4-Sample Agreement (1).pdf

AGREEMENT BETWEEN

ATLANTA INDEPENDENT SCHOOL SYSTEM

AND

FOR

XXXXXXXXX

XXXX-XXXX

Sample Agreement updated 11/2023 Atlanta Public Schools

STATE OF GEORGIA

COUNTY OF FULTON

This Agreement (“Agreement”) is made and entered into by and between the Atlanta Independent School System a/k/a the Atlanta Public Schools, an independent school system chartered under the laws of the state of Georgia, having a headquarters at 130 Trinity Avenue, S.W., Atlanta, GA 30303 (hereinafter referred to as "APS") and (insert full legal name of contractor) a company organized and existing under the laws of the state of [ ] located at (insert contractor's address) (hereinafter referred to as the "Contractor", and together with APS, the “Parties”, and each a “Party”).

WITNESSETH

WHEREAS, APS sought proposals from vendors to provide (insert solicitation name) in Solicitation No.

WHEREAS, Contractor submitted a proposal to APS for the provision of said goods and/or services; and

WHEREAS, the Executive Director of Purchasing and Warehouse Operations Services for APS recommended that Contractor be awarded a contract to provide said goods and/or services to APS; and

WHEREAS, at its meeting on (insert date) the Board of Education authorized this Agreement with Contractor.

NOW, THEREFORE, for and in consideration of the mutual agreements between the parties hereinafter contained, and for other good and valuable consideration, the parties hereto do agree as follows:

ARTICLE I. DEFINITIONS

1.1 Contract Documents.

The Contract Documents relative to this Agreement consist of: (update list as needed)

a. This Agreement;

b. Solicitation (insert solicitation name & number)(Exhibit

A);

c. The Contractor’s Proposal to the above-numbered Solicitation, including pricing, and any applicable Scope of Services and any applicable Payment and Payment Terms Schedule attached except that objections or amendments by a Contractor that have not been explicitly accepted by APS in writing in this Agreement shall not be included in the Contract Documents or this Agreement and shall be given no weight or consideration; (Exhibit B);

d. Board Authorization Report No. , dated (insert board item number and date) (Exhibit C); and

This Agreement together with the aforementioned documents collectively form the Contract. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. APS shall not be bound by any additional terms and conditions, including but not limited to, terms and conditions related to any provided service or good, limitations of the Contractor's liability or any other third party's liability, limitation of warranties, packaging, invoices, service catalog, brochure, technical data sheet, electronic disclosures, electronic agreements, or other document which attempts to impose any conditions at variance with or in addition to the terms and conditions of this Contract.

1.2 Inconsistency.

Any inconsistency or conflict among the specific provisions of this Agreement and the other Contract Documents shall be resolved as follows:

a. First, by giving preference to the specific provisions of this Agreement;

b. Second, by giving preference to the specific provisions of the Solicitation, attached hereto as Exhibit A;

c. Third, by giving preference to the specific provisions of Contractor’s Proposal, including pricing and any applicable Scope of Services and any applicable Payment and Payment Terms Schedule attached hereto as Exhibit B, except that objections or amendments by a Contractor that have not been explicitly accepted by APS in writing in this Agreement shall not be included in the Contract Documents or this Agreement and shall be given no weight or consideration.

ARTICLE II. SCOPE OF CONTRACT

2.1 Contractor will provide, and APS hereby engages Contractor for the purpose of providing (insert name or general description of goods/services to be provided) to APS in accordance with the statement of Work included in Contractor's Proposal, and/or outlined in the Solicitation dated , 20 . (insert date of solicitation)

Contractor agrees to provide said goods or services to or for APS and to perform all other tasks required by this Contract.

2.2 Contractor will provide the goods and/or services to APS in the manner defined in Contractor’s Proposal attached hereto as Exhibit B and incorporated herein by reference.

ARTICLE III. TERM

The term of this Contract is as follows:

3.1 Initial Term.

The performance period for this contract is one (1) year, subject however to paragraph 3.2 and Article VII below. Contract performance shall begin on , 20 . (insert state date for contract)

3.2 Optional Renewal Terms.

In addition to the base period of one (1) year, there are (_) (insert number of renewals) one-year optional renewal terms (each a "Renewal Term") to be exercised at the sole discretion of APS.

Additionally, as required by O.C.G.A. § 20-2-506, this Contract shall terminate absolutely and without further obligation on the part of APS 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, unless earlier terminated as provided in this Agreement or renewed as provided herein. During the Term, this Contract will be automatically renewed for the following calendar year unless this Contract is terminated in accordance with the provisions of Article VII herein below.

3.3 Same Terms.

Unless mutually agreed upon in writing by the parties, or otherwise indicated herein, all provisions and conditions of any Subsequent or Renewal Term shall be exactly the same as those contained within in this Contract.

3.4 Statutory Compliance Regarding Purchase Contracts.

The parties intend that this Agreement shall operate in conformity with and not in contravention of the requirements of O.C.G.A. § 20-2-506, as applicable, and in the event that this Agreement would conflict therewith, then this Agreement shall be interpreted and implemented in a manner consistent with such statute.

ARTICLE IV. CONTRACTOR SERVICES AND RESPONSIBILITIES

4.1 Performance.

Contractor by the execution of this Agreement, acknowledges that it is possesses that degree of care, learning, skill, and ability which is ordinarily possessed by other members of its profession and further represents that in the performance of the services herein set forth it will exercise such degree of care, learning, skill and ability as is ordinarily employed by Contractor under similar conditions and like circumstances and shall perform such duties without neglect and shall be liable for failure to exercise such degree of care, learning and ability. Any equipment, supplies, or materials used in the performance of this Contract shall be at the expense of the Contractor.

4.2 Contractor’s Responsibilities.

a. General

It is the Contractor’s responsibility to comply with all of the terms and conditions of this Contract. The Contractor is also expected to make every effort to support the mission and duties of APS.

b. Personnel and Staffing.

Contractor is solely responsible for all matters concerning the recruitment, performance and retention of Contractor’s personnel. Contractor must fully comply with all federal, state, and local laws/regulations regarding employment and immigration, including, but not limited to, nondiscrimination, compensation, taxation, and benefits.

Contractor understands and agrees that employees of APS or the Atlanta Board of Education are not permitted to work under this Contract, nor can they have ownership in a company that bids for or works under this Contract, either as a prime contractor or as a sub-contractor. Any breach of this provision shall result in immediate termination of this Contract and termination of employment with APS.

Contractor warrants that all persons assigned to perform the services under this Contract are either lawful employees of Contractor or lawful employees of a subcontractor authorized by APS. All of Contractor’s or any of subcontractor’s personnel shall comply with the confidentiality requirements of the Agreement and the security requirements of APS while on school property or at a school related function. In the event that any of Contractor’s or subcontractor's personnel do not comply with such confidentiality and security requirements, APS may have the personnel removed from the premises.

Contractor agrees that any obligation to provide health insurance to any individual employed, utilized or subcontracted by Contractor shall be the sole and exclusive responsibility of Contractor or the subcontractor of Contractor.

Contractor warrants that all persons assigned to perform the services under this Contract are qualified to perform such Services. Personnel assigned by Contractor shall have all professional licenses required to perform the Services. If APS believes that the performance or conduct of any person employed or retained by Contractor to perform any Services hereunder is unsatisfactory for any reason or is not in compliance with the provisions of this Contract, APS shall notify Contractor in writing and Contractor shall promptly address the performance or conduct of such person, or, at the request of APS, immediately replace such person with another person acceptable to APS and with sufficient knowledge and expertise to perform the services in accordance with this Contract.

Contractor warrants that an adequate number of appropriately qualified personnel will be employed and available to provide the services in accordance with the schedule and maintenance requirements set forth in the Contract.

Contractor warrants that persons assigned by Contractor to provide the services to APS possess all licenses, training and certifications required by the State of Georgia.

Contractor understands and agrees that is responsible for paying the wages of Contractor’s personnel, and will be responsible for withholding and remitting all income and social security taxes from their wages and for paying workers’ compensation insurance premiums, state and federal unemployment insurance taxes and the employer’s share of social security taxes on the behalf of its personnel, as required by law.

Contractor recognizes that personnel who are assigned to provide the services may have access to certain information, which may be proprietary and confidential. Contractor will require each of the personnel to treat this information as confidential and agree not to disclose it to any third person in accordance with the terms of this Contract.

Contractor agrees to relinquish to APS any and all proprietary rights which it may have in work product created or contributed to by personnel while on assignment.

Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee for Contractor to solicit or secure this Agreement; and that it has not paid or agreed to pay any person, company, association, corporation, individual or firm, other than a bona fide employee working for Contractor, any fee, commission, percentage, gift, or any other consideration contingent upon or resulting from the award or making of this Contract.

For the breach or violation of the above warranty and after notice, APS shall have the right to terminate this Agreement without liability and, at its discretion, to deduct from the Contract price or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration.

4.3 Warranties.

APS does not waive, amend or abridge any stated or implied contractual or warranty rights provided to APS under state or federal law. In addition, Contractor warrants and agrees as follows:

(i) Any goods, applications or software purchased or provided under this Contract will be defect free in design, materials and workmanship, be of the quality, size and dimensions ordered, be of first quality material and workmanship, merchantable, fit for the purposes specified by APS in the Solicitation and shall conform to all the requirements of the Solicitation. The packaging, packing, marking, and shipping of such goods will conform with the requirements of the Solicitation and as set forth in Contractor's Proposal. This express warranty shall not be waived by reason of acceptance of the goods or payment thereof by APS.

(j) Any services purchased under this Contract will be performed by Contractor according to its best efforts for the Term(s) of this Contract. This express warranty shall not be waived by reason of acceptance of the services or payment thereof by

APS.

(k) Contractor is fully aware of APS’ business requirements and intended uses of the goods, applications, software, processes, services and products and warrants that such shall be fit for such intended uses.

(l) Contractor represents and warrants that all the concepts, materials, applications, products and services produced, or provided to the APS shall be wholly original with the Contractor or that the Contractor has secured all applicable interests, rights, licenses, permits or other intellectual property rights in such concepts, materials, products, applications and services. Contractor represents and warrants that the concepts, materials, applications, products and services and the APS’ use of same shall not infringe upon any other work, or violate the rights of publicity or privacy of, or constitute a libel or slander against, any person, firm or corporation and that the concepts, materials, products and services will not infringe upon the copyright, trademark, trade name, trade dress, patent, literary, dramatic, statutory, common law or any other rights of any person, firm or corporation or other entity. This express warranty shall not be waived by reason of acceptance of the goods or payment thereof by APS.

ARTICLE V. FINANCIAL ARRANGEMENTS

5.1 Compensation and Payment.

APS shall pay Contractor for the satisfactory performance of the services and satisfactory delivery of the goods solicited, approved and accepted under this Contract, the terms and rates set forth in the Contractor’s Proposal. Contractor acknowledges and agrees that this is a nonexclusive requirements type contract. Regarding Contractor’s provision of goods and/or services under this Contract, APS will utilize Contractor's services on an as needed basis, based on approved statement of work and as such APS will only be responsible for payment for goods and/or services related to Contractor’s Proposal and Statement of Work that are satisfactorily performed and meet APS' required specifications.

Contractor further acknowledges and agrees that the value of this Contract shall not exceed Dollars ($ .00) annually; (Insert estimated annual expenditure) however, APS is under no obligation to solicit goods or services totaling this amount and Contractor will only be paid for services rendered and good accepted. Nothing in this Contract shall serve as a guarantee that Contractor will receive any purchase orders for goods or services solicited under this Contract.

Contractor shall submit periodic invoices in triplicate detailing the services performed and the goods delivered (as applicable). APS shall make payments in accordance with APS Finance Department's payment procedures.

Any delay in the approval of an invoice or any delay in the payment will not excuse failure-to-perform by Contractor. APS shall have fifteen (15) days to approve or disapprove an invoice. Once approved, APS will have thirty (30) days to pay any approved invoiced. APS will not be subject to any late fees by Contractor.

5.2 Payments Withheld.

APS may decline to approve an invoice and may withhold any payment, in whole or in part, to the extent necessary to reasonably protect APS from loss, because of any of the following:

a. Services not performed in accordance with the terms of this Contract and which have not been remedied in accordance with this Contract;

b. Contractor supplies APS with nonconforming goods and fails to cure the deficiency (at Contractor’s sole expense) to APS’ reasonable satisfaction in accordance with this Contract;

c. Persistent failure of Contractor to perform or provide its good or services in accordance with the contract schedule and the milestones established;

d. Liens filed by Contractor's sub-consultants or subcontractors or third party claims based on Contractor's failure to make payments for services performed or materials provided;

e. Failure of Contractor to make payments properly to its own sub-consultants or subcontractors for services performed or materials provided;

f. Damage to APS or to another contractor by Contractor; or,

g. Failure of Contractor to provide upon request by APS documentation sufficient to substantiate charges on any invoice submitted for payment.

h. Breach of any warranties contained in this Agreement.

5.3 Final Payment.

The acceptance of final payment shall, after the date of completion of the services and/or delivery of goods required under this Contract, constitute a release and a waiver of all claims by Contractor for payment for services and./or good delivered under this Contract relating to or arising out of, in any way, this Agreement (and any amendments thereto) against the Board of Education of the City of Atlanta, Atlanta Public Schools, Atlanta Independent School System, and their respective agents, representatives, administrators, employees, officers, directors, attorneys, successors and assigns of and from any and all claims, actions or causes of actions, charges, damages, liabilities, responsibilities, demands, liens, judgments or suits of any kind or nature whatsoever, whether in law or equity, for damages of every kind, character or description, as well as all costs, expenses, including attorney fees and cost of litigation, compensation, consequential damages, or any other claim which Contractor has, may have, or claims to have in the future, whether known or unknown, relating to or arising out of in any way this Contract (and any amendments thereto) between APS and Contractor.

5.4 Accounting Records.

All records of expenses pertaining to this Contract shall be kept on a sound accounting basis.

Contractor shall maintain full and complete records and such records shall be available for review by APS or its authorized representative at mutually convenient times. All records must be maintained for a minimum of seven (7) years after the final payment by APS or until all litigation, claims, or audit findings involving the records have been resolved if such claim or audit is started before the expiration date of the three-year period. In addition, APS shall have the authority to audit any and all records pertinent or relative to the Contract, the Contractor's records and any and all of its subcontractors' records pertinent or relative to the Contract, at any time for a period of at least three (3) years after close-out of the Contract and Contractor shall surrender such records upon request and provide access to APS and any reviewing agencies during such period.

5.5 Risk of Loss for Delivery of Goods

For all goods purchased by APS under this Agreement, Delivery shall be FOB destination, APS' place of business. Insurance during shipment and until the goods are accepted by APS is the responsibility of Contractor.

5.6 Rejection or Revocation of Acceptance of the Goods

All goods are subject to final inspection and acceptance within a reasonable time after delivery and the right to reject defective or non-conforming goods is reserved despite any prior inspection by APS.

ARTICLE VI. CONFIDENTIALITY AND SECURITY

6.1 Definition

Confidential information is defined as follows:

a. Any information about the APS or its business that is:

i. Stamped "Confidential"; or

ii. Identified in writing as confidential to Contractor or any of its representatives by or on behalf of APS at the time of or promptly following the information's written or oral disclosure and

b. All notes, analyses, compilations, studies, summaries, and other material

(tangible or intangible), however documented, containing or based, in whole or in part, on any information described in subsection (a) above (collectively, the "Derivative Materials").

c. Any information that is excluded from disclosure by APS by the Georgia Open Records Act OCGA 50-18-70 et. seq. (“the Open Records Act”), including but not limited to, student educational records and information.

d. Despite any other provision in this Section, the failure by APS to identify information as Confidential Information is not an acknowledgement of admission by APS that the information is not confidential or a waiver by APS of any of its rights with respect to the information.

The term "Confidential Information" does not include information that Contractor demonstrates:

i. Was or becomes generally publicly available, other than as a result of a disclosure by Contractor or any if its Representatives in violation of this Agreement.

ii. Is in the lawful possession of the Recipient or any of it is Representatives prior to its disclosure by or on behalf of APS or any of its Representatives; or

iii. Was or becomes available to Contractor or any of its Representatives on a non-confidential basis prior to its disclosure by or on behalf of APS or its Representatives from a third party that to Contractor's knowledge after due inquiry is not bound by a similar duty of confidentiality (contractual, legal, fiduciary or other).

6.2 Contractor’s Obligation Regarding Confidential Information

During and after the Term of this Contract, Contractor shall take all commercially reasonably measures necessary to keep the Confidential Information confidential, including, without limitation, all measures it takes to protect its confidential information of a similar nature. Without limiting the effect of the preceding sentence, Contractor will take commercially reasonable actions, legal or otherwise, necessary to cause its Representatives to comply with the provisions of this Agreement and to prevent any disclosure of the Confidential Information by any of them.

Contractor shall give prompt written notice to APS of any suspected or actual security breach that may or does impact APS data or of any unauthorized use or disclosure of the Confidential Information. Contractor shall assist APS in remedying each unauthorized use of disclosure. Giving assistance does not waive any breach of this Section by Contractor, nor does acceptance of the assistance constitute a waiver of any breach of this Section.

The Contractor shall comply with Federal and State laws and regulations regarding confidentiality of student records. Specifically, Contractor shall comply and shall assist APS in compliance, in all material respects, with applicable laws and regulations, including with Family Educational Rights and Privacy Act (FERPA), 20 U.S.C 1232g and the Protection of Pupil Rights Amendment (PPRA), 20 U.S.C. 1232h, and all applicable privacy laws.

To the extent Contractor or a subcontractor comes into contact with any student data or information, Contractor or subcontractor will not disclose such information without eligible student/parent/guardian and APS written permission. Personally identifiable student information and education records as defined pursuant to O.C.G.A. Title 20 and FERPA, will be, and will be deemed to have been, received in confidence and will be used only for purposes of the services contemplated in this Contract.

In its own discretion, APS may designate Contractor as a "school official” within the meaning of FERPA, if APS determines that the Services under this Agreement are functions that would normally be provided by APS and if APS determines that Contractor has a legitimate educational interest in student educational records and information. Contractor will be under the direct control of APS with respect to the use and maintenance of personally identifiable information and education records, as those terms are defined by FERPA, and use personally identifiable information and education records may only be for the purpose of performing its obligations under this Agreement. APS retains all ownership rights in education records and personally identifiable student information.

Notwithstanding any other term of this Agreement, Contract will not disclose personally identifiable information or education records to any third party except as permitted by 34 C.F.R.

99.33(a). APS may have access to student records maintained by Contractor with ten (10) business days’ notice to Contractor as provided for in this Agreement. With respect to information protected by FERPA, Contractor may not continue to maintain education records or personally identifiable information of Students after termination, and must return or destroy, as requested by APS, all such records and information to APS as the owner of that information within ten (10) days of termination for any reason, unless otherwise agreed to in writing by the Parties.

6.3 Breach of Confidentiality

Contractor acknowledges and agrees that an award of money damages is inadequate for any breach of this Section by Contractor, or any of its respective agents, representatives, administrators, employees, officers, directors, attorneys, successors and assigns; and that any breach causes APS irreparable harm. Therefore, in the event of any breach or threatened breach of this Section by Contractor or any of its Representatives, APS is entitled to equitable relief, including injunctive relief and specific performance, without proof of actual damages and without the posting of a bond.

6.4 Georgia Public Records.

Contractor understands and agrees that APS must comply with the Open Records Act and release public documents as defined by the Open Records Act upon request, including this Agreement and all records created and maintained in relation to this Agreement, unless otherwise exempt under other provisions of the Open Records Act. Contractor understands and agrees that APS will respond to requests under the Open Records Act at its discretion. Contractor shall assist APS in compliance with all provisions of the Open Records Act and make records pertaining to the performance of services or functions under this Contract available to APS at the request of APS.

If Contractor asserts that any information in its response or in any information provided to APS with respect to the services or products under this Agreement are a protectable trade secret, as that term is defined in O.C.G.A. § 10-1-761, then Contractor must follow the requirements of the Act set forth at O.C.G.A. § 50-18-72(a)(34) and submit an affidavit declaring and specifically describing their trade secrets, including those of their subcontractor.

6.5 Data Security

Contractor understands and agrees that it is imperative to protect APS data in order to protect public resources and to prevent identity theft or other malicious and damaging acts. Contractor shall comply with all applicable federal, state, and local laws, rules, and regulations, as the same may be amended or supplemented from time to time, including but not limited to those pertaining in any way to the privacy, confidentiality, security, management, and disclosure of APS data and information. Contractor shall also adhere to all applicable industry standards concerning privacy, data protection, confidentiality and information security as well as all APS policies, procedures, and operating guidelines regarding privacy, confidentiality, and security.

ARTICLE VII. TERMINATION

This Agreement may be terminated as follows (in addition to the termination provisions set forth in the Solicitation, if any):

7.1 Termination Without Cause

a. APS may, at any time upon thirty (30) days prior written notice to Contractor, terminate (without prejudice to any right or remedy of APS) the whole or any portion of this Contract for the convenience of APS. If APS terminates the whole or any portion of this Contract at APS' convenience, then APS shall only be liable to Contractor for the goods and/or services satisfactorily provided and or performed by Contractor up to the date of termination.

b. APS may terminate the agreement pursuant to O.C.G.A. § 20-2-506, APS by providing Contractor with at least thirty (30) days prior to the end of each calendar year during the term of this Agreement.

c. Further and pursuant to O.C.G.A. § 20-2-506, in the event appropriated funds are determined no longer to exist or to be insufficient for purposes of fulfilling APS’s obligations hereunder, APS may terminate this Agreement by providing at least fifteen (15) days written notice of termination to the Contractor.

Notice of termination shall include a certification by APS of the unavailability or insufficiency of funding, and such certification shall constitute an agreement by APS not to replace the services covered hereunder in whole or in part with any service obtained from a provider other than the Contractor before the earlier of the end of the calendar year following the year in which the notification of such certification is received by the Contractor or the date this Agreement expires on its own terms, whichever first occurs. APS shall be obligated for payments to the Contractor through the date of termination.

d. This Contract may be terminated by APS if APS gives the Contractor a written notice indicating non-renewal no less than 15 days prior to any automatic renewal date under the contract. The written notice of non-renewal notice will evidence APS’ intention not to renew this Agreement.

7.2 For Cause Termination and Other Remedies.

The occurrence of any one or more of the following events shall a default by Contractor under this Contract:

a. Contractor fails to deliver the goods and services ordered by APS under this

Contract or has delivered nonconforming goods or services or fails to perform, to the satisfaction of APS, any material requirement of the contract or is in violation of a material provision of this contract, including, but without limitation, the express warranties made by the Contractor;

b. Contractor fails to make substantial and timely progress toward performance of the contract; or APS determines that satisfactory performance of the Contract is substantially endangered or that a default is likely to occur;

c. Contractor becomes subject to any bankruptcy or insolvency proceeding under federal or state law; or the Contractor terminates or suspends its business; or APS reasonably believes that the Contractor has become insolvent or unable to pay its obligations as they accrue consistent with applicable federal or state law;

d. The Contractor has failed to comply with applicable federal, state and local laws, rules, ordinances, regulations or orders when performing within the scope of the contract;

e. The Contractor has engaged in conduct that has or may expose APS to liability, as determined in APS' sole discretion; or

f. The Contractor has infringed on a patent, trademark, copyright, trade dress or any other intellectual property rights of a third party.

In the event of default Contractor, APS shall provide written notice to the Contractor requesting that the breach or noncompliance be cured or remedied within the period of time specified in

APS' written notice to the Contractor. If the breach or noncompliance is not cured or remedied within the period of time specified in the written notice, then APS may: (1) Immediately terminate the contract without additional written notice; and/or (2) Procure substitute goods or services from another source and charge the difference between the contract and the substitute contract to the defaulting Contractor including without limitation offsetting amounts owed by APS to the Contractor by such charges; and/or (3) Enforce the terms and conditions of the contract and seek any legal or equitable remedies.

7.3 Termination by Contractor

Contractor may terminate this Contract if APS fails to make timely payment (within 30 days of invoice) of an invoice that has been approved by APS Prior to terminating this Agreement, Contractor shall provide 15 days written notice to APS, notifying APS of its failure to pay. APS may cure its default within 15 days of receipt of the notice.

ARTICLE VIII. INSURANCE

8.1 General Insurance Requirements.

The following general insurance requirements apply to any and all work under this Contract by all Contractors and Subcontractors of any tier:

a. Contractor shall provide insurance as required by the Contract Documents.

Any and all insurance required by this Contract shall be maintained during the entire length of this Contract, including any extensions thereto, and until all work has been completed to the satisfaction of APS. Any and all insurance must be on an occurrence basis. No Contractor or Subcontractor shall commence any work of any kind under a contract until all insurance requirements contained within the solicitation have been complied with, and until evidence of all insurance requirements in each and every contract, with each and every Subcontractor of any tier, and shall require the same to comply with all such requirements.

b. APS shall be covered as an Additional Insured under any and all insurance required by this Contract (other than Contractor's workers compensation and employer's liability insurance). Confirmation of this shall appear on all Certificates of Insurance and on any and all applicable policies.

c. APS shall be given no less than thirty (30) days notice of cancellation of any insurance required under this Contract. APS shall be given not less than thirty

(30) days prior written notice of material changes of any insurance required under this Contract. APS shall be given written notice of renewal of coverage not less than thirty (30) days prior to the expiration of any particular policy.

d. Each and every agent shall warrant when signing the Certificate of Insurance that he is acting as an authorized representative on behalf of the companies affording insurance coverage under the contract and that he is licensed by the State of Georgia and is currently in good standing with Commissioner of Insurance for the State of Georgia.

e. Any and all companies providing insurance required by this Contract must meet the minimum financial security requirements as set forth below. The rating for each company must be indicated on the Certificate of Insurance. For all contracts, regardless of risk, companies providing insurance under this Contract must have a current:

i. Best’s Rating not less than A-, and

ii. Best’s Financial Size Category not less than size VII.

f. In the event the Contractor neglects, refuses, or fails to provide the insurance required by this Contract, or if such insurance is canceled for any reason, APS shall have (a) the right, but not the duty, to procure the same, and the cost thereof shall be deducted from monies then due or thereafter to become due to the Contractor or (b) the right to terminate the Contract.

8.2 Worker’s Compensation and Employer’s Liability Insurance.

The Contractor shall procure and maintain Workers’ Compensation and Employer’s Liability Insurance in the following limits. Such insurance is to cover each and every employee who is or may be engaged in work under this Contract.

Workers’ Compensation

Employer’s Liability Bodily Injury by Accident Bodily Injury by Disease Bodily Injury by Disease

Statutory

$500,000 each accident $500,000 each employee $500,000 each disease

This requirement does not apply to any business that has regularly in service less than three employees in the same business within the state of Georgia.

8.3 Comprehensive General Liability Insurance.

General Aggregate $2,000,000 Products & Completed Operations Aggregate $2,000,000 Personal Injury $1,000,000

Broad Form Property Damage $500,000 Medical Payments $5,000 Each Occurrence $1,000,000

This coverage shall cover the use of all equipment, hoists, and vehicles on the site(s) not covered by Automobile Liability under this Contract. Policy coverage must be on an occurrence basis.

8.4 Automobile Liability Insurance.

The Contractor shall procure and maintain Automobile Liability Insurance in an amount not less than $1,000,000 for bodily injury and property damage combined single limit. The following extensions of coverage shall be provided and indicated on the certificate of insurance:

(1) Comprehensive Form

(2) Owned, Hired, Leased and non-owned vehicles to be covered

If the Contractor does not own any vehicles in the corporate name, non-owned vehicles coverage shall apply and must be endorsed on either the Contractor’s personal automobile policy or the Comprehensive General Liability coverage required under this Contract.

8.5 Cyber Insurance.

Cyber Insurance is required for all software, computer hardware installation, data access, data integrations, data usage, cloud storage, and technology related contracts. If your contract has any of these components, you are required to have this coverage.

a. $1,000,000 each claim/wrongful act

b. $2,000,000 Annual Aggregate

c. Coverage shall include at a minimum:

i. Data Privacy and Security

ii. Regulatory Fines and Penalties

iii. Payment Card Industry (PCI) – if credit cards and/or banking information is obtained or accessed

iv. Ransomware

d. Insurance must be maintained for at least two (2) years after completion of the work and/or contract.

8.5 Umbrella Liability Insurance.

The Contractor shall procure and maintain Umbrella Liability Insurance in an amount not less than $1,000,000 per occurrence / $1,000,000 aggregate.

ARTICLE IX. APS Prohibits Unlawful Discrimination and Harassment, Including Sexual Harassment

9.1 APS does not discriminate on the basis of race, religion, color, sex, national origin, age, disability, or any other basis prohibited by law in any educational programs or activities or in employment policies and practices. Contractor warrants that it will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, or other basis prohibited by law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of Contractor.

9.2 APS prohibits unlawful discrimination or harassment including sexual harassment.

Contractor and Subcontractors, if any, must not engage in unlawful harassment including sexual harassment or discrimination while on school premises.

9.3 APS may suspend or terminate Contractor and Subcontractor or both if it violates these laws, policies, regulations, or provisions while on school premises.

ARTICLE X. Drug/Alcohol/Tobacco/Weapons Free Workplace

10.1 Contractor and all subcontractors, if any, shall not manufacture, sell, distribute, dispense, possess or use controlled substances or marijuana, as defined by law, during the performance of this Agreement while on school premises or at school related functions. Failure to comply with this provision may be considered a material breach.

10.2 Contractor and all subcontractors, if any, shall not possess any weapon, as defined by law on school property, at school related functions, or within 1000 feet of school property or school functions. Failure to comply with this provision may be considered a material breach.

10.3 Contractor and all subcontractors, if any, also shall adhere to all policies and regulations of APS and the Atlanta Board of Education that prohibit the possession, distribution, sale, dispensation, or use of any alcohol or tobacco products while on school premises or at school related functions. Failure to comply with this provision may be considered a material breach.

10.4 APS may suspend or terminate Contractor, subcontractor, or both if it violates these laws, regulations, or policies while within 1,000 feet of school property or school related functions, pursuant to Georgia law.

ARTICLE XI. Sales Tax.

APS is exempt from all state sales tax and federal excise taxes; and shall not pay any such taxes under this Contract. APS, upon written request, will provide Contractor with applicable sales tax exemption certificates.

ARTICLE XII. No Warranty Disclaimer

Contractor warrants that its services or goods or both fit the need or purpose of the Solicitation attached as Exhibit A. Contractor cannot disclaim these warranties. Should any third party warranties exist, Contractor agrees to pass along all such warranties to and for the benefit of APS, and to serve as APS' contact to facilitate its rights under such warranties.

ARTICLE XIII. GENERAL TERMS AND CONDITIONS

13.1 Assignment and Modification.

Contractor shall not assign, or transfer any interest in this Contract without the prior written consent of APS. No modification of this Contract shall be binding upon the Parties, unless consented to in writing, and signed by both Parties.

13.2 Subcontractors.

Contractor shall not subcontract services or any part of this Agreement without the prior written consent of APS.

13.3 Third Party Beneficiaries.

This Agreement does not and is not intended to confer any rights or remedies upon any Person other than the signatories.

13.4 Ownership.

Contractor retains all rights, title and interest in and to its intellectual property and copyright materials, provided in connection with Contractor’s services (collectively, “Contractor IP”).

Contractor grants to APS a personal, nonexclusive license to use Contractor IP for its own non-commercial, incidental use as contemplated herein. All data of APS shall remain the property of

APS.

13.5 Indemnification.

APS shall not be liable for any injuries incurred by Contractor or any of its employees, representatives or agents during the performance of Contractor's duties as outlined in this Agreement. Contractor agrees to indemnify, hold harmless and defend APS, its current, future or past officers, agents and employees from any and against all claims, liabilities, damages, losses, judgments, charges, expenses (including attorney fees) and/or causes of action out of any alleged negligence or misconduct of Contractor and for which APS, the Atlanta Board of Education, its agents, servants or employees are alleged to be liable.

Contractor further agrees to indemnify, hold harmless and defend the Board, APS, its agents, servants and employees from and against any claim, demand, liability, loss, charges, expenses (including attorney fees) and/or causes of action of whatever kind or nature arising out of any conduct or misconduct of Contractor not included in the paragraph above and for which the Board, its agents, servants or employees are alleged to be liable.

Contractor further agrees that its agreement to indemnify and hold harmless APS, its current, future or past officers, agents and employees shall not be limited to the limits of any insurance that may be required under this Agreement.

Nothing contained herein is intended to be a waiver in any respect whatsoever of the Board’s right to assert under any circumstances whatsoever its claims of governmental and/or official immunity from any liability or damages asserted against it by any natural person or entities created by law.

This Subsection represents the entire agreement between the Parties regarding indemnification and replaces any other references to indemnification in Contract Documents or Exhibits.

13.6 Disputes.

In the event of any controversy, claim, dispute or other matter in question arising out of or relating to this Contract or the breach thereof or otherwise with the Contract, which has not been resolved pursuant to other conditions of this Contract (hereinafter referred to as the "dispute"), Contractor, prior to pursuing any legal action, shall appeal the dispute to the Executive Director of Purchasing and Warehouse Operations Services via APS' Purchasing Dispute Resolution Provisions.

Dispute Resolution Process

Before pursuing legal action, the vendor or contractor shall appeal the dispute to the Executive Director of Purchasing and Warehouse Operations Services via APS’ Purchasing Dispute Resolution Provisions.

a. A “dispute” is a disagreement” between APS and the vendor over the payment of money, the adjustment or interpretation of contract terms, any claims arising out of or relating to any aspect of a solicitation, bid, or failure to conduct a solicitation or bid, any decision to award, deny, suspend or cancel, terminate or not renew, any contract or agreement.

b. These Dispute Resolution Procedures apply to and shall constitute the exclusive procedure for resolution of all claims, disputes, complaints and Dispute Resolution Requests of any kind filed by an Aggrieved Person relating in any way to any agreement entered into by the Vendor, including, but not limited to, those arising out of or relating to any aspect of a solicitation, bid, or failure to conduct a solicitation or bid, any decision to award, deny, suspend or cancel, terminate or not renew any contract or agreement.

c. Filing of A Dispute Resolution Request

i) Any aggrieved person may file a Dispute Resolution Request seeking a determination with respect to any matter which is included within the scope of these Dispute Resolution Procedures as set forth in section “b” above. An aggrieved Person who files a Dispute Resolution Request is hereinafter referred to as a “Petitioner.”

ii) The Dispute Resolution Request shall be in writing, shall be filed by delivery by certified mail, or any other method by which a written business record of delivery is kept, to the Executive Director of Purchasing and Warehouse Operations Services at the address listed below:

Atlanta Public Schools Attn: Executive Director of Purchasing and Warehouse Operations Services 130 Trinity Avenue Atlanta, GA 30303

iii) The Dispute Resolution Request shall include the following information:

• The name, address, and telephone number of the Petitioner/Company;

• Identification of the solicitation or contract name and number that is the subject of the dispute;

• A statement of the factual grounds supporting the position of the Petitioner;

• Any other documentation the Petitioner wishes to submit in support of

Petitioner’s position;

• A statement of the relief requested;

• The signature of the Petitioner.

iv) For a Dispute Resolution Request to be timely filed, the Dispute Resolution Request must be physically received with the time period described in Section “d” below.

d. Time for Filing A Dispute Resolution Request

i) Written disputes relative to the specifications or the solicitation document shall be filed not later than five (5) business days prior to the closing date for receipt of initial proposals.

ii) Written disputes relative to an amendment to any solicitation that are apparent before the closing date for receipt of proposals shall be filed within five (5) business days after the amendment is posted.

iii) Written disputes relative to the award of a contract shall be filed within five (5) business days after the issuance of a Notice of Intent to award such contract.

• If the Dispute Resolution Request is timely filed, APS may award and enter into such contract only if a written determination that the award of such contract without delay is necessary to protect substantial interests of the District.

iv) All other written disputes shall be filed not later than five (5) business days after the Aggrieved Person knows or should have known of the facts giving rise to the action complained of.

v) Failure to file a written Dispute Resolution Request in accordance with this section shall bar any further administrative equitable relief.

e. Notice of Filing of A Dispute Resolution Request

i) Material submitted by a Petitioner shall not be withheld from any interested party except to the extent required by law.

ii) If the Petitioner believes the Dispute Resolution Request contains material that should be withheld, a statement advising the Executive Director of Purchasing and Warehouse Operations Services of this fact shall accompany the Dispute Resolution Request submission.

f. Decision by the Executive Director of Purchasing And Warehouse Operations Services

i) The Executive Director of Purchasing and Warehouse Operations Services shall have the exclusive authority to decide all Dispute Resolution Requests.

ii) The Executive Director of Purchasing and Warehouse Operations Services shall issue a written decision within thirty (30) calendar days after a Dispute Resolution Request has been filed. The decision shall include:

• A brief description of the claim;

• A reference to the pertinent solicitation or contract provision;

• A brief statement of the factual issues;

• A statement of the Executive Director of Purchasing and Warehouse

Operations Services decision with supporting rationale and the remedial action and/or award, if any.

iii) The Executive Director of Purchasing and Warehouse Operations Services shall furnish a copy of the decision to the Petitioner by certified mail, return receipt requested, or by any other method that provides evidence of delivery.

iv) Pending claims shall not delay payment for undisputed amounts from the District to an Aggrieved Person or Petitioner.

g. Exclusive Administrative Remedy

These Dispute Resolution Procedures provide the exclusive administrative procedure for asserting a claim against the Purchasing and Warehouse Operations Services Department arising out of any matter which is within the scope of these Dispute Resolution Procedures. Neither an Aggrieved Person, Petitioner, nor any other interested party, has a right to any administrative remedy against the Purchasing and Warehouse Operations Services Department, except in accordance with the procedures set forth in these Dispute Resolution Procedures.

13.7 No Waiver of Legal Rights.

Any waiver of any breach of this Contract shall not be held to be a waiver of any other or subsequent breach, or of any right, that APS or Contractor may have for damages.

The Parties may waive any provision in this Contract only by a writing executed by the Party or Parties against whom the waiver…