (potentially including the annual Great Place to Work Trust Index survey). It provides insights, recommendations, and best practices to help you build a culture of trust, belonging, and high performance.
o Best Practices & Benchmarks: leverages the vast amount of data from Great Place to Work to provide industry-specific benchmarks and best practices. This allows participating agencies to compare their agency's culture to similar agencies and identify areas for improvement.
• HR and Payroll Resource Library:
o UKG customers have access to the HR and Payroll Resource Library, a searchable database containing legislative updates, easy to understand breakdowns of labor standards, and hundreds of benchmarks, checklists, forms, and sample policies. This database is updated daily and provides key compliance information to help minimize risk and reduce administrative task time around employment policy.
• Employee Voice:
o Employee Voice is a survey and analysis tool that utilizes Natural Language Processing to streamline the collection and analysis of employee feedback. Surveys may be fully anonymous or confidential, giving employees peace of mind as they respond to surveys that touch every stage of the employee life cycle: 30-, 60-, or 90-day check-ins, engagement, pulse, onboarding and exit surveys, and more. Results may be processed in seconds, allowing participating agencies to be agile in collecting and responding to priority issues affecting their human capital. Here are some key features:
o Multilingual Support: It can handle over 130 languages and provides automated translation of responses.
o Emotion Interpretation: Using Natural Language Processing, Employee Voice interprets more than 15 emotions and identifies 70 themes and topics. o Content and Templates: In addition to in-house content, it includes 30 survey templates, a vast question library, and industry benchmarks developed by Mercer.
These benchmarks cover various sectors, including High Tech, Manufacturing, Financial Services, Energy, Retail, Life Sciences, Health Care, Consulting & Professional Services, Government & Public Administration, Education & Research, Hospitality, 2751
152 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
Telecommunications & Wireless & Broadband, Real Estate & Rental & Leasing, Consumer Products, and Transportation.
• Analytics:
o Provides robust analytics tools to analyze and interpret your HR, Payroll and Workforce Management data. This can include data on employee engagement, performance, turnover, labor, and more. You can use these insights to identify trends, track progress toward goals, and make data-driven decisions.
• Talk:
o This communication and collaboration tools facilitate open communication between employees and managers. This can help foster a sense of belonging and empower employees to share their ideas and concerns. Talk allows users to post announcements, take polls, promote events and track anticipated attendance, engage in group conversations, and allow one-on-one chats. Talk uses translation features to enable communication between users who may prefer different languages. • Bryte AI:
o Bryte AI is an artificial intelligence engine that uses machine learning to analyze data and provide personalized recommendations. Bryte is a generative AI-powered sidekick that makes the hard things easy, helps you and your people feel more connected, and shines a light on insights that transform the way you make decisions. o AI Assisted Search: Discover meaningful insights as Bryte AI delivers answers to workplace questions instantly.
o Employee Insights: Keep frontline workers connected with insights into teams, schedules, and workplace happenings.
o Great Place to Work Leadership Recommendations: Create actionable steps based on Great Place To Work resources, best practices, guides, articles, and more. • Employee Engagement:
o Employee Engagement encompasses a variety of tools and resources aimed at boosting employee Satisfaction and commitment. Some examples include:
o Recognition and Rewards Programs: Acknowledging and rewarding employees for their contributions and achievements.
o Learning and Development Opportunities: Providing training, skill-building, and growth opportunities.
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153 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
o Employee Wellness Programs: Initiatives that promote physical, mental, and emotional well-being.
o Goal Setting and Performance Management Tools: Tools to set objectives, track progress, and evaluate performance.
• Thought Leadership:
o Offers public sector industry experts and resources, as well as expertise to build a great place to work. This might include articles, webinars, or conferences focused on fostering employee engagement, diversity, and inclusion.
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154 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
UKG Attachment 2 – UKG Public Sector Cobranded Collateral FY24 2754
155 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024 2755
Quote#: Q-335602
ORDER FORM
Order Type: Quote
Date: 17 Sep, 2025
Quote#: Q-335602
Expires: 31 Oct, 2025
Sales Executive: David Weeks
Effective Date: Effective as of the date of last signature of this Order Customer Legal Name:
RICHMOND FIRE
Customer Legal Address:
3506 CUTTING BLVD, RICHMOND, CA 94804 USA
Bill To: RICHMOND FIRE
3506 CUTTING BLVD
RICHMOND, CA 94804 USA
Ship To: RICHMOND FIRE
3506 CUTTING BLVD
RICHMOND, CA 94804 USA
Bill To Contact: Ship To Contact: Den Mark Marcelo
Ship to Phone: (510) 307-8038
Ship to Mobile:
Contact: Den Mark Marcelo
Email: [email protected]
Currency: USD Shipping Terms: Shipping Point
Customer PO Number: Ship Method: FedEx Ground
Solution ID: 6104484 Freight Term: Prepay & Add
Initial Term: 36 months from Billing
Start Date
Uplift Percent: 4 %
Renewal Term: 12 months
Payment Terms: Net 30 Days
Billing Start Date: 180 Days from the Effective Date
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Quote#: Q-335602
Subscription Services
Billing Frequency: Annual in Advance
Subscription Services Quantity PEPM Monthly Price Annual Price UKG TELESTAFF CLOUD 105 USD 8.00 USD 840.00 USD 10,080.00 Total Price USD 840.00 USD 10,080.00
Professional Services - Fixed Fee
Billing Frequency: Billed 100% upon signature of the order form Professional Services - Fixed Fee Billing Role Quantity Unit Price Total Price UKG LAUNCH FIXED FEE Grouped 1 USD 4,999.94 USD 4,999.94 Total Price USD 4,999.94
Quote Summary
Item Total Price
Total Monthly SaaS and Equipment Rental Fees USD 840.00 Total Annual SaaS and Equipment Rental Fees USD 10,080.00 Item Total Price
Total Fixed Fees USD 4,999.94
Order Notes:
The parties agree that Customer is transitioning from their existing TeleStaff perpetual software licenses (the “Existing Applications”) to the TeleStaff Cloud software as a service offering in the Google Cloud Platform. Software Support for the Existing Applications shall continue, in accordance with UKG support policies, for up to 60 days after first production use of TeleStaff Cloud by Customer, but in no event beyond March 31, 2027, and shall terminate thereafter.
UKG Telestaff Cloud Monthly Service Fees shall be invoiced at the Billing Frequency indicated on this Order, commencing on the Billing Start Date. As of the Billing Start Date, UKG will credit Customer for any pre-paid but unused fees for Software Support for the Existing Applications. Customer may apply credits against any amounts owed to UKG by Customer until such credit is expended.
Customer shall continue to pay the Software Support on the Existing Applications until the Billing Start Date.
The fees for the Subscription Services are invoiced 60 days prior to the Billing Start Date.
This Order is subject to the Master Agreement No 24-6833 entered into between Cobb County Board of Commissioner ("Lead Agency") and UKG Kronos Systems, LLC ("UKG") effective as of July 14th, 2025 (the " Omnia Master Agreement No. 24-6833 ") and used by Customer as an Omnia Participating Public Agency. 2757
Quote#: Q-335602
Year 1 TeleStaff Cloud Licensing (based on 105 licenses) $10,080.00 Year 1 Professional Services Fees $ 4,999.94
Year 2 TeleStaff Cloud Licensing (based on 105 licenses) $10,080.00 Year 3 TeleStaff Cloud Licensing (based on 105 licenses) $10,080.00 Total Order Value (based on 105 licenses) $35,239.94
Total Order value of the3–Year Schedule:
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Quote#: Q-335602
IN WITNESS WHEREOF, the parties have caused this Order to be executed by their authorized representatives and shall be effective as of the date of the last signature below.
RICHMOND FIRE UKG Kronos Systems LLC
Signature: /CS1/______________________________ Signature: /KS1/_____________________________ Name: /CN1/______________________________ Name: /KN1/_____________________________ Title: /CT1/______________________________ Title: /KT1/_____________________________ Date: /CD1/______________________________ Date: /KD1/______________________________ The monthly price on this Order has been rounded to two decimal places for display purposes. As many as eight decimal places may be present in the actual price. Due to the rounding calculations, the actual price may not display as expected when displayed on your Order. Nonetheless, the actual price on your invoice is the true and binding total for this Order for purposes of amounts owed for the term. If you are tax exempt, please email a copy of your “Tax Exempt Certificate” to [email protected] along with the quote number otherwise this order is subject to applicable taxes. The actual tax amount to be paid by Customer will be shown on Customer’s invoice.
UKG is aligning our product brand and announcing that the UKG Dimensions® and UKG Pro® solutions will be one product suite under the name UKG Pro. Click here to learn more and view examples of current to future names https://www.ukg.com/one-suite#WhatproductnamesarechangingunderUKGDimensions 2759
UKG Opp-693271_SVC; SOW terms expire if Order not executed by 06/30/25 UKG Statement of Work for RICHMOND FIRE
This Statement of Work (SOW) outlines the scope of services to be provided by UKG for the Professional Service(s) in the corresponding Order and is subject to the terms and conditions set forth in the UKG Master Services Agreement (MSA) or such other existing underlying agreement between Parties. The scope of services described herein are fixed price and subject to the same terms and conditions as the corresponding Order. Unless otherwise defined herein, words and expressions defined in the Order shall have the same meaning in this Statement of Work. In the event of a conflict or discrepancy between the terms in this SOW and the MSA, the MSA shall prevail.
1. Professional Services in Scope
The Customer has engaged UKG to provide the following Professional Services:
Service Description
Purpose This SOW provides for a move from UKG TeleStaff to the Google Cloud Platform. If applicable, a Version Upgrade will be performed to align to the current Cloud version.
Phase 1:
Migration to UKG Telestaff Cloud
UKG will provide:
x Introduction call
x Cloud overview call
x Installation of UKG TeleStaff Cloud (1) PROD and (1) DEV x System overview call
x Testing support
x Go-live support
Only those Customizations explicitly defined as Phase 2 of this SOW (if applicable) will be migrated.
Phase 1:
Authentication UKG will configure and test Multi-Factor Authentication (MFA)
2. Service Parameters
The following parameters provide an additional set of considerations as it applies to the Project and Professional Services described in this document:
Item Parameters
Project Assumptions
x The target duration for Phase 1 of this project is 8 working weeks. x All services will be delivered remotely.
x Customer is responsible for migration of the database to MS SQL prior to the move to the Cloud if database is not currently MS SQL.
x Move to the Cloud does not include customizations, configuration changes, new features or functionality, other than what is required to facilitate the move to the Cloud. x Customer is responsible for testing the cloud database, not to exceed a (4) week time period and should mimic current end to end persona-based tasks.
x The project will be closed after eight weeks if customer testing stalls and forward progress toward go live on the cloud database ceases.
Scope Changes and
Pricing
• Any stated project duration is for guidance only and expected to be as set out in this SOW based upon UKG’s experience with UKG customers and solutions. Scope changes are subject to review and may impact the project duration and cost. If additional work beyond the initial scope of this SOW is needed, a separate Service Request will be required.
• If the Customer requires services not specified in this SOW, those services will be scoped based upon complexity and billed at the then current rate.
• UKG will not be responsible for troubleshooting Subscription Service(s), interfaces or hardware not provided by UKG.
• UKG’s quoted pricing does not include customization to the Subscription Service(s). A customization is defined as any system change that extends the Subscription Service(s) beyond what is provided by the delivered Subscription Service(s). Additional fees will apply if customization is required. Annual maintenance fees apply to all customizations. These fees are 15% of the cost of the customization. • UKG’s quoted pricing does not include the Excluded Items set out in this SOW 2760
UKG Opp-693271_SVC; SOW terms expire if Order not executed by 06/30/25 Item Parameters
Customer Tasks and
Communication
x Both UKG and the Customer’s project team will complete assigned tasks by mutually agreed upon due dates as set forth in the project plan. UKG will not be responsible for delays caused by the Customer’s failure to provide adequate resources for the project or complete tasks promptly. x UKG will communicate with the Customer’s project manager, the appointed point of contact for Customer on this project. The Customer’s project manager will be responsible for all communications and project management among all Customer parties (staff, vendors, consultants) and for the escalation and resolution of any issues for the Customer.
x All project tasks are completed through UKG’s remote deployment model unless otherwise mutually agreed to in advance or via an authorized service request or work order. Travel expenses are not included and will be invoiced separately as incurred.
3. Service Requests
Requests for changes to this SOW, additional scope, or activities outside of this planned project scope must be submitted to the UKG project manager in writing or in the form of an electronic service request.
The following excluded items are considered out of scope and will require a service request (“Excluded Items”):
x Material changes in the defined scope or effort
x Material changes in the number or type of work items to meet the defined scope of effort x Changes to the project remote delivery model
x Changes to the project duration
UKG will estimate the time and costs needed to implement the change and its impact on the project's delivery. UKG will perform the requested work once the service request has been completed and signed by the Customer. 2761
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Emily Combs
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RESOLUTION NO. ________
RESOLUTION OF THE COUNCIL OF THE CITY OF RICHMOND, CALIFORNIA,
APPROVING THE USE OF OMNIA PARTNERS PIGGYBACK PURCHASE
AGREEMENTS WITH UKG KRONOS SOLUTIONS, LLC IN AN AMOUNT NOT TO EXCEED $60,000 FOR A TERM BEGINNING NOVEMBER 5, 2025, THROUGH NOVEMBER 4, 2028, WITH TWO ONE-YEAR OPTIONS TO EXTEND
WHEREAS, the Richmond Fire Department uses Telestaff, a product of UKG Kronos Solutions, LLC, for its payroll, staffing, and personnel management; and WHEREAS, the software requires an annual maintenance agreement renewal in order to receive upgrades and continued web portal support; and WHEREAS, the current version of the software used by the Department will soon reach the end of its engineering support and must be upgraded to the latest version; and WHEREAS, operating the system without the appropriate software and licenses would render the program obsolete, potentially requiring the purchase of a new system at considerable cost; and
WHEREAS, the use of Piggyback Purchase Agreements to renew and upgrade the annual maintenance agreements with the vendor maximizes cost savings and more effectively utilize staff resources by relying on existing contracting and procurement efforts established in collaboration with other government agencies; and
WHEREAS, the use of Piggyback Purchase Agreements through OMNIA Partners, a leading national government purchasing piggyback, will provide the best overall supplier government pricing; and
WHEREAS, the recommendations in this report are in accordance with Section
2.52.330 of the City Municipal Code; and
NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of Richmond:
1. The City of Richmond approves the use of OMNIA Partners Piggyback Purchasing Agreements with UKG Kronos Solutions, LLC, in an amount not to exceed $60,000, for a three-year term effective November 5, 2025, through November 4, 2028, with a two one-year extension option not to exceed an additional $40,000 for the extended term, as listed in the OMNIA Partners Piggyback Contract list below:
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OMNIA PARTNERS PIGGYBACK AGREEMENTS
Vendor Name Piggyback Agreement Description
UKG Kronos Solutions,
LLC
Contract # 24-6833 Human Resource Systems
and Related Products and
Services
*****************************
(This section to be completed by Clerk’s Office)
I certify that the foregoing resolution was passed and adopted by the City Council of the City of Richmond at a _________ meeting held on _____________ by the following vote:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
________________________________________
Clerk of the City of Richmond
(SEAL)
Approved:
_______________________________
Mayor
Approved as to form:
____________________________
City Attorney
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November 4, 2025
Fire Department
DATE: November 4, 2025
TO: Mayor Martinez and Members of the City Council
FROM: Aaron Osorio, Fire Chief
Subject: Memorandum of Agreement with Oakland Fire
Department for National Urban Search and Rescue
Sponsorship
FINANCIAL IMPACT: The Richmond Fire Department will cover the initial cost of purchasing task force uniforms for each participating member, which is not expected to exceed a total of
$5,000. This purchase will be funded through the
approved Fiscal Year 2025-2026 Fire Department’s
personal protective equipment budget (Account String:
01204022-400384).
In addition, as a Federal Emergency Management
Agency’s National Urban Search and Rescue System
Participating Agency, the Department is eligible for
reimbursement from California Task Force 4 (“CA-TF4”)
for any approved activities during deployments.
PREVIOUS COUNCIL
ACTION:
None.
STATEMENT OF THE
ISSUE:
The Richmond Fire Department (“Department”) intends to
join Federal Emergency Management Agency’s National
Urban Search and Rescue System California Task Force
4 (“CA-TF4”) as a Participating Agency. This participation would provide the Department with access to specialized training, resources, and expertise for responding to largescale urban search and rescue operations which will enhance the department’s emergency preparedness.
AGENDA
REPORT
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November 4, 2025
RECOMMENDED ACTION: ADOPT a resolution authorizing the City of Richmond to enter into a Memorandum of Agreement (MOA) with The
Oakland Fire Department, Sponsoring Agency of
California Task Force 4, and join as a Participating
Agency, and AUTHORIZE the City Manager or their
designee to execute all necessary documents – Fire
Department (Chief Aaron Osorio 510-307-8021).
DISCUSSION:
In the event of large-scale disasters such as structural collapses, earthquakes, or transportation accidents, specialized teams are in place to quickly deploy and assist victims. One of these teams is the Urban Search & Rescue (“US&R”), which is part of the Federal Emergency Management Agency’s (FEMA) National Urban Search and Rescue System. US&R teams consist of highly trained professionals who respond to emergencies, providing rescue (extrication) and initial medical stabilization to victims.
These teams are critical for locating, rescuing, and stabilizing victims trapped in confined spaces, including collapsed buildings, trenches, and other hazardous environments.
As a multi-hazard discipline, US&R is essential for responding to both natural and manmade disasters, such as earthquakes, floods, and even terrorist-related events. FEMA’s US&R program organizes search and rescue capabilities into a national system that can rapidly deploy to impacted areas, providing specialized rescue and medical services where they are needed most.
California Task Force 4
There is a total of 28 US&R teams in the United States. The Oakland Fire Department serves as the Sponsoring Agency for California Task Force 4 (“CA-TF4”) of the National Urban Search and Rescue System, and it is one of the eight teams based in California.
California Task Force 4 is part of a comprehensive network established to respond to urban and large-scale emergencies (Attachment 1). A few of the notable incidents that CA-TF4 has been deployed to are Ground Zero in 2001, Hurricane Katrina in 2005, Hurricane Irma in 2017, and the Lahaina Wildfire in 2023.
The Richmond Fire Department (“Department”) intends to enter into a Memorandum of Agreement (“MOA”) with the Oakland Fire Department to be a Participating Agency in California Task Force 4 (Attachment 2). By joining CA-TF4, the Department will gain experience, resources, and expertise in handling complex rescue operations that extend beyond local response capabilities. Additionally, the Department will foster stronger collaboration with neighboring agencies, including local fire departments, law enforcement, medical teams, and other first responders, which will improve mutual aid coordination and ensure that, in times of need, resources and personnel can be rapidly mobilized.
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As a Participating Agency, the Department will be trained and equipped to respond to large-scale urban search and rescue operations. This includes advanced technical rescue techniques, hazardous materials handling, and the use of specialized equipment. These skills are essential that will further the Department's overall emergency response capabilities. In addition, by increasing the Department’s preparedness for urban search and rescue operations, the department will enhance its ability to respond to major disasters, ensuring the safety of the community.
Responsibility
As a Participating Agency, the Department agrees to provide personnel for designated positions on CA-TF4 as determined by the Sponsoring Agency. These personnel must be trained and meet CA-TF4 requirements. The Department currently has 80 eligible personnel, and the Department intends to commit 10 personnel to the Task Force. In case of activation and deployment, the Department must provide at least 30 percent of its rostered team members for Task Force activities. Lastly, the Department is expected to fully cooperate with the Sponsoring Agency and engage in activities that support Task Force preparedness goals, including maintaining a 24/7 point of contact for timely receipt of deployment notices (Attachment 3).
Financial Impact
In terms of activation and deployment, CA-TF4 may distribute FEMA preparedness grant funding to the Participating Agency. These funds will be subject to the requirements of the grants and the overall needs of the Task Force. The Sponsoring Agency will also reimburse the Participating Agency for authorized response expenses once reimbursement is received from the federal government (Attachment 4).
In addition, the Department will have to cover the initial cost of purchasing Task Force uniforms for each participating member, which is not expected to exceed a total of $5,000. This expense will not be reimbursed by the Sponsoring Agency and will be solely funded through the Department’s personal protective equipment budget. It is important to note that the long-term benefits of joining CA-TF4 far outweigh these immediate expenses, including enhanced public safety, skill development, and career advancement, all of which ultimately contribute to a more resilient and capable emergency response team.
Recommended Action
City staff recommends that the City Council adopt a resolution authorizing the City of Richmond enter into a Memorandum of Agreement (MOA) with the Oakland Fire Department and join CA-TF4 as a Participating Agency (Attachment 5). By becoming part of CA-TF4, the Department will gain access to specialized training, resources, and the ability to collaborate with neighboring agencies in response to large-scale urban search and rescue operations. This partnership will enhance the Department’s 2770
November 4, 2025
preparedness, improve mutual aid coordination, and ensure a more effective response to emergencies within the community.
DOCUMENTS ATTACHED:
Attachment 1– MOA between Homeland Security_Oakland to serve as USAR Attachment 2 – PROSPOSED MOA USAR Oakland_Richmond
Attachment 3 – CA-TF4 Administrative Manual
Attachment 4 – USAR Interim Rule 70 Fed Reg 9181_Max Pay Table Attachment 5 – Resolution
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MEMORANDUM OF AGREEMENT
BETWEEN
THE CITY OF OAKLAND FIRE DEPARTMENT
AS THE SPONSORING AGENCY
OF CALIFORNIA TASK FORCE 4
OF THE NATIONAL URBAN SEARCH AND RESCUE RESPONSE SYSTEM AND
CITY OF RICHMOND FIRE DEPARTMENT
AS A PARTICIPATING AGENCY OF THE TASK FORCE
This "Agreement" is entered into by and between the parties designated in Section 1, below, who agree that subject to all of the provisions of this Agreement, Richmond Fire Department will serve as a Participating Agency for the California Task Force 4 of the National Urban Search and Rescue Response System. Each party further agrees that it assumes all of the duties and responsibilities assigned to that party under this Agreement and that so long as this Agreement remains in effect, the party will fully perform all of those duties and responsibilities.
1. PARTIES
The parties to this Agreement are the following entities:
1.1. Sponsoring Agency:
City of Oakland Fire Department
150 Frank Ogawa Plaza, Suite 3354
Oakland, CA 94612
(510) 238 – 3856
1.2 Participating Agency:
City of Richmond Fire Department
440 Civic Center Plaza
Richmond, CA 94804
(510) 620-6989
2. RECITALS
Sponsoring Agency and Participating Agency have entered into this Agreement in recognition of the following Recitals:
2.1 Sponsoring Agency. Sponsoring Agency is a cooperating party under a "Memorandum of Agreement" dated October 5, 2009, with the Federal Emergency Management Agency ("FEMA") and the State of California. A copy of the Memorandum of Agreement (the "FEMA MOA") is attached to this Agreement as Appendix "A" and incorporated by reference.
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2 2.2 National Urban Search & Rescue Response System. Pursuant to federal law, principally the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121 through 5206 (the "Stafford Act"), the U.S. Department of Homeland Security (“DHS”), acting through FEMA, operates the National Urban Search & Rescue Response System (“System”) in conjunction with State and local governments.
2.3 Task Forces. Each Sponsoring Agency is responsible for recruiting and organizing a Task Force consisting of individuals occupying certain specified positions plus additional support personnel, all of whom have been properly trained with the requisite skills and capabilities required for urban search and rescue operations and/or deployment of the Task Force. A Task Force may be deployed as a single unit or it may be reorganized into teams for purposes of modularized responses for limited or specialized Activations.
Members of a Task Force may also be deployed as members of a management or other technical team.
2.4 California Task Force 4. The City of Oakland Fire Department is the Sponsoring Agency for California Task Force 4 (the "Task Force") and is charged with, among other things, recruiting and organizing members for the Task Force. In the performance of its responsibilities, the Sponsoring Agency may enter into cooperative arrangements with federal, state, or local government entities, or non-profit or for-profit entities, to serve as Participating Agencies in the Task Force and with individuals to serve as Affiliated Personnel of the Task Force. The Sponsoring Agency is obligated to enter into written agreements with those Participating Agencies and Affiliated Personnel setting forth the relationship between the parties.
2.5 Participating Agency. Richmond Fire Department desires to be a Participating Agency in the Task Force, subject to all of the provisions of this Agreement.
2.6 Applicable Provisions. With respect to National Urban Search & Rescue Response System activities, this Agreement incorporates the provisions of Interim Final Rule, “National Urban Search and Rescue Response System,” 70 Fed. Reg. 9182 (Feb. 24, 2005) (“Interim Final Rule”), attached as Appendix "B," as well as the provisions of the FEMA MOA, attached as Appendix "A." To the extent the Interim Final Rule is contrary to the FEMA MOA, the Interim Final Rule will prevail. Upon the effective date of the Final Rule governing this subject (“Final Rule”), the Final Rule shall supersede the Interim Final Rule in Appendix "B" and shall prevail over any contrary provisions of the Interim Final Rule or the FEMA MOA.
2.7 Definitions of Terms. Capitalized words and phrases in this Agreement have the same meaning as they do in the Interim Final Rule, unless or until superseded by the Final Rule. Capitalized words and phrases not defined in the Interim Final Rule or the Final Rule have the meaning given in this Agreement.
3. AGREED TERMS AND CONDITIONS
3.1 Participating Agency.
3.1.1 Participating Agency agrees to provide personnel to serve in certain designated positions on the Task Force as determined by Sponsoring Agency. A list of the individuals who will occupy those designated positions, and who are referred to in this Agreement as "Participants," as well as other pertinent information about them will be maintained by the CA-TF4 Program Office, available for inspection.
3.1.2 Participating Agency further agrees that Participants will meet the required qualifications for the positions to be filled, will receive the required training specified in this Agreement and will satisfy other conditions of preparedness and response as required by the Sponsoring Agency. 2783
3 3.1.3 The Parties will cooperate with each other to facilitate achievement of the goals and objectives of the System as fully and completely as possible.
3.2 Third Party Liability and Workers' Compensation.
3.2.1 Participating Agency and its Participants shall have such coverage for third party liability and workers' compensation as all Task Forces and their System Members under Federal law, the scope of which is generally described in Appendices "A" and "B."
3.2.2 Except as afforded by the Federal Government, the responsibility for risks associated with claims for third party liability and workers' compensation arising out of participation in the Task Force, either organizationally by the Participating Agency or individually by its Participants, shall be the responsibility of Participating Agency and not under any circumstances, the responsibility of Sponsoring Agency. At all times, Participating Agency shall maintain in full force and effect, and provided proof thereof, for the benefit of its Participants and its other employees engaged in System activities, coverage for workers compensation and third party liability to the full extent required by law. Participating Agency shall provide proof of such coverage prior to execution of this Agreement and updated proofs, prior to coverage expiration thereafter.
3.3 Financial Provisions.
3.3.1 Preparedness Funds
3.3.1.1 In its sole discretion, Sponsoring Agency may distribute to Participating Agency such preparedness grant funding as Sponsoring Agency shall be eligible to and does receive from FEMA. Any such distributions shall be subject to the requirements of the preparedness grants and the needs of the Task Force generally.
3.3.1.2 Any other funding received by Sponsoring Agency from sources other than the federal government may also be made available as Sponsoring Agency determines in its discretion. Sponsoring Agency shall make such distributions fairly and equitably taking into account the mission, goals and objectives of the Task Force and the needs of the Sponsoring Agency as compared to other proper needs and demands.
3.3.2 Response Funds
3.3.2.1 Sponsoring Agency shall promptly reimburse Participating Agency for response expenses that are authorized to be incurred by or for the benefit of Participants engaged in Task Force activities, upon receiving reimbursement for such expenses from the federal government. Such expenses must be properly ascertained, accumulated and reported to the Sponsoring Agency, and the funds to be utilized for payment must have been reimbursed by or on behalf of FEMA to Sponsoring Agency.
3.3.2.2 After an Activation, Participating Agency shall provide Sponsoring Agency with a complete cost reimbursement package to be submitted by Sponsoring Agency as part of an overall claim package which Sponsoring Agency is obliged to submit to FEMA. The Participating Agency's cost reimbursement package shall be submitted to the Sponsoring Agency within 30 days after the end of the Personnel Rehabilitation Period established by FEMA. Participating Agency's cost reimbursement package shall be prepared in conformance with applicable federal directives which Sponsoring Agency shall disseminate to Participating Agency.
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4 3.3.2.3 Participating Agency shall provide Sponsoring Agency with employee Salary Schedules or other compensation information for its Participants at least annually, or as changes occur in compensation rates payable to Participants. Other pertinent Participant data required by Sponsoring Agency shall be provided as described in Appendix “C”.
3.3.2.4 To ensure proper reimbursement from FEMA, the compensation of Participants on the Task Force shall be in accordance with submitted pay schedules and policies established by Appendix “C” from the time of activation and until the Task Force returns, is deactivated and Participants are returned to regular work schedules.
3.3.2.5 All financial commitments of Sponsoring Agency are subject to the availability and receipt of funds by Sponsoring Agency from FEMA and other sources.
3.3.2.6 Neither Participating Agency nor any Participant shall be reimbursed for costs incurred outside the scope of this Agreement.
3.4 Reporting And Record Keeping Requirements.
3.4.1 The Participating Agency shall provide the Sponsoring Agency with the records described in Appendix “C”.
3.4.2 The Sponsoring Agency shall issue a Task Force Picture Identification Card for all individuals listed in Appendix “C” [see Section 3.1.1].
3.4.3 Participating Agency shall ensure that any medical or other records and information that are afforded confidentiality under applicable law are protected from unauthorized disclosure.
3.4.4 Participating Agency shall provide prompt and accurate reporting as specified in this Agreement, including Appendix “C”.
3.5 Mandatory Minimum Requirements For Participation. Each Participant must satisfy all of the following for participation on the Task Force.
3.5.1 Each Participant shall be an employee in good standing of the Participating Agency. Entry-level employees who are probationary or in a similar status are not eligible.
3.5.2 Each Participant shall be of good moral character and shall not have been convicted of any felony or any other criminal offense involving moral turpitude.
3.5.3 Participants serving in a Task Force position that requires the individual to hold a license, registration, certificate or other similar authorization to lawfully engage in an activity must hold the appropriate authorization, which must be current and validly issued.
3.5.4 Subject to any applicable FEMA standards, each Participant must meet the medical/fitness standards mutually agreed upon by Sponsoring Agency and Participating Agency and not have any medical condition or disability that will prevent performance of the duties of the Task Force position he/she occupies.
3.5.5 Each Participant must be available on short notice to mobilize within 2 hours of request and be able to respond on a mission for up to 14 days.
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5 3.5.6 Each Participant must be capable of improvising and functioning for long hours under adverse working conditions.
3.5.7 Each Participant must receive such inoculations as are specified by the Sponsoring Agency.
3.5.8 Each Participant must be aware of the signs, symptoms and corrective measures of Critical Incident Stress Syndrome.
3.5.9 Each Participant must understand and adhere to safe working practices and procedures as required in the urban disaster environment.
3.5.10 Each Participant must have a working knowledge of the US&R System and the Task Force's organizational structure, operating procedures, safety practices, terminology and communication protocols.
3.5.11 Each Participant must have completed such courses of education and training and other requirements as the Sponsoring Agency shall specify.
3.5.12 Sponsoring Agency has authority to immediately suspend or terminate a Participant’s participation on the Task Force for failure to satisfy any mandatory requirement.
3.6 Clothing and Equipment.
3.6.1 Sponsoring Agency will issue to each Participant certain items of personal protective clothing and equipment for use in Task Force activities and operations. In the event of Activation, Participant shall provide certain additional items of personal clothing and equipment. All these matters are detailed specifically on the CA-TF 4 Website and in Appendix “C”. Items of clothing and equipment supplied by Sponsoring Agency shall remain the property of Sponsoring Agency and shall be returned promptly whenever a person ceases to be a Participant.
3.6.2 Subject to FEMA requirements, all uniforms will display the official patch of the Task Force and the official patch of the System, as specified by the Sponsoring Agency. The Sponsoring Agency shall specify the design of the uniform and any identifying insignia or markings.
3.7 Command, Control and Coordination.
3.7.1 When a Participant has been activated or has otherwise been placed at the direction, control and funding of FEMA, such as, for example, during participation in FEMA sponsored training, the ultimate authority for command, control and coordination of the service of the Participant reposes with FEMA exercised through the system chain of command. Subject to the principle just stated, the following provisions of this Section 3.7 govern the responsibilities of the parties with respect to supervisory, disciplinary and other specified aspects of the Participant’s employment within the context of his/her participation on the Task Force.
3.7.2 Sponsoring Agency shall exercise direct supervisory authority over Participants during Activations, deployments and other activities of the Task Force conducted by Sponsoring Agency, but for disciplinary purposes, that authority is limited to temporary suspension or permanent exclusion from participation. In all other instances where disciplinary action may be necessary, Sponsoring Agency shall report the pertinent circumstances to Participating Agency, which shall cooperate with Sponsoring Agency and shall administer discipline as appropriate in accordance with the Participating Agency's established rules and regulations. 2786
6 3.7.3 Nothing in this Agreement is intended to, nor does it, affect the employer-employee relationship between Participating Agency and its employees who are Participants, and Participating Agency shall at all times continue to be fully responsible for all of its employment obligations to its employee Participants, including the compensation and benefits that the Participating Agency has agreed to provide.
3.7.4 While participating in System activities conducted by the Task Force, Participants shall be subject to and observe and comply with all lawful orders and directions of the authorized representatives of Sponsoring Agency and the Task Force. Sponsoring Agency retains the right to suspend or exclude any Participant from participation on the Task Force for cause including failure to abide by the provisions of this Agreement.
3.8 Media and Information Policy.
3.8.1 Subject to applicable law, including FEMA regulations and directives, all photographs and video taken during a deployment will be kept under the control of Sponsoring Agency until use in internal or external education programs or other dissemination is approved by FEMA, except to the extent that disclosure is required by court order or California law.
3.8.2 All applicable federal, state, and local public information disclosure laws and media policies will be strictly enforced and followed.
3.8.3 Subject to applicable rules and regulations, Sponsoring Agency will have the primary responsibility for coordination of media coverage and liaison with media sources and representatives concerning activities of the Task Force. Sponsoring Agency shall endeavor to expose all Participating Agencies to favorable media coverage opportunities.
3.9 Rules of Conduct.
3.9.1 All Participants will be expected to abide by the rules of conduct established by FEMA and the Sponsoring Agency.
3.9.2 The failure of a Participant to abide by the rules of conduct constitutes may result in suspension or exclusion from the Task Force under Section 3.7 above.
3.10 Preparedness Activities.
3.10.1 Sponsoring Agency shall conduct Task Force management, administration, training, equipment procurement and other preparedness activities required by FEMA. Participating Agency and its Participants shall cooperate with Sponsoring Agency and shall participate in the activities as necessary to achieve Task Force preparedness goals and objectives.
3.10.2 Specific training activities to be conducted, respectively, by Sponsoring Agency and by Participating Agency, including training, administration and reporting requirements, are available via the CATF 4 Website, presented to your Agency representative at monthly Executive Committee meetings and are contained in Appendix “C”.
3.10.3 As established by System directives but subject to the availability of federal funding, Sponsoring Agency shall procure and maintain required caches of equipment and supplies. The contents of these caches shall be utilized for deployments of the Task Force and, subject to federal rules and regulations, will be made available for training activities of Sponsoring Agency and Participating Agency. Participants shall 2787
7 use Task Force cache equipment and supplies only for authorized purposes and shall exercise reasonable care to protect and preserve the property against loss or damage. The Participating Agency shall be financially accountable for any Task Force property that is lost or damaged due to negligence or unauthorized use by the Participating Agency.
3.11 Notification Procedures and Other Communications.
3.11.1 Alerts and Activation.
3.11.1.1 Sponsoring Agency's commander/chief executive officer or his/her designee shall determine whether the Task Force is capable of and will respond to Activation Orders.
3.11.1.2 Participating Agency shall maintain at all times a "Point of Notification" for receipt of notices from Sponsoring Agency concerning possible deployments of the Task Force. The Point of Notification shall include 24-hour telephonic and electronic capabilities. Information concerning the Participating Agency Point of Notification shall be updated as necessary.
3.11.1.3 Upon receipt of Alert or Activation Orders, Sponsoring Agency shall give prompt telephonic and electronic notice to Participating Agency's Point of Notification. The notice shall designate the Task Force positions for which Participating Agency's Participants are being requisitioned, the location of the assembly point, and to the extent known, the nature and character of the Activation.
3.11.1.4 Participating Agency shall at all times maintain the capability of providing requisitioned Participants for participation on a deployment of the Task Force. Participating agencies must be able to provide at least 30% of their rostered team members regardless of current state of the state or department staffing inadequacies.
3.11.1.5 Upon receipt of an Activation Order for the Task Force, Participating Agency shall cause the required Participants to respond to the assembly point designated in the notice.
3.11.2 Mobilization.
3.11.2.1 All requisitioned Participants will respond to the designated assembly point within [number of hours; also see Section 3.5.5] hours of notification with all required personal clothing and equipment and required documentation.
3.11.2.2 Participating Agency will select its Participants through a pre-established selection system that ensures the requisition is promptly filled with fully qualified Participants.
3.11.2.3 Selected Participants will be subject to a pre-deployment medical screening. Any Participant who fails the screening will not be deployed.
3.11.2.4 Sponsoring Agency retains the sole right to determine which Participating Agency personnel, if any, will respond with the Task Force when Activated.
3.11.3 Other Communications. Sponsoring Agency will remain in contact with Participating Agency through the Participating Agency Point of Notification during the period of Activation. 2788
8 3.12 Critical Incident Stress Syndrome ("CISS") and Management.
3.12.1 Sponsoring Agency will have primary responsibility to provide CISS training, intervention and support, before, during and after activation.
3.12.2 Costs incurred for unauthorized CISS activities are not eligible for reimbursement.
4. GENERAL PROVISIONS
4.1 Effective Date. This Agreement shall be effective February 1, 2025, and when it has been duly and regularly authorized and executed by both parties.
4.2 Authority. As more specifically indicated above and below, this Agreement is made (a) pursuant to the provisions of the Interim Final Rule or the Final Rule; and (b) under the authority of California law, in furtherance of the purposes of the National Urban Search and Rescue Response System.
4.3 Contents of the Agreement. Upon its execution, the Agreement consists of this Agreement, along with the following Appendices and other attachments, if any:
4.3.1 Appendix "A" - The currently effective Memorandum of Agreement between FEMA, the State of California, and the Sponsoring Agency, by which the Oakland Fire Department is appointed as and has agreed to serve as Sponsoring Agency for the Task Force.
4.3.2 Appendix "B" - The federal regulations published on February 24, 2005 in the Federal Register as the Interim Final Rule at Vol. 70, No. 36, pages 9182-9203.
4.3.3 Appendix “C” – CA TF- 4 Participating Agency and Affiliated Personnel Information Manual
4.4 Amendments and Termination.
4.4.1 Except as otherwise expressly provided, this Agreement may be modified or amended only by another written agreement approved and executed by both parties, and all such amendments will be attached to this Agreement.
4.4.2 Term and Termination. The Agreement shall continue in effect unless and until terminated as provided in this Agreement. The Agreement may be terminated by either party upon 30 days written notice, except that Participating Agency may not terminate this Agreement without the written consent of Sponsoring Agency during any time interval when the Task Force has been placed on Alert status or has been Activated if the Alert or Activation affects Participants of the Participating Agency.
4.5 Miscellaneous Provisions.
4.5.1 The obligations of the Participating Agency set forth in this Agreement are non-delegable and may not be assigned to or assumed by any other person without the prior written consent of Sponsoring Agency.
4.5.2 Except and to the extent federal law controls, this Agreement shall be construed and enforced, as between the parties, according to the laws of the State of California.
4.5.3 No party shall engage in any conduct or activity in the performance of this Agreement or participation in the System that constitutes a conflict of interest under applicable federal, state or local law, rules and regulations.
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9 4.5.4 Each party shall at all times observe and comply with all applicable federal, state and local laws, rules and regulations.
4.5.5 Except as provided otherwise with respect to emergency notifications, if it is necessary for the purposes of this Agreement for one of the named parties to give notice to the other named party, notice shall be in writing with the expenses of delivery or mailing fully prepaid and shall be delivered by personal service or a form of public or private mail service requiring proof of delivery. Notice is effective upon personal delivery, or by mail service, on the date of either actual receipt or five days after posting, whichever is first. Unless changed in writing in accordance with this Section, notice shall be served on the party at the address shown in Sections 1.1 and 1.2 of this Agreement.
4.5.6 Titles and section headings are for convenience only and are not a part of the parties' Agreement.
4.5.7 Should any provision of this Agreement be determined to be invalid or unenforceable under applicable law, the provision shall, to the extent required, be severed from the remainder of the Agreement which shall continue in full force and effect.
4.5.8 This Agreement and its provisions are binding upon and inure to the benefit of the parties and to their respective successors in interest, provided, however, this Agreement does not and will not bestow any rights or remedies upon persons to whom an unlawful delegation or assignment has been made by Participating Agency.
4.5.9 This Agreement is made for the sole and exclusive benefit of the named parties and their lawful successors in interest, and no other person or entity is intended to, nor shall such other person or entity acquire or be entitled to receive any rights or benefits as a third-party beneficiary of this Agreement.
4.5.10 Neither the United States of America or the State of California is a party to this Agreement.
4.5.11 Each person executing this Agreement represents that: he/she was and is lawfully authorized to sign the Agreement on behalf of the party he/she represents; execution of the Agreement was duly and regularly authorized by the party's governing body; and, to the person's best knowledge and belief the Agreement is a binding and enforceable obligation of the party on whose behalf he/she acted.
4.5.12 Each party represents to the other: that the party has fully read and understood all of the provisions of this Agreement including the Appendices and other attachments, if any; that the party has secured and considered such legal advice and other expert counsel as the party deemed necessary and advisable for these purposes; and, that in agreeing to execute and become a signatory to this Agreement the party has deemed itself adequately informed and advised as to all of the risks assumed and obligations undertaken pursuant to this Agreement.
4.5.13 This Agreement, including the Appendices and attachments, if any, constitutes the entire agreement between the parties and it supersedes any prior agreements on this matter. 2790
10 5. EXECUTION
Sponsoring Agency:
This Agreement was executed by the parties on the dates shown below. ___________________________
Jestin Johnson
City Administrator
City of Oakland
Date: __________
___________________________
Damon Covington
Fire Chief
Oakland Fire Department
Date: __________
Approved for Form and Legality
_________________________________ Resolution No. ___________________ C.M.S.
Amadis Sotelo, Deputy City Attorney’s Office
City of Oakland
Date: __________
Participating Agency: City of Richmond Fire Department
Date: ____________________________
By____________________________________ By ___________________________________ Aaron Osorio
Title: _Fire Chief ________________________ Title: _________________________________ By ___________________________________ By ___________________________________ Title: _________________________________ Title: _________________________________ 2791
ADMINISTRATIVE MANUAL
REVISED: DECEMBER, 2019
In Cooperation with Department of Homeland Security
Federal Emergency Management Agency
CALIFORNIA TASK
FORCE 4
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TABLE OF CONTENTS
FOREWARD 6
CHAPTER 1 - OVERVIEW 7
AUTHORITY 7
APPLICATION 7
OBJECTIVES 7
RELATION TO PROCEDURES 7
GENERAL 7
TASK FORCE REVISION POLICIES 7
NATIONAL INCIDENT MANAGEMENT SYSTEM 7
TASK FORCE AUDIT POLICIES 7
CHAPTER 2 - GUIDELINES 8
GENERAL COMPLIANCE 8
PRACTICES 8
PERSONNEL NOTICE OF CHANGE 8
FIREARMS 8
ATTENDANCE 8
GENERAL 8
CHAPTER 3 – PERSONAL CONDUCT 9
OBEDIENCE OF LAW 9
SUBSTANDARD PERFORMANCE 9
PROFESSIONAL CONDUCT 9
INSUBORDINATION 9
POLITICAL LOBBYING 9
SLANDER 9
USE OF ALCOHOL – NON-PRESCRIBED DRUGS – NARCOTICS 9
CIVIL ACTIONS 9
BRIBES OR GRATUITIES 9
CHAPTER 4 - MANAGEMENT STRUCTURE RESPONSIBILITIES 10
SPONSORING AGENCY 10
SPONSORING AGENCY ADMINISTRATION 10
SPONSORING AGENCY CHIEF 10
PROGRAM MANAGER SELECTION 10
WORK GROUP ASSIGNMENT 10
WORK GROUPS 10
PROGRAM MANAGER 10
CACHE MANAGER 11
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GRANTS MANAGER 12
ADMINISTRATIVE SUPPORT SPECIALIST 12
TRAINING COORDINATOR 12
TASK FORCE MEDICAL COORDINATOR 12
CANINE TRAINING COORDINATOR 12
CHAIN OF COMMAND 12
REQUEST FOR SUPPORT FROM SPONSORING AGENCY 12
CHAPTER 5 - TASK FORCE MEMBERSHIP PRACTICES 14
GENERAL 14
MEMBERSHIP RECRUITMENT 14
APPLICATION PROCESS 14
RESERVE MEMBERS 14
NON-DEPLOYABLE – TRAINING REQUIREMENTS 14
DEPLOYABLE MEMBERS 14
NON-DEPLOYABLE - AGENCY REQUESTED 14
INACTIVE-TASK FORCE MEMBER REQUESTS 14
EXTENDED LEAVE INJURY OR VOLUNTARY NON-DEPLOYABLE 15
PERSONNEL FILES 15
TASK FORCE ISSUED EQUIPMENT 15
SEPARATION POLICY 15
MEMBERSHIP NOTIFICATION SYSTEM 16
CHAPTER 6 - POSITION SPECIFIC TRAINING REQUIREMENTS 17
GENERAL 17
CHAPTER 7 - TRAINING CONSIDERATIONS 18
ATTENDANCES AT AND RECORDING OF TRAINING EVENTS 18
ATTENDANCE AT FEMA SANCTIONED TRAINING 18
TRAVELS FOR FEMA MEETINGS AND WORK GROUPS 18
CHAPTER 8 - TASK FORCE TRAINING 19
GENERAL 19
TASK FORCE WEBSITE AND INTERNET BASED TRAINING 19
SAFETY OFFICER REQUIREMENTS 19
ANNUAL TRAINING REQUIREMENTS 19
TRAINING COORDINATOR RESPONSIBILITIES 19
INSTRUCTOR RESPONSIBILITIES 19
CHAPTER 9 - PAYROLL, INVOICING AND FINANCES 20
GENERAL 20
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TIME SHEETS 20
TRAVEL POLICIES 21
BACK-FILL 21
RESPONSIBILITIES FOR REIMBURSEMENT 21
PAYROLL DISPUTES 21
ALERTS OR ACTIVATION 21
TASK FORCE STAFF SALARY 21
EQUAL EMPLOYMENT OPPORTUNITY 21
SOP FOR PROCURING GOODS AND SERVICES 21
SOP FOR TRACKING & RECONCILING COOPERATIVE AGREEMENTS 22 SOP FOR RECONCILING CLEARED/CASHED CHECKS 22
CHAPTER 10 - PROCEDURE FOR FILLING ROSTER POSITION VACANCIES 24 GENERAL 24
APPOINTMENT FOR ROSTERED POSITIONS 24
ANNOUNCEMENT OF TEAM POSITION OPENING 24
APPLICATION PROCESS 24
REVIEW PROCESS 24
PROGRESSION THROUGH THE RANKS 24
TASK FORCE LEADERS 25
CHAPTER 11 - CODE OF CONDUCT 26
GENERAL 26
DEPLOYMENTS 26
CHAPTER 12 - TASK FORCE CANINE PROGRAM 27
TASK FORCE CANINE PROGRAM – ADMINISTRATION 27
TASK FORCE SEARCH TEAM COORDINATOR 27
TASK FORCE CANINE TRAINING COORDINATOR 27
TASK FORCE CANINE HANDLERS 27
TASK FORCE CANINE TRAINING 27
CANINE SEARCH SPECIALIST COURSE 28
CERTIFICATION OF TF CANINES 28
CANINE CARE, FOOD AND NUTRITION 28
CANINE TEAM STIPEND 29
DEPLOYMENTS 29
CHAPTER 13 - EQUAL OPPORTUNITY, AFFIRMATIVE ACTION
AND SEXUAL HARASSMENT 30
DIRECTIVE 30
RATIONALE 30
GENERAL GUIDELINES - DEFINITION 30
SEXUAL HARASSMENT 30
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ENVIRONMENT FREE FROM HARASSMENT 30
CHAPTER 14 TASK FORCE UNIFORMS 31
GENERAL 31
UNIFORMS & GEAR BAG 31
EXCHANGING, TRADING OR SELLING PROPERTY THAT BELONGS
TO THE TASK FORCE 31
MISSION ISSUED EQUIPMENT 31
CHAPTER 15 - TASK FORCE DRIVER PROGRAM 32
GENERAL 32
SELECTION PROCESS 32
COMMERCIAL DRIVERS LICENSES (CDL) 32
DRIVER QUALIFICATIONS 32
APPLICATION PROCESS 32
ADDITIONAL TASK FORCE REQUIREMENTS 33
CHAPTER 16 - CONVOY STANDARDS AND TASK FORCE VEHICLES 34 GENERAL 34
CONVOY 34
DEPLOYMENT TYPES 34
DRIVER ROTATION 34
CARGO INSPECTION 34
VEHICLE SAFETY INSPECTION 34
CHAPTER 17 - MEDICAL RECORDS & USE 35
GENERAL 35
MEDICAL RECORDS FOR DEPLOYMENT 35
DENIAL OF DEPLOYMENT FOR MEDICAL REASONS 35
DENIAL FOR DEPLOYMENT PROCEDURE 35
CHAPTER 18 - FAMILY SUPPORT UNIT 36
GENERAL 36
UNIT COMPOSITION 36
EMERGENCIES AT HOME 36
CHAPTER 19 - WORKERS COMPENSATION 37
GENERAL 37
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COVERAGE 37
REPORTING INJURIES 37
TASK FORCE MEMBER’S RESPONSIBILITY 37
LOCAL AND FEDERAL COVERAGE 37
NOTIFICATION OF COVERAGE TO TASK FORCE MEMBERS 37
REPORT TO EXECUTIVE BOARD 37
CHAPTER 20 - TEAM ACTIVATION AND ROTATION 38
GENERAL 38
ROTATION 38
PERIOD OF NON-AVAILABILITY FOR DEPLOYMENT 38
FAILURE TO ACKNOWLEDGE NOTIFICATION 38
ALERTS FOR LOCAL, STATE OR FEDERAL DEPLOYMENTS 38
ACTIVATION 38
MULTIPLE INCIDENTS FOR FAILURE TO ACKNOWLEDGE NOTIFICATIONS 39 MULTIPLE ACTIVATIONS 39
FINANCIAL PRACTICES 39
TIME RECORDS FOR EMPLOYEES 39
RECORDS, FORMS & POLICY 39
COOPERATIVE AGREEMENTS / STATEMENT OF WORK PROCESS 39
EXPENDITURES MONITORING 39
TASK FORCE MEMBER COMPENSATION 39
CHAPTER 21 - COOPERATIVE AGREEMENT ADMINISTRATION 40
ANNUAL AGREEMENT PREPARATION 40
LEGISLATIVE REQUIREMENTS 40
AGREEMENT REPORTING 40
BUDGET PREPARATION 40
BUDGET APPROVAL PROCESS 40
DOCUMENTATION RETENTION & STORAGE 40
CHAPTER 22 - PUBLIC RELATIONS 41
NON-EMERGENCY ACTIVITIES 41
SYSTEM IMPLEMENTATION 41
MEDIA-RELATED INFORMATION FLOW 42
POINT OF ARRIVAL/MOBILIZATION CENTER 42
MEDIA MANAGEMENT SUGGESTIONS 44
APPENDICIES __
APPENDIX 1 – CITY OF OAKLAND – OAKLAND CITY COUNCIL RESOLUTION APPENDIX 2 – CITY OF OAKLAND – ADMINISTRATIVE INSTRUCTIONS – AI 701 APPENDIX 3 – CATF-4 – STAFF AND DISCIPLINE MANAGERS ORGANIZATIONAL CHART APPENDIX 4 – NATIONAL US&R RESPONSE SYSTEM CODE OF CONDUCT AGREEMENT 2797
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FOREWARD
The purpose of this document is to provide guidance for pre deployment administration and routine management of the Task Force. This document is designed in a manner to provide a step by step reference for the many ongoing administrative and management processes to assure that the Task Force is in a constant state of readiness to perform Federal disaster response to major disasters incidents.
The National Urban Search and Rescue (US&R) Response System provides for the coordination, development, and maintenance of the Federal effort with resources to locate, extricate, and provide immediate medical treatment to victims trapped in collapsed structures; and to conduct other lifesaving operations.
This manual shall be readily available to CA-TF4 personnel as well as the Sponsoring and Participating Agencies.
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Chapter 1
OVERVIEW
Authority - This manual shall not limit the authority granted to the Task Force Program Manager, Executive Committee, or any Chief of the Sponsoring Agency or Participating Agencies.
Application - This manual applies to personnel who have administrative duties for California Task Force 4.
Objectives - It is the objective of this manual to provide guidance and direction to the members of California Task Force 4, who have day to day administrative duties for the Task Force. The guidelines contained herein are intended to be general in nature.
Relation to Procedures - Members are responsible for compliance with the procedures in this manual and by inference, all policies and procedures related to them.
General - This Administrative Manual contains general guidelines and the policies and procedures regarding the various types of memberships of the Task Force and application process. It also contains general and specific requirements of Task Force members. The manual also contains the management structure of the Task Force and methods for advancement within the Task Force.
Task Force Revision Policies –
1. Existing policies will be revised when changing conditions create a need to update them.
2. An effort should be made to thoroughly review existing, related policies to prevent duplication or overlap.
3. A policy that has been revised more than once will be issued with the new revised date, and the last revised date will be removed from the document, to prevent confusion.
4. Any member who becomes aware of a policy needing revision is encouraged to notify the program coordinator of the policy number and the need for revision.
It is the responsibility of the Program Coordinator to ensure that policies are reviewed no more than every three (3) years. As policies are living documents, any member of the task force may bring forth a recommendation for a change. Additionally, the FEMA system may require changes due to operational direction or legislation. Major changes include new policy, significant rewrites, and changes in legislation. Minor changes include minor corrections or changes that do not affect the meaning content or interpretation of the document. Any changes must be presented at the task force general membership meeting where attendance is required for deployment eligibility.
National Incident Management Systems- Resolution adopting the National Incident Management System (NIMS) for the Sponsoring Agency/City of Oakland and implementing mandated NIMS training for all City of Oakland employees to comply with Homeland Security Presidential directive as indicated in Appendix 1.
Task Force Audit Policies - Task Force audit and inspection policies and procedures which includes the audit finding resolution process is outlined in the Implementation of Audit Recommendations in Appendix 2.
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Chapter 2
GUIDELINES
General Compliance - All members shall comply with guidelines, policies and procedures of California Task Force 4. Performance shall meet the expectations as described in position descriptions, and shall be in accordance with levels of training, certification, standards, and/or legislation.
Practices - Members shall exercise common sense safety practices while performing their duties. They shall adhere to safety regulations as set forth in the latest versions of the Operational Position Descriptions, as well as any direction given from those above them in the chain of Command of the Task Force. The degree to which safety practices are followed may act as a mitigating or aggravating factor in cases of discipline. When incidents occur as a result of failure to exercise appropriate caution a task force member may be disciplined, up to and including termination from the Task Force.
Personnel Notice of Change - Members, who change their personal address, telephone number, etc.are responsible for notifying the Task Force within thirty (30) days of the change. Members should use the Member update form located on the Task Force designated personnel information website.
Firearms - Members shall not carry or discharge any firearms or missile propellant device while on Task Force property, any mission or training exercise.
Attendance – Members are required to make quarterly training contacts and to meet the Task Force required 24 hours of training and administrative contact.
General - Members shall make every effort to be on time, in appropriate Task Force or agency uniform and ready for trainings, work details, alerts and or activations, etc.
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Chapter 3
PERSONAL CONDUCT
Obedience of Law - All members are required to obey all laws and ordinances of the Sponsoring and/or Participating Agency, the State of California, and the United States.
Substandard Performance - Any member who fails to meet Task Force training requirements and/or neglects to acquire the necessary knowledge, skills, and abilities to properly perform their duties will be non-deployable.
Members who by continued neglect or carelessness, cause damage to any Task Force property, tools, appliances, and/or equipment shall be subject to disciplinary action by their sponsoring agency. Disciplinary action may be up to termination from the Task Force.
Professional Conduct - Each member is expected to conduct themselves in a professional and credible manner as prescribed in the National Urban Search and Rescue Response System Code of Conduct.
Insubordination - Members of the Task Force shall respect and obey all officers and all personnel within the Task Force organizational structure. Absent an immediately hazardous situation, a member who questions an order shall obey the order and submit objections as an after-action issue when the mission is completed.
Political Lobbying – Members of the Task Force shall advise the CA-TF 4 Program Office of any lobbying activities that affect, or may affect local, state or federal US&R programs or funding.
Slander - Any member making a false report about the character or conduct of a member of the Task Force or using his/her name without consent for any improper purpose, shall be subject to disciplinary action by their sponsoring agency.
Use of Alcohol - Non-Prescribed Drugs – Narcotics No alcoholic beverages, non-prescribed drugs or narcotics shall be carried, consumed, or used on any property belonging to the Task Force or during any exercise, alert or activation. No member of the Task Force shall enter or patronize any place where alcoholic beverages are sold while on an Alert or Activation for the purpose of purchasing or consuming alcoholic beverages. No member shall purchase alcoholic beverages while wearing any article of uniform bearing the Task Force name or logo.
There shall be no detectable amount of alcohol or non-prescribed substances in a member’s system during any Task Force activity.
Civil Actions - No member shall institute civil actions arising from an occurrence while performing the duties of a Task Force member, without first notifying the Task Force Program Manager and the Executive Committee.
Bribes or Gratuities - No member shall accept a bribe or gratuity or solicit or accept any compensation or reward for services performed in the line of duty. If approached with a bribe, the member shall immediately notify their supervisor. Persons wishing to make a donate to the Task Force shall be referred to the Task Force Program Manager.
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Chapter 4
MANAGEMENT STRUCTURE RESPONSIBILITIES
Sponsoring Agency - Provide enough staff for management and administration of the US&R Task Force day- today activities to accomplish required supervisory, administrative, training and logistical duties. Primary areas of concern are program management; grants management; administrative support; training coordination, instruction and support; logistics management and accountability. This shall include, but is not limited to, funding personnel salaries and expenses relating to Task Force development and management; record-keeping, inventory and maintenance of the US&R equipment caches; correspondence with Task Force members and parties who support Task Force activities; along with similar management and administrative tasks.
Sponsoring Agency Administration - To manage and ensure that CA-TF 4 operational readiness is maintained, and program mandates are being met.
Sponsoring Agency Chief - The sponsoring agency Fire Chief shall be responsible for overall operation of the Task Force. The Fire Chief shall also select a Program Manager to be responsible for the day-to-day operations, ensure program objectives and national program mandates are being achieved. The Fire Chief shall be responsible for making the final approval or rejection for any disciplinary issue, expenditure of funds and removal of any Task Force member. The Chief may appoint a designee to represent him/her for any vote taken by the sponsoring agency Chief’s or to oversee all operations of the Task Force on a local level. The sponsoring agency Chief shall also be advised of any recommendations for the position of Task Force Leaders and shall be part of the selection team. The sponsoring agency Chief or his/her designee will be responsible for final approval for all operational matters of the Task Force.
Program Manager Selection - The sponsoring agency Fire Chief of the Department shall appoint a Fire Officer, or Civilian with appropriate background, who shall serve as the program manager and shall be responsible for overseeing the overall management of day-to-day operations of the Task Force and to ensure Task Force compliance with all federal requirements and mandates. The Program Manager will supervise the Program Coordinator. The Program Manager shall chair the Executive Committee and shall ensure they meet on a regular basis to address the needs of the Task Force. The program manager shall also forward all recommendations from the Executive Committee for review by the Fire Chief.
Work Group Assignment - The Program Manager may appoint members to Work Groups to assist managing various functions of the Task Force.
Work Groups - The Work Groups shall consist of selected Task Force members. The Work Groups are responsible for supporting the overall management of the Task Force, and helping to ensure operational readiness and deployment status of the Task Force members that they represent. Work Groups will also be tasked with providing and assisting in training, policy development, and cache management. All information that is received for implementation is reviewed and approved by the Program Manager’s Program Coordinator (PC) - Serves as the single point of contact (POC) for all matters related to the Task Force as required by the national US&R program. The PC assures that all the terms and conditions of the Memorandum of Agreement (MOA) with the Federal Emergency Management Agency (FEMA) are met. The PC routinely meets with other members of the national program, and the local program and serves as the liaison with other staff, Work Groups and personnel of the Oakland Fire Department, Participating Agencies, and other affiliate personnel as needed.
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The Program Coordinator shall be responsible for the day-to-day operations and shall work with the various groups and full-time employees to ensure that Task Force is meeting all requirements of FEMA. The Program Coordinator shall assure that reports are prepared for the Sponsoring Agency and Work Groups and provide documentation of the accomplishments of the Task Force, areas of deficiencies and corrective actions that will be initiated for any deficiency, and provide reports to the national US&R Program Office.
The Program Coordinator’s responsibilities shall include but are not limited to scheduling meetings, setting program goals, development of the Strategic Plans, annual work and training plans and provide that such is transmitted to the executive board for approval, work with all Team Managers to ensure training is meeting program objectives and maintaining operational readiness. The Program Coordinator shall work with the Logistics Team Manager to ensure all equipment that is needed by the Task Force is purchased and the proper maintenance is conducted for all equipment. The Program Coordinator shall also be responsible for ensuring all training and personnel files are being maintained assure the development of Operational Readiness Exercises as required by the statement of work annual, and to handle any additional tasks as needed. The Program Coordinator may delegate duties as he/she sees fit to accomplish the PM goals.
It shall also be the responsibility of the Program Coordinator, or designee, to handle all Workers Compensation Claims, local and/or federal, to ensure all documentation is filed for the claim.
Cache Manager (CM) - The CM is responsible for cache maintenance and repair, and to assure that the cache is kept in a constant state of readiness. The Cache Manager supervises part-time CA-TF 4 logistics personnel and Interns in routine equipment maintenance activities. The CM assures that training activities are supported with equipment, assists with purchasing and preparing documentation such as the Mobilization Manual and reports.
The Cache Manager shall be responsible for the management of the cache while stored at the US&R logistics center. The CM responsibilities shall include, but are not limited to:
● Conducting periodic inventories of the cache to ensure property accountability. ● Actively manage the surplus of excess property.
● Identify equipment that is damaged or destroyed and file the correct federal property disposition documentation.
● Accountability forms, and Submit all requests for replacement items for used, expended or damaged equipment and all purchases must meet all federal, state and local requirements. ● Ensure cache readiness and maintain an inventory tracking system. ● Ensure all equipment and vehicles are being maintained per manufacturer’s warranty requirements.
● Ensure all equipment issued to deploying Task Force members is accounted for. ● Ensure the Task Force can meet all deployment requirements as set forth by FEMA, and handle any additional tasks as assigned by the Program Manager. ● Assist in preparing reimbursement records, training records and equipment maintenance records.
This function may be performed by multiple individuals working under this description. 2803
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Grants Manager (GM) - The Grants Manager shall be responsible for ensuring all reports are submitted to FEMA on time. The GM also oversees all expenditures that are incurred by the Task Force to ensure all reporting requirements are met with the various grants that are available to the Task Force. Responsibilities shall include, but are not limited to:
● Filing all annual and semi-annual reports for grant expenditures and activity reports with the national US&R Program Office within required timelines. ● Submissions for mission reimbursements, tracking of all grant expenditures. ● Work with the City of Oakland purchasing and payroll personnel to ensure all expenditures are charged to the correct grant.
● Assist in the annual Task Force budget and submit to the Task Force Managers for review before submitting to FEMA. The GM is supervised by the Program Managers and assists with any other tasks as assigned.
Administrative Support Specialist – The Administrative Support Specialist is responsible for daily administrative support services of CATF-4. He or she performs all executive assistant, office management and administrative support for the Task Force. He or she relieves the Task Force Program Coordinator of certain administrative details by routinely and independently performing administrative support tasks such as research, contacting outside vendors, Sponsoring Agency, Participating
Agencies, Task Force Leaders, Agency Representatives, Task Force members, FEMA, OES, and NDMS (National Disaster Medical System). He or she is the daily contact for warehouse security and accessibility.
Training Coordinator – The Training Coordinator serves is responsible for administrative and supervisory work planning and coordinating the Task Force’s training program. Work involves researching, developing and managing training programs for all task force personnel; developing and administering evaluations to determine individual employee performance in a wide variety of US&R areas. Work also involves managing the development and maintaining lesson plans, drill manuals, training records and examination scores for each employee. Supervision is received from the Program Manager with work being reviewed in the form of the overall effectiveness of the delivery of Urban Search & Rescue services. Supervision is exercised over others as needed.
Task Force Medical Coordinator - The Task Force Medical Director shall be responsible for overseeing all Task Force medical operations. The Medical Director shall review all medical policies of the Task Force and establish operational guidelines for use to screen personnel medically at the time of deployment. The medical director will comply with national program standards.
Canine Coordinator - To ensure the readiness of the Task Force Canines, the Program Manager shall appoint a Task Force Canine Training Coordinator. The Task Force Canine Training Coordinator shall be responsible for canine readiness, conducting canine training and developing canine training plans to ensure achievement of Type I certification by the FEMA US&R Canine Program.
Chain of Command - The Task Force functions as a paramilitary organization and as such functions through a chain-of-command structure (Appendix 3). During non-deployment activities, personnel shall report to their Group Coordinators, and Team Managers. The Trainers shall be responsible for working with the Training Manager to ensure personnel assigned to them are maintaining their required training, responding to all requests for certificates of completion for mandatory classes and assisting with any special details. 2804
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Request for support from Sponsoring Agency - All requests for staff, equipment, logistical support, and fiscal support from the Oakland Fire Department as the Sponsoring Agency shall be approved and processed through the CA-TF4 Program Coordinator, OFD Assistant Chief responsible for Special Operations, and the Program Manager (currently the Deputy Chief of Operations).
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Chapter 5
TASK FORCE MEMBERSHIP PROCEDURES
General - Only those personnel who have met both federal and local requirements are deployed on any mission.
It is important that an impartial selection system is in place. Personnel are placed in a primary position based on their level of training and accomplishing program requirements or requests made by the individual Task Force member.
Membership Recruitment – Sponsoring Agency and Participating Agencies are responsible for recruiting their members to join the TF. Quarterly we will have a Reserve Workshop where interested personnel will be able to attend and go through the application process of joining the TF.
Application Process - Applications for TF membership will be accepted annually with advanced notice as provided. Applications will only be accepted for vacant positions. Any member of the Sponsoring Agency, Participating Agency, or a member of the general public who can provide a special skill that is required of the Task Force shall make written application for membership utilizing the federal forms required by the FEMA Program Office. Completed Applications shall be presented at the first available Executive Committee meeting for acceptance into the program. Once approved, the application will be entered into the personnel database utilized by the Task Force. Should the applicant be rejected, the Program Manager shall notify the individual in writing and provide information as the reason the applicant was rejected. All applicants will be at a level of “Administrative Not Deployable” until all requirements are met. Positions are occasionally identified as “open recruitment” with candidates fast tracked due to program needs (i.e. Haz Mat, Structural Engineers, Canines).
Reserve Members - Participating and Sponsoring Agency members who have completed the application process, and are awaiting opportunity to become rostered, shall be considered Reserve Members. Reserve Members are eligible to take part in all training and exercises.
Deployable Members - Any Task Force member who has completed minimum administrative and training requirements will be a deployable member. Members in this classification will be eligible for deployment and shall be placed on the roster. This status is determined by the current Program Directive in place and the overall Rostered, Trained or Deployable status determined by this guideline.
Non-Deployable, Agency Requested - If the Sponsoring or Participating Agency desires to have a member removed from the deployable status, they may do so in writing to the Program Manager. The individual affected must be informed in writing of their status change, the reason and the projected date that the agency will allow the member to return to deployable status. In the case of the non-deployable status exceeding six (6) months the member must surrender their roster position and when returned to deployable status will be placed on the roster only if there is an open position for which they qualify. If no vacancies exist, the member shall be placed on the Reserve Roster and remain there until a position becomes available.
Non-Deployable, Training Requirements - Newly rostered members with the Task Force shall be listed as ‘NonDeployable, Training Requirements. They are not deployable until they have completed required training.
Inactive, Task Force Member Requests - Any deployable member may request non deployable administrative leave for a period not to exceed one (1) year. This written request shall be submitted to the PM. In the case of leaves exceeding six (6) months the member must surrender their roster position and when ready to return to deployable status will be placed on the roster only if there is an open position for which they qualify. If no 2806
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vacancies exist, the member shall be placed on the Reserve Roster and remain there until a position becomes available.
Extended Leave Injured or Voluntary, non-deployable - Any member on extended leave for any reason shall be placed in this classification with a strike through their name. For leaves exceeding six months the member must surrender their roster position and when released to full duty or returning shall be placed on the roster only if there is an open position for which they qualify. If no vacancies exist, the member shall be placed at the top of the Reserve Roster and remain there until a position becomes available.
Personnel Files - The Task Force will maintain a personnel file for each member. Each member may review their file upon request to the PM or the Administrative Specialist. No member will be allowed to remove any documentation. It is the responsibility of each Task Force member to supply current copies of the following documents:
● OF612 Government Application
● Appointment Affidavit
● FEMA / CA-TF 4 Code of Conduct
● Completed Immunizations Form or signed waiver per Directive 2005-008 ● Fit for Duty Form or Current Medical Physical exam – (Documentation may be provided the Sponsoring Agency)
● Current Medical Certificate (Basic First Aid, EMT-Basic, EMT-I, EMT-P etc.) CardioPulmonary Resuscitation CPR Note: Additional documentation may be required due to current Position Description Requirements.
Task Force Issued Equipment - Task Force members terminated, retired or resigned are removed from the roster and must return all TF issued equipment within thirty (30) days of being so removed. Any member who requests separation from the Task Force shall be responsible for returning all issued equipment.
Separation Policy – At any time a rostered member or reserve member may provide a written request to be removed from the team. Once a written request has been received the TF database will be updated and their rostered position will be made vacant. If a rostered member or reserve member become inactive for more than two years, they will be asked to leave the team. If they are a rostered member the TF database will be updated, and their rostered position will be made vacant. A member may be terminated from the Task Force for any of the following reasons:
● Fails to maintain all requirements of deployable status ● Fails to make up any training requirements as set forth by the Training Coordinator ● Fails to pass the required medical exam
● Fails to meet all mandatory immunization requirements ● Is found guilty of misconduct or in violation of the Code of Conduct and dismissal is recommended by the program manager and approved by the Executive Committee 2807
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Membership Notification System – Upon notification that CA-TF4 has received an Alert Order or Activation Order, the Program Coordinator or delegate shall contact Alameda County Regional Emergency Communications Center (ACRECC), at (925) 447-4257. They shall notify ACRECC of the Order type, and request a Code Red notification to CA-TF4 members. The Program Coordinator may choose to alert all CA-TF4 members, or select specific groups in the Code Red system, depending upon the needs of CA-TF4 at the time of order.
The Task Force implements multiple systems for notifying its active and reserve members of upcoming trainings, updates, and deployments. These notifications are implemented using email, CA-TF 4 website and application services. The CA-TF 4 website provides current drill information for the given year with dates and locations. An email distribution list has been created to be able to update personnel with drill information, TF updates and reminders. A CA-TF 4 “WhatsApp” group has been created to help keep the team updated with deployment/activation information. When notified of a deployment, TF members are notified through their Agency Representatives and through “WhatsApp” alerts.
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Chapter 6
POSITION SPECIFIC TRAINING REQUIREMENTS
General - To maintain program compliance for training requirements set forth by the National US&R Training Work Group and approved by the Operations Work Group and FEMA Program Office, additional training requirements have been established as mandatory for the various positions within the Task Force. All roster personnel must complete these requirements. Personnel who desire to hold a particular higher position within the Task Force should consider completing these courses prior to the announcement for any position opening.
Additional information can be obtained by referencing current revisions of position descriptions as maintained in the Training Program Administration Manual in the Task Force Program Office. The positions requiring these additional training requirements are:
● Task Force Leader
● Safety Officer
● Search Team Manager
● Technical Search Specialist
● Canine Search Specialist
● Rescue Team Manager
● Rescue Squad Officer
● Rescue Specialist
● Heavy Rigging Specialist
● Medical Team Manager
● Medical Specialist
● Planning Team Manager
● Technical Information Specialist
● Hazardous Materials Team Manager
● Hazardous Materials Specialist
● Logistics Team Manager
● Logistics Specialist
● Communications Specialist
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Chapter 7
TRAINING CONSIDERATIONS – TRAVEL and ATTENDANCE
Attendance at, and Recording of, Training Events - Members attending FEMA/CA-TF4 sanctioned training conducted at the Task Force designated location shall be responsible for signing in and out on a Task Force training roster/timesheet (ICS 211B) or another approved roster sheet. This will ensure proper documentation of the member’s attendance and participation.
Attendance at FEMA Sanctioned Training, Travel and Reimbursement - Several positions within the Task Force require successful completion of specialized training. Selection for these training opportunities will be done by the CA-TF 4 Program Office in Consultation with position specific managers. Final approval is granted by the Program Manager and the prospective students Agency Representative. Once the members have been selected to attend the class, the Program Office shall enroll via ESF#9TrainingPortal Task Force members who will be in attendance. The Task Force member selected for training shall file all requests for travel arrangements providing the best departure and return time, any special needs for travel, and dates and times for the class. No airline tickets shall be purchased until the CA-TF 4 Program Office has approved the travel dates and cost. All appropriate travel authorizations and/or paperwork required by the Task Force members’ home agency will be completed by said member. The Task Force will be responsible for all airline costs to attend the class. Standard GSA per diem will be paid for meals unless Participating Agency rules preclude it. Costs for cab fares, car rentals (when approved in advance) or parking fees at airports are reimbursable with proper documentation. It is the responsibility of any Task Force members who cannot attend a class that they have been registered for to notify the Program Office as soon as they are aware, they will be unable to attend. Should a member cancel their attendance after the cancellation deadline for the hotel, they shall not be reimbursed for this cost. Personnel are permitted to drive personal cars to attend FEMA training with pre-approval and will be reimbursed the lesser of mileage costs or air travel costs.
Travels for FEMA Meetings and Work Groups - Members that are to attend FEMA Task Force Leaders/Program Manager or Work Group Meetings shall be notified by the Program Office of the meeting dates. These Task Force members shall submit an email request to attend the meeting and will follow all guidelines as stated in this manual for travel and reimbursement.
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Chapter 8
TASK FORCE TRAINING
General - The Task Force will develop an annual training schedule for the various disciplines of the Task Force; this information will be reviewed and posted following approval and additions or deletion from the Training Work Groups. It will be the responsibility of the Training Coordinator to meet with the Work Groups to identify the subject matter for the training and dates class will be conducted.
Training for the various disciplines should be designed to address operational readiness concerns and to meet the objectives of the position. The Work Groups and Training Coordinator shall identify the instructors that will be used for each of the sessions.
Task Force Website and Internet Based Training - The Task Force website will be used for training that can be completed on-line when available. Web based training must meet all program requirements that have been approved by the Program Manager. All on-line training must be pre-approved by the Program Office and have an evaluation component which demonstrates understanding of the subject.
Safety Officer Requirements - A Safety Officer shall be required for all practical sessions for any technical or hazardous conditions including but not limited to: Rope Technician, Confined Space Technician, Trench Technician and Structural Collapse Technician Courses.
Annual Training Requirements - Each member of the Task Force shall attend all required training, position specific and general, offered by the Task Force to remain Active and/or deployable.
Training Coordinator Responsibilities - It is the responsibility of the Training Coordinator to work with the instructors to ensure training is afforded to all members. The Training Coordinator shall work with the instructors to identify all literature needed for the class. Training Coordinator shall be responsible for insuring these items are available for the class.
Instructor Responsibilities - The instructor will provide a list of class needs to the Training Coordinator and the Cache Manager at least two weeks prior to the class. Should books or other materials need to be purchased; the instructor will provide 30-day advance notice to enable the materials to be acquired. Should equipment in the cache be needed for the class it is the responsibility of the instructor to present an equipment list (60-1) not less than two weeks prior to class for the Cache Manager to have the equipment ready. The Instructor shall be responsible at the completion of the class to work with the Cache Manager to assign personnel to assist with the cleaning of the equipment and returning it to a ready state for deployment. All equipment expended shall be recorded and the Cache Manager shall reorder the items to maintain cache readiness. Should any equipment be damaged or fail to operate properly the appropriate “out-of-service” tag shall be completed and placed on the item. The out-of-service item shall be placed in the appropriate area within the warehouse until repaired or sent to the appropriate company for repairs. The Program Manager and Cache Manager must be immediately notified of damaged, missing or stolen equipment.
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Chapter 9
PAYROLL and INVOICING PROCEDURE
General - Personnel are responsible for signing in for all approved events and for signing out on the approved Task Force timesheet. Should a member fail to sign in or out, the reimbursement for the individual will not be initiated until all information is provided to the Program Office. Personnel will be compensated only for the authorized length the time participating or assisting. Instructors are afforded time to set-up before the class and for the time they need to return to the classroom and equipment back to a state of readiness. Any personnel requested to assist the instructor in setting up and returning equipment to a ready state must be noted on the signin sheet and approved by the instructor prior to reimbursement and/or compensation. Non-salary expenses must be pre-approved by the Program Office.
Time sheets - Personnel must use the approved Task Force Timesheet. A submission made by e-mail or other means are not acceptable. Task Force time sheets are required for audit purposes therefore; personnel must complete timesheets in full. It is the responsibility of the Task Force Member to assure that all paperwork at his or her agency is done correctly.
Travel Policies - Prior to any travel, any participating agency member shall complete a Backfill/Overtime Request Form(s). All CA-TF4 members shall follow the travel policies of their own department. In the case of civilian members, and members without a home travel policy, the City of Oakland Travel Administrative Instruction, AI-120 shall be followed.
In no case shall the cost for lodging or meal per-diem exceed the federal GSA guidelines. Upon return from travel, members will submit to their home agency for reimbursement. The home agency will then submit an invoice to CA-TF4 for payment. All travel reimbursement requests including backfill costs must include a printout (preferably Telestaff) showing the member’s work schedule during dates of travel Back-fill - All personnel backfilling for a Task Force member must be clearly noted as “backfill” for grant audit purposes. The “backfill” timecard is available from the Task Force program office or on- line within the Task Force website.
Responsibilities for Reimbursement - It shall be the responsibility of the Task Force Grants Manager and the Administrative Support Specialist to assure that Participating Agency Fire payroll personnel compile the time sheets for a deployment or other instances requiring reimbursement. The approved forms shall indicate who receives reimbursement, the time the deployment lasted and the subject matter. The Task Force Grants Manager shall then provide forms to the appropriate agency for review. It shall be the responsibility of the Grants Manager and the Administrative Support Specialist to submit this information to the Sponsoring Agency. All Federal reimbursement procedures are the direct responsibilities of the Grants Manager and the Administrative Specialist for timely reporting to FEMA.
Payroll Disputes - Task Force members who believe they have not received the proper reimbursement and/or compensation shall contact the Administrative Specialist and confirm the disputed time. The Administrative Specialist shall then work with the Grants Manager to ensure proper submission was made to the appropriate Agencies. Any unsettled disputes must be forwarded through the Participating Agency to the Program Manager.
Alerts or Activation - It shall be the responsibility of the Program Manager or the Administrative Specialist to assure communication with the sponsoring and participating agencies. Each agency will be provided information on what is a reimbursable cost under FEMA guidelines, total number of billable hours and any other pertinent 2812
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issues to their claim. It shall be the responsibility of each of the Agencies to submit to the Task Force Program Office a completed 18-1. The Task Force office shall review the submissions including deployment timecards that will be needed for the reimbursement.
Once the final submission is received, the Grants Manager shall submit to the Sponsoring Agency for payment all approved costs for the activation/alert. The Grants Manager shall be responsible for working with the Program Manager and the appropriate agencies in finalizing the total submission to FEMA for reimbursement.
Task Force Staff Salary - Full time program staff will be paid as defined by their home agency MOU’s and policies. Other members of the Task Force will be paid as defined by individual agreements. Members of the sponsoring and participating agencies who have limited Task Force responsibilities will record hours worked solely on US&R related projects and submit to the Program Manager to assure that costs are charged to the US&R program funding. A timecard form is available for this process.
Equal Employment Opportunity- The City of Oakland's Equal Employment Investigations and Compliance Division, provides comprehensive services to ensure compliance with federal and state civil rights employment laws and City policy that prohibits harassment, discrimination and retaliation based on a person’s legally protected status in the workplace. Their offices administer a discrimination/harassment complaint process for employees and applicants for employment. Their services include investigations, compliance audits, training, counseling, mediation and coaching. These services are provided to support the City’s commitment to cultivate a culture of excellence, respect, and professionalism, and a work environment free from unlawful discrimination, harassment, and retaliation.
Standard Operating Procedure (SOP) for Procuring Goods and Services- The Program Coordinator identifies what supplies, equipment or services California Task Force 4 (CA TF-4) needs for operation and selects the vendor. If it is a new vendor for the City of Oakland, the Administrative Assistant I requests a W-9 form from the vendor, completes the vendor set up form, and sends it to the Purchasing Department for a new vendor setup in the “iSupplier” system.
The City Council waives the advertising and bidding requirements for the purchase of equipment needed for CATF4 when such supplies, equipment, and services are required by the Federal Emergency Management Agency (FEMA) to be selected from the General Services Administration (GSA) and other government procurement lists. Based on AI 4323, if goods and services are over $500 for each item and if it is/they are not one of the twenty-four (24) items identified in AI 1021, a Purchase Order (PO) is required.
For the item(s) requiring a PO, the processes are as follows:
1. The Administrative Assistant I, verfies if the selected vendor is not on the “active exclusion” list on SAM.gov. After ensuring the vendor is not an excluded vendor, Administrative Assistant I will print and attach the sheet for verification.
2. The BC will stamp and approve the quote from the selected vendor. He/she instructs the Accountant III for the funding source and sends the quote and its backup to the Accountant III.
The Accountant III reviews and sends the quote with BC’s signature to Deputy Chief (DC) for approval of the purchase.
3. After the DC approves the quote, the Accountant III identifies correct coding/POETA. If there is no budget in the coding block, the Accountant III prepares a B3 Budget Change Request (BCR) to move the budget to the coding block to which the quote or invoice is charged. 2813
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4. The Accountant III sets up a Purchase Requisition (PR) in the financial system (Oracle R12), attaches the quote and a copy of the resolution to the PR, then submits it to the Agency Administrative Manager for approval.
5. After the Agency Administrative Manager approves the requisition, the financial system automatically forwards the PR to the Buyer in the Purchasing Department to create a PO. After the PO is created, the system automatically notifies the vendor. If there is no further problem, the vendor ships out the product or performs the service.
If goods and services are under $500 for each, or the item is one of the twenty-four (24) items identified in AI 1021, no PO is required for payment.
1. After the product is received or the service is performed satisfactorily, the BC reviews, stamps and approves the invoice and submits the invoice to the Accountant III.
2. The Accountant III reviews the invoice and its backup supporting documentation. He/she submits the BC-approved invoice and backup documentation to the DC for approval.
3. After the DC approves the invoice, the Accountant III prepares a payment request (Direct Payment Request for no PO required payment with correct coding/POETA, or an Encumbrance Liquidation with PO required payment) with a PO number. If no budget is in the coding block, the Accountant III prepares a B3 BCR to move the budget to the coding block to which the invoice is charged.
4. The Accountant III submits the Payment Request to Agency Administrative Manager for approval. After the Agency Administrative Manager approves the Payment Request, he/she sends it back to the Accountant III to copy and submit the original approved payment request to the Controller’s Bureau accounts payable unit for check issuance.
SOP for Tracking and Reconciling Cooperative Agreement Funds- The following steps show the procedures in tracking and recording cooperative agreement funds from award to closeout.
1. After the grant is awarded, the Accountant III sets up a new project and award for the grant.
2. The Accountant III fills in the financial and budget related information in the Resolution and Agenda Report draft.
3. The Assistant to the Director prepares a Resolution and Agenda Report for City Council approval.
4. After the City Council approves the Resolution, the Accountant III appropriates revenue and expenditure for the grant project based on the grant award by preparing B2 BCRs. These B2 BCRs are approved by the Oakland Fire Department (OFD) Agency Administrative Manager.
The Budget and Grants Administrator signs a cover sheet and submits this package to the budget office for approval and posting before the grant funds may be used.
SOP for Reconciling Cleared/Cashed Checks – The following steps show the procedure for reconciling cleared/cashed checks for payments made by the US&R Readiness Cooperative Agreement.
1. Every month, the Accountant III reconciles the grant project and does cash drawdown.
2. Every quarter, the Accountant III prepares quarterly report in the FEMA Payment and Reconciliation System (PARS).
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3. Semi-annually, the Accountant III provides a financial report and the BC writes a narrative for the semi-annual report.
4. The Accountant III submits semi-annual report in Non-Disaster (ND) grant.
5. When the grant fund is depleted, the Accountant III completely reconciles the grant and submits request to Controller’s Bureau to ensure no outstanding checks remain under the grant project.
6. If there is/are outstanding check(s), the Accountant III will ask the vendor(s) if the check(s) was/were received.
7. If the check(s) was/were not received and the check(s) was/were issued within six (6) months, the Accountant III completes a form to the Treasury to stop payment on the check(s), and sends a voided check form to the accounts payable unit for reissuance of a new check(s).
8. If the check(s) is/was issued more than six (6) months prior, no stop payment form is necessary.
The Accountant III only sends a voided check form to the accounts payable unit for re-issuance of a new check(s).
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Chapter 10
PROCEDURE for FILLING ROSTER POSITION VACANCIES
General - All Task Force roster positions that become vacant must be filled using the system outlined in this manual. The Task Force and personnel must utilize this system for the filing of vacant positions. Positions will be filled during the annual draft utilizing the Executive Committee or, if the needs of the Task Force dictate expedience, the forming of a Selection Committee.
Appointment for Rostered Positions - When a vacancy occurs in any Task Force position, the Program Manager shall decide if the program is best served by filling the position during the first available Steering Committee or at the annual draft. If the vacancy is to be filled by a currently rostered member who is changing positions, the Steering Committee shall discuss and select a member who has submitted a Change of Position form for the open position. If the vacancy is to be filled by a new member from the Reserve Member list, then the Reserve Member with the highest number of Participation Points who is qualified for the position shall be rostered. Only members that are qualified for the position shall be eligible for filling the vacancy. The procedures for selecting the candidate shall follow this manual.
Announcement of Team Position Opening - It shall be the responsibility of the Program Manager to announce any vacancies that open within any one of the three roster teams. The Program Manager shall make this announcement by posting it on the Task Force Website, at the Program Office, and by notifying the Agency Representatives.
Application Process - Any member applying for an announced position vacancy shall submit a resume and application form. Applications must also contain any certificates that are not current part of the individuals file at the Program Office and can support any training the candidate believes will demonstrate additional abilities for the candidate. Resumes shall not exceed three (3) pages and shall include US&R experience, missions, and any other applicable classes.
Progression through the Ranks - To provide highly trained candidates for vacancies occurring in the Task Force.
CA-TF 4 has adopted a process to ensure that all qualified candidates have an opportunity for advancement within the Task Force. Candidates must have served in their current position not less than one year before they are eligible to be considered to fill a demanding role within the Task Force.
Candidates who wish to apply for any opening that they are qualified for must follow all steps in this manual.
Candidates wishing to become a Team Manager must have served at one or more of the subordinate positions they are applying for to be eligible. (Example: for a candidate to qualify for a Search Team Manager he/she must have served as a Technical Search Specialist for a minimum of one year in addition to meeting other related requirements.)
Task Force Leaders - Task Force members that desire to apply for the position of task Force leader shall meet the following guidelines:
1. Fully qualified Task Force member with completion of appropriate courses required for position, including FEMA Task Force Leader and ICS courses.
2. The individual must possess a strong FEMA/US&R background with an understanding of all operational and administrative requirements.
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When a Task Force Leader position vacancy occurs, the program manager shall form a Selection Committee comprised of senior members of the Executive Committee to review the qualifications of eligible personnel.
Recommendation will be forwarded to the Sponsoring Agency Chief for input before a candidate is appointed to fill the position.
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Chapter 11
CODE of CONDUCT
General - All members of the Task Force must adhere to the Task Force Code of Conduct (refer to Appendix 4).
This document has been developed and approved by the Task Force.
Deployments - Deploying members will receive a packet for deployment that will include the Task Force Code of Conduct. All members must review and sign the Code of Conduct during in-processing. The completed form is submitted to the individual staffing the check-in station. Any member who refuses to sign the Code of Conduct at the time of deployment will not be eligible for deployment. (See Code of Conduct in back of manual.)
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Chapter 12
TASK FORCE CANINE PROGRAM
Task Force Canine Program, Administration - The Task Force shall be responsible for overseeing all aspects of the Canine Program. It shall be the responsibility of the Program Manager (PM) to appoint a Task Force Canine Training Coordinator (CTC) for the purpose of overseeing all aspects of training and operational readiness of the Task Force Canines. All canines will report to the TF CTC and the CTC shall report to the Search Team Coordinator (STC).
Task Force Search Team Coordinator - The TF Canines are an integral part of the TF Search Component. For this reason, it is critical to the overall success of any mission that the Search Team managers (STM) and the TF Canine Handlers have a clear understanding of the operations of the canines at a disaster site. To ensure this link exists, it shall be the responsibility of the TF CTC to coordinate with the STC all training and exercises in which the TF Canines will participate. It shall be the responsibility of the STC to ensure a STM is on site to evaluate the training being performed and to work with the TF CTC to ensure the operational readiness of this segment of the TF operations. The Search Team Coordinator Should work with the TF CTC to develop joint training exercises between the canines and the Technical Search Specialists (TSS). These exercises should challenge both the abilities of the Canine Search Teams (CST) and the TSS to locate buried victims within debris piles.
Task Force Canine Training Coordinator - The TF CTC shall ensure compliance with the training program developed by the TF to ensure operational readiness of the TF Canines. The TF CTC shall ensure all training of the canines, both classroom and practical, is to meet and maintain program readiness. All training should have specific goals outlined and identified prior to commencement of training. Canine Handlers should have a clear understanding of the training objectives for all training sessions. All training will be setup to permit the TF Canines to pass the Federal Emergency Management Agency Urban Search &Rescue Canine Certification Evaluation (CE or Type I). The CTC shall coordinate, schedule and present all TF Canine training except training sessions delegated to specific canine handlers. The CTC shall be responsible for filing monthly progress reports that will provide the TF PM and the STM with the progress of each canine and handler and the operational readiness of each CST. The CTC shall also be responsible for monitoring the health and well-being of all TF Canines.
Task Force Canine Handlers - It shall be the handler’s responsibility to care for, feed and maintain the TF Canine to ensure operational readiness for any deployment. The TF Canine Handler will be responsible to keep an accurate training log recording dates trained, location, training events and any deficiencies noted in training. The Canine Handler shall coordinate all issues and aspects of the training for the canine. The Canine Handler shall address all operational deficiencies with the TF CTC. The Canine Handler must understand that due to fund deficiencies, any training done with the canine off-duty and not at an authorized training session will not be reimbursed. Canine Handlers are encouraged to work and train the canine during non-authorized training sessions. This will enhance the canine’s training progress and operational readiness. Should any issues arise that cannot be settled between the Canine Handler and the CTC, the STC shall work to settle the issue. If the STM cannot settle the issue, all parties shall meet with the TF PM to bring about a resolution. Should this also fail, it shall be the responsibility of the TF PM to work with the Executive board to bring about a resolution to the issue.
Task Force Canine Training - It shall be the responsibility of each Canine Handler to work with the TF CTC in the development of and maintaining of Task Force Canine Readiness. To achieve this goal, the TF CTC shall schedule all sanctioned Task Force canine training with the Work Group. The CTC will make every attempt to schedule training during non-duty hours to ensure uninterrupted training of the canines and handlers. This 2819
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training can be done at home or at the TF approved training locations. Canine Handlers may schedule or perform canine training on their own time, but the Canine Handler will not be reimbursed for these hours. Once the Task Force Canines are certified Type I (or Certification Evaluation), the canines will begin training with new handlers, chosen by the Task Force CTC and STC in cooperation with the Work Group, to be used as backup handlers in case of illness or other administrative reasons. This cross training will be coordinated by the STC, CTC and Canine Handler of the certified canines. It shall be the responsibility of the Canine Handler to keep a detailed training log of all training conducted both at sanctioned Task Force training events and training conducted on their own time. The training logs will include type of training conducted, location training conducted, type of searches conducted, conditions (weather, winds, time and anything else significant) as well as successes and deficiencies of the canine noted during training. The Canine Handler will be responsible to provide monthly copies of the daily training log to the CTC. It shall be the responsibility of the CTC to provide monthly training logs to the Program Manager for entry into the canine’s training file. The CTC will track all training and any deficiencies of each Task Force canine. The CTC will provide STMs and the PM with a report on the operational readiness of each TF Canine. Should any Canine Handler, in the opinion of the CTC, not work with the Canine as suggested, the CTC shall request a meeting with the STC and the Canine Handler. Corrective action shall be provided to the Canine Handler. The canine and handler shall be monitored for progress.
Should no progress be noted, or the canine is not achieving goals set by the TF CTC, the matter shall be forwarded to the TF PM.
Canine Search Specialist Course - It shall be the responsibility of the TF CTC and Canine Work Group to recommend candidates for attendance at the FEMA sanctioned Canine Search Specialist Courses that are conducted around the United States periodically. All candidates must follow the TF Travel Policy outlined in this manual.
Certification of TF Canines - To meet National Program Mandates, each TF CST must pass the Canine Certification Evaluation for deployment. Attendance at any Certification Evaluation will only occur after the CST has successfully completed a FEMA US&R Fundamental Skills Assessment (FSA). It shall be the responsibility of the TF CTC to coordinate with the STC in the scheduling of an FSA. Should it be necessary to bring in evaluators from outside the TF, the STC shall request in writing to the TF Program Manager for approval of funds for the FSA. The STC and the CTC shall select individuals for the purpose of conducting the FSA. They shall also provide all information to the PM to receive approval and to initiate travel authorization from. Any TF Canine that has successfully completed an FSA shall be cleared to participate in a selected National TF Certification Evaluation.
Once the location has been identified, the TF CTC shall submit the required travel requests to the Program Manager(s) for approval. The CTC or another canine handler (if the CTC is not available) will travel with the CST to be evaluated to help with any administrative issues that arise.
Should any canine be on the TF for a period of one year and not successfully complete the FSA, the canine shall be evaluated by the TF CTC and STM to identify training deficiencies and make recommendations to enhance the canine’s performance. If the canine is still unsuccessful in passing the FSA after an additional three months of training, the TF CTC and two STMs shall evaluate if the canine has the ability to ever successfully complete the FSA and certification process. If, in the opinion of the TF CTC and STMs, the canine does not possess the ability to pass the certification process, they shall forward a written recommendation to the Program Manager for review. The Program Manager shall then tender a recommendation to the Work Group as to the disposition of the canine.
Canine Care, Food and Nutrition - The canine handler is primarily responsible for the care and well-being of the TF Canine. All canines shall be seen by the same Task Force approved veterinarian for continuity purposes. 2820
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Should the need arise for the canine to be seen by a veterinarian for routine or non-emergency care, it shall be the responsibility of the canine handler to inform the CTC of the purpose of the visit prior to the Canine being seen by the veterinarian. Should the CTC be unavailable, the canine handler shall contact the Program Manager. If the PM is unavailable, the canine handler may proceed to the veterinarian and notify the TF CTC as soon as possible of the visit. IMMEDIATE MEDICAL EMERGENCIES should be taken to the nearest veterinarian and the CTC or STC should be notified as soon as possible of the condition of the Task Force canine. It shall be the responsibility of the TF to provide all canine food for each TF canine. The canine handler is responsible for obtaining the food at the Program Office and shall sign for all taken for the TF canine. If in the opinion of the TF CTC additional nutrition is needed by any of the TF canines, he shall make a request for said additional purchases. The PM shall work to obtain the required supplement to ensure operational readiness of all TF canines.
Canine Team Stipends - In order to reimburse Canine Handlers for travel and canine expenses without causing excessive reimbursement requests, CA-TF4 will provide a Canine Handler Stipend of $150 per month to those Canine Teams who have completed a minimum of 75% of Canine Drills as a team in the month.
Deployments - During deployments CST‟s will travel with the Task Force via the provided transportation.
Personal vehicles and work vehicles are not permitted on deployments. The remaining CST’s will help facilitate the deployment of the primary CST and remain ready to deploy or rotate as needed.
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Chapter 13
EQUAL OPPORTUNITY, AFFIRMATIVE ACTION and SEXUAL HARASSMENT POLICY Directive - All members of the Task Force are required to refrain from harassing behavior; members of the Task Force are not to tolerate harassing behavior by anyone.
Rationale - The Task Force is committed to maintaining a work environment that is free of unlawful discrimination. In keeping with this commitment, the Task Force will not tolerate harassment of Task Force personnel by anyone, including any supervisor, co-worker, visitor, or any other person having contact with Task Force personnel.
General Guidelines Definition - Harassment consists of unwelcome conduct, whether verbal, physical, or visual, that is based upon a person’s protected status, such as sex, color, race, ancestry, religion, national origin, age, physical handicap, medical condition, disability, marital status, veteran status, citizenship status, or other protected group status. The TF will not tolerate harassing conduct that affects tangible job benefits, that interferes unreasonably with an individual’s work performance, or that creates an intimidating, hostile, or offensive working environment.
Sexual Harassment - Unwelcome sexual advances, requests for sexual favors, and other physical, verbal, or visual conduct based on sex constitute sexual harassment when (1) submission to the conduct is an explicit or implicit term or condition of work, (2) submission to or rejection of the conduct is used as the basis for a work related decision, or (3) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. Sexual harassment may include explicit sexual propositions, innuendo, and/or suggestive comments. Sexually oriented “kidding” or “teasing”, “practical jokes”, jokes about gender specific traits, foul or obscene language or gestures, displays of explicit, foul, or obscene printed or visual material, and physical contact, such as patting, pinching, or brushing against another’s body may constitute harassment. This list is not all-inclusive; other behaviors may be viewed as harassment.
Environment Free From Harassment - All members are responsible for helping to assure a work environment that is free from harassment. Anyone feeling they have experienced or witnessed harassment is to immediately contact their Agency Representative, the Program Manager, or another Task Force officer with whom they feel they can comfortably pursue such a complaint. The Task Force forbids retaliation against anyone who has reported harassment in good faith. Complaints will be handled according to the appropriate sponsoring/participating policy on the matter. In the absence of such a policy, harassment policies of the City of Oakland (and Applicable laws) shall apply.
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Chapter 14
TASK FORCE UNIFORMS
General - No personnel shall modify, change, or add any stickers/decals, or writing to any article of clothing/uniform, helmet, or backpack without the expressed written consent of the TF Program Office. All backpacks and gear bags shall bear an approved method of identification. Name Tags will be issued for BDU clothing. Helmets issued will have a name tag placed on the back of the helmet. Any modification shall be performed only after receiving permission from the Program Manager or their delegate.
Uniforms & Gear Bag - Task force issued equipment shall be stored at the CA-TF 4Program Office/warehouse. Upon deployment, each member shall integrate any personal items into their issued equipment gear bags. Some members, such as canine search specialists, who use their gear frequently, may be permitted to store issued gear at home, provided that the equipment is secure. All personnel are to follow the guidelines to pack and prepare their equipment for deployment.
Exchanging, Trading or Selling Property that belongs to the Task Force - Task Force members are reminded that all Task Force equipment is the property of the Task Force and/or FEMA and is accountable to the federal government for audit purposes. Task Force members are prohibited from exchanging, trading or selling any article of the Task Force uniform. Any member found to have sold or intentionally destroying property belonging to the Task Force shall be removed from membership.
Mission Issued Equipment - All equipment issued to personnel at the time of deployment shall be returned when the Task Force returns to the MOB Center. Personnel are prohibited from taking equipment home that was issued mission specific.
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Chapter 15
TASK FORCE DRIVER PROGRAM
General - Any personnel desiring to serve as a driver shall file a written request to the TF logistics/transportation work group.
Selection Process - Overview CA-TF 4maintains a fleet of over-the-road type vehicles for the transport of the equipment cache for training activity and/or upon deployment. These vehicles include combination semi-tractor trailer vehicles and van trucks. The combination semi-tractor trailer vehicles and box trucks require commercial driver’s licenses (CDL‟s) in order to be driven by task force personnel. The combination semi-tractor trailer vehicles require a Class A operator’s license and the box trucks require a Class B operator’s license. CA-TF 4follows the regulations set forth by the Department of Transportation and requires that drivers be knowledgeable of rules of the road, driver’s hours of service regulations, equipment inspection and air brake operating procedures, hazardous materials regulations, emergency procedures, and defensive driving techniques for over-the-road vehicles.
CDL Licenses - Information on commercial driver’s licenses is available by contacting the California Motor Vehicle Department or visiting their website. Personnel authorized by CA-TF 4 to operate task force commercial vehicles shall obtain or have obtained a CDL on their own. The task force will not subsidize the costs of obtaining a CDL, but will assist with the use of vehicles, fuel costs, and instructional personnel associated with driver’s testing to obtain a CDL. Personnel desiring to obtain a CDL shall follow all applicable rules and regulations as outlined by the California Motor Vehicle Department and/or the Federal Department of Transportation for commercial vehicles. This shall include all necessary written and practical exams as administered by the motor vehicle department which include, but may not be limited to, rules of the road examination, air brake examination, vehicle inspection examination, hazardous materials examination, medical screening certification, and practical road test.
1. The TF may provide a vehicle for use for the practical road test portion, if needed.
2. The TF reserves the right to limit the number of CDL qualified drivers in the task force driver pool.
Driver’s Qualifications - The task force desires personnel with current or recent prior experience in the operation of commercial vehicles and the rules that govern over-the-road operations. This includes knowledge of determining proper routes of travel for commercial vehicles, vehicle and highway weight limitation, weigh station procedures, daily vehicle inspection procedures, driver’s daily logs, and operation of engines and transmissions of over-the road type vehicles. TF CDL drivers should be at least 23 years of age, be in good physical condition and hold a valid commercial vehicle medical examination card.
Application Process - Personnel possessing the appropriate qualifications for commercial vehicle operation may complete an application to become a driver for the task force. Each driver shall submit a copy of their current CDL driver’s license with appropriate endorsements, medical examination certification, driving record (can be obtained at the California Motor Vehicle Department), and report any previous driving violations as directed in the application whether or not the violation occurred while operating a commercial vehicle. Applicants with excessive or felony driving violations will not be eligible to drive for the task force. Any prior violation involving the use of alcohol or drugs shall exclude the applicant from obtaining driving privileges with the task force.
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Additional Task Force Qualifications - Qualified applicants shall be required to perform a practical examination for vehicle inspection and operational road test of task force vehicles by designated task force examiners. A copy of the practical road test and vehicle inspection is required to be maintained in the drivers file for each driver.
This information shall be designated externally on the members personnel file within the Task Force Program Office.
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Chapter 16
CONVOY STANDARDS for TASK FORCE VEHICLES
General - During the planning phases for any deployment the drivers should be briefed concerning all aspects of the deployment. The briefing should include a clear understanding of the route to be driven, alternative routes should the need occur, contact phones for all Task Force Leaders, Logistics Team Managers, and Safety Officers. The briefing should also advise personnel of procedures for handling weigh stations and state truck enforcement issues and any concerns on weights with the primary route.
Convoy - The convoy shall be arranged with a lead vehicle followed by the slowest vehicle in front. The convoy should make every effort to stay within 1-mile separation between the vehicles for communications purposes. It is preferable to have vehicles convoy in the following manner:
Type I Deployment
Pick-up Logs (1)
Command Vehicle Box Trucks (2)
Tractor Trailer (2)
Buses (2) Rentals
Pick-up Rescue (1)
22’ Enclosed Trailer Tilt Bed Forklift Trailer
Type III Deployment
Pick-up Logs (1)
Command Vehicle Box Truck (2)
Tractor Trailers (1)
Bus (1) or 12 Passenger Vans (2) Rental
Pick-up Rescue (1)
22’ Enclosed Trailer
Driver Rotation - It shall be the responsibility of the Driver Team Manager to coordinate the rotation of the drivers, conduct periodical checks of drivers for fatigue, medical concerns or any other issues that may be affecting the performance of the drivers. If in the opinion of the Driver Team Manager a driver is showing signs or symptoms of fatigue, the driver shall be relieved to rest and another will be assigned to operate the vehicle.
Cargo Inspection - It shall be the responsibility of the driver to inspect the cargo at all fuel stops and any other times a load shift may have occurred.
Vehicle Safety Inspection - It is the responsibility of the driver to perform an inspection of the brakes (including air lines for possible leaks), lights, windshield wipers, all fluids, and all warning devices for the vehicle at each stop. The driver shall also perform a safety inspection at the beginning of each day. Any problems should be reported on the appropriate form and provided to the Logistics Team Manager. 2826
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Chapter 17
MEDICAL RECORDS and USE of at TIME of DEPLOYMENT
General - To comply with program mandates each Task Force member must undergo a physical every two years.
If the Task Force member is a member of the Sponsoring Agency, their records will be maintained at the medical facility and documentation from the sponsoring agency will be provided that the individual is fit for duty. All affiliated members will be provided a physical at a medical clinic selected by the TF.
Medical Records for Deployment - Medical records will only be used by the Medical Team for deployment purposes. The medical records shall be reviewed by the Medical Team Manager or his/her designee in determining whether a member is deployable and/or to ensure the proper care during deployment.
Denial of Deployment for Medical Reasons - The pre-deployment evaluation will be performed with each TF member by a medical team member prior to the deployment. The initial evaluation will be reviewing the Medical Check-in Sheet filled that was completed by the Task Force member upon sign in. The medical evaluation will include vital signs, exam of the ears, nose and throat of the Task Force member. If cleared medically the Task Force member will receive a blue wristband. The Task Force member will leave one copy of the Task Force tracking form at the Medical Exam Rooms. An authorized member of the Task Force may remove the member’s medical record for review by the Medical Team Manager once they arrive on site. The Task Force Medical Team Manager will call the member back for an additional exam. The Medical Team Manager will call the member into the exam room where they will discuss any concerns or questions the Medical Team Manager may have regarding the member. Some of the parameters that may result in the Task Force may be placed in a “No Go‟ status:
1. Uncontrolled hypertension (Defined as a systolic pressure of above 150 or a diastolic pressure above 100, or a pulse above 110)
2. Uncontrolled Diabetes
3. Un-manageable diabetes secondary to medication issues Acute Viral Syndrome (Active URI, etc.)
4. Acute Gastroenteritis (Bacterial or Viral)
5. Any medical condition (acute or chronic) in which excessive medical time and resources are required from the Medical Team Manager
6. Any medical condition that would place the Task Force member of other members of the Task Force at risk or danger
Denial for Deployment Procedure - If the deploying Medical Team Manager believes a member should not be deployed, they will be advised as to why, and isolated from other team members if necessary. A meeting with the Program Manager, a deploying Task Force Leader, Safety Officer and Medical Team Manager will be conducted to discuss the deployment status of the individual(s) being denied deployment. The Medical Team Manager shall present the issues, with justification to the Task Force Leader and the Program Manager. Should these members support the recommendation of the Medical Team Manager, the member will not deploy, and the decision will be relayed to the Task Force member in a secure setting. This decision shall be final. 2827
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Chapter 18
FAMILY SUPPORT UNIT
General - The Family Support Unit (FSU), composed of significant others of members, will work to support the Task Force and the families of the deployed members during any deployment. The FSU will have a representative to attend a briefing with the TFL or designee prior to or ASAP after the team deploying to develop a briefing schedule for the duration of the mission. It will be the responsibility of the FSU to contact the team members who will be responsible for passing on briefing information to deployed member’s family to ensure that all members are prepared to perform their responsibilities. The Task Force Leaders or designee shall provide information to the FSU Team Leader daily for dissemination to family members.
Unit Composition - The Unit shall consist of two (2) Family Support Unit representatives who are responsible for coordinating all information with the unit. There shall be at least five (5) Family Support Unit Members on each unit to contact deployed Task Force members.
Emergencies at Home - Should an emergency arise at home, the family member should contact their Family Support Unit liaison to notify them of the type of emergency and the FSU representative will contact the TF Program Office advising of the emergency and what support actions at home have been initiated. The FSU representative shall work with the PM until the matter is resolved at home.
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Chapter 19
WORKERS COMPENSATION
General - All members when deployed are sworn in as Temporary Excepted Volunteers for the purposes of coverage for Federal Workers Compensation and Tort Claims protection. When a member arrives for deployment, they must sign the I-9 Appointment Affidavit and undergo the Oath of Office to ensure they are covered under the Federal Workers‟ Compensation Act and the Federal Tort Claims Act.
Coverage - When members are participating in FEMA sanctioned training, a FEMA Operational Exercise (ORE) or as a member who has been alerted and directed to report to the Program Office, or when the Task Force has been “Activated”, they are placed under the Federal Employees Compensation Act and the Public Safety Officers Death Benefit Public Law No. 90-351, Title I, Part L, 42 U.S.C. Chapter 46, Chapter XII. All Task Force members are afforded coverage for the Federal Employees Compensation Act and Public Safety Officers Death Benefit through 44CFR208.
Reporting Injuries - It is the responsibility of every Task Force member who is involved in any of the events to report all injuries to the Medical Team Manager, Medical Specialist or the Lead Instructor at the time of the injury or illness. It shall be the responsibility of the Medical Team Manager, Medical Specialist or the Lead Instructor to complete the federal injury form CA-1 and CA-7 (if requested) for the purpose of filing for coverage under the Federal Workers Compensation. It is the responsibility of the Task Force member to supply all documentation to the Medical Team Manager, or designee, to ensure the claim can be submitted for coverage.
Failure to supply all requested documents, information or forms may result in denial of the claim by the Federal Department of Labor. Review of Department of Labor policies, procedures and form changes is the responsibility of the program office and changes shall be noted immediately.
Task Force Member’s Responsibility - If a member has received an injury during any event, and requires medical care, he/she shall contact the Medical Team Manager, Medical Specialist or the Program Manager as soon as possible to make notification of the need for medical care. It is the responsibility of the member to provide all supporting documentation to the Program Manager as soon as possible. Should the Member require hospitalization, the Task Force Medical Team Manager or his/her designee shall ensure all local and federal forms and documentation are completed with the appropriate agencies.
Local and Federal Coverage - It should be noted that 44CFR208 does not restrict any member from filing a local claim in the event of an injury. The members may collect either the incremental difference between federal benefits and local benefits, or may collect local benefits in full, depending on whether the local benefits may be offset by the Federal payment to the member (44CFR, page 9186). At all times a members own agency must be included in the reporting of any injuries.
Notification of Coverage to Task Force Members - It is the responsibility of the Program Manager to ensure that all new members are aware of the coverage afforded to them and the system in which they are to make a claim should the need arise.
Report to Executive Board - It is also the responsibility of the Program Manager to provide a report on all Workers‟ Compensation Claims made by a member and to provide progress reports on all claims that have been submitted to the federal government to the Executive Board.
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Chapter 20
TEAM ACTIVATION and ROTATION SYSTEM
General - Upon a member achieving deployable status they will be assigned to one of the teams that make up the Task Force. Members will be assigned by the position they qualify for and where there exists a vacancy.
Rotation - The Task Force will establish a rotation of the teams (Red, White, & Blue). Each team will be responsible for deploying should activation occur during a defined period. This period of time shall be referred to as “on-call” for clarification. Members who will be on call for a month will be notified by the 29th of the previous month. A Communicator message shall be performed to notify members of their responsibility for the defined period.
Example: On April 25 the Task Force Communicator will contact all Task Force members advising that the “Red Team” is on-call for the month of May. If you are available for the month, you will need to confirm.
Period of Non-Availability for Deployment - Should a Task Force member acknowledge the notification that they are available for the month, yet they know there will be a period of time they will be unavailable for a deployment due to vacation, other leaves approved by their employer, or for any reason that makes them unavailable, they shall contact the PM to provide those dates they will be unavailable for the month they are “oncall”.
Failure to Acknowledge Notification - Members that fail to acknowledge the process the Team Manager will have 24 hours to make contact after which they may be replaced.
Alerts for Local, State or Federal Deployments - Should the Task Force receive a request to alert personnel for a possible deployment, the communicator will notify all Task Force members of the alert. Those members who are on the roster for the month shall be responsible for following the directions of the communication system to acknowledge availability for the deployment. Those members who are “on call” and acknowledge the Alert notification shall be rostered for a possible deployment. Should any member fail to acknowledge the alert within 30-minutes he/she shall be replaced on the roster. All team members should acknowledge their availability even if they are not “on call” for the month as to provide alternates for a deployment should the need arise.
Activation - Once activated the team that is “on-call‟ for the month shall be deployed. Code Red will be utilized for notification and should any member fail to acknowledge the activation within 10 minutes, the member shall be removed from the roster for deployment. The following system shall be utilized for deployment purposes. Should any member of the Sponsoring Agency fail to acknowledge the activation page, the Task Force Leader for the Sponsoring Agency shall make the replacement. The replacement can only be deployed if they have met all deployment requirements of the Task Force and for the position. Should any member of the Participating Agency fail to acknowledge the activation page, the Agency Representative shall have 10 additional minutes to fill the position that is vacant. The replacement can only be deployed if they have met all deployment requirements of the Task Force and for the position.
Should any participating agency be unable to fill the vacancy, the position shall be open to the first agency that can fill the vacancy with a member that has met all of the requirements of the Task Force for deployment and can meet the position requirements for that position. 2830
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Multiple Incidents for Failure to Acknowledge Notifications - Should any member have multiple failures to respond to a notification, the appropriate team manager shall bring the matter to the attention of the PM. All members who have failed to respond to notifications will be contacted by the team manager to ensure that the program expectations are clear and to verify that all contact information is correct for the Communicator (and any notification) system.
Multiple Activations during the same month - Should any team be activated and deployed for a mission, regardless of the length of the mission, upon return of that team it will move to the bottom of the rotation.
Financial Practices - The financial practices of the Task Force shall follow all federal and state laws.
Cooperative agreement budget for statement of work development process - Annually the cooperative agreement and statement of work will be developed as required by program office staff and their guidance.
Expenditures monitoring - Cooperative agreement funding expenditures will be made using City of Oakland purchasing and spending processes. All bidding and procurement for Task Force items will meet the Oakland purchasing requirements as defined in the policy. Purchases shall be made as approved by FEMA in the annual statement of work and cooperative agreement budget. Invoices will be submitted to the department’s Grant Manager for review prior to approval by the Program Manager for payment. The annual US&R budget shall be approved by the Program Manager and reviewed by the Executive Board. The program expenditures will be subject to regular OFD internal and external audits.
Task Force member compensation agreements & process - At the direction of the sponsoring agencies, all individual compensation agreements will be renewed annually. Task Force members who participate under such an agreement will be contacted by CA-TF 4 with the FEMA/Federal compensation rate used for their individual agreement. Once the signed agreement is received by the CA-TF 4 Program Office it will be submitted for review by the Sponsoring Agency. Each agreement will be reviewed by the Oakland Fire Department CFO and the City of Oakland Attorney’s office before being executed by the CA-TF 4 Executive Committee.
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Chapter 21
COOPERATIVE AGREEMENT ADMINISTRATION
Annual agreement preparation - The Cooperative Agreement is for Annual Task Force Preparedness measures required to respond to a national US&R disaster activation within a 4-hour mobilization time frame for an overthe-road response and 6-hour mobilization time frame for an air response.
Reimbursements of disaster response activities are accomplished through a separate Cooperative Agreement specifically for that purpose. Under the continuing agreement, the sponsoring agency may use funding to accomplish tasks required under the Annual Preparedness Cooperative Agreement funding.
Legislative requirements – When notified of an available US&R Cooperative Agreement the CA-TF 4 Program Office will prepare a Council Report, and Council Resolution, for the Oakland City Council. The report and resolution will request permission to apply, accept and appropriate cooperative agreement funds from the Federal government. In the Council Report will be a brief description of the CA-TF 4 program, the need for continued funding, an outline of how the funds will be spent, and the amount available.
Agreement reporting - For each performance period, the program office will establish the reporting expectations.
CA-TF 4 provides periodic reports, and close out reports as required.
Budget preparation - Requisitions, purchase orders and payment vouchers are created. Originals are stored in the City of Oakland finance offices and can be retrieved upon request if needed. Personnel payment records are created to allow for routine monitoring of expenses related to the Task Force.
Budget approval process – Frequently used working documents of the Task Force are kept in the administrative offices of the Sponsoring Agency. These documents are available for reference and use as needed by staff.
Agreements are developed CA-TF 4 and the City of Oakland Attorney’s Office, using the processes defined by the Oakland Fire Department, with appropriate copies on file in the CA-TF 4 and OFD offices. The annual budget is developed by staff, reviewed by the US&R Executive Committee, incorporated into and approved by the PM.
Documentation retention & storage - Original Task Force documents are retained for the time periods as required by state & federal law and are stored in the CA-TF 4 offices. Boxed records can be retrieved as needed by CATF 4 staff. All other documents may be retained electronically in archive.
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Chapter 22
PUBLIC RELATIONS
Non-Emergency Activities - In the non-emergency periods between activations, CA-TF 4 will initiate fundamental media-related public awareness activities. These activities consist of conducting interviews, briefings, and onsite tours; developing press releases, media advisories, stock photos, and "file footage" of US&R Operations and feature stories; and cultivating contacts with media representatives.
At the local level, the organizations sponsoring a FEMA US&R task force should maintain regular communications with the media using the national policy as a guideline, while publicizing and highlighting their local jurisdiction's specific capabilities. In addition to handling media relations for their own emergency services, the sponsoring agency must serve a dual role as a contact with the local media for their task force and an initial contact for the National FEMA National US&R Response System.
CA-TF 4 will work on performing the following tasks:
Develop internal media procedures to support a task force mobilization including a central point of public information coordination for the sponsoring agency (especially for state/regional task forces) and procedures for family liaison (periodic updates/notifications) during missions, etc. Provide familiarization training for all task force personnel on general media procedures, the Joint Information System/Joint Information Center (JIC) concepts of operations, and issues and guidelines including interview “Do's and Don’ts.”
Provide more in-depth training for task force supervisory personnel on media interaction including practice in conducting effective interviews.
Coordinate public information efforts regarding the FEMA National US&R Response System (i.e., background articles, news releases, media events, World Wide Web pages, etc.), through the Statestates, FEMA Regional External Affairs officers (EAO), and FEMA Headquarters Office of External Affairs at (202) 646-4600.
Use FEMA-prepared/formatted program releases or fact sheets that convey the national message (localized to reflect the needs of the sponsoring agency). Work with the States and FEMA Headquarters Office of External Affairs to facilitate ongoing public awareness of the FEMA National US&R Response System. Invite the media to appropriate training exercises and develop news stories relating to local US&R incidents.
Forward requests for media transportation on federally supplied aircraft to the FEMA Office of External Affairs
System Implementation - When a notice event (such as a hurricane) is imminent or a no-notice event (such as an earthquake) occurs, CA-TF 4 will provide facts to and answer questions for the local media based upon the information provided them by FEMA Headquarters Office of External Affairs. 2833
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During an activation CA-TF 4 will:
1. Establish a process for regular contact with FEMA Headquarters Office of External Affairs (e.g., by facsimile, contact phone number, electronic mail, etc.);
2. Contact local media representatives regarding the activation of the task force; Be prepared to respond to requests from other media representatives limiting any response to task force related activities only, all other inquiries should be directed to FEMA Headquarters Office of External Affairs
Establish contact with public affairs officials at the designated Point of Departure (POD) identifying expected media interest (e.g., interviews, media access restrictions, etc.).
Coordinate national media contacts with FEMA Headquarters Office of External Affairs Participate in the task force's initial briefing at the Point of Assembly (POA) or POD, reviewing appropriate media guidelines (e.g., Do's and Don'ts, information flow, interviews, etc.)
Be present at the POA and/or POD. Coordinate all media activities and interviews Activate family liaison procedures to update task force members' families on a scheduled basis
Provide assistance and guidance to family members should they be contacted and/or interviewed during the course of a mission
Maintain contact with officials at FEMA Headquarters Office of External Affairs to ensure the timely transfer of information from FEMA related to the task force's ongoing operations while on assignment.
Media-Related Information Flow - FEMA Headquarters Office of External Affairs, through the National JIC, will provide task force/sponsoring agency public information officials with advance notification on the transition from FEMA Headquarters to the JFO, and vice versa. The notification will include the JFO facsimile and telephone numbers along with any other relevant information. For more information on the JIC operations and relationships, refer to the latest version of the FEMA Emergency Information Field Guide.
Point of Arrival/Mobilization Center - When task forces are activated and deployed, the POA may not be assigned until the team is en route to the disaster area. Therefore, the POA may be the receiving airport, the mobilization center, or the staging area. This receiving facility should establish a public information official who is responsible for managing all media activities at this location. This could include managing media filming, videotaping and still photography of the activities of incoming task forces, providing background information on the specific task forces and the FEMA National US&R Response System, as well as coordinating interviews with task force personnel.
During times when US&R resources are operating on the site of a disaster, an Incident Support Team (IST) or ISTs will be deployed to provide task force management and coordination as well as provide US&R insight and 2834
Page | 43
assistance to local jurisdictions. The relationship between the IST Public Affairs representative and task forces operating in the field can vary widely depending on the magnitude and scope of the disaster. Specifically, the size of the area where task forces are operating will impact on the amount of direct interaction between the IST and the task forces. On small areas, the IST may take a more direct role in the incident, whereas on large-scale incidents, where the impacted area is widespread, the IST may take a less direct management role with the task forces. Depending on the situation, media contacts while on assignment will vary. The FEMA Headquarters Office of External Affairs will attempt to have an on-site presence at the IST; however, situations will be different on each disaster. In most cases, the IST will be the primary contact between the task forces and the FEMA Headquarters Office of External Affairs. A coordinated information management system will be used to channel official information on the US&R participation in the incident from the IST to the FEMA Headquarters Office of External Affairs, Regional EAO, or the ESF-9 representative in the JFO or the JIC.
At the same time, task forces operating at various sites may be requested to provide information to the local media through the local incident commander. This information should focus on the task force’s current status and work assignment and not necessarily on the total US&R mission, as the incident may be so large that no one task force can keep an accurate status of the large incident picture. Irrespective of the size and scale of the incident and the interaction between the IST and task forces operating in the field, the IST will be the official contact point for the status of the task forces through situation reports and will disseminate official information on the operations and progress of the mission through official FEMA channels All FEMA US&R task force personnel should use the following media interaction guidelines while on mission assignment:
1. Any media inquiry made to a task force member should be directed up the task force chain-ofcommand to a team manager or task force leader (TFL)
2. TFLs and team managers should strive to coordinate media interaction within the constraints of the local jurisdiction's Incident Command Post (ICP) requirements for public information dissemination. The local ICP should have a Public Information Officer (PIO) assigned who will coordinate these issues at the incident
The TFL should coordinate information exchange and release between their task force and the FEMA Headquarters Office of External Affairs representative and the local PlO assigned to the ICP. This would include coordination of media activities and access during search and rescue operations; Task forces should include media contacts at their level in their situation status reports to the IST;
NOTE: Task force personnel shall not release visual or audio materials of their operations to the media without permission from a FEMA EAO representative; and Task force personnel should have all material placed on the Internet screened and approved by a representative from the FEMA Headquarters Office of External Affairs or EAO prior to publication.
In the absence of FEMA representation, task forces should request permission from the ESF-9 representative in the IST.
At times it may not be feasible or practical to defer media inquiries up the chain-of-command to the local jurisdiction. It is in everyone's best interest to provide accurate information (within the confines of one's job knowledge and responsibility) to the media in a timely manner. Also, the local jurisdiction's ICP and/or PlO may request various task force personnel to assist in media inquiries and interviews during the course of operations. 2835
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In these instances, all task force personnel should use the listed guidelines and every attempt should be made to notify the on-site FEMA EAO in advance. Questions beyond the local team's area of responsibility will be referred to the on-site FEMA EAO representative or IST, as appropriate.
When a task force is demobilized, the public information official from the sponsoring agency should perform the following duties:
Contact FEMA Headquarters Office of External Affairs to coordinate the task force's return schedule and arrival at the original POD. FEMA Headquarters Office of External Affairs will in turn inform the respective Regional EAOs to provide public affairs support for the return. Contact the public information official at the POD (e.g., air base, airport, etc.) to coordinate task force arrival schedule, media attendance, and coordination. Coordinate all media activities during task force return, including interviews, photo opportunities, etc.
Schedule and conduct news conferences with selected task force personnel for the media one or two days after their return (if appropriate).
Coordinate with FEMA Headquarters Office of External Affairs on what photographs, video, and other documentation from the mission can be released to the local media. Collect appropriate news clippings and video footage of task force accomplishments (if appropriate). Significant or extraordinary items should be forwarded to FEMA Headquarters Office of External Affairs in a timely manner.
Review and critique the overall media management and coordination. Document strong and weak points.
Develop lessons learned and incorporate into the sponsoring agency's procedures for future improvement.
Submit recommendations and concerns to FEMA Headquarters Office of External Affairs.
Each task force as well as IST members should exercise prudent judgment in the use of photographs and videotape obtained on a mission. Use of these assets can be very beneficial in training situations and making public presentations to validate the task force, however, task force personnel should remember that the outside use of some graphic photographs and video tapes could be disturbing to some civilians and have a negative impact should they be viewed by relatives or friends of the survivors or victims of the disaster. This type of documentation should be reserved for official task force internal use. Also, in some instances, copies of all written documentation, photographs, and videotape may be requested by FEMA and other investigating authorities for use in litigation and other after-effects of the incident.
Media Management Suggestions - The following items are recommended guidelines during an interview:
1. Ask the reporter’s name. Then use it in your response. 2836
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2. Use your full name. Nicknames are not appropriate.
3. Choose the site (if possible). Make sure you are comfortable with the location of the interview.
Consider what is in the background.
4. Choose the time (if possible). If you would be more comfortable waiting another five minutes, ask the reporter if that's okay.
5. Be calm. Your demeanor and apparent control of the situation are very important in establishing the tempo of evolving events.
6. Tell the truth.
7. Be cooperative. There is an answer to most questions, and if you don’t know it now, let them know you will work diligently to determine the facts needed.
8. Be professional. Don’t let your personal feelings about the media, or this reporter in general, affect your response.
9. Be patient. Expect dumb questions. If the same question is asked again, repeat your answer without irritation.
10. Take your time. If you make a mistake during a taped or non-broadcast interview, indicate that you would like to start over with your response, if appearing live, just start over.
11. Use wrap-around sentences. This means repeating the question with your answer for a complete sound bite.
The following items are examples of what not to do during an interview:
1. Say "no comment".
2. Give your personal opinion. Stick to the facts.
3. Go off the record. Anything you say can and will be used against you.
4. Lie. To tell a lie unintentionally is a mistake. To intentionally tell a lie is stupid.
5. Bluff. The truth will come out.
6. Be defensive. The media and their audience recognize a defensive attitude and tend to believe you're hiding something.
7. Be afraid. Fear is debilitating and is not a characteristic you want to portray.
8. Be evasive. Be up front on what you know about the situation and what you plan to do to mitigate the incident.
2837
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9. Use jargon. The public is not familiar with much of the language used in the US&R field.
10. Confront. This is not the time to tell a reporter how much you dislike the media.
11. Try to talk and command an incident at the same time. You won't do either well.
12. Wear sunglasses.
13. Smoke.
14. Promise results or speculate.
15. Respond to rumors.
16. Repeat leading questions.
END
2838
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APPENDIX 1
2839
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APPENDIX 2
2840
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2841
Page | 50
APPENDIX 3
2842
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APPENDIX 4
National Urban Search and Rescue Response System Code of Conduct National Urban Search and Rescue (US&R) Response System (the System) personnel are representatives of a well-organized, highly trained group of specialists who are assembled to help communities in need of assistance.
The actions of these personnel are a direct reflection on FEMA, their Sponsoring Agency, their fellow System members, and themselves.
It is the responsibility of each System member to abide by this Code of Conduct during any System activity (to include response operations, meetings and other events), and accordingly they will:
Keep constantly in mind the value of life and the welfare of survivors. Remain cognizant of considerations regarding race, religion, gender, and nationality.
Demonstrate proper respect for other assigned personnel. Not possess or use alcohol, and/or drugs illegal under Federal law. Not possess or use firearms.
Understand, respect and adhere to the established chain-of-command and follow its direction at all times.
Procure equipment using established policies and guidelines, and will not utilize or remove property without official authorization.
Demonstrate respect for public and private property.
Maintain a state of readiness, even when unassigned.
Adhere to the established dress code and requirements for personal protective equipment. Abide by Federal policies and regulations regarding the handling of sensitive information. Abide by FEMA directives on appropriate social media use. Not take, or threaten to take, actions in retaliation for whistleblowing actions as established by applicable laws and regulations.
Adhere to ethics guidelines and not abuse authority and/or position. Project and embody professionalism at all times.
Each System member is required to review, become familiar with, and acknowledge receipt of this Code of Conduct by signing it below.
___________________________________________________
Signature Date
2843
Thursday,
February 24, 2005
Part III
Department of
Homeland Security
Federal Emergency Management Agency
44 CFR Part 208
National Urban Search and Rescue
Response System; Maximum Pay Rate
Table, National Urban Search and Rescue
Response System (US&R); Interim Final
Rule and Notice
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9182 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 1Sponsoring Agencies are State or local
government agencies that have signed Memoranda
of Agreement with DHS to organize and manage
US&R Task Forces.
2Throughout the preamble to this rule the terms
‘‘we’’ and ‘‘our’’ refer to and mean the Department
of Homeland Security. ‘‘You’’ refers to the reader.
3The US&R System comprises 28 Task Forces in
19 States. A full Task Force consists of 70 System
Members, three deep (designed for 210 members)
specially trained and equipped to find, extricate,
and provide initial medical care to victims of
collapsed buildings, weapons of mass destruction,
as well as to perform other assigned duties.
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 208
RIN 1660–AA07 (formerly RIN 3067–AC93)
National Urban Search and Rescue
Response System
AGENCY: Federal Emergency
Management Agency (FEMA),
Emergency Preparedness and Response
Directorate (EP&R), Department of
Homeland Security (DHS).
ACTION: Interim rule with request for
comments.
SUMMARY: This interim rule standardizes
the financing, administration and
operation of the National Urban Search
and Rescue Response System, a
cooperative effort of the Department of
Homeland Security, participating State
emergency management agencies and
local public safety agencies across the
country. This rule addresses the
relationship between Sponsoring
Agencies 1 of Urban Search & Rescue
(US&R) Task Forces and DHS and also
funding for preparedness and response
activities, including the acquisition of
equipment and supplies and training.
Concurrently we 2 are publishing as a
Notice in this issue of the Federal
Register a Maximum Pay Rate Table on
which we also request comments.
DATES: This interim rule is effective
February 24, 2005. We invite comments
on this interim rule and the Maximum
Pay Rate Table published separately
today as a Notice in this issue of the
Federal Register. We will accept
comments on both until April 11, 2005.
ADDRESSES: Mail: When submitting
comments by mail, please send the
comments to the Rules Docket Clerk,
Office of the General Counsel, Federal
Emergency Management Agency, 500 C
Street, SW., room 840, Washington, DC
20472. To ensure proper handling,
please reference RIN 1660–AA07 and
Docket No. DHS–2004–0010 on your
correspondence. This mailing address
may also be used for submitting
comments on paper, disk, or CD-ROM.
Hand Delivery/Courier: The address
for submitting comments by hand
delivery or courier is the same as that
for submitting comments by mail.
Viewing Comments: You may view
comments and background material at:
http://www.epa.gov/feddocket or http://
www.regulations.gov. You may also
inspect comments in person at the
Office of the General Counsel, Federal
Emergency Management Agency, 500 C
Street, SW., room 840, Washington, DC
20472.
FOR FURTHER INFORMATION CONTACT:
Michael Tamillow, Federal Emergency
Management Agency, Emergency
Preparedness and Response Directorate,
Department of Homeland Security, 500
C Street, SW., room 326, Washington,
DC 20472, (202) 646–2549, or (e-mail)
[email protected].
SUPPLEMENTARY INFORMATION:
Background
The Federal Emergency Management
Agency (FEMA) published a proposed
rule, National Urban Search and Rescue
Response System, on December 18,
2002, 67 FR 77627–77640 (Proposed
Rule). On March 1, 2003, FEMA became
a part of the Emergency Preparedness
and Response Directorate (EP&R),
Department of Homeland Security
(DHS). The National Urban Search and
Rescue Response System is now a
program in FEMA under the EP&R
Directorate.
This preamble and Interim Rule
reflect certain decisions made regarding
comments that FEMA received on the
Proposed Rule, and changes resulting
from FEMA’s integration into the
Department of Homeland Security. The
process for creating and updating the
Maximum Pay Rate Table (Table),
which establishes the maximum rates
that DHS will pay for certain medical,
engineering, canine handling and
backfill services, is described in
§ 208.12. The Maximum Pay Rate Table,
which was mentioned but not published
in the Proposed Rule, is incorporated in
the Interim Rule, and published
concurrently with this Interim Rule as a
Notice. Because the Maximum Pay Rate
Table was not published previously and
will become a part of the National
Urban Search and Rescue Response
System final rule, we are asking for
public comment both on the Table and
the Interim Rule.
Section 303 of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act (Stafford Act), 42 U.S.C.
5144, authorizes the President of the
United States to form emergency
support teams of Federal personnel to
be deployed in an area affected by a
major disaster or emergency. The
President delegated this function to the
Director of the FEMA under Executive
Order (E.O.) 12148. Under E.O. 13286 of
February 28, 2003, the President
amended E.O. 12148 to transfer the
FEMA Director’s delegated authority to
the Secretary of Homeland Security, and
under Homeland Security Delegation
No. 9100, delegated the Secretary’s
authority under Title V of the Homeland
Security Act of 2002, which includes
the Stafford Act, to the Under Secretary
for Emergency Preparedness and
Response (EP&R).
Section 306(a) of the Stafford Act
authorizes the President (as delegated to
the Under Secretary for EP&R) to accept
and use the services or facilities of any
State or local government, or of any
agency, officer or employee thereof,
with the consent of such government, in
the performance of his responsibilities
under the Stafford Act. Section 306(b) of
the Stafford Act authorizes the President
to appoint and fix the compensation of
temporary personnel without regard to
U.S. Code provisions governing
appointments in the competitive
service. Section 403(a)(3)(B) of the
Stafford Act provides further that the
President may authorize Federal
agencies to perform work on public or
private lands essential to save lives and
protect property, including search and
rescue and emergency medical care, and
other essential needs. Under section
621(c) of the Stafford Act, the Secretary
may accept and use the services of State
or local governments, and use voluntary
services by individuals or organizations
as needed.
FEMA established the National Urban
Search & Rescue Response System
(System or US&R) under the authorities
cited. The System provides specialized
lifesaving assistance during major
disasters or emergencies that the
President declares under the Stafford
Act. US&R operational activities include
locating, extricating and providing onsite medical treatment to victims trapped in collapsed structures, victims
of weapons of mass destruction events,
and when assigned, performing incident
command or other operational activities.
Created in consultation with State
emergency management agencies and
local public safety agencies, the System
is built around a core of Sponsoring
Agencies prepared to deploy US&R Task
Forces 3 immediately and initiate US&R
operations at DHS’s direction. Members
of the Task Forces, also referred to as
‘‘System Members,’’ may respond as
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9183 4A Joint Management Team is a multidisciplinary group of National Disaster Medical System (NDMS), Urban Search and Rescue (US&R)
and other specialists combined to provide
operational, planning, logistics, finance and
administrative support for US&R and NDMS
resources, and to provide technical advice and
assistance to State and local governments.
5The term ‘‘Temporary Excepted Federal
Volunteer’’ means that a System member’s status is
temporary for the period of Federal activation,
excepted from Civil Service rules regarding Federal
employment, Federal for purposes of tort claim
protection and Federal ‘‘workers’ compensation’’,
and a volunteer in that DHS does not pay the
individual directly, but reimburses the Sponsoring
Agency for the System Member’s services.
6A Participating Agency is a State or Local
Government, non-profit organization, or private
organization that has executed an agreement with
a Sponsoring Agency to participate in the National
US&R Response System.
7Affiliated Personnel are individuals not
normally employed by a Sponsoring Agency or
Participating Agency and individuals normally
affiliated with a Sponsoring Agency or Participating
Agency as volunteers.
8Cooperative Agreements are similar to grants,
but differ from grants in the amount of government
cooperation and involvement in the
implementation of the agreement.
9The Task Forces also respond to disasters and
emergencies in their home states as State resources.
DHS does not normally and directly reimburse
Sponsoring Agencies of the Task Forces for the
costs that Task Forces incur when deploying in
their home states, although in a State deployment,
Task Forces may use equipment that they have
purchased with DHS grant funds and Federal
property that is in their custody. Subpart C of this
rule does not cover in-state deployment of US&R
resources. However, Federal reimbursement for the
cost of an in-state deployment may be available
through DHS’s Public Assistance Program under
regulations published at 44 CFR part 206. In
addition, the Office of Foreign Disaster Assistance
of the U.S. Agency for International Development
(USAID) often uses the services of certain Task
Forces to deliver humanitarian assistance abroad
under agreements to which DHS is not a party. The
rule does not affect the relationships between
USAID and the Sponsoring Agencies of the Task
Forces.
10 In addition to participation on Task Forces,
participants in the System (referred to as System
Members) may also be called upon to serve as
members of Joint Management Teams or other
overhead or technical teams.
11 DHS enters into a Preparedness Cooperative
Agreement with each Sponsoring Agency to provide
Federal funding to develop and maintain System
resource (personnel, equipment and supplies)
capabilities and readiness for operations, including
training.
12When DHS activates a Task Force it provides
Federal funding for the Task Force’s response under
the terms of the Response Cooperative Agreement.
13Following adoption of the final rule, DHS
expects to develop a National US&R Response
System Directive Manual, which will contain
system policies and explain other Federal
regulations, and will govern the operation of the
National US&R Response System. The Directive
Manual will be updated periodically as needed.
14Sections 306(a) and 621(c) of the Stafford Act,
42 U.S.C. 5149(a), 5197(c), authorize DHS to
federalize members of US&R Task Forces to
participate in preparedness activities. We
periodically federalize US&R teams to participate in
DHS-sanctioned training exercises, also known as
mobilization exercises. During these periods, they
are not ‘‘Activated’’ within the meaning of § 208.2
of the rule and, therefore, the provisions of subpart
C do not apply to DHS-sanctioned training
exercises. Funding for participation in DHSsanctioned training exercises may be available under § 208.24(b) of the rule.
part of Joint Management Teams (JMT) 4
or other overhead or technical teams, or
as individual resources.
The Task Forces are staffed primarily
by local fire department and emergency
services personnel specially trained and
experienced in collapsed structure
search and rescue operations, incident
management, and other emergency
operational activities. On activation by
DHS, members of the US&R Task
Forces, US&R System Members of Joint
Management Teams, and other overhead
or technical teams, operate as
Temporary Excepted Federal
Volunteers.5
The National Urban Search and
Rescue Response System presently
comprises 28 US&R Task Forces in 19
States. Typically, a State agency or local
public safety agency (Sponsoring
Agency) sponsors each of the Task
Forces. While the Sponsoring Agencies
are solely responsible for the
administrative management of their
respective Task Forces, many
Sponsoring Agencies invite other public
safety agencies and other entities in
their vicinity to contribute personnel
and other resources to the Task Force.
These public safety agencies and other
entities that enter into agreements with
the Sponsoring Agency to contribute
personnel and other resources are
Participating Agencies. In certain cases,
individuals who are not employed by a
Sponsoring Agency or Participating
Agency 6 become members of a Task
Force as Affiliated Personnel.7
DHS provides financial support in the
form of grants or Cooperative
Agreements 8 (Grants) to each of the
Sponsoring Agencies under the disaster
preparedness and training authorities of
the Stafford Act. The Sponsoring
Agencies use these Grants to train Task
Force personnel, maintain a state of
readiness and to acquire necessary
equipment and supplies. DHS awards
and administers Grants under 44 CFR
13. In return for this financial support,
each Task Force must be available for
deployment as a Federal resource when
DHS activates it.9 Task Forces also must
maintain minimum training
requirements that DHS prescribes.10
Separate non-standardized
memoranda of agreement (MOA), which
were individually negotiated at different
stages in the System’s development,
currently govern the relationship
between DHS and each of the
Sponsoring Agencies. In addition, we
require the Sponsoring Agencies to
enter into separate Cooperative
Agreements on forms that our Office of
Financial Management prescribes. As
the System has matured, the
participants have concluded that it is
desirable to standardize these
relationships through a set of
comprehensive regulations. We
developed the Interim Rule with the
assistance of the National Urban Search
and Rescue Advisory Committee and its
Legal Issues Working Group.
Adoption of the Interim Rule enables
DHS to standardize our agreements with
the Sponsoring Agencies. Following
adoption of the final rule, we will ask
each of the Sponsoring Agencies to
enter into a new, streamlined MOA as
well as a Preparedness Cooperative
Agreement,11 as described in subpart B
of the rule, and a Response Cooperative
Agreement,12 as described in subpart C
of this rule. These new, standardized
agreements will document our
relationship with the Sponsoring
Agencies.13 Upon the effective date of
the Interim Rule, if a conflict exists
between a provision of the rule and an
existing MOA, the provision of the rule
will control.
References in the Preamble to Parts,
Subparts or Sections
Throughout the preamble and rule,
references to part, subpart, or sections
(as ‘‘section’’ or ‘‘§ ’’) are to parts,
subparts or sections of this rule unless
specifically cited as a section of an Act,
e.g., section 306 of the Stafford Act, or
document other than this rule.
Organization of the Interim Rule
The Interim Rule is divided into four
subparts. Subpart A addresses the
organization of the National US&R
Response System, explains the
relationship among the various
components of the system, incorporates
certain provisions of other regulations
and provides for sanctions if US&R
regulations and directives are violated.
Subpart B describes the process
through which we provide grant funds
to the Sponsoring Agencies to maintain
Task Force readiness. Sponsoring
Agencies use these grant funds to
administer the Task Forces, provide
initial and recurrent training,14 and
acquire and maintain a uniform cache of
equipment and supplies.
Following adoption of the final rule,
we will ask each Sponsoring Agency to
enter into a Preparedness Cooperative
Agreement with us. In addition, from
time to time, DHS will purchase and
distribute equipment and supplies
directly to each Task Force.
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9184 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 15Alert means the status of a System resource’s
readiness when triggered by an Alert Order
indicating that DHS may Activate the System
resource.
16Activation means the status of a System
resource placed at the direction, control and
funding of DHS in response to, or in anticipation
of, a presidential declaration of a major disaster or
emergency under the Stafford Act.
17 In some cases, the relationship between the
individual and the Sponsoring Agency or
Participating Agency is a contractual relationship or
a volunteer relationship. These regulations do not
create a common law employment relationship
between an individual and a Sponsoring Agency or
Participating Agency where none otherwise exists.
18Section 208.40(b) addresses reimbursement for
various differentials paid by Sponsoring Agencies.
19Certain activated System Members will not
report to a Point of Assembly, but rather will be
instructed to travel to the incident location directly
from their home or regular place of work. These
individuals are Activated when they leave their
home or regular place of business and we will
adjust the ‘‘portal to portal’’ pay of these
individuals accordingly.
20The Point of Assembly is the location where a
Task Force assembles before departure in response
to an activation order.
Subpart C addresses the deployment
of System Members, either as part of a
Task Force, a Joint Management Team,
or another overhead or technical team,
as a Federal resource, and the
reimbursement of the Sponsoring
Agencies for the costs that they incur as
a result of these deployments. This
subpart also explains the Response
Cooperative Agreement that we will ask
each Sponsoring Agency to sign
following adoption of the final rule.
Subpart D establishes the procedures
by which Sponsoring Agencies may
present claims to DHS for
reimbursement of costs incurred when
we use System Members as Federal
resources, including the timeframes in
which the Sponsoring Agencies must
present such claims, and procedures for
appeals, in writing and submitted
within 60 days after receipt of written
notice of DHS’s determination of the
initial appeal. The timeframes and
procedures for appeals are set out in
§ 208.62, Appeals.
A glossary of defined terms that we
use throughout the Interim Rule and in
subpart A appears in § 208.2. A subglossary of defined terms used 208.32 (subpart C) appears in that subpart.
Sectional Analysis
Section 208.33 sets forth the
principles under which we will
reimburse Sponsoring Agencies for
participating in Alerts 15 and
Activations.16 Subsection (a) expresses
our policy that participation in Alerts
and Activations be as cost neutral as
possible to Sponsoring Agencies and
Participating Agencies. This
commitment is critical to avoid putting
local fire departments, which are the
predominant sponsors of the Task
Forces, at risk for the cost of providing
emergency services outside of their
respective jurisdictions. Payments are
subject to 44 CFR part 13, particularly
§§ 13.21 (payment) and 13.22 (allowable
cost). 44 CFR 13.22 incorporates various
Office of Management and Budget
(OMB) circulars that address allowable
cost. However, if there is a conflict
between this rule and 44 CFR part 13 or
the OMB Circulars, this rule controls.
Section 208.39 explains how we will
compensate Sponsoring Agencies for
personnel costs during Activations.
When we deploy System Members,
either as part of a Task Force, or as part
of a Joint Management Team or other
overhead or technical team, we appoint
them into Federal service as Excepted
Temporary Federal Volunteers and they
work under our direction and control
for the duration of the deployment.
However, System Members who are
regularly employed by a Sponsoring
Agency or Participating Agency retain
their concurrent employment
relationship with their usual
employers.17 The maintenance of this
concurrent employment relationship is
a fundamental principle of the National
US&R Response System, and dates from
the inception of the System. We adopted
the principle after consultations with
the States, local governments and public
safety employee organizations and we
intend it to prevent System Members
from suffering a break in their service to
the usual employer while away on the
Federal deployment. While on a Federal
deployment, these System Members
receive pay and benefits from their
usual employers during the Federal
deployment just as they would if they
were not Activated.
Section 208.39(a) of this part provides
that we will reimburse the Sponsoring
Agency for personnel costs that result
from the Activation and are consistent
with this rule. The Sponsoring Agency
is responsible for reimbursing the
personnel costs of its Participating
Agencies under the provisions of
§ 208.39.
Section 208.39(b) of this part speaks
to how we compensate Sponsoring
Agencies for overtime costs that might
not have been incurred but for the
Federal deployment. Section 7(k) of the
Fair Labor Standards Act (section 7(k))
exempts public safety organizations
from paying their employees overtime
under certain circumstances. As
interpreted by Department of Labor
regulations and court decisions, the
section 7(k) exemption does not apply
unless the employee in question is
trained in fire protection, has the legal
authority and responsibility to engage in
fire suppression, is employed by a
public safety agency engaged in fire
suppression and actually engages in fire
suppression at least 80 percent of the
time.
After reviewing Department of Labor
regulations relating to section 7(k) and
relevant court decisions, we are
uncertain whether the rescue activities
undertaken by Sponsoring Agencies of
the US&R Task Forces are analogous to
fire suppression. We also note that some
System Members will not fall within the
section 7(k) exemption because they are
not regularly employed in fire
suppression. It would be unfair to
compensate these individuals at one
overtime rate, when fellow System
Members, who may be volunteers or
part-time fire service employees, are
compensated at another overtime rate.
For these reasons, DHS instructs the
Sponsoring Agencies to disregard the
section 7(k) exemption when calculating
its reimbursement for personnel costs,
and reimburses Sponsoring Agencies for
regular wages and overtime wages as
described in § 208.39(d), (e) and (f).18
This instruction will not create a
windfall for Sponsoring Agencies and
Participating Agencies because they
cannot charge DHS for personnel costs
in excess of those that they actually and
normally incur.
Section 208.39(c) of this part
establishes a uniform 24-hour tour of
duty during the Federal deployment.
DHS will reimburse the Sponsoring
Agencies for 24 hours of pay for each
day that a System Member is deployed,
from his or her arrival at the Point of
Assembly 19 until his or her release from
duty, which may be the airport or Air
Force Base to which the Task Force
returns, or at the Task Force’s original
Point of Assembly,20 or some other
point. This reimbursement procedure is
known as ‘‘portal to portal’’ pay.
We are not establishing a different
rate of reimbursement for meal periods
or scheduled sleep periods. Once
deployed, all System Members must be
available for immediate response
twenty-four hours a day during the
entire deployment period. Meal periods
and sleep periods will be interrupted if
System Members are needed to engage
in vital lifesaving activities, just as they
are in the firehouse.
Search and rescue professionals
whom we expect to respond on a
moment’s notice at any time during a
24-hour period should be compensated
for 24 hours of work. Activated System
Members often work the first 24 to 48
hours of the Activation continuously, as
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9185 21Backfill means the personnel practice of
temporarily replacing a person in his or her usual
position with another person.
this initial period involves packaging
the Task Force for transport, loading
and unloading equipment, attending
briefings, receiving and adjusting to
changes in operational objectives,
establishing the base of operations and
initiating the search for live victims.
Once the search begins, we control Task
Force activities during the entire 24-
hour period and Task Forces must be
available for immediate response at any
time.
Section 208.39(g) provides for the
reimbursement of Backfill 21 expenses.
The National US&R Response System
depends upon the voluntary
participation of public safety agencies.
We recognize that these public safety
agencies may be short-handed when
some of their personnel are away on a
Federal deployment. If a public safety
agency ordinarily Backfills a position in
situations where a regular employee is
unavailable for a period of time similar
to that spent on a US&R deployment
(e.g., Family and Medical Leave,
participation in an extended mutual aid
assignment, injury or disability), then
the public safety agency may bill DHS
for the cost of Backfilling the position
for the period that the regular employee
is away on a Federal deployment.
However, we will only reimburse for the
incremental overtime salary and benefit
expenses associated with the
replacement employee. We will not
reimburse the Backfilling agency for the
regular salary and overtime cost of the
replacement employee because the
public safety agency would have to pay
this cost if the Federal deployment had
not occurred.
Public Comments on the Proposed Rule
During the comment period on the
Proposed Rule, which closed on
February 3, 2003, we received a number
of comments. We summarize the
comments and our response to them in
the materials that follow.
Usage of Terms in the SUPPLEMENTARY
INFORMATION. We received comments
concerning the use of the terms ‘‘Task
Force Member’’ and ‘‘System Member’’
in the SUPPLEMENTARY INFORMATION to
the Proposed Rule. In the
SUPPLEMENTARY INFORMATION to the
Proposed Rule, we used the term ‘‘Task
Force Member’’ to denote individuals
who respond as part of the National
US&R Response System. However,
while most participants in the System
respond as part of a US&R Task Force,
participants in the System may also be
called upon to serve on Joint
Management Teams and other overhead
or technical teams. As a result, the term
‘‘System Member’’ is a more accurate
and comprehensive term to describe
individuals who participate in System
activities, and the term ‘‘Task Force
Member’’ is best used to describe a
System Member who is Activated as
part of a Task Force. We have corrected
the usage of these terms in the
SUPPLEMENTARY INFORMATION to the
Interim Rule.
In certain parts of the SUPPLEMENTARY
INFORMATION to the Proposed Rule, we
also used the term ‘‘US&R Task Force,’’
rather than ‘‘Sponsoring Agency,’’ to
denote the agency or entity with which
DHS has entered into legal and financial
agreements with respect to the US&R
Task Forces. We have corrected the
usage of these terms in the
SUPPLEMENTARY INFORMATION to the
Interim Rule.
Finally, in the SUPPLEMENTARY
INFORMATION to the Proposed Rule, we
described the reimbursable period
during an Activation as ending when a
System Member returns to the predeployment staging area. This description conflicts both with standard
terminology and the reality of System
deployments. A more accurate
description of the duration of the
reimbursable period during an
Activation is set forth in the Interim
Rule.
Eligibility for Reimbursement and
Coverage Under Federal Statutes While
Traveling to and from the Point of
Assembly. One Task Force commented
on the time period that we propose to
pay System Members, namely from
arrival at the Point of Assembly until his
or her release from duty, which may be
the airport or Air Force Base to which
the Task Force returns, or at the Task
Force’s original Point of Assembly, or
some other point. Noting that some of
its members live 2 or more hours away
from the Point of Assembly, the
Sponsoring Agency reimburses
members from the time that they are
alerted to the time that they return home
(including travel mileage).
Response: This question has two
aspects: (1) Reimbursement for time
spent traveling to and from the Point of
Assembly, and reimbursement for travel
mileage while traveling to and from the
Point of Assembly; and (2)
consideration of time spent traveling to
and from the Point of Assembly as ‘‘in
the course of employment’’ for the
purposes of workers’ compensation (for
injuries sustained) and tort liability (for
civil wrongs or harms caused) during
that travel.
Reimbursement: This issue is related
to the Fair Labor Standards Act (FLSA),
which establishes a minimum hourly
wage for employees and requires
employers to pay overtime wages for
hours worked above the statutory
maximum. It is also related to the
Portal-to-Portal Act of 1947, which
requires that time spent ‘‘walking,
riding, or traveling to and from the
actual place of performance of the
principal activity or activities which
such employee is employed to perform’’
is not compensable time under the
FLSA unless it is compensable by
contract, custom, or practice. The
general Federal rule regarding travel
mileage is: commuting to and from
work, that is, between permanent
residence and permanent duty station,
is a personal expense. The employee is
expected to be at work; how the
employee chooses to get there is entirely
his or her own business. 27 Comp. Gen.
1 (1947).
There are exceptions to the general
rule if the travel is not ordinary and is
spent outside the workday to and from
job assignments. Examples include
substantial travel to an emergency job
assignment at a location outside the
normal workplace, or the employer
requires the employee to be ‘‘on call’’ to
respond to emergency job assignments.
A corollary of the ‘‘substantial travel’’
exception is that the travel is
noncompensable if the amount of time
spent traveling is minimal.
On reconsideration of our position,
we will reimburse certain travel costs
and time spent traveling to the Point of
Assembly when a System Member
responds to an Activation and must
travel a considerable distance or time, as
determined by DHS on a case by case
basis, to reach the Point of Assembly.
Otherwise, we will follow the general
rule regarding noncompensable travel,
including minimal travel. When we
activate a Task Force or other System
resource, timely assembly of the System
Members is critical, and under those
circumstances warrants our exception to
the general rule. This exception will
apply only to Activations, and will not
apply, for instance, to Alerts, to travel
home after return to the Point of
Assembly, or to travel required for
training, which we consider to be
ordinary noncompensable travel.
In the Course of Employment:
Ordinary travel to and from a fixed
workplace is generally not within the
scope of employment for workers’
compensation purposes, under the
‘‘going and coming’’ rule. Under the
rule, employees with a fixed workplace
are covered by workers’ compensation
only when they are on their employer’s
premises, or performing an assignment
required by the employer. One of the
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9186 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations exceptions to the general rule of going
and coming is travel to and from job
assignments, where the employer
compensates the employee for the time
or expense of the travel. Consistent with
that exception and our intent to
reimburse travel costs and time spent
traveling to the Point of Assembly in
response to an Activation, on a case-bycase basis we will meet our obligations regarding workers’ compensation claims
that arise out of injuries that System
Members incur while traveling to a
Point of Assembly in response to an
Activation, but for no other purpose.
Definitions. We received several
comments on the definitions in § 208.2,
and made the following changes:
We changed the term ‘‘Memorandum
of Understanding’’ to ‘‘Memorandum of
Agreement.’’
The definition for ‘‘Equipment Cache
List’’ now reads: ‘‘The DHS-issued list
that defines:
‘‘(1) The equipment and supplies that
US&R will furnish to Sponsoring
Agencies; and
‘‘(2) the maximum quantities and
types of equipment and supplies that a
Sponsoring Agency may purchase and
maintain with FEMA funds.’’
The definition for ‘‘Participating
Agency’’ reads: ‘‘A State or Local
Government, non-profit organization, or
private organization that has executed
an agreement with the Sponsoring
Agency to participate in the National
US&R Response System.’’
One Task Force expressed concern
regarding the definitions of ‘‘Program
Manager,’’ ‘‘Program Office,’’ and
‘‘Project Manager.’’ We have decided to
retain the definitions of ‘‘Program
Manager’’ and ‘‘Program Office’’ as they
are. Currently, the Program Manager is
the Chief of the US&R Section, which is
part of the Response Division of FEMA,
under the Emergency Preparedness and
Response Directorate of DHS, and the
Program Office is the US&R Section.
However, these entities may change as
the organizational structure of DHS
evolves. We will notify the Sponsoring
Agencies if we designate a different
Program Manager or Program Office. We
have deleted the definition of ‘‘Project
Manager’’ from the definitions set forth
in § 208.22, since that terms appears
nowhere else in the Interim Rule.
We have added the following
definition: ‘‘Program Directive means
guidance and direction for action to
ensure consistency and standardization
across the National US&R Response
System.’’ This replaces the term
‘‘System Order’’ in the proposed rule
with ‘‘Program Directive’’ in the interim
rule.
One commenter recommended that
DHS include a definition of ‘‘Affiliated
Member.’’ The equivalent term is
defined at § 208.32 as ‘‘Affiliated
Personnel.’’
Section 208.6, System Resource
Reports. One commenter noted that
Sponsoring Agency, Participating
Agencies and System Members are to
cooperate fully in audits, investigations,
studies and evaluation, and asked, ‘‘who
pays for salary cost associated with
gathering and processing the
information?’’
DHS provides funding for program
management in the Preparedness
Cooperative Agreement to support
administrative activities, including the
salary costs for gathering and processing
System resource reports.
Workers’ Compensation and Other
Benefit Costs. Several Sponsoring
Agencies commented that workers’
compensation and other benefit costs
incurred by Sponsoring Agencies as the
result of an injury or death to a System
Member are not reimbursable costs. As
set forth in § 208.11 and explained in
the Supplementary Information, DHS
will appoint System Members into
Federal service, concurrent with those
individuals’ local employment, to
secure protection for such employees
under the Federal Employees’
Compensation Act and the Federal Tort
Claims Act. If a System Member
sustains an injury, that System Member
may file a claim for compensation under
the Federal Employees’ Compensation
Act. Because the System Member’s
Federal appointment is concurrent with
his or her local employment, the System
Member may also be eligible for
compensation under his or her local
workers’ compensation system. In that
case, the System Member may collect
either the incremental difference
between Federal benefits and local
benefits, or may collect local benefits in
full, depending on whether the local
benefits may be offset by the Federal
payment to the System Member.
As explained in § 208.40, DHS will
reimburse the Sponsoring Agency for
the workers’ compensation insurance
premium costs associated with the time
during Activation. However, any local
benefit payment is not a reimbursable
expense, because DHS (through the U.S.
Department of Labor) provides coverage
under the Federal Employees
Compensation Act, and because we are
prohibited under our current statutory
authority from reimbursing Sponsoring
Agencies for the costs of benefit
payments.
Death or Disability in Line of Duty.
One Participating Agency asked
whether a System Member killed or
disabled while Activated would be
entitled to benefits through the agency’s
municipal pension program, and
whether the death or injury would be
considered in the line of duty. We
intend that System Members remain
fully eligible for local benefits during
Federal Activation, and that, as a result,
any death or injury during Activation
should be considered to have occurred
while the System Member was acting in
the scope of employment.
Federal Death Benefits. One
Sponsoring Agency asked how a
‘‘Federal death benefit,’’ if incurred,
would be calculated. The ‘‘Federal
death benefit’’ for System Members
comprises two separate components: (1)
A benefit payment under the Federal
Employees Compensation Act; and (2) a
payment under the Public Safety
Officers’ Benefit Act. The death and
injury benefits available under each of
those statutes are determined using
formulas set forth in those statutes.
Voluntary Contribution to Municipal
Pension Plans. One Sponsoring Agency
asked whether contributions to a
municipal pension plan made
voluntarily by System Members during
an Activation, rather than contributions
made by the System Member’s employer
under the terms of a collective
bargaining agreement or other
arrangement, are reimbursable by DHS.
Voluntary employee contributions, as
opposed to mandatory employer
contributions, are not reimbursable
expenses.
Contributions to the Pension Plan
Based on Overtime. One Sponsoring
Agency commented that under its
benefits plan, salary is defined as the
total actual fixed cash compensation,
including overtime, and contributions to
its pension plan are based on this total
salary, including overtime. The
Sponsoring Agency asked whether
contributions to the pension plan based
on overtime pay received during
Activation reimbursable under this rule.
Under § 208.40(a)(2), these
contributions are reimbursable.
Cost Sharing. One Task Force
commented that § 208.23(f) refers to
‘‘Cost Sharing’’ but makes no distinction
between ‘‘hard share,’’ i.e., cash
contributions, and ‘‘soft share,’’ i.e.,
other value-added benefits provided by
the Sponsoring Agency. We do not
presently require Sponsoring Agencies
to provide a cost share, either hard or
soft, for preparedness or response
funding. Please note that section
208.22(f) provides for cost sharing if it
were required in the future. If we were
to institute a cost-sharing requirement
in the future, we would clearly indicate
in the Cooperative Agreement whether
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9187 such cost share would be ‘‘hard’’ or
‘‘soft.’’
Equipment Ownership. Several
Sponsoring Agencies commented that
the Proposed Rule does not address
ownership or disposition of equipment
purchased under this program.
OMB Circulars A–87 and A–110
specify that equipment purchased with
Federal Grant funds is the property of
the grantee. However, title, use,
management and disposition of
equipment purchased under a grant or
Cooperative Agreement is set out in 44
CFR 13.32, a government-wide rule to
which DHS adheres. While the
Sponsoring Agency has title to any
equipment purchased with Federal
preparedness and response Cooperative
Agreement funds, DHS reserves the
right to transfer title to the Federal
Government or a third party that we
may name, under 44 CFR 13.32(g). DHS
would generally expect to limit its
exercise of this right to instances when
a Sponsoring Agency indicates or
demonstrates that the Sponsoring
Agency cannot fulfill its obligations
under the Memorandum of Agreement.
Maximum Pay Rate Table. We
received the most number of comments
concerning the Maximum Pay Rate
Table (Table) identified in the Proposed
Rule. For clarity, we set forth here the
applicability of the Table and the
process we will follow for creating and
updating the Table.
Section 208.32 defines the ‘‘Maximum
Pay Rate Table’’ as ‘‘the DHS-issued
table that identifies the maximum pay
rates for selected System positions that
may be used for reimbursement of
Affiliated Personnel compensation and
Backfill for Activated System Members
employed by or otherwise associated
with a for-profit Participating Agency.’’
In that same section, ‘‘Affiliated
Personnel’’ are defined as ‘‘individuals
not normally employed by a Sponsoring
Agency or Participating Agency and
individuals normally affiliated with a
Sponsoring Agency or Participating
Agency as volunteers.’’
One Sponsoring Agency commented
that the Table seemed to contradict the
principle of cost neutrality set forth
prominently in the Proposed Rule.
However, as defined, the Table applies
only to those individuals who are not
normally employed by a Sponsoring
Agency or Participating Agency, or
whose affiliation with a Sponsoring
Agency or Participating Agency is as a
volunteer; that is, an individual whom
the Sponsoring Agency or Participating
Agency does not normally compensate
in any way, at any rate.
The Table sets forth maximum rates
for which we will reimburse the
Sponsoring Agency for compensation
paid to those individuals while
Activated. The Sponsoring Agency may
choose to compensate these individuals
at a higher rate, but we will not
reimburse the increment above the
maximum rate specified in the Table.
Likewise, the Sponsoring Agency may
choose to enter into a Participating
Agency agreement with the individual’s
employer, rather than use the individual
as an Affiliated Personnel, in which
case the Table would not apply.
Consequently, only a Sponsoring
Agency’s choice to exceed the
maximum rates set forth in the
Maximum Pay Rate Table would result
in an uncompensated expenditure, and
the Table would not violate the
principle of cost neutrality.
A number of parties expressed
concern that the Table was not provided
concurrently with the publishing of the
Proposed Rule. We chose not to delay
the Proposed Rule until the Table could
be developed. We have inserted a new
section 208.12, Maximum Pay Rate
Table, to establish the process for
creating, updating and using the Table.
We are also publishing the Table as a
Notice in the Federal Register and are
asking for comments on both the Interim
Rule and the Table before publishing
the final rule.
One Sponsoring Agency expressed
concern that the rates set forth in the
Table could not be used with respect to
individuals employed by the
Sponsoring Agency, and not when the
individual would serve on the Task
Force as Affiliated Personnel (e.g., a
Sponsoring Agency fire department
dispatcher affiliated with the US&R
Task Force in a non-dispatcher role as
a canine search specialist). Although the
Table would not necessarily apply to
reimbursement for salary and benefits
for that individual, Sponsoring Agencies
may use the rates in the Table as a guide
for establishing compensation levels for
Affiliated Personnel.
Affiliated Personnel. Several
commenters noted that the rule can be
interpreted to preclude the
reimbursement of Backfill expenses for
Affiliated Personnel under § 208.39(g).
Those commenters expressed concern
that, since the highly-trained civilians
such as physicians, structural engineers
and canine handlers are typically
Affiliated Personnel, reimbursement for
Backfill expenses is important to
securing the participation of these
individuals in the System. The
restriction on Backfill costs for
Affiliated Personnel could limit the
ability of Sponsoring Agencies to recruit
and retain these highly trained civilians.
However, the only permissible way to
reimburse Affiliated Personnel for
Backfill costs is through Participating
Agencies—neither we nor the
Sponsoring Agencies have contractual
or employment relationships with the
individuals Backfilling the jobs of
Affiliated Personnel. If reimbursement
for Backfill expenses is a problem for
Affiliated Personnel, we encourage them
to have their employers or professional
association seek Participating Agency
status. Participating Agency status is
available to private, for-profit
organizations under the revised
definition of ‘‘Participating Agency’’ set
forth in this Interim Rule. (See
Definitions, § 208.2, Participating
Agency, and § 208.12, Maximum Pay
Rate Table.) Note, however, that
compensation costs, for the purposes of
reimbursement and Backfill, refer to the
System Member’s actual compensation,
or the compensation of the individual
who Backfills a position (which
includes salary and benefits, as
described in §§ 208.39 and 208.40),
rather than billable or other rates that
might be charged for services rendered
to commercial clients or patients.
Creating, Updating and Using the
Maximum Pay Rate Table. We have
inserted a new section 208.12 in this
rule to establish how we will create,
update and use the Table to reimburse
Affiliated Personnel (Task Force
Physicians, Task Force Engineers, and
Canine Handlers) and Backfill for
Activated System Members employed
by or otherwise associated with a forprofit Participating Agency; the Table applies only to these named categories.
Section 208.12 describes the method for
determining maximum pay rates using
United States Office of Personnel
Management’s (OPM) salary rates, and
provides links to OPM’s applicable
salary rate tables and locality pay tables.
The section provides that DHS will
review and update the Table
periodically (at least annually). DHS is
publishing the initial Table in the
Federal Register as a Notice with
request for comments. DHS will publish
subsequent revisions to the Table as
Notices in the Federal Register.
The section further states that a
Sponsoring Agency may choose to pay
Affiliated Personnel at a higher rate, but
DHS will not reimburse the increment
above the maximum rate specified in
the Table.
Resupply and Logistics Costs During a
Federal Activation. One Sponsoring
Agency noted that, under § 208.38, we
will not reimburse costs incurred for
resupply and logistical support during
Activation. That section states that
resupply and logistical support needed
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9188 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 22ESF–9, or Emergency Support Function 9,
Urban Search and Rescue, is responsible to plan
and coordinate the use of Urban Search and Rescue
assets following an event that requires locating,
extricating and providing immediate medical
treatment of victims trapped in collapsed
structures. ESF–9 also provides planning and
coordination of US&R assets when they engage in
other disaster-related assignments.
23A Demobilization Order is a DHS
communication that terminates an Alert or
Activation and identifies cost and time allowances
for rehabilitation.
during Activation are the responsibility
of the Joint Management Team (JMT).
The Sponsoring Agency asked, ‘‘What
happens if the Incident Management
Team [now the JMT] cannot be
established?’
During Activation, we are responsible
for resupply and logistics. Currently, we
accomplish this responsibility through
either the JMT, which operates in the
field, or the Emergency Support
Function 9 (ESF–9),22 which operates
from the National Emergency
Operations Center, an emergency
coordinating center located at FEMA
headquarters. As DHS develops and
evolves, we may change the names or
functions of these teams; however, the
responsibility for resupply and logistics
will remain with us. Task Forces should
not engage in resupply or logistical
support during Activation unless
coordinated through one of these teams.
In extraordinary circumstances, e.g., if
the Task Force cannot make contact
with either the JMT or the EST, the Task
Force should follow the instructions in
§ 208.44, Reimbursement for other costs.
Absent such circumstances, we will not
reimburse costs incurred for resupply
and logistical support during
Activation.
Compensation for Exempt System
Members. Several agencies commented
on the proposed reimbursement for
compensation paid to Exempt System
Members, i.e., System Members who are
paid a salary, rather than an hourly
wage, and are otherwise exempt from
the Fair Labor Standards Act. One
agency commented that reimbursement
for Exempt System Members should be
based on the employees’ salary,
converted to a 40-hour workweek and
then paid at that rate on an hourly basis
during Activation. Another agency
commented that the different methods
of compensation calculation for Exempt
and non-exempt System Members will
result in non-exempt System Members
receiving a greater amount of
compensation during Activation than
Exempt System Members, who are
typically more experienced firefighters
holding higher ranks in the Sponsoring
Agency or Participating Agency. This
agency speculated that the method of
compensation calculation used in the
Proposed Rule would result in fewer
chief officers (who are typically
classified as Exempt System Members)
participating as System Members.
There are two guiding principles
underlying our compensation
calculation rules: (1) Cost neutrality;
and (2) customary and usual practice.
The compensation calculation system
for Exempt System Members complies
with both of these principles. If an
individual is classified as an Exempt
System Member in his or her regular
position with the Sponsoring Agency or
Participating Agency, then this
individual will receive compensation on
a daily basis, rather than an hourly
basis, regardless of the number of hours
the individual works in a day. The rule
provides reimbursement to the
Sponsoring Agency or Participant
Agency on this basis—that is, for the
amount that the individual would have
customarily and usually received. If the
Sponsoring Agency or Participating
Agency customarily and usually
compensates Exempt System Members
by paying a salary and overtime, or
customarily and usually awards
compensatory time or another overtime
substitute for hours worked above a
predetermined threshold, then the
Sponsoring Agency may request
reimbursement for the overtime amount,
or the liquidated value of the
compensatory time or other overtime
substitute, in accordance with
§§ 208.39(e)(5)(ii) and (iii). In this way,
this rule abides by the principle of cost
neutrality.
One Sponsoring Agency asked that we
examine the feasibility of giving
Sponsoring Agencies the option of
having chief officers appointed as
Disaster Assistance Employees (DAE)
(temporary DHS employees) during
Activation. In that case, those officers
would be temporary Federal employees,
would probably take a reduction in pay,
and would take vacation or
administrative leave from the
Sponsoring Agency or Participating
Agency for the period of Activation. In
turn, a DAE appointment might affect
their pension and seniority rights. We
believe that disadvantages of DAE
appointments outweigh any benefits
that chief officers might derive, and that
the current language of this rule
concerning Exempt System Members
represents the best general practice.
One Sponsoring Agency asked
whether, under § 208.39(e)(3), chiefs
compensated based on a 56-hour
workweek should be converted to a 40-
hour workweek for purposes of
calculating reimbursable compensation
under the rule. This Sponsoring Agency
also noted that compensating
individuals who customarily and
usually work a 56-hour workweek, by
converting their hourly wage rate to a
40-hour workweek, results in
approximately 40 percent higher costs
during Activation. Sponsoring Agencies
and Participating Agencies that
compensate employees based on a 56-
hour workweek take advantage of the
partial overtime exemption set forth in
section 7(k) of the Fair Labor Standards
Act. As explained herein, we require
that Sponsoring Agencies and
Participating Agencies disregard the
section 7(k) partial exemption in
calculating personnel costs, and we will
reimburse personnel costs based on a
40-hour work week, as described in
§ 208.39 of this rule.
One Sponsoring Agency notes that the
calculation of reimbursable personnel
costs will place an extra burden on
payroll staff, and there will most likely
be personnel who will be eligible for
overtime compensation immediately
upon Activation since they have already
exceeded the overtime threshold for that
week. We have included an
administrative allowance in the
reimbursement for response costs, found
at § 208.41, to compensate the
Sponsoring Agency for this increased
burden on payroll staff. We also provide
for reimbursement of any additional
salary and overtime costs in § 208.39(f),
e.g., those incurred because a System
Member is eligible for overtime
compensation immediately upon
Activation.
Reimbursement for Personnel Costs
for Equipment Cache Rehabilitation.
Under § 208.43, we will reimburse
Sponsoring Agencies for personnel costs
associated with equipment cache
rehabilitation up to the number of hours
specified in the Demobilization Order.23
One Sponsoring Agency stated that the
number of hours specified in the
Demobilization Order should be an
estimate only, rather than a fixed limit,
and asked whether there is an appeal
process for the number of hours
specified in the Demobilization Order,
or another mechanism for requesting
additional hours based on unforeseen
circumstances. There is no appeal
process for the number of hours
specified in the Demobilization Order.
However, if the Sponsoring Agency feels
that unforeseen circumstances will
prevent it from completing its
equipment cache rehabilitation within
the specified number of hours, the
Sponsoring Agency should follow the
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9189 24The Equipment Cache List is the DHS-issued
list that defines: (a) The equipment and supplies
that US&R will furnish to Sponsoring Agencies; and
(b) the maximum quantities and types of equipment
and supplies that a Sponsoring Agency may
purchase and maintain with DHS funds.
procedures in § 208.44 for
reimbursement of other costs.
Reimbursement for Other Costs.
Section 208.44 sets a procedure for
Sponsoring Agencies to follow if the
Sponsoring Agency or the Task Force
believes that it must incur an expense
not included in subpart C for which it
expects to request reimbursement.
Section 208.44 requires that the
Sponsoring Agency request in writing
permission from DHS to make the
expenditure or, if advance permission in
writing is not possible to obtain, to meet
three criteria before making the
expenditure, including requesting and
receiving advance verbal approval.
One agency commented that during
an extreme emergency, in particular
during the initial 24- to 48-hours of an
Activation, it can be difficult to obtain
written or verbal approvals, and that
personnel authorized to approve
expenditures are not available 24 hours
a day during this period. Moreover, this
agency commented that Joint
Management Teams, in the past, have
left requests for resupply unanswered
for extended periods of time. The
agency recommended that we empower
Task Force Leaders to make
procurement decisions.
We feel that this comment addresses
operational problems rather than
regulatory issues. Many of these
problems will be alleviated by the
construction of the new DHS operations
center that will be staffed 24 hours a day
during an Activation, and by assuring
that there is at least one person on duty
in the operations center who holds
delegated authority to authorize
procurements. Moreover, the revised
Equipment Cache List 24 provides for
the purchase of multiple, back-up
methods of communication to assure
that Task Forces can communicate with
the operations center under any
circumstances. We believe that the rule
controls the costs associated with
Activation and limits duplicative
procurement without compromising
responder safety.
Advance of Funds. Section 208.45
states that we will provide the
Sponsoring Agency with an advance of
funds up to 75 percent of the estimated
personnel costs of the Activation.
Several agencies commented that we
should increase this amount to 90
percent of the estimated personnel
costs. These agencies commented that
since personnel costs of an Activation
can exceed $1 million, an advance up to
75 percent of that amount still leaves
the Sponsoring Agency with
approximately $250,000 in outlays for
personnel costs for which it must wait
for up to 120 days or more for
reimbursement. The financial burden of
these outlays would be compounded in
the event of multiple Activations within
a relatively short time period.
We believe that up to 75 percent is the
optimal amount for an advance of funds
because it balances the need for funds
against the possibility of overestimated
funds. As one commenter pointed out,
for many years we did not provide any
advance of funds, and for more recent
Activations we provided an advance
equal to 25 percent of estimated
personnel costs. The amount ‘‘up to 75
percent’’ is a result of our examination
of personnel cost data from a number of
previous Activations. It also recognizes
the financial burden borne by the
Sponsoring Agencies in carrying, even
temporarily, these additional salary
costs. However, Activations often last
for a shorter period of time than we use
to calculate the estimated personnel
costs for the Activation, as was the case
recently with Hurricane Isabel when
teams were activated for fewer than 7
days. As one commenter pointed out,
some percentage of personnel costs may
be questioned and ultimately
disallowed as a result of the
reimbursement review process. For
these reasons, at this time, we believe
that up to 75 percent of estimated
personnel costs is the best amount for
an advance of funds. We expect to
review Sponsoring Agencies’ experience
periodically under this provision, and
will make revisions as warranted.
Deadline for Submission of Claims.
One agency commented that the
deadline for submission of claims comes
too soon after an Activation has ended.
Currently, § 208.52 specifies that
Sponsoring Agencies must submit
claims for reimbursement within 90
days of the conclusion of the Activation.
Section 208.52 also states that DHS may
extend and specify the time limitation
upon a written request and justification
from the Sponsoring Agency. The
commenting agency noted that it could
take many weeks to obtain certain items,
often because of manufacturers’
inventory status. The agency stated that
setting a deadline of 120 days would
obviate the need for a Sponsoring
Agency to apply for repeated
extensions.
We believe that the 90-day timeframe
for submission, with the opportunity for
Sponsoring Agencies to apply for 30-day
extensions, is the better policy. In the
past, we found that Sponsoring
Agencies often do not submit claims for
reimbursement in a timely manner. This
tendency interferes with our ability
administratively to ‘‘close out’’ the
accounts we set up for each major
disaster or emergency, and also results
in Sponsoring Agencies carrying
unreimbursed costs for longer periods of
time. We believe that it is better to
require submission of claims for
reimbursement within 90 days of the
conclusion of the Activation, while
permitting Sponsoring Agencies to
apply for 30-day extensions at their
option.
Reevaluation and Potential Revision
of the Rule. One agency commented that
we should provide a date certain for
reevaluation and potential revision of
this rule. The agency believed that
providing this date certain was
important because some provisions of
the rule will require additional
discussion and development, and other
issues may arise after the rule is
implemented. We do not believe that
there is a need to provide a date certain
by which we will reevaluate and, if
necessary, revise the rule. However, we
will work with our State and Local
Government partners through the
National Urban Search and Rescue
System Advisory Committee and its
Legal Issues Working Group to evaluate
this rule, measure its efficacy, and
develop revisions as necessary.
Task Force Leader. One Sponsoring
Agency commented that this rule
should include a definition of the role
and responsibilities of the Task Force
Leader, the highest leadership position
on a US&R Task Force. The commenting
agency stated that ‘‘[t]he Task Force
Leader is the individual during a
deployment who is in control and
responsible for the entire Task Force, in
addition to reporting to FEMA (whether
the FEMA Emergency Support Team
(EST) or the IST [now JMT] the Task
Force Leader is the individual that the
Sponsoring Agency designates to
represent the Sponsoring Agency both
financially and legally while the Task
Force is deployed.’’
We feel that the roles and
responsibilities of the Task Force Leader
should not be included in the rule. We
have developed and published a
Position Description for the Task Force
Leader, and have described the roles
and responsibilities of the Task Force
Leader in several operational
documents. These descriptions may
change over time, and we want to retain
flexibility by including these
descriptions in operational documents
rather than in the rule. Moreover,
different Sponsoring Agencies have
vested their Task Force Leaders with
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9190 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 25The Advisory Committee of the National US&R
Response System provides advice,
recommendations, and counsel on the continuing
development and maintenance of a National US&R
Response System to the Under Secretary for
Emergency Preparedness and Response.
26The System has several specialized Working
Groups, e.g., command and general staff, medical,
legal issues, training, etc., that provide professional and technical advice on US&R issues to DHS
through the National Advisory Committee.
different levels of authority. For these
reasons, we have not defined the roles
and responsibilities of the Task Force
Leader in the rule.
Use of Federally Purchased
Equipment for Local Use in Daily
Operations. One commenter noted that,
in the Federalism Summary Impact
Statement included with the Proposed
Rule, we stated that ‘‘Equipment and
supplies purchased with Federal funds
may be used to respond to state
disasters or emergencies.’’ The
commenter asked whether the intent of
the rule was to prevent the use of
federally purchased equipment for daily
operations.
We intend the System to provide a
Federal capability to respond to major
disasters or emergencies involving
structural collapse, weapons of mass
destruction, or other incidents that the
President declares. A Sponsoring
Agency may use equipment and
supplies purchased with Federal funds
to respond to disasters or emergencies
requiring urban search and rescue
response at the state and local level, and
if necessary, to repair or replace
equipment so used at the Sponsoring
Agency’s expense. However, we do not
intend that Sponsoring Agencies use
federally purchased equipment in
routine, day-to-day operations.
Indirect Costs. One Sponsoring
Agency commented on our prohibition
of reimbursement for indirect costs
related to response, and our 7.5 percent
limitation on indirect costs related to
preparedness. The commenting agency
noted that this limitation on indirect
costs is inconsistent with other FEMA
programs and diverges from standard
Federal indirect cost percentages. The
commenting agency stated that this
limitation could threaten the ability of
that Sponsoring Agency to remain in the
System, stating that the ‘‘work burden
formulas presuppose economies of scale
for a larger, pre-existing agency.’’
We brought this issue to the National
US&R Advisory Committee, which
recommended retention of the indirect
costs policy as in the proposed rule. We
agree. This limitation is not inconsistent
with other limitations applicable to
FEMA programs. Accordingly, we have
not changed this section. Note that this
limitation applies only to Preparedness
Cooperative Agreements, which apply
over the course of at least one year and
to which indirect cost principles can be
applied readily. Except as provided in
§ 208.41, we allow no indirect costs
under Response Cooperative
Agreements. US&R deployments are
most often short-term, on the order of
10–14 days. Consistent with section 407
of the Stafford Act, we will allow the
administrative allowance listed in
§ 208.41 of this part in lieu of
attempting to establish indirect cost
rates for short-term deployments.
Administrative Procedure Act
Determination
We are publishing this Interim Rule
under the Administrative Procedure
Act, 5 U.S.C. 553, with our request for
public comments. Concurrently with
publication of the Interim Rule, we are
publishing the Maximum Pay Rate
Table (Table) in the Federal Register as
a Notice. We published a Proposed
Rule, National Urban Search and Rescue
Response System, on December 18,
2002, 67 FR 77627–77640, and received
over 30 comments from various Task
Forces in the National US&R Response
System. We discuss the comments in
the preamble of the Interim Rule,
indicating where we agree with the
comments and have made changes, and
also where we do not agree with the
comments.
We did not have the Table prepared
at the time we published the Proposed
Rule but received a large number of
comments and questions about the
Table. To provide an opportunity for
comment before publishing the final
rule, and because of the delay between
the date of the Proposed Rule and the
Interim Rule, we request that interested
parties comment within 45 days of
today’s publication.
The National US&R Response System
provides a number of public services
that are unique within the Federal
Government. Members are experienced
and trained professionals highly skilled
in the often dangerous roles of searching
for, extricating and providing initial
medical care for victims from collapsed
buildings, whether collapsed by natural
or manmade causes. The searching is
important to the public to ensure that
every effort has been made to rescue
people still alive within a collapsed
structure. Members also have an
important role in finding the bodies of
those killed in the collapse, so that
victims might be identified and returned
to grieving families. The tasks
performed and the dangers inherent in
the work benefit other firefighters and
disaster responders who do not have the
specialized training and experience of
the National US&R Response System
Members and who are not put at risk by
entering the collapsed structures when
US&R teams are present.
The Interim Rule is effective today,
the date of publication. There is an
urgent need within the National US&R
Response System to standardize
financial, administrative and
operational functions among the 28
Task Forces located in 19 States. These
needs include codifying the relationship
between the Department of Homeland
Security (DHS) and the Sponsoring
Agencies of the 28 Task Forces, and
standardizing the relationships of
Sponsoring Agencies with their
Participating Agencies and Affiliated
Personnel. Efforts to standardize the
Memoranda of Agreement between DHS
and the Sponsoring Agencies, and in
turn, the agreements between the
Sponsoring Agencies and Participating
Agencies and Affiliated Personnel, are
essential to the effective functioning of
the System and must be completed soon
to inform, guide and govern all System
participants uniformly in their
respective roles, responsibilities and
activities.
In the years since September 11, 2001,
Congress has appropriated increased
funds to US&R for equipment, training,
and other measures to ensure that each
Task Force is fully staffed, trained and
available for whatever disaster they may
be called upon for help. It is imperative
and urgent that there be full
accountability for the funds granted to
the Sponsoring Agencies, and that there
be uniform standards that the
Sponsoring Agencies can apply in the
performance of their US&R
responsibilities. This rule provides
those standards; it is urgent that they be
in effect as soon as possible.
The direct effect of this rule is on the
28 Sponsoring Agencies, their
Participating Agencies, and Affiliated
Personnel—a relatively small, welldefined universe. The Sponsoring Agencies, the Advisory Committee of
the National US&R Response System
(Advisory Committee),25 the Working
Groups 26 under the Advisory
Committee, and others associated with
the National US&R Response System
have frequently and repeatedly
requested publication and
implementation of this rule, which they
urgently need to fulfill their obligations
to the System, themselves and their
organizations. As matters of sound
policy, planning and management for
the entire System, it is important to
make the rule effective upon
publication.
Good cause exists and it is in the
public interest to make this Interim Rule
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9191 effective upon publication (and to
request comments on the Interim Rule
and on the Table as published
separately today as a Notice). DHS will
review and evaluate any comments that
it receives and will publish the final
rule at a later date.
National Environmental Policy Act
44 CFR 10.8(d)(2)(ii) categorically
excludes from actions such as the
preparation, revision, and adoption of
regulations, and specifically 44 CFR
10.8(d)(2)(xviii)(C), which relates to
planning and administrative activities
in support of emergency and disaster
response and recovery, including
deployment of urban search and rescue
teams. Accordingly, we have not
prepared an environmental assessment
or environmental impact statement for
this rule.
Executive Order 12866, Regulatory
Planning and Review
Under Executive Order 12866, 58 FR
51735, October 4, 1993, a ‘‘significant
regulatory action’’ is subject to OMB
review and the requirements of
Executive Order 12866. Section 3(f) of
the Executive Order defines ‘‘significant
regulatory action’’ as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more, or
may adversely affect in a material way
the economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
In determining whether to proceed
with the formulation and publication of
this rule, we considered three
alternatives: maintain the status quo
ante; manage the program through
administrative directives; and cancel the
program.
Maintain the Status Quo Ante. The
National US&R Response System has
operated since the early 1990s without
formal regulations. The first ten years or
so were formative years with a great
deal of flux. Federal appropriations
were minimal until the events following
September 11, 2001, which led to major
changes in planning, operations,
management, training and funding.
Twenty US&R teams responded to the
World Trade Center and five responded
to the Pentagon. After-action
evaluations showed the need for greater
interoperability of equipment,
consistency in training and operating
across the 28 teams, and many other
factors to permit 28 disparate units in 19
States to perform as a cohesive whole.
Congress appropriated larger sums to
support the program, mandating that the
program not add new task forces until
existing task forces were fully equipped
and trained. Spurred by the response of
Congress and the Administration, we
redoubled efforts to standardize the
financing, administration and operation
of the National US&R Response System.
Under the status quo ante and the low
level of Federal funding, we had little
leverage to standardize the program.
With increased appropriations and
expanding mission that followed
September 11, 2001 (e.g., response to
acts of terrorism and weapons of mass
destruction events, response to
hurricanes), operating without formal
regulations was no longer tenable.
Sound management and responsible
stewardship of the program demand
formal regulations. For these reasons,
we rejected the status quo ante.
Management by Administrative
Directives. We rejected this alternative
on grounds that administrative
directives do not have the force of law,
tend to be piecemeal, and do not
adequately support our need for
standardized practices within the US&R
program. In contrast, the rule will have
the force of law and will concisely
support our need to standardize the
financing, administration and operation
of the US&R program.
Cancel the Program. The US&R
program grew out of the evident need to
have highly skilled, specially trained
and equipped personnel swiftly
available to search for and extricate
victims from collapsed buildings,
whether from earthquakes and other
natural causes, acts of terrorism,
accidents or other human causes. The
need is greater today than perceived in
the late 1980s and early 1990s. The
program has garnered a well- and hardearned recognition of its effectiveness, with strong support from Congress, the
Administration, and its Sponsoring and
Participating Agencies. With that
continuing support, cancellation of the
program is not a feasible alternative.
Interim Rule. We (FEMA) published a
Proposed Rule, National Urban Search
and Rescue Response System, on
December 18, 2002, 67 FR 77627–77640.
During the 45-day comment period, we
received about 30 comments from
Sponsoring Agencies, one from a
Participating Agency, one from a
Member of Congress, and none from the
public at large. We reviewed the
comments, accepting some, rejecting
some. This preamble and Interim Rule
reflect the decisions made regarding the
comments that we received.
When we published the Proposed
Rule, we mentioned, but had not yet
prepared, the Maximum Pay Rate Table
(Table). In order to have that part of the
rule on which we had received
comments go into effect, and to obtain
public comments on the Table, we
elected to publish the rule as an Interim
Rule, and, concurrently to publish the
Table as a Notice, with request for
comments.
Economic Significance of the Rule.
This rule will not have an annual effect
on the economy of $100 million or more
and is not an economically significant
rule under Executive Order 12866. The
rule establishes the relationship
between the Sponsoring Agencies of the
Urban Search & Rescue (US&R) Task
Forces and DHS, funding for
preparedness and response activities,
including the acquisition of equipment
and supplies and training, and the
eligibility of Task Forces to receive and
maintain Federal excess property.
This interim rule impacts 28
Sponsoring Agencies, 26 of which are
from local communities, 2 are
associated with state universities. All of
the communities have populations
greater than 50,000. Most of the
Sponsoring Agencies have agreements
with Participating Agencies for
additional support to meet the staffing,
equipment and training requirements of
the National US&R Response System.
US&R-related costs of Participating
Agencies are paid by DHS through the
Sponsoring Agencies. Similarly,
expenses of Affiliated Personnel are
reimbursed through the Sponsoring
Agencies.
DHS has designed the National US&R
Response System to be as cost neutral to
Sponsoring Agencies as Federal law
authorizes. DHS acquires equipment
and supplies, pays for training, meetings
and related travel, lodging, and per
diem expenses, and attempts to cover
Sponsoring Agencies’ preparedness
costs through preparedness Cooperative
Agreements. When DHS activates a
US&R Task Force we reimburse the
Sponsoring Agency for 100 per cent of
its direct eligible costs incurred,
including overtime and Backfill costs,
and indirect costs capped at 7.5 percent
of direct costs, under the terms of the
response Cooperative Agreements.
Sponsoring Agencies will incur certain
paperwork burdens and expenses,
which are described and quantified
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9192 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 27The Task Forces also respond to disasters and
emergencies in their home states as State resources.
DHS does not directly reimburse Sponsoring
Agencies of the Task Forces for the costs that they
incur when deploying in their home state, although
in a State deployment Task Forces may use
equipment that they have purchased with DHS
grant funds and Federal property that is in their
custody. Subpart C of this rule does not cover instate deployment of US&R resources. However, Federal reimbursement for the cost of an in-state
deployment may be available through DHS’s Public
Assistance Program under regulations published at
44 CFR part 206. In addition, the Office of Foreign
Disaster Assistance of the U.S. Agency for
International Development (USAID) often uses the
services of certain US&R Task Forces to deliver
humanitarian assistance abroad under agreements
to which DHS is not a party. The rule does not
affect the relationships between USAID and the
Sponsoring Agencies of the Task Forces.
below in the materials on the Paperwork
Reduction Act. We expect that our
Cooperative Agreements and their
associated indirect cost rates will cover
the eligible costs that the Sponsoring
Agencies incur to participate in the
National US&R Response System.
Costs to DHS to administer the
National US&R Response System
include the salaries and expenses of an
8-person staff, and the indirect staff
costs for financial, acquisition, logistics
and other administrative services
provided by DHS and FEMA. Current
appropriations limit administrative
costs to 3 percent of the total amount
appropriated for US&R.
FEMA’s planning and program
guidance for fiscal years 2005 through
2009 set funding levels of $6.438
million for the National US&R Response
System, representing the baseline
nondisaster-specific budget for
operating expenses. In the past two
years, congressional annual
appropriations for US&R were $60
million, most of which US&R passed to
the Sponsoring Agencies pursuant to
Cooperative Agreements. FEMA passes
the amounts appropriated to the
Sponsoring Agencies in preparedness
Cooperative Agreements funded 100
percent by the Federal Government to
cover planning, training, equipment or
other essentials to fulfill the US&R
mission, which do not impose
conditions on the Sponsoring Agencies
making them economically significant.
Nor would Cooperative Agreement
funding adversely affect in a material
way the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local or tribal
governments or communities.
This rule is a significant regulatory
action, but not an economically
significant regulatory action within the
definition of section 3(f) of Executive
Order 12866, and it adheres to the
principles of regulation of the Executive
Order. The Office of Management and
Budget has reviewed this rule under the
provisions of the Executive Order.
Regulatory Flexibility Act, 5 U.S.C. 601
Under the Regulatory Flexibility Act,
agencies must consider the impact of
their rulemakings on ‘‘small entities’’
(small businesses, small organizations
and local governments). The Act also
provides that, if a regulatory flexibility
analysis is not required, the agency
must certify in the rulemaking
document that the rulemaking will not
‘‘have a significant economic impact on
a substantial number of small entities.’’
This rule standardizes the financing,
administration and operation of the
National Urban Search and Rescue
Response System (System or US&R),
which FEMA established under the
Robert T. Stafford Disaster Relief and
Emergency Assistance Act. The System
currently comprises 28 US&R Task
Forces in 19 States. A State agency or
local public safety agency (Sponsoring
Agency) typically sponsors a Task
Force,27 staffed primarily by local fire
department and emergency services
personnel, and include Joint
Management Teams (JMT) and other
overhead or technical teams. None of
the Sponsoring Agencies are in
communities with populations fewer
than 50,000. The governments of the
Sponsoring Agencies are urban or State
instrumentalities and none qualify as a
‘‘small governmental jurisdiction’’
within the meaning of 5 U.S.C. 601(5).
Some of the Participating Agencies
are small businesses, such as
engineering firms and HMOs. DHS
reimburses Sponsoring Agencies for the
eligible costs that the Sponsoring
Agencies incur in reimbursing their
Participating Agencies. DHS expects
Participating Agencies to receive full
reimbursement for the salaries and
expenses of their personnel who are
participating System Members, indirect
costs up to 7.5 percent, per diem, travel
and related costs when Task Forces
activated, and backfill expenses.
DHS has designed the US&R program
to be as cost neutral to Sponsoring
Agencies as Federal law authorizes.
When DHS activates a US&R Task Force
it reimburses the Sponsoring Agency for
its direct costs incurred, including
overtime and Backfill costs, and indirect
costs capped at 7.5 percent of direct
costs. Upon activation, System Members
become Temporary Excepted Federal
Volunteers entitled to the benefits of the
Federal Employees Compensation Act
(FECA) and the Federal Tort Claims Act
(FTCA). In some instances, State
workers’ compensation benefits exceed
those available under FECA, and the
difference between the State benefits
and the Federal benefits may have to be
borne by the Sponsoring Agency.
US&R Task Forces also must maintain
minimum training requirements that
DHS prescribes. Under current
interpretations by the Department of
Justice, the FTCA covers System
Members during Task Force activations,
but does not apply to training activities.
This lack of FTCA coverage during
training is a potential liability that a
Sponsoring Agency might incur, but
such a circumstance has not occurred in
15 years of experience. DHS is working
with the Department of Justice to
determine what measures DHS could
take to provide liability coverage for
System Members during US&R training
events.
DHS assumes that the professional
skills necessary for preparation of the
reports and records are within the
capabilities of the Sponsoring and
Participating Agencies. DHA further
assumes that Sponsoring and
Participating Agencies incur no extra,
unreimbursed costs for sound
administration and accountability that
Federal Cooperative Agreements require
of any recipient of such awards. We
have no basis for estimating the
expected cost or range of costs per
impacted Sponsoring or Participating
Agency.
DHS is not aware of any rules that
may duplicate, overlap or conflict with
this rule. In our discussion of E.O.
12866 above, we considered several
alternatives to this rule, including status
quo ante, cancellation of the program,
management by program directives, and
this interim rule. None of the
alternatives to this rule met DHS needs
to standardize the financing,
administration and operation of the
US&R System; none provided differing
compliance or reporting requirements,
or clarified, consolidated, or simplified
compliance and reporting, or exempted
any of the Sponsoring Agencies from
coverage of the rule.
For the reasons stated, we certify
under 5 U.S.C. 605(b) that this Interim
Rule will not have a significant
economic impact on a substantial
number of small entities and does not
apply to this interim rule.
Paperwork Reduction Act of 1995
DHS has determined that the
implementation of this rule is subject to
the Paperwork Reduction Act of 1995,
44 U.S.C. 3501–3520. As the Paperwork
Reduction Act of 1995 requires and,
concurrently with this rule, we have
submitted a request for Office of
Management and Budget (OMB) review
and approval of a new collection of
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9193 information, which is contained in this
rule. The collection of information
complies with provisions of the
Paperwork Reduction Act of 1995, 44
U.S.C. 3506(c)(2)(A). We invite the
general public to comment on the
collection of information.
Collection of Information
Title: Urban Search and Rescue
Program.
US&R grant application forms
approved by OMB under Control
Number 1660–0025, which expires July
31, 2007, are:
Form Numbers: SF 424, Application
for Federal Assistance; DHS Form 20–
10, Financial Status Report; DHS Form
20–16, Summary Sheet for Assurances
and Certifications; DHS Form 20–16A,
Assurances—Non-Construction
Programs; DHS Form 20–16C,
Certifications Regarding Lobbying;
Debarment, Suspension and Other
Responsibility Matters; and Drug-Free
Workplace Requirements; DHS Form
20–20, Budget Information—NonConstruction Programs; and SF LLL, Disclosure of Lobbying Activities.
Abstract: This information collection
is to implement the National Urban
Search and Rescue System (US&R), by
which DHS provides specialized
lifesaving assistance during major
disaster or emergency. US&R
operational activities include locating,
extricating and providing on-site
medical treatment to victims trapped in
collapsed structures, weapons of mass
destruction events, and when assigned,
incident command or coordination of
other operational activities. In order to
implement the US&R program DHS
must collect certain types of
information, including grant
applications, budget and budget
narrative, financial status reports,
assurances and certifications,
performance information, and requests
for advances or reimbursement on forms
approved by OMB under Control
Number 1660–0025.
Affected Public: State, local and
Indian tribal governments.
Estimated Total Annual Burden
Hours: 803 hours. A breakdown of the
burden follows:
DHS forms
No. of
responders
(A)
Frequency
of response
(B)
Hours per response and recordkeeping
(C)
Annual burden hours
(A × B × C)
The following forms were approved under 1660–0025:
SF–424 Application for Federal Assistance .............................. 28 1 1 hour ........................................ 28 hours.
DHS Form 20–10 Financial Status Report ................................ 28 1 1 hour ........................................ 28 hours.
DHS Forms 20–16, 20–16A, 20–16C, Summary Sheet for Assurances and Certifications.28 1 30 minutes ................................ 14 hours.
SF LLL, Disclosure of Lobbying Activities ................................. 28 1 10 minutes ................................ 5 hours.
DHS Form 20–20, Budget Information Non-Construction Programs and Budget Narrative.28 2 9 hours ...................................... 504 hours.
SF 270, Request for Advance or Reimbursement .................... 28 2 4 hours ...................................... 224 hours.
Subtotal ............................................................................... .................... 224 ................................................... 803 hours.
OMB Number: New.
Abstract: In order to implement the
US&R program, DHS must collect
certain types of information not
included in OMB Control Number
1660–0025, including memoranda of
agreement, program narrative
statements, grant awards, progress
reports, extension or change requests,
closeout information and audits.
Affected Public: State, local and
Indian tribal governments.
Estimated Total Annual Burden
Hours: 1181 hours. A breakdown of the
burden follows:
DHS forms
No. of
responders
(A)
Frequency
of response
(B)
Hours per
response and recordkeeping
(C)
Annual
burden hours
(A × B × C)
The following are new collections:
Narrative Statement ................................................................... 28 2 4 hours ...................................... 224 hours.
Progress Reports ....................................................................... 28 2 2 hours ...................................... 112 hours.
Extension or Change Requests ................................................. 5 1 1 hour ........................................ 5 hours.
Audits of States, Local Governments, and Non-Profit Organizations.28 1 30 hours .................................... 840 hours.
Memoranda of Agreement ......................................................... 28 1 (1) .............................................. 8 Subtotal ............................................................................... .................... 145 ................................................... 1181 hours.
Total hours .......................................................................... .................... 369 ................................................... 1984 hours. 1After we publish the final rule, we will prepare a standardized, streamlined memorandum of agreement in consultation with the National US&R Response System Advisory Committee and its Legal Issues Working Group. When completed, we will make a second Paperwork Reduction Act submission to OMB.
Estimated Times and Costs: The
approximate annual salary of State and
local staff who will complete the forms
is $35,000. The approximate hourly rate
of pay is $18.90 ($35,000 divided by
1850 hours). The total cost to grantees
is estimated to be $37,498.
The cost to DHS is largely personnel
salary costs to review and analyze the
information collected on these forms—
for all DHS grant programs, not just
US&R grants, which is a significant
portion of grants management annual
work. We estimate that for the US&R
program, DHS Headquarters would
expend approximately 672 hours on
analysis, or an average of 24 hours per
program. We estimate the cost to DHS
to be $14,112 (672 hours times $21 per
hour of staff work). Printing costs are
minimal because the forms are available
in electronic format.
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9194 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations The total annual estimated time and
costs are 1984 hours and $37,498 cost to
applicants and $14,112 cost to DHS.
This calculation is based on the number
of burden hours for each type of
information collection/form, as
indicated above, and the estimated wage
rates for those individuals responsible
for collecting the information or
completing the forms. The new
collection is required for sound grants
management and compliance with OMB
Circulars and DHS regulations.
FOR FURTHER INFORMATION CONTACT:
Contact Michael Tamillow, Emergency
Preparedness and Response Directorate,
Department of Homeland Security, 500
C Street, SW., Washington, DC 20472,
telephone (202) 646–2549, facsimile
(202) 646–4684, or e-mail
[email protected] for additional
information. You may contact Muriel B.
Anderson for copies of the proposed
collection of information at (202) 646–
2625 or (facsimile) (202) 646–3347, or email [email protected].
Executive Order 13132 Federalism—
Federalism Summary Impact Statement
Executive Order 13132 requires DHS
to develop a process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ Such policies are defined
in the Executive Order to include rules
that have ‘‘substantial direct effects on
the States, on the relationship between
the national government and the States,
or on the distribution of power and
responsibilities among the various
levels of government.’’
We have analyzed this interim rule in
accordance with the principles and
criteria in the Executive Order and has
determined that this interim rule would
not have a substantial direct effect on
the States, on the relationship between
the national government and the States,
or on the distribution of power and
responsibilities among the various
levels of government. The rule imposes
no mandates on State or local
governments; participation in the
National US&R Response System is
strictly voluntary. Moreover, one of the
most significant objectives of this
program is to build State and local
US&R capability. The US&R program
recognizes the primary role of State and
local governments in responding to
disasters and emergencies. Equipment
and supplies purchased with Federal
funds may be used to respond to in-state
disasters and emergencies. The teams
may only be deployed across State lines
when released by their home State. The
assistance these teams provide, like
other assistance under the Stafford Act,
is only furnished when disaster or
emergency needs exceed the combined
State and local capabilities and the
Governor requests the assistance.
Therefore, we certify that this interim
rule does not have federalism
implications as defined in Executive
Order 13132.
While this interim rule does not have
federalism implications, this rule has
been developed through a collaborative
process with representatives of State
and local governments. As noted above,
the Legal Issues Working Group, a
subgroup of the National US&R
Response System Advisory Committee,
developed the original draft of these
regulations. The National US&R
Response System presented a draft to
DHS. The Legal Issues Working Group
and the National US&R Response
System Advisory Committee both
comprised Federal, State and Local
Government officials, as well as
representatives of labor organizations,
some of whose members serve on the
US&R Task Forces.
Congressional Review of Agency
Rulemaking
We have sent this final rule to the
Congress and to the General Accounting
Office under the Congressional Review
of Agency Rulemaking Act, Pub. L. 104–
121. The rule is not a ‘‘major rule’’
within the meaning of that Act. It
standardizes the financing,
administration and operation of the
National Urban Search and Rescue
Response System, a cooperative effort of
the Department of Homeland Security,
participating State emergency
management agencies and local public
safety agencies across the country.
The rule will not result in a major
increase in costs or prices for
consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions. It will
not have ‘‘significant adverse effects’’ on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreignbased enterprises. This rule is subject to the information collection requirements
of the Paperwork Reduction Act and
OMB has assigned Control No. 1660–
0025. The rule is not an unfunded
Federal mandate within the meaning of
the Unfunded Mandates Reform Act of
1995, Pub. L. 104–4, and any
enforceable duties that we impose are a
condition of Federal assistance or a duty
arising from participation in a voluntary
Federal program.
List of Subjects in 44 CFR Part 208
Disaster assistance, Grant programs.
■ Accordingly, we add part 208 to title
44, chapter I of the Code of Federal
Regulations, as follows:
PART 208—NATIONAL URBAN
SEARCH AND RESCUE RESPONSE
SYSTEM
Subpart A—General
Sec.
208.1 Purpose and scope of this part.
208.2 Definitions of terms used in this part.
208.3 Authority for the National US&R
Response System.
208.4 Purpose for System.
208.5 Authority of the Director of the
Response Division (Director).
208.6 System resource reports.
208.7 Enforcement.
208.8 Code of conduct.
208.9 Agreements between Sponsoring
Agencies and Participating Agencies.
208.10 Other regulations.
208.11 Federal status of System Members.
208.12 Maximum Pay Rate Table.
208.13–208.20 [Reserved]
Subpart B—Preparedness Cooperative
Agreements
208.21 Purpose.
208.22 Preparedness Cooperative
Agreement process.
208.23 Allowable costs under Preparedness
Cooperative Agreements.
208.24 Purchase and maintenance of items
not listed on Equipment Cache List.
208.25 Obsolete equipment.
208.26 Accountability for use of funds.
208.27 Title to equipment.
208.28–208.30 [Reserved].
Subpart C—Response Cooperative
Agreements
208.31 Purpose.
208.32 Definitions of terms used in this
subpart.
208.33 Allowable costs.
208.34 Agreements between Sponsoring
Agencies and others.
208.35 Reimbursement for Advisory.
208.36 Reimbursement for Alert.
208.37 Reimbursement for equipment and
supply costs incurred during Activation.
208.38 Reimbursement for re-supply and
logistics costs incurred during
Activation.
208.39 Reimbursement for personnel costs
incurred during Activation.
208.40 Reimbursement of fringe benefit
costs during Activation.
208.41 Administrative allowance.
208.42 Reimbursement for other
administrative costs.
208.43 Rehabilitation.
208.44 Reimbursement for other costs.
208.45 Advance of funds.
208.46 Title to equipment.
208.47–208.50 [Reserved]
Subpart D—Reimbursement Claims and
Appeals
208.51 General.
208.52 Reimbursement procedures.
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9195 208.53–208.59 [Reserved]
208.60 Determination of claims.
208.61 Payment of claims.
208.62 Appeals.
208.63 Request by DHS for supplemental
information.
208.64 Administrative and audit
requirements.
208.65 Mode of transmission.
208.66 Reopening of claims for
retrospective or retroactive adjustment of
costs.
208.67–208.70 [Reserved]
Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121 through 5206; Reorganization
Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; Homeland Security Act of
2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp., p. 376; E.O. 12148, 44
FR 43239, 3 CFR, 1979 Comp., p. 412; E.O.
13286, 68 FR 10619, 3 CFR, 2003 Comp., p.
166.
Subpart A—General
§ 208.1 Purpose and scope of this part.
(a) Purpose. The purpose of this part
is to prescribe policies and procedures
pertaining to the Department of
Homeland Security’s (DHS) National
Urban Search and Rescue Response
System.
(b) Scope. This part applies to
Sponsoring Agencies and other
participants in the National Urban
Search and Rescue Response System
that have executed agreements governed
by this part. Part 206 of this chapter
does not apply to activities undertaken
under this part, except as provided in
§§ 208.5 and 208.10 of this part. This
part does not apply to reimbursement
under part 206, subpart H, of this
chapter.
§ 208.2 Definitions of terms used in this
part.
(a) General. Any capitalized word in
this part is a defined term unless such
capitalization results from the
application of standard capitalization or
style rules for Federal regulations. The
following definitions have general
applicability throughout this part:
Activated or Activation means the
status of a System resource placed at the
direction, control and funding of DHS in
response to, or in anticipation of, a
presidential declaration of a major
disaster or emergency under the Stafford
Act.
Activation Order means the DHS
communication placing a System
resource under the direction, control,
and funding of DHS.
Advisory means a DHS
communication to System resources
indicating that an event has occurred or
DHS anticipates will occur that may
require Alert or Activation of System
resources.
Alert means the status of a System
resource’s readiness when triggered by
an Alert Order indicating that DHS may
Activate the System resource.
Alert Order means the DHS
communication that places a System
resource on Alert status.
Assistance Officer means the DHS
employee who has legal authority to
bind DHS by awarding and amending
Cooperative Agreements.
Backfill means the personnel practice
of temporarily replacing a person in his
or her usual position with another
person.
Cooperating Agency means a State or
Local Government that has executed a
Cooperative Agreement to provide
Technical Specialists.
Cooperative Agreement means a legal
instrument between DHS and a
Sponsoring Agency or Cooperating
Agency that provides funds to
accomplish a public purpose and
anticipates substantial Federal
involvement during the performance of
the contemplated activity.
Daily Cost Estimate means a
Sponsoring Agency’s estimate of Task
Force personnel compensation, itemized
fringe benefit rates and amounts
including calculations, and Backfill
expenditures for a 24-hour period of
Activation.
Deputy Director means the Deputy
Director of the Response Division,
Emergency Preparedness and Response
Directorate, Department of Homeland
Security, or other person that the
Director designates.
DHS means the Department of
Homeland Security.
Director means the Director of the
Response Division, Emergency
Preparedness and Response Directorate,
DHS.
Disaster Search Canine Team means a
disaster search canine and handler who
have successfully completed the written
examination and demonstrated the
performance skills required by the
Disaster Search Canine Readiness
Evaluation Process. A disaster search
canine is a dog that has successfully
completed the DHS Disaster Search
Canine Readiness Evaluation criteria for
Type II or both Type II and Type I.
Emergency means any occasion or
instance for which, in the determination
of the President, Federal assistance is
needed to supplement State and local
efforts and capabilities to save lives and
to protect property and public health
and safety, or to lessen or avert the
threat of a catastrophe in any part of the
United States.
Equipment Cache List means the
DHS-issued list that defines:
(1) The equipment and supplies that
US&R will furnish to Sponsoring
Agencies; and
(2) The maximum quantities and
types of equipment and supplies that a
Sponsoring Agency may purchase and
maintain with DHS funds.
Federal Excess Property means any
Federal personal property under the
control of a Federal agency that the
agency head or a designee determines is
not required for its needs or for the
discharge of its responsibilities.
Federal Response Plan means the
signed agreement among various
Federal departments and agencies that
provides a mechanism for coordinating
delivery of Federal assistance and
resources to augment efforts of State and
Local Governments overwhelmed by a
Major Disaster or Emergency, supports
implementation of the Stafford Act, as
well as individual agency statutory
authorities, and supplements other
Federal emergency operations plans
developed to address specific hazards.
Joint Management Team or JMT
means a multi-disciplinary group of
National Disaster Medical System
(NDMS), Urban Search and Rescue
(US&R), and other specialists combined
to provide operations, planning,
logistics, finance and administrative
support for US&R and NDMS resources,
and to provide technical advice and
assistance to States and Local
Governments.
Local Government means any county,
city, village, town, district, or other
political subdivision of any State; any
federally recognized Indian tribe or
authorized tribal organization; and any
Alaska Native village or organization.
Major Disaster means any natural
catastrophe (including any hurricane,
tornado, storm, high water, wind driven
water, tidal wave, tsunami, earthquake,
volcanic eruption, landslide, mudslide,
snowstorm, or drought), or regardless of
cause, any fire, flood, or explosion, in
any part of the United States, that in the
determination of the President, causes
damage of sufficient severity and
magnitude to warrant major disaster
assistance under the Stafford Act to
supplement the efforts and available
resources of States, Local Governments,
and disaster relief organizations in
alleviating the damage, loss, hardship,
or suffering caused thereby.
Memorandum of Agreement (MOA)
means the document signed by DHS, a
Sponsoring Agency and its State that
describes the relationship of the parties
with respect to the National Urban
Search & Rescue Response System.
Participating Agency means a State or
Local Government, non-profit
organization, or private organization
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9196 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations that has executed an agreement with a
Sponsoring Agency to participate in the
National US&R Response System.
Personnel Rehabilitation Period
means the period allowed by DHS for a
person’s rehabilitation to normal
conditions of living following an
Activation.
Preparedness Cooperative Agreement
means the agreement between DHS and
a Sponsoring Agency for reimbursement
of allowable expenditures incurred by
the Sponsoring Agency to develop and
maintain System capabilities and
operational readiness.
Program Directive means guidance
and direction for action to ensure
consistency and standardization across
the National US&R Response System.
Program Manager means the
individual, or his or her designee,
within DHS who is responsible for dayto-day administration of the National US&R Response System.
Program Office means the
organizational entity within DHS that is
responsible for day-to-day
administration of the National US&R
Response System.
Response Cooperative Agreement
means an agreement between DHS and
a Sponsoring Agency for reimbursement
of allowable expenditures incurred by
the Sponsoring Agency as a result of an
Alert or Activation.
Sponsoring Agency means a State or
Local Government that has executed an
MOA with DHS to organize and
administer a Task Force.
Stafford Act means the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through
5206.
State means any State of the United
States, the District of Columbia, Puerto
Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of
the Northern Mariana Islands, the
Federated States of Micronesia or the
Republic of the Marshall Islands.
Support Specialist means a person
participating in the System who assists
the Task Force with administrative or
other support during mobilization,
ground transportation and
demobilization as directed.
System or National US&R Response
System means the national US&R
response capability administered by
DHS.
System Member means any Task
Force Member, JMT Member, Technical
Specialist, Support Specialist or
Disaster Search Canine Team.
Task Force means an integrated US&R
organization of multi-disciplinary
resources with common
communications and a leader, organized
and administered by a Sponsoring
Agency and meeting DHS standards.
Task Force Member means a person
occupying a position on a Task Force.
Technical Specialist means a person
participating in the System contributing
technical knowledge and skill who may
be placed on Alert or Activated as a
single resource and not as a part of a
JMT or a Task Force.
US&R means urban search and rescue,
the process of searching for, extricating,
and providing for the immediate
medical stabilization of victims who are
entrapped in collapsed structures.
(b) Additional definitions. Definitions
for certain terms that apply only to
individual subparts of this part are
located in those subparts.
§ 208.3 Authority for the National US&R
Response System.
(a) Enabling legislation. The Federal
Emergency Management Agency
established and operated the System
under the authority of §§ 303, 306(a),
306(b), 403(a)(3)(B) and 621(c) of the
Stafford Act, 42 U.S.C. 5144, 5149(a),
5149(b), 5170b(a)(3)(B) and 5197(c),
respectively. Section 503 of the
Homeland Security Act of 2002, 6
U.S.C. 313, transferred the functions of
the Director of FEMA to the Secretary of
Homeland Security. The President
redelegated to the Secretary of
Homeland Security in Executive Order
13286 those authorities of the President
under the Stafford Act that had been
delegated previously to the Director of
FEMA under Executive Order 12148.
(b) Implementing plan. The National
Response Plan identifies DHS as the
primary Federal agency with
responsibility for Emergency Support
Function 9, Urban Search and Rescue.
§ 208.4 Purpose for System.
It is DHS policy to develop and
provide a national system of
standardized US&R resources to
respond to Emergencies and Major
Disasters that are beyond the
capabilities of affected State and Local
Governments.
§ 208.5 Authority of the Director of the
Response Division (Director).
(a) Participation in activities of the
System. The Director is responsible for
determining participation in the System
and any activity thereof, including but
not limited to whether a System
resource is operationally ready for
Activation.
(b) Standards for and measurement of
System efficiency and effectiveness. In
addition to the authority provided in
§ 206.13 of this chapter, the Director
may establish performance standards
and assess the efficiency and
effectiveness of System resources.
§ 208.6 System resource reports.
(a) Reports to Director. The Director
may request reports from any System
resource relating to its activities as part
of the System.
(b) Reports to FEMA Regional
Directors. Any FEMA Regional Director
may request through the Director reports
from any System resource used within
or based within the Regional Director’s
jurisdiction.
(c) Audits, investigations, studies and
evaluations. DHS and the General
Accounting Office may conduct audits,
investigations, studies, and evaluations
as necessary. Sponsoring Agencies,
Participating Agencies and System
Members are expected to cooperate fully
in such audits, investigations, studies
and evaluations.
§ 208.7 Enforcement.
(a) Remedies for noncompliance. In
accordance with the provisions of 44
CFR 13.43, if a Sponsoring Agency,
Participating Agency, Affiliated
Personnel or other System Member
materially fails to comply with a term of
a Cooperative Agreement, Memorandum
of Agreement, System directive or other
Program Directive, the Director may take
one or more of the actions provided in
44 CFR 13.43(a)(1) through (5). Any
such enforcement action taken by the
Director will be subject to the hearings,
appeals, and effects of suspension and
termination provisions of 44 CFR
13.43(b) and (c).
(b) The enforcement remedies
identified in this section, including
suspension and termination, do not
preclude a Sponsoring Agency,
Participating Agency, Affiliated
Personnel or other System Member from
being subject to ‘‘Debarment and
Suspension’’ under E.O. 12549, as
amended, in accordance with 44 CFR
13.43(d).
(c) Other authority for sanctions.
Nothing in this section limits or
precludes the application of other
authority to impose civil or criminal
sanctions, including 42 U.S.C. 5156.
§ 208.8 Code of conduct.
The Director will develop and
implement a code of conduct for System
Members acting under DHS’s direction
and control. Nothing in this section or
the DHS code of conduct will limit the
authority of a Sponsoring Agency,
Participating Agency or Cooperating
Agency to apply its own code of
conduct to its System Members or
employees. If the DHS code is more
restrictive, it controls.
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9197 1 In some years the latest year may not be the
current calendar year. For instance, OPM did not
change its pay rates for calendar year 2004, and the
2003 schedules apply.
§ 208.9 Agreements between Sponsoring
Agencies and Participating Agencies.
Every agreement between a
Sponsoring Agency and a Participating
Agency regarding the System must
include a provision making this part
applicable to the Participating Agency
and its employees who engage in
System activities.
§ 208.10 Other regulations.
The following provisions of title 44
CFR, Chapter I also apply to the
program in this part:
(a) Section 206.9, which deals with
the non-liability of DHS in certain
circumstances.
(b) Section 206.11, which prescribes
nondiscrimination in the provision of
disaster assistance.
(c) Section 206.14, which deals with
criminal and civil penalties.
(d) Section 206.15, which permits
recovery of assistance by DHS.
§ 208.11 Federal status of System
Members.
The Director will appoint all
Activated System Members as
temporary excepted Federal volunteers.
The Director may appoint a System
Member who participates in Alert
activities as such a Federal volunteer.
The Director may also appoint each
System Member who participates in
DHS-sanctioned preparedness activities
as a temporary excepted Federal
volunteer. DHS intends these
appointments to secure protection for
such volunteers under the Federal
Employees Compensation Act and the
Federal Tort Claims Act and do not
intend to interfere with any preexisting
employment relationship between a
System Member and a Sponsoring
Agency, Cooperating Agency or
Participating Agency. System Members
whom DHS appoints as temporary
excepted Federal volunteers will not
receive any compensation or employee
benefit directly from the United States
of America for their service, but will be
compensated through their Sponsoring
Agency.
§ 208.12 Maximum Pay Rate Table.
(a) Purpose. This section establishes
the process for creating and updating
the Maximum Pay Rate Table (Table),
and the Table’s use to reimburse
Affiliated Personnel (Task Force
Physicians, Task Force Engineers, and
Canine Handlers) and Backfill for
Activated System Members employed
by or otherwise associated with a forprofit Participating Agency. Section 208.32 defines the ‘‘Maximum Pay Rate
Table’’ as ‘‘the DHS-issued table that
identifies the maximum pay rates for
selected System positions that may be
used for reimbursement of Affiliated
Personnel compensation and Backfill for
Activated System Members employed
by or otherwise associated with a forprofit Participating Agency.’’ In that same section, the term ‘‘Affiliated
Personnel’’ is defined as ‘‘individuals
not normally employed by a Sponsoring
Agency or Participating Agency and
individuals normally affiliated with a
Sponsoring Agency or Participating
Agency as volunteers.’’
(b) Scope of this section. (1) The
Maximum Pay Rate Table applies to
those individuals who are not normally
employed by a Sponsoring Agency or
Participating Agency, or whose
affiliation with a Sponsoring Agency or
Participating Agency is as a volunteer;
that is, an individual whom the
Sponsoring Agency or Participating
Agency does not normally compensate
in any way, at any rate.
(2) The Table also applies to Backfill
for Activated System Members
employed by or otherwise associated
with a for-profit Participating Agency.
(c) Method for determining maximum
pay rates. (1) DHS uses the United
States Office of Personnel Management’s
salary rates, computed under 5 U.S.C.
5504, as the basis for the maximum pay
rate schedule. DHS considers System
members’ experience and sets maximum
pay rates at the maximum grade, middle
step for each position, which
demonstrates an experience level of five
years.
(2) The Office of Personnel
Management (OPM) publishes salary
and locality pay schedules each
calendar year.
(i) Physicians. DHS uses the latest
Special Salary Rate Table Number 0290
for Medical Officers (Clinical)
Worldwide for physicians. The rates
used in the initial Table can be found
at http://www.opm.gov/oca/03 tables/
SSR/HTML/0290.asp.
(ii) Engineers and Canine Handlers.
DHS uses the latest General Schedule
pay scale for both positions. Both
specialties are compared to the General
Schedule pay scale to ensure parity with
like specialties on a task force (canine
handlers are equated with rescue
specialists). The rates used in the initial
Table can be found at http://
www.opm.gov/oca/03tables/html/
gs.asp.
(iii) Locality Pay. To determine
adjustments for locality pay DHS uses
the latest locality pay areas (including
the ‘‘Rest of U.S.’’ area) established by
OPM. The rates used in the initial Table
can be found at http://www.opm.gov/
oca/03tables/locdef.asp.
(3) Review and update. DHS will
review and update the Table
periodically, at least annually. The
comments of Sponsoring and
Participating Agencies and their
experience with the Table will be
considered and evaluated in the course
of the reviews.
(4) Initial rates and subsequent
revisions. DHS will publish the initial
maximum pay rate table in the Federal
Register as a notice with request for
comments. Subsequent revisions will be
made to the pay rate table as OPM
changes salary rates as described in this
section. When subsequent revisions are
made to the maximum pay rate table
DHS will publish the new maximum
pay rate table in the Federal Register.
The rates will be effective for the latest
year indicated by OPM.1
(d) Application of the maximum pay
rate table—(1) Applicability. The
Maximum Pay Rate Table sets forth
maximum rates for which DHS will
reimburse the Sponsoring Agency for
compensation paid to Activated
Affiliated Personnel and as Backfill for
Activated System Members employed
by or otherwise associated with a forprofit Participating Agency. (2) Higher rates. The Sponsoring
Agency may choose to pay Affiliated
Personnel at a higher rate, but DHS will
not reimburse the increment above the
maximum rate specified in the
Maximum Pay Rate Table. Likewise, the
Sponsoring Agency may choose to enter
into a Participating Agency agreement
with the individual’s employer, rather
than use the individual as an Affiliated
Personnel, in which case the Maximum
Pay Rate Table would not apply.
(3) Compensation for Sponsoring
Agency employees serving as Affiliated
Personnel. An employee of a Sponsoring
Agency serving on a Task Force in a
capacity other than his or her normal
job, e.g., a fire department dispatcher
affiliated with the Task Force as a
canine search specialist, as an Affiliated
Personnel, would not necessarily be
subject to the Maximum Pay Rate Table
for reimbursement for salary and
benefits for that individual. However,
Sponsoring Agencies may use the rates
in the Maximum Pay Rate Table as a
guide for establishing compensation
levels for such individuals.
(4) Backfill expenses for Affiliated
Personnel under § 208.39(g). (i) The
only way that DHS can reimburse for
Backfill costs incurred for Affiliated
Personnel is through Participating
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9198 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations Agencies. If reimbursement for Backfill
expenses is needed for Affiliated
Personnel, DHS encourages them to urge
their employers or professional
association to seek Participating Agency
status.
(ii) Private, for-profit organizations.
Participating Agency status is available
to private, for-profit organizations, e.g.,
HMOs or medical or engineering
professional associations, under the
revised definition of ‘‘Participating
Agency’’ set forth in this Interim rule.
(See Definitions, § 208.2, Participating
Agency, and § 208.32, Maximum Pay
Rate Table). When a for-profit
Participating Agency must backfill an
Activated System Member’s position we
will compensate that Participating
Agency up to the maximum rate
provided in the Table.
(iii) Compensation costs. DHS will
reimburse for-profit organizations, for
purposes of reimbursement and Backfill,
for the System Member’s actual
compensation or the actual
compensation of the individual who
Backfills a position (which includes
salary and benefits, as described in
§§ 208.39 and 208.40), but will not
reimburse for billable or other rates that
might be charged for services rendered
to commercial clients or patients.
§§ 208.13—208.20 [Reserved]
Subpart B—Preparedness Cooperative
Agreements
§ 208.21 Purpose.
Subpart B of this part provides
guidance on the administration of
Preparedness Cooperative Agreements.
§ 208.22 Preparedness Cooperative
Agreement process.
(a) Application. To obtain DHS
funding for an award or amendment of
a Preparedness Cooperative Agreement,
the Sponsoring Agency must submit an
application. Standard form SF–424
‘‘Application for Federal Assistance’’
generally will be used. However, the
application must be in a form that the
Assistance Officer specifies.
(b) Award. DHS will award a
Preparedness Cooperative Agreement to
each Sponsoring Agency to provide
Federal funding to develop and
maintain System resource capabilities
and operational readiness. For the
purposes of the Preparedness
Cooperative Agreement, the Sponsoring
Agency will be considered the
‘‘recipient.’’
(c) Amendment—(1) Procedure.
Absent special circumstances, DHS will
fund and amend Preparedness
Cooperative Agreements on an annual
basis. Before amendment, the Assistance
Officer will issue a call for Cooperative
Agreement amendment applications.
The Assistance Officer will specify
required application forms and
supporting documentation to be
submitted with the application.
(2) Period of performance. Absent
special circumstances, the period of
performance for Preparedness
Cooperative Agreements will be 1 year
from the date of award. The Assistance
Officer may allow for an alternate
period of performance with the approval
of the Director.
(3) Assistance Officer. The Assistance
Officer is the only individual authorized
to award or modify a Preparedness
Cooperative Agreement.
(d) Award amounts. The Director will
determine award amounts on an annual
basis. A Task Force is eligible for an
annual award only if the Program
Manager receives and approves the Task
Force’s current-year Daily Cost Estimate.
(e) DHS priorities. The Director will
establish overall priorities for the use of
Preparedness Cooperative Agreement
funds taking into consideration the
results of readiness evaluations and
actual Activations, overall priorities of
DHS, and other factors, as appropriate.
(f) Cost sharing. The Director may
subject Preparedness Cooperative
Agreement awards to cost sharing
provisions. In the call for Preparedness
Cooperative Agreement amendment
applications, the Assistance Officer
must inform Sponsoring Agencies about
any cost sharing obligations.
(g) Sponsoring Agency priorities. The
Sponsoring Agency should indicate its
spending priorities in the application.
The Program Manager will review these
priorities and will make
recommendations to the Assistance
Officer for negotiating the final
agreement.
(h) Responsibility to maintain
integrity of the equipment cache. The
Sponsoring Agency is responsible to
maintain the integrity of the equipment
cache, including but not limited to,
maintenance of the cache, replacement
of equipment or supplies expended in
training, activations, or local use of the
cache, and timely availability of the
cache for Task Force Activations.
§ 208.23 Allowable costs under
Preparedness Cooperative Agreements.
System Members may spend Federal
funds that DHS provides under any
Preparedness Cooperative Agreement
and any required matching funds under
44 CFR 13.22 and this section to pay
reasonable, allowable, necessary and
allocable costs that directly support
System activities, including the
following:
(a) Administration, including:
(1) Management and administration of
day-to-day System activities such as
personnel compensation and benefits
relating to System maintenance and
development, record keeping, inventory
of equipment, and correspondence;
(2) Travel to and from System
activities, meetings, conferences,
training, drills and exercises;
(3) Tests and examinations, including
vaccinations, immunizations and other
tests that are not normally required or
provided in the course of a System
Member’s employment, and that DHS
requires to meet its standards.
(b) Training:
(1) Development and delivery of, and
participation in, System-related training
courses, exercises, and drills;
(2) Construction, maintenance, lease
or purchase of System-related training
facilities or materials;
(3) Personnel compensation expenses,
including overtime and other related
expenses associated with System-related
training, exercises, or drills;
(4) System-required evaluations and
certifications other than the
certifications that DHS requires System
Members to possess at the time of entry
into the System. For instance, DHS will
not pay for a medical school degree,
paramedic certification or
recertification, civil engineering license,
etc.
(c) Equipment:
(1) Procurement of equipment and
supplies specifically identified on the
then-current DHS-approved Equipment
Cache List;
(2) Maintenance and repair of
equipment included on the current
Equipment Cache List;
(3) Maintenance and repair of
equipment acquired with DHS approval
through the Federal Excess Property
program, except as provided in § 208.25
of this part;
(4) Purchase, construction,
maintenance or lease of storage facilities
and associated equipment for System
equipment and supplies.
(d) Disaster search canine expenses
limited to:
(1) Procurement for use as a System
resource;
(2) Training and certification
expenses;
(3) Veterinary care.
(e) Management and administrative
costs, actually incurred but not
otherwise specified in this section that
directly support the Sponsoring
Agency’s US&R capability, provided
that such costs do not exceed 7.5
percent of the award/amendment
amount.
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9199 § 208.24 Purchase and maintenance of
items not listed on Equipment Cache List.
(a) Requests for purchase or
maintenance of equipment and supplies
not appearing on the Equipment Cache
List, or that exceed the number
specified in the Equipment Cache List,
must be made in writing to the Program
Manager. No Federal funds provided
under any Preparedness Cooperative
Agreement may be expended to
purchase or maintain any equipment or
supply item unless:
(1) The equipment and supplies
directly support the Sponsoring
Agency’s US&R capability;
(2) The Program Manager approves
the expenditure and gives written notice
of his or her approval to the Sponsoring
Agency before the Sponsoring Agency
purchases the equipment or supply
item.
(b) Maintenance of items approved for
purchase under this section is eligible
for reimbursement, except as provided
in § 208.26 of this subpart.
§ 208.25 Obsolete equipment.
(a) The Director will periodically
identify obsolete items on the
Equipment Cache List and provide such
information to Sponsoring Agencies.
(b) Neither funds that DHS provides
nor matching funds required under a
Preparedness Cooperative Agreement
may be used to maintain or repair items
that DHS has identified as obsolete.
§ 208.26 Accountability for use of funds.
The Sponsoring Agency is
accountable for the use of funds as
provided under the Preparedness
Cooperative Agreement, including
financial reporting and retention and
access requirements according to 44
CFR 13.41 and 13.42.
§ 208.27 Title to equipment.
Title to equipment purchased by a
Sponsoring Agency with funds provided
under a DHS Preparedness Cooperative
Agreement vests in the Sponsoring
Agency, provided that DHS reserves the
right to transfer title to the Federal
Government or a third party that DHS
may name, under 44 CFR 13.32(g), for
example, when a Sponsoring Agency
indicates or demonstrates that it cannot
fulfill its obligations under the
Memorandum of Agreement.
§§ 208.28–208.30 [Reserved]
Subpart C—Response Cooperative
Agreements
§ 208.31 Purpose.
Subpart C of this part provides
guidance on the administration of
Response Cooperative Agreements.
§ 208.32 Definitions of terms used in this
subpart.
Affiliated Personnel means
individuals not normally employed by a
Sponsoring Agency or Participating
Agency and individuals normally
affiliated with a Sponsoring Agency or
Participating Agency as volunteers.
Demobilization Order means a DHS
communication that terminates an Alert
or Activation and identifies cost and
time allowances for rehabilitation.
Exempt means any System Member
who is exempt from the requirements of
the Fair Labor Standards Act, 29 U.S.C.
201 et seq., pertaining to overtime
compensation and other labor
standards.
Maximum Pay Rate Table means the
DHS-issued table that identifies the
maximum pay rates for selected System
positions that may be used for
reimbursement of Affiliated Personnel
compensation and Backfill for Activated
System Members employed by or
otherwise associated with a for-profit
Participating Agency. The Maximum
Pay Rate Table does not apply to a
System member whom a Sponsoring
Agency or Participating Agency
employs.
Mobilization means the process of
assembling equipment and personnel in
response to an Alert or Activation.
Non-Exempt means any System
Member who is covered by 29 U.S.C.
201 et seq.
Rehabilitation means the process of
returning personnel and equipment to a
pre-incident state of readiness after DHS
terminates an Activation.
§ 208.33 Allowable costs.
(a) Cost neutrality. DHS policy is that
an Alert or Activation should be as cost
neutral as possible to Sponsoring
Agencies and Participating Agencies. To
make an Alert or Activation costneutral, DHS will reimburse under this subpart all reasonable, allowable,
necessary and allocable costs that a
Sponsoring Agency or Participating
Agency incurs during the Alert or
Activation.
(b) Actual costs. Notwithstanding any
other provision of this chapter, DHS
will not reimburse a Sponsoring Agency
or Participating Agency for any costs
greater than those that the Sponsoring
Agency or Participating Agency actually
incurs during an Alert, Activation.
(c) Normal or predetermined
practices. Consistent with Office of
Management and Budget (OMB)
Circulars A–21, A–87, A–102 and A–
110 (2 CFR part 215), as applicable,
Sponsoring Agencies and Participating
Agencies must adhere to their own
normal and predetermined practices
and policies of general application
when requesting reimbursement from
DHS except as it sets out in this subpart.
(d) Indirect costs. Indirect costs
beyond the administrative and
management costs allowance
established by § 208.41 of this part are
not allowable.
§ 208.34 Agreements between Sponsoring
Agencies and others.
Sponsoring Agencies are responsible
for executing such agreements with
Participating Agencies and Affiliated
Personnel as may be necessary to
implement the Sponsoring Agency’s
Response Cooperative Agreement with
DHS. Those agreements must identify
established hourly or daily rates of pay
for System Members. The hourly or
daily rates of pay for Affiliated
Personnel must be in accordance with,
and must not exceed, the maximum pay
rates contained in the then-current
Maximum Pay Rate Table.
§ 208.35 Reimbursement for Advisory.
DHS will not reimburse costs incurred
during an Advisory.
§ 208.36 Reimbursement for Alert.
(a) Allowable costs. DHS will
reimburse costs incurred during an
Alert, up to the dollar limit specified in
the Alert Order, for the following
activities:
(1) Personnel costs, including
Backfill, incurred to prepare for
Activation.
(2) Transportation costs relating to
hiring, leasing, or renting vehicles and
drivers.
(3) The administrative allowance
provided in § 208.41 of this part.
(4) Food and beverages for Task Force
Members and Support Specialists when
DHS does not provide meals during the
Alert. DHS will limit food and beverage
reimbursement to the amount of the
then-current Federal meals daily
allowance published in the Federal
Register for the locality where such food
and beverages were provided,
multiplied by the number of personnel
who received them.
(b) Calculation of Alert Order dollar
limit. The Alert Order dollar limit will
equal:
(1) An allowance of 10 percent of the
Task Force’s Daily Cost Estimate; and
(2) A supplemental allowance of 1
percent of the Task Force’s Daily Cost
Estimate for each 24-hour period
beyond the first 72 hours of Alert.
(c) Non-allowable costs. DHS will not
reimburse costs incurred or relating to
the leasing, hiring or chartering of
aircraft or the purchase of any
equipment, aircraft, or vehicles.
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9200 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations § 208.37 Reimbursement for equipment
and supply costs incurred during
Activation.
(a) Allowable costs. DHS will
reimburse costs incurred for the
emergency procurement of equipment
and supplies in the number, type, and
up to the cost specified in the current
approved Equipment Cache List, and up
to the aggregate dollar limit specified in
the Activation Order. The Director may
determine emergency procurement
dollar limits, taking into account
previous Activation history, available
funding, the extent and nature of the
incident, and the current state of Task
Force readiness.
(b) Non-Allowable costs. DHS will not
reimburse costs incurred for items that
are not listed on the Equipment Cache
List; for items purchased greater than
the cost or quantity identified in the
Equipment Cache List; or for any
purchase of non-expendable items that
duplicate a previous purchase under a
Preparedness or Response Cooperative
Agreement.
§ 208.38 Reimbursement for re-supply and
logistics costs incurred during Activation.
With the exception of emergency
procurement authorized in the
Activation Order, and replacement of
consumable items provided for in
§ 208.43(a)(2) of this subpart, DHS will
not reimburse costs incurred for resupply and logistical support during Activation. Re-supply and logistical
support of Task Forces needed during
Activation are the responsibility of the
Joint Management Team.
§ 208.39 Reimbursement for personnel
costs incurred during Activation.
(a) Compensation. DHS will
reimburse the Sponsoring Agency for
costs incurred for the compensation of
each Activated System Member during
Activation. Reimbursement of
compensation costs for Activated
Support Specialists will be limited to
periods of time during which they were
actively supporting the Activation or
traveling to or from locations at which
they were actively supporting the
Activation. The provisions of § 208.40 of
this part govern costs incurred for
providing fringe benefits to System
Members.
(b) Public Safety Exemption not
applicable. DHS will reimburse
Sponsoring Agencies for costs incurred
by Non-Exempt System Members in
accordance with 29 U.S.C. 207(a) of the
Fair Labor Standards Act, without
regard to the public safety exemption
contained in 29 U.S.C. 207(k). In other
words, DHS will reimburse Sponsoring
Agencies on an overtime basis for any
hours worked by Non-Exempt System
Members greater than 40 hours during a
regular workweek.
(c) Tour of duty. The tour of duty for
all Activated System Members will be
24 hours. DHS will reimburse the
Sponsoring Agency for salary and
overtime costs incurred in
compensating System Members for meal
periods and regularly scheduled sleep
periods during Activation. Activated
System Members are considered ‘‘onduty’’ and must be available for immediate response at all times during
Activation.
(d) Regular rate. The regular rate for
purposes of calculating allowable salary
and overtime costs is the amount
determined in accordance with
§ 208.39(e)(1) through (3) of this
subpart.
(e) Procedures for calculating
compensation during Activation. A
Sponsoring Agency or Participating
Agency must:
(1) Convert the base hourly wage of
any Non-Exempt System Member
regularly paid under 29 U.S.C. 207(k) to
its equivalent for a 40-hour work week;
(2) Convert the annual salary of any
salaried Non-Exempt System Member to
its hourly equivalent for a 40-hour
workweek;
(3) Calculate the daily compensation
of Exempt System Members based on
their current annual salary, exclusive of
fringe benefits;
(4) Calculate the total number of
hours worked by each System Member
to be included in the Sponsoring
Agency’s request for reimbursement;
and
(5) Submit a request for
reimbursement under § 208.52 of this
part according to the following table:
If the Sponsoring Agency or Participating
Agency * * *
And the Sponsoring Agency or Participating
Agency * * *
Then the following compensation costs are
allowable:
(i) Customarily and usually compensates Exempt System Members by paying a salary, but not overtime,
Does not customarily and usually grant compensatory time or other form of overtime substitute to Exempt System members.
The daily compensation equivalent calculated
under § 208.39(e)(3) of this part for each
Activated Exempt System Member for each
full or partial day during Activation.
(ii) Customarily and usually compensates Exempt System Members by paying a salary but not overtime
Customarily and usually awards compensatory time or other overtime substitute for Exempt System Members for hours worked
above a predetermined hours threshold (for
example, the Sponsoring Agency customarily and usually grants compensatory time for all hours worked above 60 in a given
week).
The daily compensation equivalent calculated
under § 208.39(e)(3) of this part for each
Activated Exempt System Member for each
full or partial day during Activation AND the
dollar value at the time of accrual of the
compensatory time or other overtime substitute for each Activated Exempt System Member based on the duration of the Activation.
(iii) Customarily and usually compensates Exempt System Members by paying a salary and overtime,
Customarily and usually calculates overtime
for Exempt System Members by paying a
predetermined overtime payment for each
hour worked above a predetermined hours
threshold,.
The daily compensation equivalent calculated
under § 208.39(e)(3) of this part for each
Activated Exempt System Member for each
full or partial day during Activation AND the
predetermined overtime payment for each
hour during the Activation above the previously determined hours threshold for each Activated Exempt System Member.
(iv) Customarily and usually compensates NonExempt System Members by paying overtime after 40 hours per week,
Does not customarily and usually grant compensatory time or other form of overtime substitute to Non-Exempt System members,.
For each seven-day period during the Activation, the hourly wage of each Activated Non-Exempt System Member for the first
40 hours AND the overtime payment for
each Activated Non-Exempt System Member for every hour over 40.
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9201 If the Sponsoring Agency or Participating
Agency * * *
And the Sponsoring Agency or Participating
Agency * * *
Then the following compensation costs are
allowable:
(v) Customarily and usually compensates NonExempt System Members according to a compensation plan established under 29
U.S.C. 207(k),
Does not customarily and usually grant compensatory time or other form of overtime substitute to Non-Exempt System Members,.
For each seven-day period during the Activation, the hourly wage equivalent of each Activated Non-Exempt System Member calculated under § 208.39(e)(1) of this part for the first 40 hours AND the overtime payment equivalent for each Activated Non-Exempt System Member calculated under § 208.39(e)(1) of this part for every hour
over 40.
(vi) Activates Personnel, who are customarily
and usually paid an hourly wage according to
the Maximum Pay Rate Table,
.......................................................................... For each seven-day period during the Affiliated Activation, the hourly wage for each Activated Affiliated Personnel for the first 40
hours and one and one-half times the hourly wage for each Activated Affiliated Personnel for every hour over 40. (vii) Activates Affiliated Personnel who are customarily and usually paid a daily compensation rate according to the Maximum Pay Rate Table,
.......................................................................... The daily compensation rate for each Activated Affiliated Personnel for each full or partial day during the Activation.
(f) Reimbursement of additional
salary and overtime costs. DHS will
reimburse any identified additional
salary and overtime cost incurred by a
Sponsoring Agency as a result of the
temporary conversion of a Non-Exempt
System Member normally compensated
under 29 U.S.C. 207(k) to a 40-hour
work week under 29 U.S.C. 207(a).
(g) Reimbursement for Backfill costs
upon Activation. DHS will reimburse
the cost to Backfill System Members.
Backfill costs consist of the expenses
generated by filling the position in
which the Activated System Member
should have been working. These costs
are calculated by subtracting the nonovertime compensation, including fringe benefits, of Activated System
Members from the total costs (nonovertime and overtime compensation, including fringe benefits) paid to
Backfill the Activated System Members.
Backfill reimbursement is available only
for those positions that are normally
Backfilled by the Sponsoring Agency or
Participating Agency during Activation.
Employees exempt under the Fair Labor
Standards Act (FLSA) not normally
Backfilled by the Sponsoring Agency or
Participating Agency are not eligible for
Backfill during Activation.
§ 208.40 Reimbursement of fringe benefit
costs during Activation.
(a) Except as specified in §208.40 (c)
of this subpart, DHS will reimburse the
Sponsoring Agency for fringe benefit
costs incurred during Activation
according to the following table:
If the Sponsoring Agency or Participating
Agency * * *
Then the Sponsoring Agency or Participating
Agency must * * * Example
(1) Incurs a fringe benefit cost based on the
number of base hours worked by a System
Member,
Bill DHS for a pro-rata share of the premium
based on the number of base hours worked
during Activation.
The City Fire Department incurs a premium of
3 percent for dental coverage based on the
number of base hours worked in a week
(53 hours). The City should bill DHS an additional 3 percent of the firefighter’s converted compensation for the first 40 hours Activation.
(2) Incurs a fringe benefit cost based on the
number of hours a System Member actually
worked (base hours and overtime),
Bill DHS for a pro-rata share of the premium
based on the number of hours each System
Member worked during Activation.
The City Fire Department pays a premium of
12 percent for retirement based on the
number of hours worked by a firefighter.
The City should bill DHS an additional 12
percent of the firefighter’s total compensation during Activation. (3) Incurs a fringe benefit cost on a yearly basis
based on the number of people employed
full-time during the year,
Bill DHS for a pro-rata share of those fringe
benefit costs based on the number of nonovertime hours worked during Activation by System Members employed full time.
The City Fire Department pays workers compensation premiums into the City risk fund for the following year, based on the number
of full-time firefighters employed during the
current year. The City should bill DHS for
workers compensation premium costs by
multiplying the hourly fringe benefit rate or
amount by the number of non-overtime
hours worked during Activation by full time
firefighters who are System Members.
(b) Differential pay. DHS will
reimburse the Sponsoring Agency for
direct costs incurred because of any
separate differential compensation paid
for work performed during an
Activation including, but not limited to,
differentials paid for holidays, night
work, hazardous duty, or other paid
fringe benefits, provided such
differentials are not otherwise
reimbursed under paragraph (a) of this
section. A detailed explanation of the
differential payment for which the
Sponsoring Agency seeks
reimbursement must accompany any
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9202 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations request for reimbursement under this
section together with identification of
every fringe benefit sought under
§208.40(a) of this part and the method
used to calculate each such payment
and the reimbursement sought from
DHS.
(c) DHS will not reimburse the
Sponsoring Agency for fringe benefit
costs for Affiliated Personnel.
§ 208.41 Administrative allowance.
(a) The administrative allowance is
intended to defray costs of the following
activities, to the extent provided in
paragraph (b) of this section:
(1) Collecting expenditure
information from Sponsoring Agencies
and Participating Agencies;
(2) Compiling and summarizing cost
records and reimbursement claims;
(3) Duplicating cost records and
reimbursement claims; and
(4) Submitting reimbursement claims,
including mailing, transmittal, and
related costs.
(b) The administrative allowance will
be equal to the following:
(1) If total allowable costs are less
than $100,000, 3 percent of total
allowable costs included in the
reimbursement claim;
(2) If total allowable costs are
$100,000 or more but less than
$1,000,000, $3,000 plus 2 percent of
costs included in the reimbursement
claim greater than $100,000;
(3) If total allowable costs are
$1,000,000 or more, $21,000 plus 1
percent of costs included in the
reimbursement claim greater than
$1,000,000.
§ 208.42 Reimbursement for other
administrative costs.
Costs incurred for conducting afteraction meetings and preparing afteraction reports must be billed as direct costs in accordance with DHS
administrative policy.
§ 208.43 Rehabilitation.
DHS will reimburse costs incurred to
return System equipment and personnel
to a state of readiness following
Activation as provided in this section.
(a) Costs for Equipment Cache List
items—(1) Non-consumable items. DHS
will reimburse costs incurred to repair
or replace any non-consumable item on
the Equipment Cache List that was lost,
damaged, destroyed, or donated at DHS
direction to another entity, during
Activation. For each such item, the
Sponsoring Agency must document, in
writing, the circumstances of the loss,
damage, destruction, or donation.
(2) Consumable items. DHS will
reimburse costs incurred to replace any
consumable item on the Equipment
Cache List that was consumed during
Activation.
(3) Personnel costs associated with
equipment cache rehabilitation. DHS
will reimburse costs incurred for the
compensation, including benefits,
payable for actual time worked by each
person engaged in rehabilitating the
equipment cache following Activation,
in accordance with the standard pay
policy of the Sponsoring Agency or
Participating Agency and without regard
to the provisions of § 208.39(e)(1) of this
part, up to the number of hours
specified in the Demobilization Order.
Fringe benefits are reimbursed under
the provisions of § 208.40 of this part.
(b) Costs for personnel rehabilitation.
DHS will reimburse costs incurred for
the compensation, including benefits
and Backfill, of each Activated System
Member regularly scheduled to work
during the rehabilitation period
specified in the Demobilization Order,
in accordance with the standard pay
policy of the Sponsoring Agency or
Participating Agency and without regard
to the provisions of § 208.39(e)(1) of this
part.
(c) Other allowable costs—(1) Local
transportation. DHS will reimburse
costs incurred for transporting Task
Force Members from the point of
assembly to the point of departure and
from the point of return to the location
where they are released from duty. DHS
will also reimburse transportation costs
incurred for assembling and moving the
equipment cache from its usual place(s)
of storage to the point of departure, and
from the point of return to its usual
place(s) of storage. Such reimbursement
will include costs to return the means
of transportation to its point of origin.
(2) Ground transportation. When DHS
orders a Sponsoring Agency to move its
Task Force Members and equipment
cache by ground transportation, DHS
will reimburse costs incurred for such
transportation, including but not limited
to charges for contract carriers, rented
vehicles, contract vehicle operators,
fleet vehicles, fuel and associated
transportation expenses. The Director
has authority to issue schedules of
maximum hourly or per mile
reimbursement rates for fleet and
contract vehicles.
(3) Food and beverages. DHS will
reimburse expenditures for food and
beverages for Activated Task Force
Members and Support Specialists when
the Federal government does not
provide meals during Activation.
Reimbursement of food and beverage
costs for Activated Support Specialists
will be limited to periods of time during
which they were actively supporting the
Activation or traveling to or from
locations at which they were actively
supporting the Activation. Food and
beverage reimbursement will be limited
to the amount of the then-current
Federal meals and incidental expenses
daily allowance published in the
Federal Register for the locality where
such food and beverages were provided,
multiplied by the number of personnel
who received the same.
§ 208.44 Reimbursement for other costs.
(a) Except as allowed under paragraph
(b) of this section, DHS will not
reimburse other costs incurred
preceding, during or upon the
conclusion of an Activation unless,
before making the expenditure, the
Sponsoring Agency has requested, in
writing, permission for a specific
expenditure and has received written
permission from the Program Manager
or his or her designee to make such
expenditure.
(b) At the discretion of the Program
Manager or his or her designee, a
request for approval of costs presented
after the costs were incurred must be in
writing and establish that:
(1) The expenditure was essential to
the Activation and was reasonable;
(2) Advance written approval by the
Program Manager was not feasible; and
(3) Advance verbal approval by the
Program Manager had been requested
and was given.
§ 208.45 Advance of funds.
At the time of Activation of a Task
Force, the Task Force will develop the
documentation necessary to request an
advance of funds be paid to such Task
Force’s Sponsoring Agency. Upon
approval, DHS will submit the
documentation to the Assistance Officer
and will request an advance of funds up
to 75 percent of the estimated personnel
costs for the Activation. The estimated
personnel costs will include the
salaries, benefits, and Backfill costs for
Task Force Members and an estimate of
the salaries, benefits and Backfill costs
required for equipment cache
rehabilitation. The advance of funds
will not include any costs for equipment
purchase.
§ 208.46 Title to equipment.
Title to equipment purchased by a
Sponsoring Agency with funds provided
under a DHS Response Cooperative
Agreement vests in the Sponsoring
Agency, provided that DHS reserves the
right to transfer title to the Federal
Government or a third party that DHS
may name, under 44 CFR 13.32(g), when
a Sponsoring Agency indicates or
demonstrates that it cannot fulfill its
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Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations 9203 obligations under the Memorandum of
Agreement.
§§ 208.47–208.50 [Reserved]
Subpart D—Reimbursement Claims
and Appeals
§ 208.51 General.
(a) Purpose. This subpart identifies
the procedures that Sponsoring
Agencies must use to request
reimbursement from DHS for costs
incurred under Response Cooperative
Agreements.
(b) Policy. It is DHS policy to
reimburse Sponsoring Agencies as
expeditiously as possible consistent
with Federal laws and regulations.
§ 208.52 Reimbursement procedures.
(a) General. A Sponsoring Agency
must present a claim for reimbursement
to DHS in such manner as the Director
specifies .
(b) Time for submission. (1) Claims for
reimbursement must be submitted
within 90 days after the end of the
Personnel Rehabilitation Period
specified in the Demobilization Order.
(2) The Director may extend and
specify the time limitation in paragraph
(b)(1) of this section when the
Sponsoring Agency justifies and
requests the extension in writing.
§§ 208.53–208.59 [Reserved]
§ 208.60 Determination of claims.
When DHS receives a reviewable
claim for reimbursement, DHS will
review the claim to determine whether
and to what extent reimbursement is
allowable. Except as provided in
§ 208.63 of this part, DHS will complete
its review and give written notice to the
Sponsoring Agency of its determination
within 90 days after the date DHS
receives the claim. If DHS determines
that any item of cost is not eligible for
reimbursement, its notice of
determination will specify the grounds
on which DHS disallowed
reimbursement.
§ 208.61 Payment of claims.
DHS will reimburse all allowable
costs for which a Sponsoring Agency
requests reimbursement within 30 days
after DHS determines that
reimbursement is allowable, in whole or
in part, at any stage of the
reimbursement and appeal processes
identified in this subpart.
§ 208.62 Appeals.
(a) Initial appeal. The Sponsoring
Agency may appeal to the Program
Manager any determination made under
§ 208.60 of this part to disallow
reimbursement of an item of cost:
(1) The appeal must be in writing and
submitted within 60 days after receipt of
DHS’s written notice of disallowance
under § 208.60 of this part.
(2) The appeal must contain legal and
factual justification for the Sponsoring
Agency’s contention that the cost is
allowable.
(3) Within 90 days after DHS receives
an appeal, the Program Manager will
review the information submitted, make
such additional investigations as
necessary, make a determination on the
appeal, and submit written notice of the
determination of the appeal to the
Sponsoring Agency.
(b) Final appeal. (1) If the Program
Manager denies the initial appeal, in
whole or in part, the Sponsoring Agency
may submit a final appeal to the Deputy
Director. The appeal must be made in
writing and must be submitted not later
than 60 days after receipt of written
notice of DHS’s determination of the
initial appeal.
(2) Within 90 days following the
receipt of a final appeal, the Deputy
Director will render a determination and
notify the Sponsoring Agency, in
writing, of the final disposition of the
appeal.
(c) Failure to file timely appeal. If the
Sponsoring Agency does not file an
appeal within the time periods specified
in this section, DHS will deem that the
Sponsoring Agency has waived its right
to appeal any decision that could have
been the subject of an appeal.
§ 208.63 Request by DHS for supplemental
information.
(a) At any stage of the reimbursement
and appeal processes identified in this
subpart, DHS may request the
Sponsoring Agency to provide
supplemental information that DHS
considers necessary to determine either
a claim for reimbursement or an appeal.
The Sponsoring Agency must exercise
its best efforts to provide the
supplemental information and must
submit to DHS a written response that
includes such supplemental information
as the Sponsoring Agency is able to
provide within 30 days after receiving
DHS’s request.
(b) If DHS makes a request for
supplemental information at any stage
of the reimbursement and appeal
processes, the applicable time within
which its determination of the claim or
appeal is to be made will be extended
by 30 days. However, without the
consent of the Sponsoring Agency, no
more than one such time extension will
be allowed for any stage of the
reimbursement and appeal processes.
§ 208.64 Administrative and audit
requirements.
(a) Non-Federal audit. For Sponsoring
Agencies and States, requirements for
non-Federal audit are contained in 44
CFR 13.26, in accordance with OMB
Circular A–133, Audits of States, Local
Governments, and Non-Profit
Organizations.
(b) Federal audit. DHS or the General
Accounting Office may elect to conduct
a Federal audit of any payment made to
a Sponsoring Agency or State.
§ 208.65 Mode of transmission.
When sending all submissions,
determinations, and requests for
supplemental information under this
subpart, all parties must use a means of
delivery that permits both the sender
and addressee to verify the dates of
delivery.
§ 208.66 Reopening of claims for
retrospective or retroactive adjustment of
costs.
(a) Upon written request by the
Sponsoring Agency DHS will reopen the
time period for submission of a request
for reimbursement after the Sponsoring
Agency has submitted its request for
reimbursement, if:
(1) The salary or wage rate applicable
to the period of an Activation is
retroactively changed due to the
execution of a collective bargaining
agreement, or due to the adoption of a
generally applicable State or local law,
ordinance or wage order or a cost-ofliving adjustment; (2) The Sponsoring Agency or any
Participating Agency incurs an
additional cost because of a legallybinding determination; or (3) The Deputy Director determines
that other extenuating circumstances
existed that prevented the Sponsoring
Agency from including the adjustment
of costs in its original submission.
(c) The Sponsoring Agency must
notify DHS as early as practicable that
it anticipates such a request.
§§ 208.67–208.70 [Reserved]
Dated: February 3, 2005.
Michael D. Brown,
Under Secretary, Emergency Preparedness
and Response, Department of Homeland
Security.
[FR Doc. 05–3192 Filed 2–23–05; 8:45 am]
BILLING CODE 9110–69–P
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RESOLUTION NO. ________
RESOLUTION OF THE COUNCIL OF THE CITY OF RICHMOND, CALIFORNIA,
AUTHORIZING THE CITY OF RICHMOND TO ENTER INTO A MEMORANDUM
OF AGREEMENT WITH THE CITY OF OAKLAND FIRE DEPARTMENT, THE SPONSORING AGENCY OF CALIFORNIA TASK FORCE 4
OF THE NATIONAL URBAN SEARCH AND RESCUE RESPONSE SYSTEM, AND
THE CITY OF RICHMOND FIRE DEPARTMENT AS A PARTICIPATING AGENCY
OF THE TASK FORCE
WHEREAS, in the event of large-scale disasters such as structural collapses, earthquakes, or transportation accidents, specialized teams are essential to quickly deploy and assist victims; and
WHEREAS, one of these teams is the Urban Search and Rescue (“US&R”), part of the Federal Emergency Management Agency’s (“FEMA”) National Urban Search and Rescue System; and
WHEREAS, there are 28 US&R teams in the United States consisting of highly trained professionals who respond to emergencies by providing rescue (extrication) and initial medical stabilization of victims; and
WHEREAS, California Task Force 4 (“CA-TF4”), is one of 8 US&R teams based in California, and the Oakland Fire Department serving as the Sponsoring Agency for CA-TF4; and
WHEREAS, the Richmond Fire Department (“Department”) intends to enter into a Memorandum of Agreement (“MOA”) with the Oakland Fire Department to participate in CA-TF4 as a Participating Agency; and
WHEREAS, by joining CA-TF4 as a Participating Agency, the Department will gain experience, resources, and expertise in handling complex rescue operations that extend beyond local capabilities, improve mutual aid coordination, and strengthen collaboration with neighboring local agencies; and
WHEREAS, as a Participating Agency, the Department will be trained and equipped to respond to large-scale urban search and rescue operations, which will further enhance the Department’s overall emergency response capabilities and increase preparedness for urban search and rescue operations to better serve the community; and WHEREAS, as a Participating Agency, the Department may receive FEMA 2867
preparedness grant funding from the Sponsoring Agency, and receive reimbursement for authorized response expenses; and
WHEREAS, as a Participating Agency, the Department will be able to ensure a more effective response to emergencies within the community.
NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of Richmond:
1. The City of Richmond shall enter into a Memorandum of Agreement with the Oakland Fire Department to join California Task Force 4 (CA-TF4) as a Participating Agency.
2. The City Manager and the Fire Chief for the City of Richmond are authorized to execute a Memorandum of Agreement and to take all necessary actions to participate in and support CA-TF4, including coordination of resources, training, and participation in Task Force activities to ensure readiness and effective response to large-scale urban search and rescue operations and other emergencies.
*****************************
(This section to be completed by Clerk’s Office)
I certify that the foregoing resolution was passed and adopted by the City Council of the City of Richmond at a _________ meeting held on _____________ by the following vote:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
________________________________________
Clerk of the City of Richmond
(SEAL)
Approved:
_______________________________
Mayor
Approved as to form:
2868
____________________________
City Attorney
2869