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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
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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,
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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
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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).
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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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Passport Addendum (UKG Pro Workforce Management)
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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
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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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Passport Addendum (Workforce Central)
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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
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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
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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.
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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
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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.
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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: ___________________________
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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
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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.
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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.
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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 realPage 306 1707
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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,
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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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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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UKG Attachment 2 – UKG Public Sector Cobranded Collateral FY24
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Exhibit “A-1”
Modifications to Exhibit “A”
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Exhibit “A-1”
Modifications to Exhibit “A”
Exhibit “B” Contractor’s Bid/Proposal contained certain exceptions to the requirements of Exhibit “A” Owner’s Request for Proposal. Some of the exceptions are accepted and others are not. Language that is struck through is not accepted. The remainder is accepted with the additional language that is underlined:
General
All references to “subcontractors” throughout the Contract will be deemed to be references to those third parties specifically and exclusively engaged for the provision of professional, implementation or training services pursuant to this Contract, and “subcontract” means a written agreement between UKG and such subcontractor to provide such services. For the avoidance of doubt, UKG’s use of third parties to supply software, infrastructure or other services to run its subscription services in general, and not solely for providing services under this Contract is not a subcontracting arrangement.
Section VII. Patent Indemnity
Please refer to UKG EULA provided as part of UKG’s response for patent and intellectual property infringement indemnification.
Section IX. Insurance
Please see redlines and comments to Cobb County’s Required Terms and Conditions provided as part of UKG’s response. Provisions to be conformed to UKG’s actual insurance coverage.
Section XIII. Contract
Please see redlines and comments to Cobb County’s Required Terms and Conditions provided as part of UKG’s response.
Section XIV. Delivery Failures
UKG takes exception to this requirement and expects that the protections afforded Cobb County and Participating Public Agencies in the Cobb County Required Terms and Conditions and UKG’s EULA will otherwise suffice.
Section XVII. Default
All remedies available to Cobb County and Participating Public Agencies are subject to the limitations of liability set forth in UKG’s EULA.
Section XVIII. Disputes
UKG must retain the right to appeal any decision by the Procurement Services Director.
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Sections XXVII. Indemnification and XXVIII. Indemnification/Hold Harmless UKG takes exception to these provisions to the extent they are more broad than the indemnification obligations found in UKG’s EULA.
Section XXIX. Confidentiality
Please see UKG’s affidavit declaring specific information to be exempt from disclosure under Georgia’s Open Records Act.
Section XXXIII. Termination for Convenience
UKG requests 90 days prior written notice should the County wish to terminate the Contract for convenience.
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Exhibit “B”
Owner’s Request for Proposal
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COBB COUNTY PROCUREMENT SERVICES DEPARTMENT
122 Waddell Street, NE
Marietta, Georgia 30060
(770) 528-8400 /Fax: (770) 528-8428
Email: [email protected]
www.cobbcounty.org/procurement-services
IMPORTANT NOTICE – PLEASE READ CAREFULLY!!
ALL proposals MUST be received at the Cobb County Procurement Services Department.
PROPOSALS MUST BE RECEIVED BEFORE 12:00 (NOON) ON
CLOSING DAY
Any proposal received later than 12:00 (noon) will not be accepted. The County accepts no responsibility for delays in the mail. Proposals are to be mailed or delivered to:
COBB COUNTY PROCUREMENT SERVICES DEPARTMENT
122 WADDELL STREET, NE
MARIETTA, GA 30060
All proposals shall be submitted on the Proposal Form. Any revisions made on the outside of the envelope WILL NOT be considered.
PLEASE CHECK proposal specifications and advertisement for document requirements.
Documents/Forms listed below MUST be submitted when required.
Omission of these documents /forms will cause your bid/proposal to be declared NON-RESPONSIVE.
PROPOSAL SUBMITTAL FORM (REQUIRED) ► Official Signature is required on this form guaranteeing the quotation.
CONTRACTOR AFFIDAVIT and AGREEMENT – Exhibit A (REQUIRED) ► Affidavit MUST be signed, notarized and submitted with any proposal requiring the performance of physical services If the affidavit is not submitted at the time of the proposal, proposal will be determined non-responsive and will be disqualified.
BID BOND (NOT REQUIRED)
A “SEALED PROPOSAL LABEL” has been enclosed to affix to your proposal. This label MUST be affixed to the outside of the envelope or package, even if it is a “NO PROPOSAL” response. Failure to attach the label may result in your proposal being opened in error or not routed to the proper location for consideration. No proposal will be accepted after the date and time specified.
Thank you in advance for your cooperation.
Exhibit “B” Owner’s Request for Proposal #24-6833
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PROPOSAL SUBMITTAL FORM
SUBMIT PROPOSAL TO:
Cobb County Procurement Services Department
122 Waddell Street NE
Marietta, GA 30060
SEALED PROPOSAL #: 24-6833
Request for Proposals
Human Resource Information Systems and Related Products and Services Cobb County Procurement Services Department
DELIVERY DEADLINE: August 8, 2024 BEFORE 12:00 P.M. (NOON) EST (NO PROPOSALS WILL BE ACCEPTED AFTER THIS DEADLINE).
Proposal Closing Date: August 8, 2024 @ 2:00 P.M. in the Cobb County Procurement Services Department, 122 Waddell Street NE, Marietta, Georgia, 30060.
BUSINESS NAME AND ADDRESS INFORMATION:
COMPANY NAME:
CONTACT NAME:
COMPANY ADDRESS:
E-MAIL ADDRESS:
PHONE NUMBER: FAX NUMBER:
NAME AND OFFICIAL TITLE OF OFFICER GUARANTEEING THIS QUOTATION:
________________________________________
PRINT/TYPE NAME TITLE
TELEPHONE: FAX:
PROPOSER WILL INDICATE TIME PAYMENT DISCOUNT:
PROPOSER SHALL INDICATE MAXIMUM DELIVERY DATE (UNLESS OTHERWISE SPECIFIED IN PROPOSAL
SPECIFICATIONS)
SIGNATURE OF OFFICER ABOVE:
(SIGNATURE)
Proposals received after the date and time indicated will not be considered. Cobb County reserves the right to reject any and all proposals, to waive informalities, to reject portions of the proposal, to waive technicalities and to award contracts in a manner consistent with the county and the laws governing the State of Georgia.
The enclosed (or attached) proposal is in response to Sealed Proposal Number 24-6833; is a firm offer, as defined by section O.C.G.A. (s) 11-2-205 of the code of Georgia (Georgia laws 1962 pages 156-178), by the undersigned proposer. This offer shall remain open for acceptance for a period of 90 calendar days from the proposal opening date, as set forth in this invitation to proposal unless otherwise specified in the proposal documents.
NOTICE TO PROPOSERS - PROPOSAL QUOTES MUST INCLUDE INSIDE DELIVERY CHARGES
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SEALED PROPOSAL LABEL
SEALED PROPOSAL ENCLOSED
DELIVER TO:
Cobb County Procurement Services
122 Waddell Street NE
Marietta, GA 30060 ________________________________________ SEALED PROPOSAL # 24 - 6833 DATE: August 8, 2024
PROPOSALS MUST BE RECEIVED BEFORE 12:00 P.M. (NOON)
DESCRIPTION: Human Resource Information Systems and Related Products and Services
VENDOR: _____________________________________
LABEL MUST BE ATTACHED TO OUTSIDE OF PROPOSAL
PACKAGE
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"STATEMENT OF NO PROPOSAL”
COBB COUNTY PROCUREMENT SERVICES DEPARTMENT
122 WADDELL STREET NE
MARIETTA, GA 30060
TO ALL PROSPECTIVE VENDORS:
Because of the many requests to be placed on our vendors' list, we are continuously updating the list.
While we want to include all bona fide vendors, we do not want to mail proposals to those vendors who may no longer be interested in participating in our Request for Proposals (RFP) process.
If you do not choose to respond to the attached RFP, please fill out the form below indicating if you want to be retained on our current vendor list.
Vendors who do not respond in any way (by either submitting a proposal or by returning this form) over a period of one year may be removed from the current vendor list.
Vendors who do not wish to submit a proposal will often return the entire solicitation packet. This is not necessary, and you can return this completed form to [email protected].
Thank you for your cooperation.
Cobb County Procurement Services Department
______________________________________________________________________________ "STATEMENT OF NO PROPOSAL”
Sealed Proposal # 24-6833
Request for Proposals
Human Resource Information Systems and Related Products and Services Cobb County Procurement Services Department
If you do not wish to respond to the attached Request for Proposals, please complete this form and send to [email protected] or by Fax to 770-528-8428 I do not wish to submit a proposal on this solicitation.
I wish to be retained on the vendor list for this commodity and/or service: Yes_____ No ____
Please PRINT the following:
________________________________
Company Representative
You are invited to list reasons for your decision not to submit a proposal:
__________________________________________________________________ Page 321 1722
REQUEST FOR PROPOSALS
Sealed Proposal # 24-6833
Human Resource Information Systems and Related Products and Services Cobb County Procurement Services Department
Proposal Closing Date: August 8, 2024
Pre-Proposal Conference: July 10, 2024 @ 2:00 PM (E.S.T.) Virtual (via Cisco Webex)
Meeting Link
Meeting Number (Access Code): 2315 366 8267
Meeting Password: 589mMc8MQYV
Proposals Are Received in the Cobb County Purchasing Department 122 Waddell Street NE
Marietta, GA 30060
Before 12:00 P.M. (Noon) By the Proposal Closing Date
Proposal Will Be Opened in the Cobb County Purchasing Department at 2:00 pm 122 Waddell Street NE
Marietta, GA 30060
VENDORS ARE REQUIRED TO SUBMIT THE ORIGINAL, 1 COPY, AND FIVE (5) IDENTICAL
ELECTRONIC COPIES ON FLASH DRIVE(S) OF PROPOSAL
(UNLESS OTHERWISE SPECIFIED IN PROPOSAL SPECIFICATIONS) NAME: ________
ADDRESS:
REPRESENTATIVE:
PHONE: FAX:
E-MAIL__________ _____________________________________________________________ NOTE: The Cobb County Purchasing Department will not be responsible for the accuracy or completeness of the content of any Cobb County Invitation to Bid or Request for Proposals or subsequent addenda thereto received from a source other than the Cobb County Purchasing Department.
https://cobbcounty.webex.com/cobbcounty/j.php?MTID=m85412ac136835cfb989130e94d0a309f
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1 COMPETITIVE SOLICITATION
BY COBB COUNTY, GA
FOR
HUMAN RESOURCE INFORMATION SYSTEMS
AND RELATED PRODUCTS AND SERVICES
ON BEHALF OF ITSELF AND OTHER GOVERNMENT AGENCIES
AND MADE AVAILABLE THROUGH OMNIA PARTNERS
RFP
SEALED PROPOSAL #24-6833
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2 OVERVIEW
MASTER AGREEMENT
Cobb County, GA (herein “Lead Public Agency”) on behalf of itself and all states, local governments, school districts, and higher education institutions in the United States of America, and other government agencies and nonprofit organizations (herein “Participating Public Agencies”) is soliciting proposals from qualified suppliers to enter into a Master Agreement (the form for which is attached and incorporated herein) for a complete line of Human Resource Information Systems and Related Products and Services (herein “Products and Services”). Each Supplier awarded an item under this solicitation may offer their complete product and service offering/balance of line for Products and Services. Pricing for complete product and service offering will be determined by a percentage discount off the Supplier’s retail price list. The pricing percentage discount offered must be entered in a Complete Product and Service Offering section in the Supplier’s response to the Pricing section of the Proposal Evaluation Criteria Requirements. Although the below may reflect the needs and requirements of Cobb County, GA, OMNIA Partners Participating Public Agencies may have different requirements.
OBJECTIVES
A. Provide a comprehensive competitively solicited Master Agreement offering Products and Services to Participating Public Agencies;
B. Establish the Master Agreement as a Supplier’s primary offering to Participating Public Agencies; C. Achieve cost savings for Suppliers and Participating Public Agencies through a single competitive solicitation process that eliminates the need for multiple bids or proposals; D. Combine the volumes of Participating Public Agencies to achieve cost effective pricing; E. Reduce the administrative and overhead costs of Suppliers and Participating Public Agencies through state-of-the-art ordering and delivery systems; F. Provide Participating Public Agencies with environmentally responsible products and services.
GENERAL DEFINITION OF PRODUCTS AND/OR SERVICES
Qualified suppliers are expected to propose the broadest possible selection of HUMAN RESOURCE INFORMATION SYSTEMS AND RELATED PRODUCTS AND SERVICES they offer. Enterprise Resource Planning (ERP) Systems which have a Human Capital Management (HCM) or Human Resource Information System (HRIS) component will not be considered for this Request for Proposals (RFP). The intent of this proposal is to contract for a standalone Human Resource Information System or Human Capital Management System solution and to provide Participating Public Agencies with a full range of solutions to meet their needs. Therefore, the proposer shall have demonstrated experience in providing the products and services as defined in this RFP, including but not limited to, a Human Resource Information System that is able to perform most of the following functions:
• Employee Information Management: Maintain a database of employee information, including personal details, contact information, job history, qualifications, performance evaluation, and training records.
• Recruitment and Applicant Tracking: Manage the recruitment process, including job postings, applicant tracking, resume parsing, candidate evaluation, and communication with candidates.
• Onboarding and Offboarding: Facilitate the onboarding process for new hires, including document management, orientation schedules, training assignments, and integration into the
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3 organization. Also, manage the offboarding task such as exit interviews, clearance procedures and exit documentation.
• Attendance and Leave Management: Track employee attendance, work hours, overtime, leaves (vacation, sick leave, etc.) and manage leave requests, approvals and balances. • Payroll and Benefits Administration: Calculate and process employee salaries, bonuses, deductions, taxes, and benefits. Generate payroll reports, pay slips, and manage benefits enrollment and administration.
• Performance Management: Set goals, conduct performance appraisals, provide feedback, track progress, identify training needs, and manage performance improvement plans. • Training and Development: Plan, schedule, and track employee training programs, certifications, workshops, and other development activities. Maintain training records and evaluate training effectiveness.
• Compliance and Legal Requirements: Ensure compliance with labor laws, regulations, and agency policies. Manage employee contracts, agreements, disciplinary actions, and legal documentations.
• Employee Self-Service: Provide employees with self-service portals to update personal information, view pay stubs, apply for leaves, access training materials, and communicate with HR.
• Analytics and Reporting: Generate HR analytics, reports, dashboards, and insights to monitor key metrics, trends, and performance indicators. Use data for decision-making, planning, and strategic HR initiatives.
• Integration and Security: Integrate with other systems such as Accounting, ERP, Time and Attendance, and ensure data security, privacy and compliance with data protection regulations.
• Mobile Accessibility: Provide mobile-friendly access to HRIS functionalities for remote and on-the-go employees, managers, and HR professionals.
New equipment, products and services may be added throughout the contract term by submitting additions for consideration by the County. If approved, all additions shall be treated as if contained herein.
NATIONAL CONTRACT
Cobb County, GA, as the Principal Procurement Agency, defined in Attachment A, has partnered with OMNIA Partners, Public Sector, Inc., a Delaware corporation (“OMNIA Partners”) to make the resultant contract (also known as the “Master Agreement” in materials distributed by OMNIA Partners) from this solicitation available to other public agencies nationally, including state and local governmental entities, public and private primary, secondary and higher education entities, non-profit entities, and agencies for the public benefit (“Public Agencies”), through OMNIA Partners’ cooperative purchasing program. Cobb County, GA, is acting as the contracting agency for any other Public Agency that elects to utilize the resulting Master Agreement. Use of the Master Agreement by any Public Agency is preceded by their registration with OMNIA Partners (a “Participating Public Agency”) and by using the Master Agreement, any such Participating Public Agency agrees that it is registered with OMNIA Partners, whether pursuant to the terms of a Master Intergovernmental Cooperative Purchasing Agreement, a form of which is attached hereto on Attachment A, or as otherwise agreed to. Attachment A contains additional information about OMNIA Partners and the cooperative purchasing program.
OMNIA Partners is the largest and most experienced purchasing organization for public and private sector procurement. Through the economies of scale created by OMNIA Partners’ public sector subsidiaries and affiliates, our participants have access to competitively solicited and publicly awarded cooperative agreements. For all public sector contracts, the lead agency contracting process continues to be the foundation on which we were established. OMNIA Partners is proud to offer more value and resources to state and local government, higher education, K-12 education and non-profits.
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4 OMNIA Partners provides shared services and supply chain optimization to government, education and the private sector. With corporate, pricing and sales commitments from the Supplier, OMNIA Partners provides marketing and administrative support for the Supplier that directly promotes the Supplier’s products and services to Participating Public Agencies through multiple channels, each designed to promote specific products and services to Public Agencies on a national basis. Participating Public Agencies benefit from pricing based on aggregate spend and the convenience of a contract that has already been advertised and publicly competed. The Supplier benefits from a contract that generally allows Participating Public Agencies to directly purchase goods and services without the Supplier’s need to respond to additional competitive solicitations. As such, the Supplier must be able to accommodate a nationwide demand for services and to fulfill obligations as a nationwide Supplier and respond to the OMNIA Partners documents (Attachment A).
Cobb County, GA, anticipates spending approximately $1,500,000.00 over the full potential Master Agreement term for Human Resource Information Software and Related Products and Services. While no minimum volume is guaranteed to the Supplier, the estimated annual volume of Human Resource Information Systems and Related Products and Services purchased under the Master Agreement through OMNIA Partners is approximately $200 million. This projection is based on the current annual volumes among Cobb County, GA, other Participating Public Agencies anticipated to utilize the resulting Master Agreement to be made available to them through OMNIA Partners, and volume growth into other Public Agencies through a coordinated marketing approach between the Supplier and OMNIA Partners.
MULTIPLE AWARDS
Multiple awards may be issued as a result of the solicitation. Multiple Awards will ensure that any ensuing Master Agreements fulfill current and future requirements of the diverse and large number of Participating Public Agencies.
Cobb County, GA reserves the right to award the contract locally and/or nationally in the aggregate, by section, multiple award, primary, secondary, and tertiary, whichever is in the best interest of the County and Participating Public Agencies as a result of this solicitation.
EVALUATION OF PROPOSALS
Proposals will be evaluated by the Lead Public Agency in accordance with, and subject to, the relevant statutes, ordinances, rules and regulations that govern its procurement practices.
ADDITIONAL AGREEMENTS
End User License Agreement(s) or EULA(s), Term of Service “TOS”, or Service Agreements are standard contract documents or terms or conditions governing a Participating Agency’s access to, use of, or deployment of certain software or services awarded vendor supplies hereunder, directly, or indirectly, and that a Participating Agency may be required to execute or agree to in connection with its use of the same.
Participating Agencies may negotiate EULAs or TOSs with the applicable awarded vendor or OEM software provider/publisher and/or service provider even if this solicitation is awarded to a distributor.
SURVIVAL CLAUSE
All applicable End User License Agreement(s) or EULA(s), Terms of Services “TOS”, or Service Agreements that are entered into between Cobb County, GA and Supplier(s), or Participating Agency and Supplier(s), under the terms and conditions of the contract, shall survive expiration or termination of the Contract. All Purchase Orders issued and accepted by Contractor shall survive expiration or termination of the Contract for a period of one year.
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5 REQUEST FOR PROPOSAL
TECHNOLOGY PRODUCTS, SERVICES, SOLUTIONS,
AND RELATED PORDUCTS AND SERVICES
SEALED BID #24-6833
1. INTRODUCTION
Cobb County Government is seeking sealed proposals from qualified suppliers for HUMAN RESOURCE INFORMATION SYSTEMS AND RELATED PRODUCTS AND SERVCES on behalf of itself, and all states, local governments, school districts, and higher education institutes in the United States of America, and other governmental agencies and nonprofit organizations. The terms bid and proposals may be used interchangeably but responsive proposals will be evaluated using a Best Value method. Suppliers that are nationally recognized and qualified are expected to propose a broad selection of Human Resource Information Systems and Related Products and Services that they offer commercially. Suppliers submitting proposals shall demonstrate that they possess the necessary qualifications.
2. OBJECTIVES
a. Provide a comprehensive competitively solicited Master Agreement offering products and services to Participating Public Agencies.
b. Establish the Master Agreement as a Supplier’s primary offering to Participating Public Agencies.
c. Achieve cost savings for the Suppliers and Participating Public Agencies through a single competitive solicitation process that eliminates the need for multiple bids or proposals. d. Combine the volumes of Participating Public Agencies to achieve cost effective pricing. e. Reduce the administrative and overhead costs of Suppliers and Participating Public Agencies through state-of-the-art ordering and delivery systems.
3. CONTRACT TERM
a. The contract shall be for a period of forty-eight months and shall commence on the date of award.
b. The contract may be renewed, at the discretion of Cobb County Government and upon written agreement by the vendor, for three (3) additional periods of twelve months each. However, the duration of the contract shall not exceed seven (7) years including the exercise of any options. The anticipated full term of the contract is seven (7) years. The Supplier shall have the right to enter local “service” agreements with Participating Public Agencies accessing the contract through OMNIA Partners, so long as the effective date of such agreement is prior to the expiration of the Contract. All local agreements may have a full potential term (any combination of initial and renewal periods) not to exceed seven (7) years. c. Proposals in response to this RFP shall be valid for a period of one-hundred and eighty (180) days after the proposal due date and time.
Multi-Year Contract Provisions
The successful respondent will be required to enter into a contract containing the provisions as required by Georgia law pertaining to multi-year contracts. The following is a sample of the provision and will be adjusted as to the term or as to the length of the contract.
This contract shall terminate absolutely and without further obligation on the part of Cobb County at the close of the calendar year in which it was executed, and at the close of each succeeding calendar year for which it may be renewed as provided in O.C.G.A. § 36-60-13. The contract shall automatically renew for each of the remaining calendar years provided for in the contract, unless positive action is taken by Cobb County to terminate such contract, and the nature of such action shall be written notice provided to the vendor within sixty (60) days before the end of the initial year of the contract or each succeeding remaining calendar year.
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6 This contract shall terminate immediately and absolutely at such time as appropriated and otherwise unobligated funds are no longer available to satisfy the obligations of Cobb County under this contract.
4. PRICING
Prices shall remain fixed for the first twelve (12) months of the Master Agreement term. Reasonable price changes based on market conditions and price/cost analysis may be made after the initial twelve (12) months. The Contractor shall supply documentation satisfactory to Cobb County, such as:
documented changed to Producers Price Indexes; Consumer Price Indexes; or a manufacturer’s published notification of price change(s). Discounts proposed shall remain throughout the term of the contract and at all renewal options.
Cobb County will evaluate this information to determine if revising the pricing is considered fair and reasonable to the satisfaction of Cobb County. Requests for any such change must be received in writing by the Cobb County Procurement Services Department thirty (30) days prior to the expiration of the original contract term. The County may cancel the contract if the price increase request is not approved.
All price reductions at the manufacturers or distributors’ level shall be reflected in a reduction of the contract price(s) to Cobb County retroactive to the effective date of the price reduction(s).
Special Offers/Promotions
In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, Contractor may conduct sales promotions involving price reductions for a specified lesser period. Contractor may offer Participating Public Agencies competition pricing lower than the not-toexceed price set forth herein at any time during the Contract term and such lower pricing shall not be applied as a global price reduction under the Contract.
Federal Funding Pricing
Due to products and services potentially being used in response to an emergency or disaster recovery situation in which federal funding may be used, if applicable, provide alternative pricing that does not include cost plus a percentage of cost or pricing based on time and materials; if time and materials is necessary, a ceiling price that the contract exceeds at its own risk will be needed. If products and services are provided in a situation where an agency is eligible for federal funding, Offeror is subject to and must comply with all federal requirements applicable to the funding including, but not limited to, the FEMA Special Conditions section located in the Federal Funds Certifications Exhibit.
5. PROPOSAL CONTENTS
To assist in the evaluation of proposals resulting from this RFP, it is requested that each proposal be written in a concise and forthright manner and the unnecessary marketing statements and materials be avoided. The proposal shall consist of the sections outlined and organized in the manner set forth below, separated, and appropriately titled. Responses for each proposal section and requirement listed below must be clearly stated. Any additional relevant information may be placed in appendices.
5.1 Cover Letter
The proposer shall provide a cover letter describing a brief history of the Proposer and its organization. The letter will list the Principal or Officer of the organization who will be the County’s primary point of contact during clarifications or negotiations. This individual must have the authority to clarify and/or negotiate all aspects on the scope of products and services on behalf of the Proposer. An officer authorized to bind the Proposer to the terms and conditions of this RFP must sign the cover letter.
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7 5.2 Executive Summary
The Proposer shall provide an Executive Summary that presents in brief, concise terms a summary level description of the contents of the proposal.
5.3 Company Background/Profile
Provide information on company background to include the following:
a. Legal name, address, phone and fax numbers, e-mail, Federal ID#, and website address.
b. Date business was established under current name.
c. Size of company including the total number of employees. d. Type of ownership or legal structure of business
e. Has the company ever failed to complete work for which a contract was issued? If yes, explain the circumstances.
f. Are there any civil or criminal actions pending against the firm or any key personnel related in any way to contracting? If yes, explain in detail. Are there any current unresolved disputes/allegations?
g. Has the firm ever been disqualified from working for any public entity? If yes, explain the circumstances.
h. If a Supplier requires additional agreements to be signed by a Participating Public Agency, include a copy of the proposed agreement(s) as part of Supplier’s proposal.
5.4 Experience
Include a list of the five (5) most relevant or comparable contracts completed by your firm during the past five (5) years with a public entity. For each contract, provide the following information:
a. Scope of services/contract description.
b. Dollar value of contract.
c. Assigned project personnel.
d. The contracting entity’s contact person, current phone number, and current e-mail address as reference information.
5.5 Product Information/Service Capability
Provide detailed information on service capabilities of your offering. This information shall detail how the Supplier’s solution meets the requirements of this RFP. a. Detail how supplier is currently in compliance with all relevant regulations for the HR software market. Provide documentation of appropriate certifications and licenses, if applicable.
b. Demonstrate how Software is implemented, what training curriculum’s entail, and what the implementation process entails.
c. Provide a list of any third-party suppliers that might be utilized during implementation and any third-party terms and conditions that would apply. d. Provide detailed information on training capabilities for your offering. e. Provide a list of the top software and programs Supplier’s offering can integrate with. f. Provide any multi-factor authentication features, if applicable. g. Provide a list of Distributors, if applicable.
h. Detail the process for software migration and the parties that will be involved. i. Detail the process for software upgrades and the parties that will be involved. j. Detail what technical support is provided for the life of the product and how service issues will be handled.
5.6 Pricing
Suppliers shall provide a detailed breakdown of the price per user/license for the proposed system(s).
a. Provide details of and propose additional discounts for large number of users, minimum user, rebates or additional discounts (if offered). b. Provide costs for migration.
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8 c. Provide costs to upgrade software.
d. Provide any training costs.
e. Provide any implementation costs.
f. Provide payment methods and terms.
g. Provide any technical support fees.
h. Indicate if payment will be accepted via credit card. If so, may credit card payment(s) be made online? Also state the Convenience fee, if allowable, per the Visa Operating Regulations.
5.7 Value Add
Provide any value-added services or offerings.
5.8 Financial Statements
Proposers shall submit a recent history of financial solvency and provide the following:
a. Financial Statement: Include the most recent, independently certified financial statement. Financial statements must include a balance sheet and income statement. b. Name and address of firm preparing the attached financial statement including a letter stating the independent audit or review has been performed by the firm. c. State whether the Proposer has ever had a bankruptcy petition filed in its name, voluntarily or involuntarily. If yes, specify all relevant details.
5.9 National Contract
a. Include a detailed response to Attachment A, Exhibit A, OMNIA Partners Response for National Cooperative Contract. Responses shall highlight experience, demonstrate a strong national presence, describe how Supplier will educate its national sales force about the contract, describe how products and services will be distributed nationwide, include a plan for marketing the products and services nationwide, and describe how volume will be tracked and report to OMNIA Partners.
b. The successful Supplier will be required to sign Attachment A, Exhibit B, OMNIA Partners Administration Agreement, Suppliers shall have any reviews required to sign the document prior to submitting a response. Supplier’s response shall include any proposed exceptions to the OMNIA Partners Administration Agreement.
6. EVALUATION CRITERIA
Proposals will be evaluated based on information presented in the proposal package and on an analysis of any other available information. The County may conduct such investigations or interviews as it deems necessary to assist in the evaluation of any proposal submitted and to establish to Cobb County’s satisfaction the qualifications of any Proposer.
Proposal will be evaluated based on the following criteria:
a. Relevant Experience/Performance including References. Experiences with Cobb County and entities that evaluation committee members represent may be taken into consideration when evaluating qualifications and experience.
b. Product Options/Variety/Availability and Service Capability c. Financial Stability
Financial Stability of the top proposer(s) will be evaluated by the Finance Department in the following areas: Liquidity Ratios (1 point); Financial Leverage Ratios (2 points); Profitability Ratios (1 point); and whether an audited or reviewed Financial Statement is submitted with Proposal (1 point). A maximum of 5 points may be awarded. Proposers who receive a score of 2 points or less will be considered for award.
d. Price
e. Response to the National Program (including detailed response to Attachment A, Requirements for National Cooperative Contract to be Administered by OMNIA Partners, Public Sector)
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9 To comprehensively evaluate the proposals received, the County may seek additional information or clarification from one or more of the Suppliers. Exclusive or concurrent negotiations may be conducted with responsible Supplier(s) for the purpose of altering or otherwise changing the conditions, terms, and price of the proposed contract unless prohibited.
Cobb County General Instructions for Proposers, Terms and Conditions I. Preparation of Proposals
Each proposer shall examine the drawings, specifications, schedule and all instructions. Failure to do so will be at the proposer’s risk, as the proposer will be held accountable for their proposal response.
Unit price for each quotation shall be shown and such price shall include packing unless otherwise specified, along with a total and grand total where applicable. In case of discrepancy between a unit price and extended price, the unit price will be presumed correct.
Each proposer shall furnish all information required by the proposal form or document. Each proposer shall sign the proposal and print or type his or her name on the schedule. The person signing the proposal must initial erasures or other changes. An authorized agent of the company must sign proposals.
Requests for Proposals (RFP) issued by Cobb County are advertised on the Cobb County Internet site (www.cobbcounty.org/procurement-services), and on the Georgia Procurement Registry, and every Friday in the Cobb County legal organ, the Marietta Daily Journal.
II. Delivery
Each proposer should state time of proposed delivery of goods or services. Words such as “immediate”, “as soon as possible”, etc., shall not be used. The known earliest date or the minimum number of calendar days required after receipt of order (delivery A.R.O.) shall be stated (if calendar days are used, include Saturday, Sunday and holidays in the number).
III. Explanation to Proposers
Any explanation desired by a proposer regarding the meaning or interpretation of the Request for Proposal, drawings, specifications, etc. must be received in writing by 5:00 PM on July 17, 2024, in order for a reply to reach all proposers before the close of the bid. Any information concerning an RFP will be furnished to all prospective proposers as an addendum to the invitation if such information is necessary or if the lack of such information would be prejudicial to uninformed proposers.
Submit questions in writing to:
Cobb County Procurement Services Department
122 Waddell Street NE
Marietta, GA 30060
Fax: 770-528-8428
Email: [email protected]
The written proposal documents supersede any verbal or written communication between parties.
Addenda are posted on the Procurement Services web site: www.cobbcounty.org/procurementservices Receipt of addenda shall be acknowledged in the submitted proposal. It is the proposer’s ultimate responsibility to ensure that they have all applicable addenda prior to bid submittal.
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10 IV. Submission of Proposals
Proposals shall be enclosed in a sealed package, addressed to the Cobb County Procurement Services Department with the name and address of the proposer, the date and hour of opening, and the request for proposal number on the face of the package. Telegraphic/faxed proposals will not be considered.
Any addenda shall be enclosed in the sealed envelopes as well. All bids shall be submitted on the Bid Proposal Form. Any revisions made on the outside of the envelope will not be accepted.
Unsigned proposals will not be considered.
Cobb County is exempt from federal excise tax and Georgia sales tax with regards to goods and services purchased directly by Cobb County. Suppliers and contractors are responsible for federal excise tax and sales and use tax, including taxes for materials incorporated in county construction projects. Suppliers and contractors should contact the State of Georgia Sales Tax Division for additional information.
Except as otherwise provided by law, information submitted by a proposer in the proposal process shall be subject to disclosure after proposal award in accordance with the Georgia Open Records Act.
Proprietary information must be identified with the appropriate affidavit as required by the Georgia Open Records Act. Marking an entire proposal as proprietary will be neither accepted nor honored.
Each Proposer is required to keep the contents of their proposal confidential once it is submitted until the award to the successful Proposer is made. Releasing any information regarding the proposal to third parties or the media prior to the conclusion of the selection process will be immediate grounds for the County to reject the proposal as non-responsive.
V. Withdraw Proposal Due to Error
The proposer shall give notice in writing of his claim of right to withdraw his proposal without penalty due to an error within two (2) business days (48 hours) after the conclusion of the proposal opening.
Proposals may be withdrawn from consideration if the price was substantially lower than the other proposals due solely to a mistake therein, provided the proposal was submitted in good faith, and the mistake was a clerical mistake as opposed to a judgment mistake, and was actually due to an unintentional arithmetic error or an unintentional omission of a quantity of work, labor or material made directly in the compilation of the proposal, which unintentional arithmetic or unintentional omission can be clearly shown by objective evidence drawn from inspection of original work papers, documents and materials used in the preparation of the proposal sought to be withdrawn. The proposer’s original work papers shall be the sole acceptable evidence of error and mistake if proposer elects to withdraw its proposal. If a proposal is withdrawn under the authority of this provision, the lowest remaining responsive proposal shall be deemed to be low proposal. Proposal withdrawal is not automatically granted and will be allowed solely at the discretion of Cobb County.
No proposer who is permitted to withdraw a proposal shall, for compensation, supply any material or labor or perform any subcontract or other work agreement for the person or firm to whom the contract is awarded or otherwise benefit, directly or indirectly, from the performance of the project for which the withdrawn proposal was submitted.
VI. F.O.B. Point
Unless otherwise stated in the request for proposal and any resulting contract, or unless qualified by the proposer, items shall be shipped F.O.B. Destination. The seller shall retain title for the risk of transportation, including the filing for loss or damages. The invoice covering the items is not payable until the items are delivered and the contract of carriage has been completed. Unless the F.O.B. clause states otherwise, the seller assumes transportation and related charges either by payment or allowance.
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11 VII. Patent Indemnity
The contractor guarantees to hold the County, its agents, officers or employees harmless from liability of any nature or kind for use of any copyrighted or uncopyrighted composition, secret process, patented or unpatented invention, articles or appliances, or intellectual property furnished or used in the performance of the contract, for which the contractor is not the patentee, assignee or licensee.
VIII. Bid, Payment & Performance Bonds – Not Required
IX. Insurance
A. Requirement: Vendor shall procure and maintain in full force and effect for the duration of this Agreement, insurance protecting against claims for injuries to persons or damages to property which may arise from or in connection with performance of the Work hereunder by the Vendor, its agents, representatives, employees, or subcontractors.
B. Minimum Limits of Insurance: During the term of this Agreement, Contactor shall maintain insurance policies with coverage and limits no less than:
1. Commercial General Liability: $1,000,000 combined single limit per occurrence for comprehensive coverage including bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom, damage for premises/operations, products/completed operations, independent contractors and contractual liability (specifically covering the indemnity), broad-form property damage, and underground, explosion and collapse hazard. This coverage may be achieved by using umbrella policy. The policy or policies must be on “an occurrence” basis (“claims made” coverage is not acceptable).
2. Commercial Automobile Liability (owned, non-owned and hired): $1,000,000 combined single limit per occurrence and for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom.
3. Workers’ Compensation and Employers Liability: Workers’ Compensation limits as required by the State of Georgia and Employers Liability of $1,000,000 per occurrence or disease.
4. Professional Liability, Technology Errors and Omissions, and Cyber Insurance Coverage:
$2,000,000 per claim and $4,000,000 in the aggregate is required, in the event that Vendor is performing design, engineering, or other professional services.
5. Professional Liability (Errors and Omissions) and Coverage: $2,000,000 per claim and $4,000,000 in the aggregate. Vendor shall maintain Technology Errors and Omissions Insurance, which must include coverage Multimedia Liability, Privacy Liability, Network Security Liability, Breach Costs Coverage (including Notification, Credit Monitoring, Forensics, Public Relations), and Regulatory Fines and Penalties assessed due to a Data (Privacy) Breach. a) Technology Errors and Omissions insurance must cover liabilities, punitive damages, and claim expenses arising from errors, omissions, or negligent acts in rendering or failing to render (1) all services promised, including but not limited to computer or information technology services, (2) products that perform the intended function or serve the intended purpose, and (3) violation of software copyright.
b) Services insured, at a minimum, must include (1) systems analysis, (2) systems programming, (3) data processing, (4) systems integration, (5) outsourcing including outsourcing development and design, (6) systems design, consulting, development and modification, (7) training services relating to computer software or hardware, (8) management, repair, and maintenance of computer products, networks, and systems, (9) marketing, selling, servicing, distributing, installing and maintaining computer hardware or software, (10) data entry, modification, verification, maintenance, storage, retrieval or preparation of data output, and (11) any other services provided by the vendor.
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12 c) Vendor shall maintain Privacy, Security, and Technology Insurance. i. Vendor’s policy must include coverage for (1) loss, disclosure, and theft of data in any form; (2) media and content rights infringement and liability (excluding patents and trade secrets), including but not limited to, software copyright infringement; and (3) network security failure, including but not limited to, denial of service attacks and transmission of malicious code.
ii. The insurance coverage must include data breach regulatory fines and penalties, the cost of notifying individuals of a security or data breach, the cost of credit monitoring services, and any other causally-related crisis management expense for up to one (1) year.
iii. The insurance coverage must also contain severability for the insured organization for any intentional act exclusions.
iv. If the coverage is provided on a claims-made basis, then it must be maintained for a period of two (2) years after acceptance of the deliverables and/or services provided in connection with this Agreement.
v. Additionally, such policy must cover consequential or vicarious liabilities (e.g., claims brought against the Vendor or its Affiliated Companies and their respective directors, officers, and employees due to the wrongful acts and failures committed by you) and direct losses (e.g., claims made by the Vendor and its Affiliated Companies and their respective directors, officers, and employees against you for financial loss due to your wrongful acts or failures).
d) Commercial Umbrella Liability Coverage: $2,000,000 in liability coverage per occurrence above the Agreements stated minimum coverage limits for Commercial General Liability, Commercial Automobile, and Professional Liability policies of insurance.
C. Deductibles and Self-Insured Retention: Any deductibles or self-insurance retentions must be declared to and approved by County so that County may ensure the financial solvency of Vendor. At the option of County, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects County, its officers, officials, and employees; or Vendor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Vendor shall pay all deductibles and be liable for all claims, losses and damages for which it self-insures.
D. Other Insurance Provisions: The policies are to contain, or be endorsed to contain, the following provisions:
1. General Liability and Umbrella/Excess Insurance
a) Additional Insured Requirement. Cobb County, its elected and appointed officials, officers, boards, commissions, officers, employees, representatives, servants, volunteers and agents (hereinafter referred to as “Insured Party” or “Insured Parties”) shall be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Vendor; products and completed operations of Vendor, premises owned, leased, or used by Vendor. The coverage shall contain no special limitations on the scope of protection afforded to the Insured Parties. Nothing contained in this section shall be construed to require Vendor to provide liability insurance coverage to the any Insured Party for claims asserted against such Insured Party for its sole negligence.
b) Primary Insurance Requirement. Vendor’s insurance coverage shall be primary and noncontributing insurance as respects to any other insurance or self-insurance available to the Insured Parties. Any insurance or self-insurance maintained by the Insured Parties shall be in excess of Vendor’s insurance and shall not contribute with it.
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13 c) Reporting Requirement. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Insured Parties. d) Separate Coverage. Coverage shall state that the Vendor’s insurance shall apply separately to each Insured Party against whom claim is made or suit is brought. e) Defense Costs/Cross Liability. Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in addition to policy limits. There shall be no crossliability exclusion.
E. Workers’ Compensation and Employers Liability Coverage: Vendor shall have and maintain in full force and effect for the duration of this Agreement, insurance protecting against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by Vendor, its agents, representatives, employees or subcontractors. The insurer shall agree to waive all rights of subrogation against County and its officers, officials, employees, and volunteers for losses arising from the work performed by Vendor for County.
F. Waiver of Subrogation: The insurers shall agree under each policy of insurance required by this Agreement to waive all rights of subrogation against the Insured Parties for losses arising from work performed by Vendor for County.
G. All Coverages:
1. Notice Requirement. Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to County as provided in the Notice Section of this Agreement. County reserves the right to accept alternate notice terms and provisions provided they meet the minimum requirements under Georgia law.
2. Acceptability. The insurance to be maintained by Vendor must be issued by a company licensed or approved by the Insurance Commissioner to transact business in the State of Georgia. Such insurance shall be placed with insurers with a minimum AM Best’s Policyholder’s Rating of “A” or better and with a financial rating of Class VIII or greater or be otherwise acceptable to Cobb County.
3. Failure of Insurers. Vendor shall be responsible for any delay resulting from the failure of any insurer to furnish proof of coverage in the prescribed form.
H. Verification of Coverage: Vendor shall furnish County with certificates of insurance and endorsements to the policies evidencing all coverages required by this Agreement. Additionally, the declarations page for each insurance policy listed on the certificate of insurance shall be submitted to County. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements shall be received and approved by County before any work commences. County reserves the right to require complete, certified copies of all required insurance policies at any time. Vendor shall provide proof that any expiring coverage has been renewed or replaced prior to the expiration of the coverage. Vendor’s failure to comply with this provision shall be considered a material breach of the Agreement.
I. Subcontractors: Vendor shall require all subcontractors to maintain insurance that is industry standard for the scope and risk of the services being provided by that subcontractor.
J. Failure to Comply: Failure to comply with all insurance requirements set forth in this Section and applicable to this agreement will not relieve Vendor from any liability under the agreement will not be construed to conflict with or limit Vendor’s indemnification obligation obligations under the agreement.
Duration: All insurance required by this Section must be maintained during the entire term of the agreement, including any renewal or extension terms, and until all Work has been completed to the satisfaction of County.
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14 X. Award
Award will be made to the highest scoring responsive and responsible proposer according to the criteria stated in the proposal documents and only after approval of the County Board of Commissioners.
Award will be made in writing to the successful proposer. The County may make such investigations or obtain such clarifications as it deems necessary to determine the ability of the proposer to perform, and the proposer shall furnish to the County all such information and data for this purpose as the County may request. The County reserves the right to reject any proposal if the evidence submitted by, or investigations of such proposer fails to satisfy the County that such proposer is properly qualified to carry out the obligations of the contract.
The County reserves the right to reject or accept any or all proposals for any reason and to waive technicalities, informalities and minor irregularities in the proposals received in the County’s sole discretion and best interest. The County reserves the right to make an award as deemed in its best interest which may include awarding a proposal to a single proposer or multiple proposers; or to award the whole proposal, only part of the proposal, or none of the proposal to single or multiple proposers, based on its sole discretion of its best interest.
Time payment discounts will be considered in arriving at net prices and in award of proposal.
It is the intent of Cobb County Government to award all contracts in a manner that promotes fair, equitable treatment of all contractors and sub-contractors without regard to race, color, creed, national origin, gender, age, or disability.
XI. County Furnished Property
The County will furnish no material, labor or facilities unless so provided in the RFP.
XII. Rejection of Proposals
Failure to observe any of the instructions or conditions in this request for proposal may constitute grounds for rejection of proposal.
XIII. Contract
Upon submitting a proposal in response to an RFP containing Cobb County’s Required Terms and Conditions, it is understood that the proposer has reviewed the documents with the understanding that Cobb County requires that the successful proposer(s) shall enter into a contract that is substantially the same as Cobb County’s Required Terms and Conditions unless modified by agreement of the parties.
If any exceptions are taken to any part of Cobb County’s Required Terms and Conditions, each exception must be stated in detail and submitted as part of the proposal document. If no exceptions are stated, it is assumed that the proposer fully agrees to Cobb County’s Required Terms and Conditions in its entirety. The foregoing should not be interpreted to prohibit either party from proposing additional contract terms and conditions during negotiation of the final contract, and the County reserves the right to make changes to Cobb County’s Required Terms and Conditions. In no event is a proposer to submit its own standard contract terms and conditions as a response to this RFP.
Each proposal is received with the understanding that selection as the successful proposer by the County does not constitute a written contract between the successful proposer and the County, but shall bind the proposer on his part to furnish and deliver the articles quoted at the prices stated in accordance with the conditions of said accepted proposal upon execution of a written contract with the County authorized by the County Board of Commissioners and signed by the Chairwoman. Once a contract is executed by the proper authorities for each party, the County, on its part, may order from
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15 such contractor, and except for cause beyond reasonable control, pay for, at the agreed prices, all articles specified and delivered.
XIV. Delivery Failures
Failure of a contractor to deliver within the time specified or within reasonable time as interpreted by the Procurement Services Director, or failure to make replacements of rejected articles/services when so requested, immediately or as directed by the Procurement Services Director, shall constitute authority for the Procurement Services Director to purchase in the open market or rebid for articles/services of comparable grade to replace the articles/services rejected or not delivered. On all such purchases, the contractor shall reimburse the County within a reasonable time specified by the Procurement Services Director for any expense incurred in excess of contract prices, or the County shall have the right to deduct such an amount from monies owed the defaulting contractor.
Alternatively, the County may penalize the contractor one percent (1%) per day for a period of up to ten (10) days for each day that delivery or replacement is late. Should public necessity demand it, the County reserves the right to use or consume articles/services delivered which are substandard in quality, subject to an adjustment in price to be determined by the Procurement Services Director.
XV. Non-Collusion
By submission of a proposal, the proposer certifies, under penalty of perjury, that to the best of its knowledge and belief:
(a) The prices in the proposal have been arrived at independently without collusion, consultation, communications, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other vendor or with any competitor.
(b) Unless otherwise required by law, the prices which have been quoted in the proposal have not been knowingly disclosed by the proposer prior to opening, directly or indirectly, to any other proposer or to any competitor.
(c) No attempt has been made, or will be made, by the proposer to induce any other person, partnership or corporation to submit or not to submit a proposal for the purpose of restricting competition.
Collusion and fraud in bid preparation shall be reported to the State of Georgia Attorney General and the United States Justice Department.
XVI. Conflict of Interest, Etc.
By submission of a proposal, the proposer certifies, under penalty of perjury, that to the best of its knowledge and belief:
1. No circumstances exist which cause a Conflict of Interest in performing the services required by this RFP, and
2. That no employee of the County, nor any member thereof, not any public agency or official affected by this RFP, has any pecuniary interest in the business of the responding firm or his sub-consultant(s) has any interest that would conflict in any manner or degree with the performance related to this RFP.
The responding firm also warrants that responding firm and its sub-consultant(s) have not employed or retained any company or person other than a bona fide employee working solely for the responding firm or sub-consultant(s) to solicit or secure a contract agreement with Cobb County, as related to this RFP, and that responding firm and its sub-consultant(s) have not paid or agreed to pay any person, company, corporation, individual, or firm other than a bona fide employee working solely for the responding firm or its sub-consultant(s) any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award of this Agreement.
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16 For any breach or violation of this provision, the County shall have the right to terminate any related contract or agreement without liability and at its discretion to deduct from the price, or otherwise recover, the full amount of such fee, commission, percentage, gift, payment or consideration.
The successful responding firm shall require each of its sub-consultant(s) to sign a statement certifying to and agreeing to comply with the terms of the subsections above.
XVII. Default
The contract may be terminated by the Procurement Services Director in whole or in part by written notice of default to the contractor upon non-performance or violation of any contract term. An award may be made to the next highest rated responsive and responsible proposer, or articles specified may be purchased on the open market similar to those terminated or the County may issue a new Request for Proposal. In any event, the defaulting contractor (or his surety) shall be liable to the County for costs to the County in excess of the defaulted contract prices; provided, however, that the contractor shall continue the performance of this contract to the extent not terminated under the provisions of this clause. Failure of the contractor to deliver materials or services within the time stipulated on its proposal, unless extended in writing by the Procurement Services Director, shall constitute contract default.
XVIII. Disputes
Except as otherwise provided in the contract documents, any dispute concerning a question of fact arising under the contract which is not disposed of shall be decided after a hearing by the Procurement Services Director who shall reduce his/her decision to writing and mail or otherwise furnish a copy thereof to the contractor. The decision of the Procurement Services Director shall be final and binding.
XIX. Substitutions
Proposers offering and quoting on substitutions or who are deviating from the attached specifications shall list such deviations on a separate sheet to be submitted with their proposal. The absence of such a substitution list shall indicate that the proposer has taken no exception to the specifications contained therein.
XX. Ineligible Proposers
The County may choose not to accept the proposal of one who is in default on the payment of taxes, licenses or other monies owed to the County. Failure to respond three (3) consecutive times for any given commodity may result in removal from the list under that commodity.
XXI. General Information
Sealed proposals, with original signatures, will be accepted by the County Procurement Services Department at the time, place, and date specified. One (1) original, one (1) copy and five (5) flash drives of the proposal must be submitted, complete with a cover letter signed by an official within the organization who has authority over project negotiation.
These proposals must be in accordance with the purposes, conditions, and instructions provided in this RFP. The Cobb County Board of Commissioners assumes no responsibility for proposals received after the submission time, whether due to mail delays or any other reason. Proposals received after the submission time will be filed unopened and considered non-responsive.
As previously stated under IV, unsigned proposals will not be considered.
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17 Cobb County reserves the right to retain all proposals submitted, and to use any idea in any proposal regardless of whether that proposal is selected. All work performed by the successful respondent shall be performed in compliance with the Americans with Disabilities Act.
XXII. Uniformity of Proposal
To facilitate comparative analysis and evaluation of proposals it is desired that a uniform format be employed in structuring each proposal. The respondent’s degree of compliance with the requirements of the RFP will be a factor in the subsequent point-based evaluation of the proposal. Proposals with major deviations or omissions may not be considered for detailed study. Proposals will become part of the contract with Cobb County should they be selected under the RFP.
XXIII. Request Additional Information
Inquiries that must be answered in regards to the Proposal procedures or technical matters must be submitted in writing via U.S. Mail or facsimile or email to:
Cobb County Procurement Services
122 Waddell Street NE
Marietta, GA 30060
Fax: (770) 528-8428
Email: Procurement [email protected]
Cobb County will not orally or telephonically address any question or clarification regarding specifications or procedures. Cobb County is not bound by any oral representations, clarifications, or changes made to the written specification by County employees, unless such clarification or change is provided to the respondent in written addendum from Cobb County.
XXIV. Firm Prices
Prices quoted by proposal shall be firm and best prices. Prices quoted must be valid for a minimum of 180 days from the date of bid opening.
XXV. Proposal/Presentation Costs
The cost for developing a proposal will be borne by the respondent. Cobb County is not liable for any costs incurred by the respondent in preparation and/or presentation of proposals in response to this RFP or for travel and other costs related to this RFP.
XXVI. Proposal Format
Presentation of the relevant information is at the discretion of the respondent; however, the proposal must address all items identified in Section Titled, Proposal Requirements. To assist in the evaluation of proposals resulting from the RFP, it is recommended that each proposal be written in a concise and forthright manner and that unnecessary marketing statement and materials be avoided.
XXVII. Indemnification
By submitting a Proposal, the Proposer hereby agrees to indemnify, defend and hold harmless the County, its departments, employees and the Board of Commissioners from and against any and all claims, demands, liabilities, losses, costs or expenses, including attorneys’ fees, due to liability to a third party or parties, for any loss due to bodily injury (including death), personal injury, and property damage, including but not limited to intellectual property claims, arising directly or indirectly from the submission of the Proposal hereunder, but only to the extent such claims are caused by the negligence, recklessness or intentionally wrongful conduct of the Proposer or its agents, employees, associates, subcontractors or others working at the direction of Proposer. This
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18 indemnification obligation survives beyond the submission date of the Proposal and the dissolution or, to the extent allowed by law, the bankruptcy of the Proposer.
XXVIII. Indemnification/Hold Harmless
The Contractor covenants and agrees to take and assume all responsibility for the Work rendered in connection with this Agreement. The Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the Work rendered pursuant to this Agreement.
To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the County and the County's elected and appointed officials, officers, boards, commissions, employees, representatives, consultants, servants, agents and volunteers (individually an “Indemnified Party” and collectively the “Indemnified Parties”) from and against any and all claims, suits, actions, judgments, injuries, damages, losses, expenses, and liability of any kind whatsoever, including but not limited to attorneys' fees and other legal expenses, (“Liabilities”) to the extent caused by or resulting from negligence, recklessness, or intentionally wrongful conduct arising out of the Work, performance of contracted services, or operations by Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable, regardless of whether or not the negligent act or omission is caused in part by a party indemnified hereunder. This indemnity obligation does not include Liabilities caused by or resulting from the sole negligence of an Indemnified Party. Such obligation shall not be construed to negate, abridge or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to the party or person described in this Section XXVII and Section XXVIII.
In any and all claims against an Indemnified Party or Indemnified Parties by an employee of the Contractor, its subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section XXVII and Section XXVIII shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor, or its subcontractors, under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts.
This obligation to indemnify, defend and hold harmless the Indemnified Party and Indemnified Parties shall survive the expiration or termination of this Agreement provided that the claims are based upon or arise out of acts or omissions that occurred during the performance of this Agreement.
XXIX. Confidentiality
Contractor acknowledges that it may receive confidential information of the County and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, contractors, and/or staff to likewise protect such confidential information. The Contractor agrees that confidential information it receives or such reports, information, opinions, or conclusions that Contractor creates under this Agreement shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the County. Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of County information whether specifically deemed confidential or not.
Contractor acknowledges that the County’s disclosure of documentation is governed by Georgia’s Open Records Act, and Contractor further acknowledges that, if Contractor submits records containing trade secret information and if Contractor wishes to keep such records confidential, Contractor must submit and attach to such records an affidavit affirmatively declaring that specific information in the records constitutes trade secrets pursuant to Article 27 of Chapter 1 of Title 10, and the Parties shall follow the requirements of O.C.G.A. § 50-18-72(a)(34) related thereto.
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19 XXX. Local Vendor Presence (LVP) Program – Not Applicable XXXI. Proposal Evaluation
The Evaluation process will address current requirements and consider possible future operation and maintenance needs. Both objective and subjective rationale will be involved in the decision process.
1. Evaluation Responsibility
A selection committee will coordinate the review of all proposals and will submit a recommendation to the County Manager and Board of Commissioners.
2. Presentations
During the evaluation process, the members of the selection committee may require that responding firms conduct a presentation. If required, these presentations will be scheduled in advance and limited in time. Location of the presentations will be pre-arranged.
3. Evaluation Criteria
The County will use a specific set of criteria for the qualitative evaluation of competitive proposals. The structure of the evaluation will be to assign points to each response in a number of categories. A non-response to a specific category will result in no points being awarded for that category. Final rankings will be based on a combination of price (where applicable) and qualitative factors.
The evaluation by any Selection Committee will be based on the criteria listed on Page
8. All proposal requirements must be met, or capable of being met by the responding firm or the proposal will be disqualified as non-responsive. It is extremely important that project schedules are met. Only those firms or teams with the necessary resources and a commitment to complete all project work on schedule should submit a Proposal.
XXXII. Multi-Year Contract Provisions
The successful respondent will be required to enter into a contract containing the provisions as required by Georgia law pertaining to multi-year contracts. The following is a sample of the provision and will be adjusted as to the term or as to the length of the contract.
This contract shall terminate absolutely and without further obligation on the part of Cobb County at the close of the calendar year in which it was executed, and at the close of each succeeding calendar year for which it may be renewed as provided in O.C.G.A. § 36-60-13. The contract shall automatically renew for each of the remaining calendar years provided for in the contract, unless positive action is taken by Cobb County to terminate such contract, and the nature of such action shall be written notice provided to the consulting firm within sixty (60) days before the end of the initial year of the contract or each succeeding remaining calendar year.
This contract shall terminate immediately and absolutely at such time as appropriated and otherwise unobligated funds are no longer available to satisfy the obligations of Cobb County under this contract.
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20 XXXIII. Termination for Convenience
The successful Proposer will be required to enter into a contract containing a provision for termination of the contract for the County’s convenience. The following is a sample of the provision.
The County, by written notice, may terminate this contract, in whole or in part, when it is in the County’s interest. If this contract is terminated, the County shall be liable only for goods or services delivered or accepted. The County Notice of Termination may provide the contractor thirty (30) days prior notice before it becomes effective. However, at the County’s sole option a termination of convenience may be effective immediately and may apply to delivery orders (if applicable) or to the contract in whole.
XXXIV. Proposal Requirements
The respondents must demonstrate competence and experience in the area of expertise outlined in this Request for Proposal.
If required, respondents must demonstrate competence and experience in public speaking and graphic presentations for the purpose of conveying project information to large and diverse community groups.
Respondents should also be able to demonstrate the ability to build consensus among public and private interest groups related to this project.
XXXV. Cover Letter/Executive Summary
Respondents shall provide a cover letter or letter of transmittal to briefly summarize the company’s interest and relevant qualifications for the project. This letter shall not exceed two (2) pages, and shall be signed by an agent of the responding firm who is authorized to negotiate the details of the proposed services.
XXXVI. Project Team
Respondents shall provide an organizational chart for the proposed project team, as well as the relevant background and experience for every proposed team member.
XXXVII. Small and Minority Business Participation
Cobb County Government encourages the participation of all businesses in offering their products and services with the goal of fairly and competitively procuring those products and services at the most reasonable cost. To that end, the County seeks to foster minority and women-owned business, and small business, opportunities in the award and implementation of contracts. The County seeks to build a diverse, inclusive, and prosperous group of suppliers who can effectively compete in business while obtaining quality goods and services in a competitive, efficient and non-discriminatory manner.
XXXVIII. Special Terms and Conditions
Should these General Terms and Conditions be in conflict with any attached Special Terms and Conditions, the Special Terms and Conditions will control.
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21 XXXIX. Compliance with Georgia Security and Immigration Compliance Act
PROCEDURES & REQUIREMENTS
(Effective 09-20-2013 - Supersedes All Previous Versions)
BACKGROUND
Pursuant to the “Georgia Security and Immigration Compliance Act,” Cobb County cannot enter into a contract for the physical performance of services unless the contractor registers and participates in the federal work authorization program to verify information of all newly hired employees or subcontractors. Neither may any contractor or subcontractor enter a contract with the county in connection with the physical performance of services unless the contractor and/or subcontractor registers and participates in the federal work authorization program to verify information of all new employees. O.C.G.A. § 13-10-91.
Before any bid for the physical performance of services is considered, the bid must include a signed, notarized affidavit from the contractor attesting to the following: (1) the affiant has registered with and is authorized to use the federal work authorization program; (2) the user ID number and date of authorization for the affiant; and (3) the affiant is using and will continue to use the federal work authorization program throughout the contract period. O.C.G.A. § 13-10-91 (b) (1). Affidavits shall be maintained for five years from the date of receipt. O.C.G.A. § 13-10-91 (b) (1).
Upon contracting with a new subcontractor, a contractor or subcontractor shall, as a condition of the contract or subcontract, provide Cobb County with notice of the identity of any and all subsequent subcontractors hired or contracted by that contractor or subcontractor within five (5) business days of entering into a contract or agreement for hire with any subcontractor. Such notice shall include an affidavit including the subcontractor’s name, address, user ID number, and date of authorization to use the federal work authorization program. O.C.G.A. § 13-10-91 (b) (3).
Based upon the County’s experience and desire for full compliance, no work may be commenced by any subsequent subcontractor prior to notice being received by the County that the subcontractor (regardless of tier) is in compliance with the law and the attached Procedures & Requirements, including the preparation and submission of the Contractor (or Subcontractor) Affidavit & Agreement AND the Immigration Compliance Certificate PRIOR to the commencement of any work.
DEFINITIONS
Affidavit – a written statement made or taken under oath before an officer of the court or a notary public or other person who duly has been authorized so to act.
Affiant – the person who makes and subscribes to a statement made under oath (affidavit).
Physical Performance of Services – any performance of labor or services for a public employer using a bidding process or by contract wherein the labor or services exceed $2,499.99.
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22 PROCEDURES & REQUIREMENTS
1. Bid Documents: Bid documents should contain information regarding the contract language and contractual requirements described below.
2. Responsive Bid Documents: Responsive bid documents MUST INCLUDE a signed, notarized affidavit from the contractor in the form attached as EXHIBIT A (CONTRACTOR AFFIDAVIT & AGREEMENT). If the affidavit is not submitted at the time of the bid, the applicant will be disqualified.
This Affidavit Must Be Signed, Notarized And Submitted With Any Bid Requiring The Performance Of Physical Services. If The Affidavit Is Not Submitted At The Time Of The Bid, The Bid Will Be Determined To Be Non-Responsive And Will Be Disqualified.
3. Contract Language & Contractual Requirements: Affirmative language shall be contained in agreements for the performance of services to cover all statutory and County requirements; such language shall require:
(a) That affidavits in the form attached to these “Procedures & Requirements” be executed from a contractor (and any subcontractors, regardless of tier) and notarized, showing compliance with the requirements of O.C.G.A. § 13-10-91 and that such be made part of the contract and/or subcontracts; (b) That the contractor (and any subcontractors, regardless of tier) fully comply with the requirements for completing and submitting the “Immigration Compliance Certification” and that such certification be received by the County prior to the commencement of any work under the contract or subcontract;
(c) That the contractor (or any subcontractor, regardless of tier) notify the County within five (5) business days of entering into a contract or other agreement for hire with any subcontractor(s), regardless of tier;
(d) That the contractor be responsible for obtaining and providing to the County the “Subcontractor Affidavit & Agreement” and “Immigration Compliance Certification” attached to and required under these “Procedures & Requirements” from each subcontractor, regardless of tier, employed or retained for work under the contract prior to the commencement of any work under the contract or any subcontract;
(e) That Cobb County, Georgia, reserves the right to dismiss, or require the dismissal of, any contractor or subcontractor for failing to provide the required affidavit or certification and/or for failure to comply with the statutory requirements of O.C.G.A. § 13-10-91 and/or for providing false or misleading information upon the required affidavit(s) or certification(s); (f) That any contractor and/or subcontractor retaining any other subcontractor to perform services under the contract provide legal notice to any subcontractor of the requirements of Cobb County for immigration compliance and further provide notice that Cobb County, Georgia, reserves the right to dismiss, or require the dismissal of, any contractor or subcontractor for failing to provide the required affidavit or certification and/or for failure to comply with the statutory requirements of O.C.G.A. § 13- 10-91 and/or for providing false or misleading information upon the required affidavit(s) or certification(s);
(g) That failure to comply with any of the requirements and procedures of the County (i.e., failure to timely supply required affidavits or compliance certification documents; failure to utilize federal work authorization procedures; failure to permit or facilitate audits or reviews of records by County or State
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23 officials upon request; and/or failure to continue to meet any of the statutory or County obligations during the life of the contract) shall constitute a material breach of the agreement and shall entitle the County to dismiss any general contractor or to require the dismissal of any subcontractor or sub/subcontractor (irrespective of tier) for failing to fully comply with these requirements; (h) That upon notice of a material breach of these provisions, the contractor (or subcontractor, regardless of tier) shall be entitled to cure the breach within ten (10) days and provide evidence of such cure. Should the breach not be cured, the County shall be entitled to all available remedies, including termination of the contract, the requirement that a subcontractor be dismissed from performing work under the contract, and any and all damages permissible by law.
4. Immigration Compliance Certification: Prior to commencing work under any contract for the physical performance of services, the contractor shall complete the “IMMIGRATION COMPLIANCE CERTIFICATION” form attached to these “Procedures & Requirements” and submit the same to the County.
Prior to allowing any other subcontractor to perform work under the contract, the contractor shall obtain a completed “IMMIGRATION COMPLIANCE CERTIFICATION” from each subcontractor (regardless of tier) and submit the same to the County.
FORM ATTACHMENTS:
1. CONTRACTOR AFFIDAVIT & AGREEMENT (EXHIBIT A);
2. SUBCONTRACTOR AFFIDAVIT & AGREEMENT (EXHIBIT A-1);
3. IMMIGRATION COMPLIANCE CERTIFICATION (EXHIBIT A-2).
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24 CONTRACTOR AFFIDAVIT & AGREEMENT
(EXHIBIT A)
This affidavit must be signed, notarized and submitted with any bid requiring the performance of physical services. If the affidavit is not submitted at the time of the bid, the bid will be determined non-responsive and will be disqualified.
By executing this affidavit, the undersigned contractor verifies compliance with O.C.G.A. §13-10-91, stating affirmatively that the individual, firm or corporation which is contracting with Cobb County, Georgia, has registered with, is authorized to use, and is participating in a federal work authorization program (an electronic verification of work authorization program operated by the U.S. Department of Homeland Security or any equivalent federal work authorization program operated by the U.S. Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA)). The undersigned contractor further attests that it will continue to use the federal Employment Eligibility Verification (EEV) work authorization program throughout the contract period.
The undersigned further agrees that should it employ or contract with any subcontractor(s) or should its subcontractor(s) employ other subcontractor(s) for the physical performance of services pursuant to the contract with Cobb County, Georgia, the contractor or subcontractor will:
(1) Notify the County within five business days of entering into a contract or agreement for hire with any subcontractor(s);
(2) Secure from any subcontractor(s) and/or their subcontractor(s) verification of compliance with O.C.G.A. § 13-10-91 on the attached Subcontractor Affidavit (EXHIBIT A-1) prior to the commencement of any work under the contract/agreement;
(3) Secure from any subcontractor(s) and/or their subcontractor(s) a completed Immigration Compliance Certification (EXHIBIT A-2) prior to the commencement of any work under the contract/agreement;
(4) Provide the subcontractor(s) with legal notice that Cobb County, Georgia, reserves the right to dismiss, or require the dismissal of, any contractor or subcontractor for failing to provide the affidavit and/or for failure to comply with the requirements referenced in the affidavit; (5) Maintain records of such compliance and provide a copy of each such verification to Cobb County, Georgia, at the time the subcontractor(s) is retained to perform such services or upon any request from Cobb County, Georgia; and
(6) Maintain such records for a period of five (5) years. ___________________________________ _________________________________ EEV (E-Verify) Program Number EEV Program Date of Authorization ____________________________ _________________________________ BY: Authorized Officer or Agent Contractor Business Name [Contractor Name]
___________________________________ ________________________________ Printed Name Date
SWORN AND SUBSCRIBED BEFORE ME
ON THIS THE ____ DAY OF ____________, 202_
_______________________________________
Notary Public Commission Expires: _______
Effective 09-20-2013
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25 SUBCONTRACTOR AFFIDAVIT & AGREEMENT
(EXHIBIT A-1)
By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services on behalf of Cobb County, Georgia, has registered with, is authorized to use, and is participating in a federal work authorization program (an electronic verification of work authorization program operated by the U.S. Department of Homeland Security or any equivalent federal work authorization program operated by the U.S. Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA)). The undersigned contractor further attests that it will continue to use the federal Employment Eligibility Verification (EEV) work authorization program throughout the contract period.
The undersigned further agrees that should it employ or contract with any subcontractor(s) or should its subcontractor(s) employ other subcontractor(s) for the physical performance of services pursuant to the contract with Cobb County, Georgia, the undersigned subcontractor will:
(1) Notify the County within five business days of entering into a contract or agreement for hire with any subcontractor(s);
(2) Secure from any subcontractor(s) and/or their subcontractor(s) verification of compliance with O.C.G.A. § 13-10-91 on this Subcontractor Affidavit form (EXHIBIT A-1) prior to the commencement of any work under the contract/agreement;
(3) Secure from any subcontractor(s) and/or their subcontractor(s) a completed Immigration Compliance Certification (EXHIBIT A-2) prior to the commencement of any work under the contract/agreement;
(4) Provide the subcontractor(s) with legal notice that Cobb County, Georgia, reserves the right to dismiss, or require the dismissal of, any contractor or subcontractor for failing to provide the affidavit and/or for failure to comply with the requirements referenced in the affidavit; (5) Maintain records of such compliance and provide a copy of each such verification to Cobb County, Georgia, at the time the subcontractor(s) is retained to perform such services or upon any request from Cobb County, Georgia; and
(6) Maintain such records for a period of five (5) years. ___________________________________ _____________________________ EEV (E-Verify) Program Number EEV Program Date of Authorization ___________________________________ _____________________________ BY: Authorized Officer or Agent Subcontractor Business Name [Subcontractor Name]
___________________________________ _____________________________ Printed Name Date
SWORN AND SUBSCRIBED BEFORE ME
ON THIS THE ____ DAY OF ____________, 202_
____________________________________________________
Notary Public Commission Expires: ______
Effective 09-20-2013
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26 IMMIGRATION COMPLIANCE CERTIFICATION
(Required to be completed by Contractors and all Subcontractors) (EXHIBIT A-2)
I certify to the Cobb County Board of Commissioners that the following employees will be assigned to:
____________________________________________________________________________ (Project Name/Description)
_____________________ _______________________ ________________________
_____________________ _______________________ ________________________ _____________________ _______________________ ________________________
I further certify to Cobb County, Georgia the following:
● The E-Verify program was used to verify the employment eligibility of each of the abovelisted employees hired after the effective date of our contract to use the program; ● We have not received a Final Nonconfirmation response from E-Verify for any of the employees listed.
● If we receive a Final Nonconfirmation response from E-Verify for any of the employees listed above, we will immediately terminate that employee’s involvement with the project. ● I have confirmed that we have an I-9 on file for every employee listed above and that to the best of my knowledge all the I-9s are accurate.
● To the best of my knowledge and belief, all of the employees on the above list are legally authorized to work in the United States.
● If any other employee is assigned to this Cobb County project, a certification will be provided for said employee prior to the employee commencing work on the project.
To the best of my knowledge and belief, the above certification is true, accurate and complete.
Sworn to by: Employer Name & Address:
_________________________________ _______________________________ Signature of Officer
_________________________________ _______________________________ Printed Name/Title
_________________________________ _______________________________ Date
SWORN AND SUBSCRIBED BEFORE ME
ON THIS THE ____ DAY OF ____________, 202_
Notary Public
Commission Expires: ______
Effective 09-20-2013
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27 ATTACHMENT A
Requirements for National Cooperative Contract To Be Administered by OMNIA Partners The following documents are used in evaluating and administering national cooperative contracts and are included for Supplier’s review and response.
Exhibit A – Response for National Cooperative Contract
Exhibit B – Administration Agreement, Example
Exhibit C – Master Intergovernmental Cooperative Purchasing Agreement, Example Exhibit D – Principal Procurement Agency Certificate, Example Exhibit E – Contract Sales Reporting Template
Exhibit F – Federal Funds Certifications
Exhibit G – New Jersey Business Compliance
Exhibit H – Advertising Compliance Requirement
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28 Exhibit A
Response for National Cooperative Contract
1.0 Scope of National Cooperative Contract
Capitalized terms not otherwise defined herein shall have the meanings given to them in the Master Agreement or in the Administration Agreement between Supplier and OMNIA Partners.
1.1 Requirement
Cobb County, GA (hereinafter defined and referred to as “Principal Procurement Agency”), on behalf of itself and OMNIA Partners, Public Sector, Inc., a Delaware corporation (“OMNIA Partners”), is requesting proposals for Human Resource Information Systems and Related Products and Services. The intent of this Request for Proposal is any contract between Principal Procurement Agency and Supplier resulting from this Request for Proposal (“Master Agreement”) be made available to other public agencies nationally, including state and local governmental entities, public and private primary, secondary and higher education entities, non-profit entities, and agencies for the public benefit (“Public Agencies”), through OMNIA Partners’ cooperative purchasing program. The Principal Procurement Agency has executed a Principal Procurement Agency Certificate with OMNIA Partners, an example of which is included as Exhibit D, and has agreed to pursue the Master Agreement. Use of the Master Agreement by any Public Agency is preceded by their registration with OMNIA Partners as a Participating Public Agency in OMNIA Partners’ cooperative purchasing program. Registration with OMNIA Partners as a Participating Public Agency is accomplished by Public Agencies entering into a Master Intergovernmental Cooperative Purchasing Agreement, an example of which is attached as Exhibit C, and by using the Master Agreement, any such Participating Public Agency agrees that it is registered with OMNIA Partners, whether pursuant to the terms of the Master Intergovernmental Purchasing Cooperative Agreement or as otherwise agreed to. The terms and pricing established in the resulting Master Agreement between the Supplier and the Principal Procurement Agency will be the same as that available to Participating Public Agencies through OMNIA Partners.
All transactions, purchase orders, invoices, payments etc., will occur directly between the Supplier and each Participating Public Agency individually, and neither OMNIA Partners, any Principal Procurement Agency nor any Participating Public Agency, including their respective agents, directors, employees or representatives, shall be liable to Supplier for any acts, liabilities, damages, etc., incurred by any other Participating Public Agency. Supplier is responsible for knowing the tax laws in each state.
This Exhibit A defines the expectations for qualifying Suppliers based on OMNIA Partners’ requirements to market the resulting Master Agreement nationally to Public Agencies. Each section in this Exhibit A refers to the capabilities, requirements, obligations, and prohibitions of competing Suppliers on a national level in order to serve Participating Public Agencies through OMNIA Partners.
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29 These requirements are incorporated into and are considered an integral part of this RFP. OMNIA Partners reserves the right to determine whether to make the Master Agreement awarded by the Principal Procurement Agency available to Participating Public Agencies, in its sole and absolute discretion, and any party submitting a response to this RFP acknowledges that any award by the Principal Procurement Agency does not obligate OMNIA Partners to make the Master Agreement available to Participating Procurement Agencies.
1.2 Marketing, Sales and Administrative Support
During the term of the Master Agreement OMNIA Partners intends to provide marketing, sales, partnership development and administrative support for Supplier pursuant to this section that directly promotes the Supplier’s products and services to Participating Public Agencies through multiple channels, each designed to promote specific products and services to Public Agencies on a national basis.
OMNIA Partners will assign the Supplier a Director of Partner Development who will serve as the main point of contact for the Supplier and will be responsible for managing the overall relationship between the Supplier and OMNIA Partners. The Director of Partner Development will work with the Supplier to develop a comprehensive strategy to promote the Master Agreement and will connect the Supplier with appropriate stakeholders within OMNIA Partners including, Sales, Marketing, Contracting, Training, and Operations & Support.
The OMNIA Partners marketing team will work in conjunction with Supplier to promote the Master Agreement to both existing Participating Public Agencies and prospective Public Agencies through channels that may include:
A. Marketing collateral (print, electronic, email, presentations) B. Website
C. Trade shows/conferences/meetings
D. Advertising
E. Social Media
The OMNIA Partners sales teams will work in conjunction with Supplier to promote the Master Agreement to both existing Participating Public Agencies and prospective Public Agencies through initiatives that may include:
A. Individual sales calls
B. Joint sales calls
C. Communications/customer service
D. Training sessions for Public Agency teams
E. Training sessions for Supplier teams
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30 The OMNIA Partners contracting teams will work in conjunction with Supplier to promote the Master Agreement to both existing Participating Public Agencies and prospective Public Agencies through:
A. Serving as the subject matter expert for questions regarding joint powers authority and state statutes and regulations for cooperative purchasing B. Training sessions for Public Agency teams
C. Training sessions for Supplier teams
D. Regular business reviews to monitor program success
E. General contract administration
Suppliers are required to pay an Administrative Fee of 3% of the greater of the Contract Sales under the Master Agreement and Guaranteed Contract Sales under this Request for Proposal. Supplier will be required to execute the OMNIA Partners Administration Agreement (Exhibit B). At Supplier’s option, Suppliers may pay additional fees beyond administrative fees, such as technology fees, to OMNIA Partners and/or a third party for additional support and/or access to OMNIA Partners’ technology platform.
1.3 Estimated Volume
The dollar volume purchased under the Master Agreement is estimated to be approximately $200 million annually. While no minimum volume is guaranteed to Supplier, the estimated annual volume is projected based on the current annual volumes among the Principal Procurement Agency, other Participating Public Agencies that are anticipated to utilize the resulting Master Agreement to be made available to them through OMNIA Partners, and volume growth into other Public Agencies through a coordinated marketing approach between Supplier and OMNIA Partners.
1.4 Award Basis
The basis of any contract award resulting from this RFP made by Principal Procurement Agency will, at OMNIA Partners’ option, be the basis of award on a national level through OMNIA Partners. If multiple Suppliers are awarded by Principal Procurement Agency under the Master Agreement, those same Suppliers will be required to extend the Master Agreement to Participating Public Agencies through OMNIA Partners. Utilization of the Master Agreement by Participating Public Agencies will be at the discretion of the individual Participating Public Agency.
Certain terms of the Master Agreement specifically applicable to the Principal Procurement Agency (e.g., governing law) are subject to modification for each Participating Public Agency as Supplier and such Participating Public Agency may agree without being in conflict with the Master Agreement as a condition of the Participating Agency’s purchase and not a modification of the Master Agreement applicable to all Participating Agencies. Participating Agencies may request to enter into a separate supplemental agreement to further define the level of service requirements over and above the minimum defined in the Master Agreement (e.g.,
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31 governing law, invoice requirements, order requirements, specialized delivery, diversity requirements such as minority and woman owned businesses, historically underutilized business, etc.) (“Supplemental Agreement”). It shall be the responsibility of the Supplier to comply, when applicable, with the prevailing wage legislation in effect in the jurisdiction of the Participating Agency. It shall further be the responsibility of the Supplier to monitor the prevailing wage rates as established by the appropriate department of labor for any increase in rates during the term of the Master Agreement and adjust wage rates accordingly. In instances where supplemental terms and conditions create additional risk and cost for Supplier, Supplier and Participating Public Agency may negotiate additional pricing above and beyond the stated contract not-to-exceed pricing so long as the added price is commensurate with the additional cost incurred by the Supplier. Any supplemental agreement developed as a result of the Master Agreement is exclusively between the Participating Agency and the Supplier (Contract Sales are reported to OMNIA Partners).
All signed Supplemental Agreements and purchase orders issued and accepted by the Supplier may survive expiration or termination of the Master Agreement. Participating Agencies’ purchase orders may exceed the term of the Master Agreement if the purchase order is issued prior to the expiration of the Master Agreement. Supplier is responsible for reporting all sales and paying the applicable Administrative Fee for sales that use the Master Agreement as the basis for the purchase order, even though Master Agreement may have expired.
1.5 Objectives of Cooperative Program
This RFP is intended to achieve the following objectives regarding availability through OMNIA Partners’ cooperative program:
A. Provide a comprehensive competitively solicited and awarded national agreement offering the Products covered by this solicitation to Participating Public Agencies; B. Establish the Master Agreement as the Supplier’s primary go to market strategy to Public Agencies nationwide;
C. Achieve cost savings for Supplier and Public Agencies through a single solicitation process that will reduce the Supplier’s need to respond to multiple solicitations and Public Agencies need to conduct their own solicitation process; D. Combine the aggregate purchasing volumes of Participating Public Agencies to achieve cost effective pricing.
2.0 REPRESENTATIONS AND COVENANTS
As a condition to Supplier entering into the Master Agreement, which would be available to all Public Agencies, Supplier must make certain representations, warranties and covenants to both the Principal Procurement Agency and OMNIA Partners designed to ensure the success of the Master Agreement for all Participating Public Agencies as well as the Supplier.
2.1 Corporate Commitment
Supplier commits that (1) the Master Agreement has received all necessary corporate authorizations and support of the Supplier’s executive management, (2) the Master
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32 Agreement is Supplier's primary “go to market” strategy for Public Agencies, (3) the Master Agreement will be promoted to all Public Agencies, including any existing customers, and Supplier will transition existing customers, upon their request, to the Master Agreement, and (4) that the Supplier has read and agrees to the terms and conditions of the Administration Agreement with OMNIA Partners and will execute such agreement concurrent with and as a condition of its execution of the Master Agreement with the Principal Procurement Agency. Supplier will identify an executive corporate sponsor and a separate national account manager within the RFP response that will be responsible for the overall management of the Master Agreement.
2.2 Pricing Commitment
Supplier commits the not-to-exceed pricing provided under the Master Agreement pricing is its lowest available (net to buyer) to Public Agencies nationwide and further commits that if a Participating Public Agency is eligible for lower pricing through a national, state, regional or local or cooperative contract, the Supplier will match such lower pricing to that Participating Public Agency under the Master Agreement.
2.3 Sales Commitment
Supplier commits to aggressively market the Master Agreement as its go to market strategy in this defined sector and that its sales force will be trained, engaged and committed to offering the Master Agreement to Public Agencies through OMNIA Partners nationwide. Supplier commits that all Master Agreement sales will be accurately and timely reported to OMNIA Partners in accordance with the OMNIA Partners Administration Agreement. Supplier also commits its sales force will be compensated, including sales incentives, for sales to Public Agencies under the Master Agreement in a consistent or better manner compared to sales to Public Agencies if the Supplier were not awarded the Master Agreement.
3.0 SUPPLIER RESPONSE
Supplier must supply the following information for the Principal Procurement Agency to determine Supplier’s qualifications to extend the resulting Master Agreement to Participating Public Agencies through OMNIA Partners.
3.1 Company
A. Brief history and description of Supplier to include experience providing similar products and services.
B. Total number and location of salespersons employed by Supplier.
C. Number and location of support centers (if applicable) and location of corporate office.
D. Annual sales for the three previous fiscal years.
a. Submit FEIN and Dunn & Bradstreet report.
E. Describe any green or environmental initiatives or policies.
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33 F. Describe any diversity programs or partners supplier does business with and how Participating Agencies may use diverse partners through the Master Agreement.
Indicate how, if at all, pricing changes when using the diversity program. If there are any diversity programs, provide a list of diversity alliances and a copy of their certifications.
G. Indicate if supplier holds any of the below certifications in any classified areas and include proof of such certification in the response:
a. Minority Women Business Enterprise
Yes No
If yes, list certifying agency: ___________________________________ b. Small Business Enterprise (SBE) or Disadvantaged Business Enterprise (DBE)
Yes No
If yes, list certifying agency: ___________________________________ c. Historically Underutilized Business (HUB)
Yes No
If yes, list certifying agency: ___________________________________ d. Historically Underutilized Business Zone Enterprise (HUBZone) Yes No
If yes, list certifying agency: ___________________________________ e. Other recognized diversity certificate holder
Yes No
If yes, list certifying agency: ____________________________________ H.List any relationships with subcontractors or affiliates intended to be used when providing services and identify if subcontractors meet minority-owned standards.
If any, list which certifications subcontractors hold and certifying agency.
I. Describe how supplier differentiates itself from its competitors.
J. Describe any present or past litigation, bankruptcy or reorganization involving supplier.
K. Felony Conviction Notice: Indicate if the supplier:
a. is a publicly held corporation and this reporting requirement is not applicable;
b. is not owned or operated by anyone who has been convicted of a felony; or c. is owned or operated by and individual(s) who has been convicted of a felony and provide the names and convictions.
L. Describe any debarment or suspension actions taken against supplier
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34 3.2 Distribution, Logistics
A. Each offeror awarded an item under this solicitation may offer their complete product and service offering/a balance of line. Describe the full line of products and services offered by supplier.
B. Describe how supplier proposes to distribute the products/service nationwide.
Include any states where products and services will not be offered under the Master Agreement, including U.S. Territories and Outlying Areas.
C. Describe how Participating Agencies are ensured they will receive the Master Agreement pricing; include all distribution channels such as direct ordering, retail or in-store locations, through distributors, etc. Describe how Participating Agencies verify and audit pricing to ensure its compliance with the Master Agreement.
D. Identify all other companies that will be involved in processing, handling or shipping the products/service to the end user.
E. Provide the number, size and location of Supplier’s distribution facilities, warehouses and retail network as applicable.
3.3 Marketing and Sales
A. Given the public nature of the solicitation and contract, OMNIA Partners makes solicitation and contract documentation, including pricing documents, available on its website so Participating Public Agencies may easily conduct their due diligence. Describe any portions of the response that should not be available on the website and why those portions should not be available.
B. Provide a detailed ninety-day plan beginning from award date of the Master Agreement describing the strategy to immediately implement the Master Agreement as supplier’s primary go to market strategy for Public Agencies to supplier’s teams nationwide, to include, but not limited to:
i. Executive leadership endorsement and sponsorship of the award as the public sector go-to-market strategy within first 10 days ii. Training and education of Supplier’s national sales force with participation from the Supplier’s executive leadership, along with the OMNIA Partners team within first 90 days
C. Provide a detailed ninety-day plan beginning from award date of the Master Agreement describing the strategy to market the Master Agreement to current Participating Public Agencies, existing Public Agency customers of Supplier, as well as to prospective Public Agencies nationwide immediately upon award, to include, but not limited to:
i. Creation and distribution of a co-branded press release to trade publications
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35 ii. Announcement, Master Agreement details and contact information published on the Supplier’s website within first 90 days iii. Design, publication and distribution of co-branded marketing materials within first 90 days
iv. Commitment to attendance and participation with OMNIA Partners at national (i.e., NIGP Annual Forum, NPI Conference, etc.), regional (i.e., Regional NIGP Chapter Meetings, Regional Cooperative Summits, etc.) and supplier-specific trade shows, conferences and meetings throughout the term of the Master Agreement
v. Commitment to attend, exhibit and participate at the NIGP Annual Forum in an area reserved by OMNIA Partners for partner suppliers. Booth space will be purchased and staffed by Supplier. In addition, Supplier commits to provide reasonable assistance to the overall promotion and marketing efforts for the NIGP Annual Forum, as directed by OMNIA Partners. vi. Design and publication of national and regional advertising in trade publications throughout the term of the Master Agreement vii. Ongoing marketing and promotion of the Master Agreement throughout its term (case studies, collateral pieces, presentations, promotions, etc.) viii. Dedicated OMNIA Partners internet web-based homepage on Supplier’s website with:
• OMNIA Partners standard logo;
• Copy of original Request for Proposal;
• Copy of Master Agreement and amendments between Principal Procurement Agency and Supplier;
• Summary of Products and pricing;
• Marketing Materials
• Electronic link to OMNIA Partners’ website including the online registration page;
• A dedicated toll-free number and email address for OMNIA Partners
D. Describe how Supplier will transition any existing Public Agency customers’ accounts to the Master Agreement available nationally through OMNIA Partners.
Include a list of current cooperative contracts (regional and national) Supplier holds and describe how the Master Agreement will be positioned among the other cooperative agreements.
E. Acknowledge Supplier agrees to provide its logo(s) to OMNIA Partners and agrees to provide permission for reproduction of such logo in marketing communications and promotions. Acknowledge that use of OMNIA Partners logo will require permission for reproduction, as well.
F. Confirm Supplier will be proactive in direct sales of Supplier’s goods and services to Public Agencies nationwide and the timely follow up to leads established by
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36 OMNIA Partners. All sales materials are to use the OMNIA Partners logo. At a minimum, the Supplier’s sales initiatives should communicate:
i. Master Agreement was competitively solicited and publicly awarded by a Principal Procurement Agency
ii. Best government pricing
iii. No cost to participate
iv. Non-exclusive
G. Confirm Supplier will train its national sales force on the Master Agreement. At a minimum, sales training should include:
i. Key features of Master Agreement
ii. Working knowledge of the solicitation process
iii. Awareness of the range of Public Agencies that can utilize the Master Agreement through OMNIA Partners
iv. Knowledge of benefits of the use of cooperative contracts H. Provide the name, title, email and phone number for the person(s), who will be responsible for:
i. Executive Support
ii. Marketing
iii. Sales
iv. Sales Support
v. Financial Reporting
vi. Accounts Payable
vii. Contracts
I. Describe in detail how Supplier’s national sales force is structured, including contact information for the highest-level executive in charge of the sales team.
I. Explain in detail how the sales teams will work with the OMNIA Partners team to implement, grow and service the national program.
J. Explain in detail how Supplier will manage the overall national program throughout the term of the Master Agreement, including ongoing coordination of marketing and sales efforts, timely new Participating Public Agency account setup, timely contract administration, etc.
K. State the amount of Supplier’s Public Agency sales for the previous fiscal year.
Provide a list of Supplier’s top 10 Public Agency customers, the total purchases for each for the previous fiscal year along with a key contact for each.
L. Describe Supplier’s information systems capabilities and limitations regarding order management through receipt of payment, including description of multiple platforms that may be used for any of these functions.
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37 M. Provide the Contract Sales (as defined in Section 12 of the OMNIA Partners Administration Agreement) that Supplier will guarantee each year under the Master Agreement for the initial three years of the Master Agreement (“Guaranteed Contract Sales”).
$_______.00 in year one
$_______.00 in year two
$_______.00 in year three
To the extent Supplier guarantees minimum Contract Sales, the Administrative Fee shall be calculated based on the greater of the actual Contract Sales and the Guaranteed Contract Sales.
N. Even though it is anticipated many Public Agencies will be able to utilize the Master Agreement without further formal solicitation, there may be circumstances where Public Agencies will issue their own solicitations. The following options are available when responding to a solicitation for Products covered under the Master Agreement.
i. Respond with Master Agreement pricing (Contract Sales reported to OMNIA Partners).
ii. If competitive conditions require pricing lower than the standard Master Agreement not-to-exceed pricing, Supplier may respond with lower pricing through the Master Agreement. If Supplier is awarded the contract, the sales are reported as Contract Sales to OMNIA Partners under the Master Agreement.
iii. Respond with pricing higher than Master Agreement only in the unlikely event that the Public Agency refuses to utilize Master Agreement (Contract Sales are not reported to OMNIA Partners). iv. If alternative or multiple proposals are permitted, respond with pricing higher than Master Agreement, and include Master Agreement as the alternate or additional proposal.
v. Detail Supplier’s strategies under these options when responding to a solicitation.
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38 Exhibit B
Administration Agreement, Example
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this “Agreement”) is made this ___ day of ______ 20__, between OMNIA Partners, Public Sector, Inc., a Delaware corporation (“OMNIA Partners”), and ________________ (“Supplier”).
RECITALS
WHEREAS, the ___________________ (the “Principal Procurement Agency”) has entered into a Master Agreement effective _________________, Agreement No_______, by and between the Principal Procurement Agency and Supplier, (as may be amended from time to time in accordance with the terms thereof, the “Master Agreement”), as attached hereto as Exhibit A and incorporated herein by reference as though fully set forth herein, for the purchase of ____________________________ (the “Product”);
WHEREAS, said Master Agreement provides that any or all public agencies, including state and local governmental entities, public and private primary, secondary and higher education entities, non-profit entities, and agencies for the public benefit (collectively, “Public Agencies”), that register (either via registration on the OMNIA Partners website or execution of a Master Intergovernmental Cooperative Purchasing Agreement, attached hereto as Exhibit B) (each, hereinafter referred to as a “Participating Public Agency”) may purchase Product at prices stated in the Master Agreement; WHEREAS, Participating Public Agencies may access the Master Agreement which is offered through OMNIA Partners to Public Agencies;
WHEREAS, OMNIA Partners serves as the cooperative contract administrator of the Master Agreement on behalf of Principal Procurement Agency;
WHEREAS, Principal Procurement Agency desires OMNIA Partners to proceed with administration of the Master Agreement; and
WHEREAS, OMNIA Partners and Supplier desire to enter into this Agreement to make available the Master Agreement to Participating Public Agencies and to set forth certain terms and conditions governing the relationship between OMNIA Partners and Supplier.
NOW, THEREFORE, in consideration of the payments to be made hereunder and the mutual covenants contained in this Agreement, OMNIA Partners and Supplier hereby agree as follows:
DEFINITIONS
1. Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings given to them in the Master Agreement.
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39 TERMS AND CONDITIONS
2. The Master Agreement and the terms and conditions contained therein shall apply to this Agreement except as expressly changed or modified by this Agreement. Supplier acknowledges and agrees that the covenants and agreements of Supplier set forth in the solicitation and Supplier’s response thereto resulting in the Master Agreement are incorporated herein and are an integral part hereof.
3. OMNIA Partners shall be afforded all of the rights, privileges and indemnifications afforded to Principal Procurement Agency by or from Supplier under the Master Agreement, and such rights, privileges and indemnifications shall accrue and apply with equal effect to OMNIA Partners, its agents, employees, directors, and representatives under this Agreement including, but not limited to, Supplier’s obligation to obtain appropriate insurance.
4. OMNIA Partners shall perform all of its duties, responsibilities and obligations as the cooperative contract administrator of the Master Agreement on behalf of Principal Procurement Agency as set forth herein, and Supplier hereby acknowledges and agrees that all duties, responsibilities and obligations will be undertaken by OMNIA Partners solely in its capacity as the cooperative contract administrator under the Master Agreement.
5. With respect to any purchases by Principal Procurement Agency or any Participating Public Agency pursuant to the Master Agreement, OMNIA Partners shall not be: (i) construed as a dealer, re-marketer, representative, partner or agent of any type of the Supplier, Principal Procurement Agency or any Participating Public Agency; (ii) obligated, liable or responsible for any order for Product made by Principal Procurement Agency or any Participating Public Agency or any employee thereof under the Master Agreement or for any payment required to be made with respect to such order for Product; and (iii) obligated, liable or responsible for any failure by Principal Procurement Agency or any Participating Public Agency to comply with procedures or requirements of applicable law or the Master Agreement or to obtain the due authorization and approval necessary to purchase under the Master Agreement. OMNIA Partners makes no representation or guaranty with respect to any minimum purchases by Principal Procurement Agency or any Participating Public Agency or any employee thereof under this Agreement or the Master Agreement.
6. OMNIA Partners shall not be responsible for Supplier’s performance under the Master Agreement, and Supplier shall hold OMNIA Partners harmless from any liability that may arise from the acts or omissions of Supplier in connection with the Master Agreement.
7. Supplier acknowledges that, in connection with its access to OMNIA Partners confidential information and/or supply of data to OMNIA Partners, when applicable, it has complied with and shall continue to comply with all laws, regulations and standards that may apply to Supplier, including, without limitation: (a) United States federal and state information security and privacy statutes, regulations and/or best practices, including, without limitation, the Gramm-Leach-Bliley Act, the Massachusetts Data Security Regulations (201 C.M.R. 17.00 et. seq.), the Nevada encryption statute (N.R.S. § 603A), the California data security law (Cal. Civil Code § 1798.80 et. seq.) and California Consumer Privacy Act (Cal. Civil Code § 1798.100 et. seq.); and (b) applicable industry and regulatory standards and best practices (collectively, “Data Regulations”).
With regard to Personal Information that Supplier collects, receives, or otherwise processes under the Agreement or otherwise in connection with performance of the Agreement, Supplier agrees that it will not: (i) sell, rent, release, disclose, disseminate, make available, transfer, or otherwise
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40 communicate orally, in writing, or by electronic or other means, such Personal Information to another business or third party for monetary or other valuable consideration; or (ii) retain, use, or disclose such Personal Information outside of the direct business relationship between Supplier and OMNIA Partners or for any purpose other than for the specific purpose of performance of the Agreement, including retaining, using, or disclosing such Personal Information for a commercial purpose other than for performance of the Agreement. By entering into the Agreement, Supplier certifies that it understands the specific restrictions contained in this Section 7 and will comply with them. For purposes hereof, “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, and includes the specific elements of “personal information” as defined under Data Regulations, as defined herein. Supplier will reasonably assist OMNIA Partners in timely responding to any third party “request to know” or “request to delete” (as defined pursuant to Data Regulations) and will promptly provide OMNIA Partners with information reasonably necessary for OMNIA Partners to respond to such requests. Where Supplier collects Personal Information directly from Public Agencies or others on OMNIA Partners’ behalf, Supplier will maintain records and the means necessary to enable OMNIA Partners to respond to such requests to know and requests to delete.
8. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OMNIA
PARTNERS EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES REGARDING OMNIA PARTNERS’ PERFORMANCE AS A COOPERATIVE CONTRACT ADMINISTRATOR OF THE MASTER AGREEMENT. OMNIA
PARTNERS SHALL NOT BE LIABLE IN ANY WAY FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR RELIANCE DAMAGES, EVEN IF OMNIA PARTNERS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TERM OF AGREEMENT; TERMINATION
9. This Agreement shall be in effect so long as the Master Agreement remains in effect, provided, however, that the provisions of Sections 3-8 and 11-22, hereof and the indemnifications afforded by the Supplier to OMNIA Partners in the Master Agreement, to the extent such provisions survive any expiration or termination of the Master Agreement, shall survive the expiration or termination of this Agreement.
NATIONAL PROMOTION
10. OMNIA Partners and Supplier shall publicize and promote the availability of the Master Agreement’s products and services to Public Agencies and such agencies’ employees.
Supplier shall require each Public Agency to register its participation in the OMNIA Partners program by either registering on the OMNIA Partners website (www.omniapartners.com/publicsector) or executing a Master Intergovernmental Cooperative Purchasing Agreement prior to processing the Participating Public Agency’s first sales order. Upon request, Supplier shall make available to interested Public Agencies a copy of the Master Agreement and such price lists or quotes as may be necessary for such Public Agencies to evaluate potential purchases.
11. Supplier shall provide such marketing and administrative support as set forth in the solicitation resulting in the Master Agreement, including assisting in development of marketing materials as reasonably requested by Principal Procurement Agency and OMNIA Partners. Supplier shall be responsible for obtaining permission or license of use and payment of any license fees for all content and images Supplier provides to OMNIA Partners or posts on the OMNIA Partners website.
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41 Supplier shall indemnify, defend and hold harmless OMNIA Partners for use of all such content and images including copyright infringement claims. Supplier and OMNIA Partners each hereby grant to the other party a limited, revocable, non-transferable, non-sublicensable right to use such party’s logo (each, the “Logo”) solely for use in marketing the Master Agreement. Each party shall provide the other party with the standard terms of use of such party’s Logo, and such party shall comply with such terms in all material respects. Both parties shall obtain approval from the other party prior to use of such party’s Logo. Notwithstanding the foregoing, the parties understand and agree that except as provided herein neither party shall have any right, title or interest in the other party’s Logo. Upon termination of this Agreement, each party shall immediately cease use of the other party’s Logo.
ADMINISTRATIVE FEE, REPORTING & PAYMENT
12. An “Administrative Fee” shall be defined and due to OMNIA Partners from Supplier in the amount of __ percent (__%) (“Administrative Fee Percentage”) multiplied by the total purchase amount paid to Supplier, less refunds and credits on returns, for the sale of products and/or services to Principal Procurement Agency and Participating Public Agencies pursuant to the Master Agreement (as amended from time to time and including any renewal thereof) (“Contract Sales”).
From time to time the parties may mutually agree in writing to a lower Administrative Fee Percentage for a specifically identified Participating Public Agency’s Contract Sales.
13. Supplier shall provide OMNIA Partners with an electronic accounting report monthly, in the format prescribed by OMNIA Partners, summarizing all Contract Sales for each calendar month. The Contract Sales reporting format is provided as Exhibit C (“Contract Sales Report”), attached hereto and incorporated herein by reference. Contract Sales Reports for each calendar month shall be provided by Supplier to OMNIA Partners by the 10th day of the following month. Failure to provide a Contract Sales Report within the time and manner specified herein shall constitute a material breach of this Agreement and if not cured within thirty (30) days of written notice to Supplier shall be deemed a cause for termination of the Master Agreement, at Principal Procurement Agency’s sole discretion, and/or this Agreement, at OMNIA Partners’ sole discretion.
14. Administrative Fee payments are to be paid by Supplier to OMNIA Partners at the frequency and on the due date stated in Section 13, above, for Supplier’s submission of corresponding Contract Sales Reports. Administrative Fee payments are to be made via Automated Clearing House (ACH) to the OMNIA Partners designated financial institution identified in Exhibit D. Failure to provide a payment of the Administrative Fee within the time and manner specified herein shall constitute a material breach of this Agreement and if not cured within thirty (30) days of written notice to Supplier shall be deemed a cause for termination of the Master Agreement, at Principal Procurement Agency’s sole discretion, and/or this Agreement, at OMNIA Partners’ sole discretion.
All Administrative Fees not paid when due shall bear interest at a rate equal to the lesser of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law until paid in full.
15. Supplier shall maintain an accounting of all purchases made by Participating Public Agencies under the Master Agreement. OMNIA Partners, or its designee, in OMNIA Partners’ sole discretion, reserves the right to compare Participating Public Agency records with Contract Sales Reports submitted by Supplier for a period of four (4) years from the date OMNIA Partners receives such report. In addition, OMNIA Partners may engage a third party to conduct an independent audit of Supplier’s monthly reports. In the event of such an audit, Supplier shall provide all materials reasonably requested relating to such audit by OMNIA Partners at the location designated by OMNIA Partners. In the event an underreporting of Contract Sales and a resulting material underpayment of Administrative Fees is revealed, OMNIA Partners will notify the Supplier in writing. Supplier will
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42 have thirty (30) days from the date of such notice to resolve the discrepancy to OMNIA Partners’ reasonable satisfaction, including payment of any Administrative Fees due and owing, together with interest thereon in accordance with Section 13, and reimbursement of OMNIA Partners’ costs and expenses related to such audit.
GENERAL PROVISIONS
16. This Agreement, the Master Agreement and the exhibits referenced herein supersede any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereto and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained or incorporated herein shall be valid or binding. In the event of any conflict between the provisions of this Agreement and the Master Agreement, as between OMNIA Partners and Supplier, the provisions of this Agreement shall prevail.
17. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement or to recover any Administrative Fee and accrued interest, the prevailing party shall be entitled to reasonable attorney’s fees and costs in addition to any other relief to which it may be entitled.
18. This Agreement and OMNIA Partners’ rights and obligations hereunder may be assigned at OMNIA Partners’ sole discretion to an affiliate of OMNIA Partners, any purchaser of any or all or substantially all of the assets of OMNIA Partners, or the successor entity as a result of a merger, reorganization, consolidation, conversion or change of control, whether by operation of law or otherwise. Supplier may not assign its obligations hereunder without the prior written consent of OMNIA Partners.
19. All written communications given hereunder shall be delivered by first-class mail, postage prepaid, or overnight delivery on receipt to the addresses as set forth below.
A. OMNIA Partners:
OMNIA Partners
5001 Aspen Grove
Franklin, TN 37067
Attention: Legal Department - Public Sector Contracting B. Supplier:
____________________
____________________
____________________
____________________
20. If any provision of this Agreement shall be deemed to be, or shall in fact be, illegal, inoperative or unenforceable, the same shall not affect any other provision or provisions herein contained or render the same invalid, inoperative or unenforceable to any extent whatever, and this Agreement will be construed by limiting or invalidating such provision to the minimum extent necessary to make such provision valid, legal and enforceable.
21. This Agreement may not be amended, changed, modified, or altered without the prior written consent of the parties hereto, and no provision of this Agreement may be discharged or
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43 waived, except by a writing signed by the parties. A waiver of any particular provision will not be deemed a waiver of any other provision, nor will a waiver given on one occasion be deemed to apply to any other occasion.
22. This Agreement shall inure to the benefit of and shall be binding upon OMNIA Partners, the Supplier and any respective successor and assign thereto; subject, however, to the limitations contained herein.
23. This Agreement will be construed under and governed by the laws of the State of Delaware, excluding its conflicts of law provisions and any action arising out of or related to this Agreement shall be commenced solely and exclusively in the state or federal courts in Williamson County Tennessee.
24. This Agreement may be executed in counterparts, each of which is an original but all of which, together, shall constitute but one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile, or by .pdf or similar electronic transmission, will constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile, or by .pdf or similar electronic transmission, will be deemed to be their original signatures for any purpose whatsoever. [INSERT SUPPLIER ENTITY NAME] OMNIA PARTNERS, PUBLIC
SECTOR, INC.
Signature Signature
Sarah Vavra
Name Name
Sr. Vice President, Public Sector
Contracting
Title Title
Date Date
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Exhibit C
Master Intergovernmental Cooperative Purchasing Agreement, Example
MASTER INTERGOVERNMENTAL COOPERATIVE PURCHASING AGREEMENT This Master Intergovernmental Cooperative Purchasing Agreement (this “Agreement”) is entered into by and between those certain government agencies that execute a Principal Procurement Agency Certificate (“Principal Procurement Agencies”) with OMNIA Partners, Public Sector, Inc., a Delaware corporation f/k/a National Intergovernmental Purchasing Alliance Company; Communities Program Management, LLC, a California limited liability company d/b/a U.S.
Communities, and/or NCPA LLC, a Texas limited liability company d/b/a National Cooperative Purchasing Alliance (collectively, “OMNIA Partners”), in its capacity as the cooperative administrator, to be appended and made a part hereof and such other agencies (“Participating Public Agencies”), as defined in each Master Agreement (as defined below), who register to participate in the cooperative purchasing programs administered by OMNIA Partners and its affiliates and subsidiaries (collectively, the “OMNIA Partners Parties”) by either registering on the OMNIA Partners website (www.omniapartners.com/publicsector or any successor website), or by executing a copy of this Agreement.
RECITALS
WHEREAS, after a competitive solicitation and selection process by Principal Procurement Agencies, in compliance with their own policies, procedures, rules and regulations, a number of suppliers have entered into “Master Agreements” (herein so called) to provide a variety of goods, products and services (“Products”) to the applicable Principal Procurement Agency and the Participating Public Agencies;
WHEREAS, Master Agreements are made available by Principal Procurement Agencies through the OMNIA Partners Parties and provide that Participating Public Agencies may purchase Products on the same terms, conditions and pricing as the Principal Procurement Agency, subject to any applicable federal and/or local purchasing ordinances and the laws of the State of purchase; and WHEREAS, in addition to Master Agreements, the OMNIA Partners Parties may from time to time offer Participating Public Agencies the opportunity to acquire Products through other group purchasing agreements.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, and of the mutual benefits to result, the parties hereby agree as follows:
1. Each party will facilitate the cooperative procurement of Products.
2. The Participating Public Agencies shall procure Products in accordance with and subject to the relevant federal, state and local statutes, ordinances, rules and regulations that govern Participating Public Agency’s procurement practices. The Participating Public Agencies hereby acknowledge and agree that it is the intent of the parties that all provisions of this Agreement and that Principal Procurement Agencies’ participation in the program described herein comply with all applicable laws, including but not limited to the requirements of 42 C.F.R. § 1001.952(j), as may be amended from time to time. The Participating Public Agencies further acknowledge and agree that they are solely responsible for their compliance with all applicable “safe harbor” regulations,
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45 including but not limited to any and all obligations to fully and accurately report discounts and incentives.
3. The Participating Public Agency represents and warrants that the Participating Public Agency is not a hospital or other healthcare provider and is not purchasing Products on behalf of a hospital or healthcare provider; provided that the foregoing shall not prohibit Participating Public Agency from furnishing health care services so long as the furnishing of health care services is not in furtherance of a primary purpose of the Participating Public Agency.
4. The cooperative use of Master Agreements shall be in accordance with the terms and conditions of the Master Agreements, except as modification of those terms and conditions is otherwise required by applicable federal, state or local law, policies or procedures.
5. The Principal Procurement Agencies will make available, upon reasonable request, Master Agreement information which may assist in improving the procurement of Products by the Participating Public Agencies.
6. The Participating Public Agency agrees the OMNIA Partners Parties may provide access to group purchasing organization (“GPO”) agreements directly or indirectly by enrolling the Participating Public Agency in another GPO’s purchasing program, provided that the purchase of Products through the OMNIA Partners Parties or any other GPO shall be at the Participating Public Agency’s sole discretion.
7. The Participating Public Agencies (each a “Procuring Party”) that procure Products through any Master Agreement or GPO Product supply agreement (each a “GPO Contract”) will make timely payments to the distributor, manufacturer or other vendor (collectively, “Supplier”) for Products received in accordance with the terms and conditions of the Master Agreement or GPO Contract, as applicable. Payment for Products and inspections and acceptance of Products ordered by the Procuring Party shall be the exclusive obligation of such Procuring Party. Disputes between Procuring Party and any Supplier shall be resolved in accordance with the law and venue rules of the State of purchase unless otherwise agreed to by the Procuring Party and Supplier.
8. The Procuring Party shall not use this Agreement as a method for obtaining additional concessions or reduced prices for purchase of similar products or services outside of the Master Agreement. Master Agreements may be structured with not-to-exceed pricing, in which cases the Supplier may offer the Procuring Party and the Procuring Party may accept lower pricing or additional concessions for purchase of Products through a Master Agreement.
9. The Procuring Party shall be responsible for the ordering of Products under this Agreement. A non-procuring party shall not be liable in any fashion for any violation by a Procuring Party, and, to the extent permitted by applicable law, the Procuring Party shall hold non-procuring party harmless from any liability that may arise from the acts or omissions of the Procuring Party.
10. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE OMNIA
PARTNERS PARTIES EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED
REPRESENTATIONS AND WARRANTIES REGARDING ANY PRODUCT, MASTER AGREEMENT AND GPO CONTRACT. THE OMNIA PARTNERS PARTIES SHALL NOT BE
LIABLE IN ANY WAY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL,
EXEMPLARY, PUNITIVE, OR RELIANCE DAMAGES, EVEN IF THE OMNIA PARTNERS PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE
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46 PROCURING PARTY ACKNOWLEDGES AND AGREES THAT THE OMNIA PARTNERS
PARTIES SHALL HAVE NO LIABILITY FOR ANY ACT OR OMISSION BY A SUPPLIER OR OTHER PARTY UNDER A MASTER AGREEMENT OR GPO CONTRACT.
11. This Agreement shall remain in effect until termination by either party giving thirty (30) days’ written notice to the other party. The provisions of Paragraphs 6 - 10 hereof shall survive any such termination.
12. This Agreement shall take effect upon (i) execution of the Principal Procurement Agency Certificate, or (ii) registration on the OMNIA Partners website or the execution of this Agreement by a Participating Public Agency, as applicable.
Participating Public Agency: OMNIA Partners, as the cooperative administrator on behalf of Principal
Procurement Agencies:
OMNIA PARTNERS, PUBLIC SECTOR,
INC.
Authorized Signature Signature
Sarah E. Vavra
Name Name
Sr. Vice President, Public Sector Contracting
Title and Agency Name Title
Date Date
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Exhibit D
Principal Procurement Agency Certificate, Example
PRINCIPAL PROCUREMENT AGENCY CERTIFICATE
In its capacity as a Principal Procurement Agency (as defined below) for OMNIA Partners, Public Sector, Inc., a Delaware corporation (“OMNIA Partners”), [PPA Name] agrees to pursue Master Agreements for Products as specified in the attached Exhibits to this Principal Procurement Agency Certificate.
I hereby acknowledge, in my capacity as _____________ of and on behalf of [PPA Name] (“Principal Procurement Agency”), that I have read and hereby agree to the general terms and conditions set forth in the attached Master Intergovernmental Cooperative Purchasing Agreement regulating the use of the Master Agreements and purchase of Products that from time to time are made available by Principal Procurement Agencies to Participating Public Agencies nationwide through OMNIA Partners.
I understand that the purchase of one or more Products under the provisions of the Master Intergovernmental Cooperative Purchasing Agreement is at the sole and complete discretion of the Participating Public Agency.
Authorized Signature, [PPA Name]________
Signature
Name
Title
Date
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Exhibit E
Contract Sales Reporting Template
Contract Sales Report submitted electronically in Microsoft Excel:
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49 Exhibit F
Federal Funds Certifications
FEDERAL CERTIFICATIONS
ADDENDUM FOR AGREEMENT FUNDED BY U.S. FEDERAL GRANT
TO WHOM IT MAY CONCERN:
Participating Agencies may elect to use federal funds to purchase under the Master Agreement. This form should be completed and returned.
DEFINITIONS
Contract means a legal instrument by which a non–Federal entity purchases property or services needed to carry out the project or program under a Federal award. The term as used in this part does not include a legal instrument, even if the non–Federal entity considers it a contract, when the substance of the transaction meets the definition of a Federal award or subaward Contractor means an entity that receives a contract as defined in Contract.
Cooperative agreement means a legal instrument of financial assistance between a Federal awarding agency or pass-through entity and a non–Federal entity that, consistent with 31 U.S.C. 6302–6305:
(a) Is used to enter into a relationship the principal purpose of which is to transfer anything of value from the Federal awarding agency or pass-through entity to the non–Federal entity to carry out a public purpose authorized by a law of the United States (see 31 U.S.C. 6101(3)); and not to acquire property or services for the Federal government or pass-through entity's direct benefit or use;
(b) Is distinguished from a grant in that it provides for substantial involvement between the Federal awarding agency or pass-through entity and the non–Federal entity in carrying out the activity contemplated by the Federal award. (c) The term does not include:
(1) A cooperative research and development agreement as defined in 15 U.S.C. 3710a; or (2) An agreement that provides only:
(i) Direct United States Government cash assistance to an individual; (ii) A subsidy;
(iii) A loan;
(iv) A loan guarantee; or
(v) Insurance.
Federal awarding agency means the Federal agency that provides a Federal award directly to a non–Federal entity Federal award has the meaning, depending on the context, in either paragraph (a) or (b) of this section:
(a)(1) The Federal financial assistance that a non–Federal entity receives directly from a Federal awarding agency or indirectly from a pass-through entity, as described in § 200.101 Applicability; or (2) The cost-reimbursement contract under the Federal Acquisition Regulations that a non–Federal entity receives directly from a Federal awarding agency or indirectly from a pass-through entity, as described in § 200.101 Applicability.
(b) The instrument setting forth the terms and conditions. The instrument is the grant agreement, cooperative agreement, other agreement for assistance covered in paragraph (b) of § 200.40 Federal financial assistance, or the cost-reimbursement contract awarded under the Federal Acquisition Regulations. (c) Federal award does not include other contracts that a Federal agency uses to buy goods or services from a contractor or a contract to operate Federal government owned, contractor operated facilities (GOCOs). (d) See also definitions of Federal financial assistance, grant agreement, and cooperative agreement.
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50 Non–Federal entity means a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient.
Nonprofit organization means any corporation, trust, association, cooperative, or other organization, not including IHEs, that:
(a) Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest; (b) Is not organized primarily for profit; and
(c) Uses net proceeds to maintain, improve, or expand the operations of the organization.
Obligations means, when used in connection with a non–Federal entity's utilization of funds under a Federal award, orders placed for property and services, contracts and subawards made, and similar transactions during a given period that require payment by the non–Federal entity during the same or a future period.
Pass-through entity means a non–Federal entity that provides a subaward to a subrecipient to carry out part of a Federal program.
Recipient means a non–Federal entity that receives a Federal award directly from a Federal awarding agency to carry out an activity under a Federal program. The term recipient does not include subrecipients.
Simplified acquisition threshold means the dollar amount below which a non–Federal entity may purchase property or services using small purchase methods. Non–Federal entities adopt small purchase procedures in order to expedite the purchase of items costing less than the simplified acquisition threshold. The simplified acquisition threshold is set by the Federal Acquisition Regulation at 48 CFR Subpart 2.1 (Definitions) and in accordance with 41 U.S.C. 1908. As of the publication of this part, the simplified acquisition threshold is $250,000, but this threshold is periodically adjusted for inflation. (Also see definition of § 200.67 Micro-purchase.)
Subaward means an award provided by a pass-through entity to a subrecipient for the subrecipient to carry out part of a Federal award received by the pass-through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.
Subrecipient means a non–Federal entity that receives a subaward from a pass-through entity to carry out part of a Federal program; but does not include an individual that is a beneficiary of such program. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency.
Termination means the ending of a Federal award, in whole or in part at any time prior to the planned end of period of performance.
The following provisions may be required and apply when Participating Agency expends federal funds for any purchase resulting from this procurement process. Per FAR 52.204-24 and FAR 52.204-25, solicitations and resultant contracts shall contain the following provisions.
52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Oct 2020)
The Offeror shall not complete the representation at paragraph (d)(1) of this provision if the Offeror has represented that it "does not provide covered telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument" in paragraph (c)(1) in the provision at 52.204-26, Covered Telecommunications Equipment or Services—Representation, or in paragraph (v)(2)(i) of the provision at 52.212-3, Offeror Representations and Certifications-Commercial Items. The Offeror shall not complete the representation in paragraph (d)(2) of this provision if the Offeror has represented that it "does not use covered telecommunications equipment or services, or any equipment, system, or service that uses covered telecommunications equipment or services" in paragraph (c)(2) of the provision at 52.204-26, or in paragraph (v)(2)(ii) of the provision at 52.212-3.
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51 (a) Definitions. As used in this provision—
Backhaul, covered telecommunications equipment or services, critical technology, interconnection arrangements, reasonable inquiry, roaming, and substantial or essential component have the meanings provided in the clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (b) Prohibition.
(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. Nothing in the prohibition shall be construed to—
(i) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or (ii) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles. (2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115- 232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract or extending or renewing a contract with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract. Nothing in the prohibition shall be construed to— (i) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or (ii) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles. (c) Procedures. The Offeror shall review the list of excluded parties in the System for Award Management (SAM) (https://www.sam.gov) for entities excluded from receiving federal awards for "covered telecommunications equipment or services". (d) Representation. The Offeror represents that—
(1) It □ will, □ will not provide covered telecommunications equipment or services to the Government in the performance of any contract, subcontract or other contractual instrument resulting from this solicitation. The Offeror shall provide the additional disclosure information required at paragraph (e)(1) of this section if the Offeror responds "will" in paragraph (d)(1) of this section; and
(2) After conducting a reasonable inquiry, for purposes of this representation, the Offeror represents that— It □ does, □ does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. The Offeror shall provide the additional disclosure information required at paragraph (e)(2) of this section if the Offeror responds "does" in paragraph (d)(2) of this section. (e) Disclosures.
(1) Disclosure for the representation in paragraph (d)(1) of this provision. If the Offeror has responded "will" in the representation in paragraph (d)(1) of this provision, the Offeror shall provide the following information as part of the offer. (i) For covered equipment—
(A) The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the original equipment manufacturer (OEM) or a distributor, if known); (B) A description of all covered telecommunications equipment offered (include brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); and (C) Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision. (ii) For covered services—
(A) If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or
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52 (B) If not associated with maintenance, the Product Service Code (PSC) of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision. (2) Disclosure for the representation in paragraph (d)(2) of this provision. If the Offeror has responded "does" in the representation in paragraph (d)(2) of this provision, the Offeror shall provide the following information as part of the offer:
(i) For covered equipment—
(A) The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the OEM or a distributor, if known); (B) A description of all covered telecommunications equipment offered (include brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); and (C) Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision. (ii) For covered services—
(A) If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or
(B) If not associated with maintenance, the PSC of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision.
52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2020).
(a) Definitions. As used in this clause—
Backhaul means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).
Covered foreign country means The People’s Republic of China.
Covered telecommunications equipment or services means– (1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);
(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or (4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
Critical technology means–
(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations; (2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled- (i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or (ii) For reasons relating to regional stability or surreptitious listening; (3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities); (4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);
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53 (5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or
(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).
Interconnection arrangements means arrangements governing the physical connection of two or more networks to allow the use of another's network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resources.
Reasonable inquiry means an inquiry designed to uncover any information in the entity's possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.
Roaming means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.
Substantial or essential component means any component necessary for the proper function or performance of a piece of equipment, system, or service.
(b) Prohibition.
(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The Contractor is prohibited from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104.
(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115- 232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract. (c) Exceptions. This clause does not prohibit contractors from providing— (1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles. (d) Reporting requirement.
(1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report the information in paragraph (d)(2) of this clause to the Contracting Officer, unless elsewhere in this contract are established procedures for reporting the information; in the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil. (2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause (i) Within one business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.
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54 (ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services. (e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial items.
The following certifications and provisions may be required and apply when Participating Agency expends federal funds for any purchase resulting from this procurement process. Pursuant to 2 C.F.R. § 200.326, all contracts, including small purchases, awarded by the Participating Agency and the Participating Agency’s subcontractors shall contain the procurement provisions of Appendix II to Part 200, as applicable.
APPENDIX II TO 2 CFR PART 200
(A) Contracts for more than the simplified acquisition threshold currently set at $250,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
Pursuant to Federal Rule (A) above, when a Participating Agency expends federal funds, the Participating Agency reserves all rights and privileges under the applicable laws and regulations with respect to this procurement in the event of breach of contract by either party.
Does offeror agree? YES Initials of Authorized Representative of offeror
(B) Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,000) Pursuant to Federal Rule (B) above, when a Participating Agency expends federal funds, the Participating Agency reserves the right to immediately terminate any agreement in excess of $10,000 resulting from this procurement process in the event of a breach or default of the agreement by Offeror as detailed in the terms of the contract.
Does offeror agree? YES Initials of Authorized Representative of offeror
(C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 CFR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” Pursuant to Federal Rule (C) above, when a Participating Agency expends federal funds on any federally assisted construction contract, the equal opportunity clause is incorporated by reference herein.
Does offeror agree to abide by the above? YES Initials of Authorized Representative of offeror (D) Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In
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55 addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non - Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency.
Pursuant to Federal Rule (D) above, when a Participating Agency expends federal funds during the term of an award for all contracts and subgrants for construction or repair, offeror will be in compliance with all applicable Davis-Bacon Act provisions.
Does offeror agree? YES Initials of Authorized Representative of offeror (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
Pursuant to Federal Rule (E) above, when a Participating Agency expends federal funds, offeror certifies that offeror will be in compliance with all applicable provisions of the Contract Work Hours and Safety Standards Act during the term of an award for all contracts by Participating Agency resulting from this procurement process.
Does offeror agree? YES Initials of Authorized Representative of offeror (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
Pursuant to Federal Rule (F) above, when federal funds are expended by Participating Agency, the offeror certifies that during the term of an award for all contracts by Participating Agency resulting from this procurement process, the offeror agrees to comply with all applicable requirements as referenced in Federal Rule (F) above.
Does offeror agree? YES Initials of Authorized Representative of offeror (G) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended—Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non - Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA)
In the event Federal Transit Administration (FTA) or Department of Transportation (DOT) funding is used by Participating Public
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56 Agency, Offeror also agrees to include Clean Air and Clean Water requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.
Pursuant to Federal Rule (G) above, when federal funds are expended by Participating Agency, the offeror certifies that during the term of an award for all contracts by Participating Agency member resulting from this procurement process, the offeror agrees to comply with all applicable requirements as referenced in Federal Rule (G) above.
Does offeror agree? YES Initials of Authorized Representative of offeror (H) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the Executive Office of the President Office of Management and Budget (OMB) guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
Pursuant to Federal Rule (H) above, when federal funds are expended by Participating Agency, the offeror certifies that during the term of an award for all contracts by Participating Agency resulting from this procurement process, the offeror certifies that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency. If at any time during the term of an award the offeror or its principals becomes debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency, the offeror will notify the Participating Agency.
Does offeror agree? YES Initials of Authorized Representative of offeror (I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award.
Such disclosures are forwarded from tier to tier up to the non-Federal award.
Pursuant to Federal Rule (I) above, when federal funds are expended by Participating Agency, the offeror certifies that during the term and after the awarded term of an award for all contracts by Participating Agency resulting from this procurement process, the offeror certifies that it is in compliance with all applicable provisions of the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). The undersigned further certifies that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
(3) The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such subrecipients shall certify