Attachment 5a - Milwaukee County Terms and Conditions

1. Termination for Breach. If either Party fails to fulfill its obligations under this Agreement in a timely or proper manner, or violates any of its provisions, the other Party shall there upon have the right to terminate by giving thirty (30) days written notice of termination of

Agreement, specifying the alleged violations, and effective date of termination. It shall not be terminated if, upon receipt of the notice, the breaching Party cures the alleged violation prior to the end of the thirty (30) day period. In the event of termination due to Contractor’s breach, the County will only be liable for services rendered through the date of termination and not for the uncompleted portion, or for any materials or services purchased or paid for by Contractor for use in completing the Agreement.

2. Unrestricted Right of Termination by County. The County further reserves the right to terminate the Agreement at any time for any reason by giving Contractor thirty (30) days written notice of such termination. In the event of said termination and upon receipt of notice of termination, the Contractor shall reduce its activities hereunder as mutually agreed to by the Parties. Upon said termination, Contractor shall be paid for all services rendered through the date of termination. The County may terminate the Agreement without liability if the Milwaukee County Board of Supervisors fails to appropriate monies required for the completion of any services under the Agreement.

3. Return of Unearned or Unspent Funds. Termination by either Party must include return of unearned or unspent funds to Milwaukee County.

4. County’s Retention of Rights. County shall retain all fully vested rights that exist on the effective date of termination. If County terminates this Agreement, County’s liability and

Contractor’s exclusive remedy will be limited to County paying Contractor for services and deliverables completed in accordance with the terms of this Agreement or specific performance by the County of any obligations under this Agreement until the termination date, provided, however, that any payment will not exceed unpaid amounts due.

5. Invoicing. The Contractor shall invoice Milwaukee County on a monthly basis consistent with the amounts set forth in this Agreement and as stated in this Section. Contractor shall send the County an invoice promptly after providing a service or deliverable that includes the following minimum information:

a. The Agreement’s INFOR Contract # OR Purchase Order #.

b. The Effective Date of the Agreement.

c. The date the service or deliverable was provided.

d. Contractor’s business name.

e. Payee name.

f. Contractor’s address.

g. An invoice number.

h. An invoice date.

i. Contractor’s email and phone # for billing issues.

j. An invoice line for each item or service.

k. Sufficient detail to support each invoice line (for example, units billed and unit rate, or hours billed and hourly rate).

l. The date due.

m. The amount billed.

If requesting payment by Check, Contractor must include Contractor’s remittance address.

If requesting payment by ACH, Contractor must include:

1) Bank Name.

2) Bank Location (city and state).

3) Bank's American Bankers Association routing number.

4) Payee's Bank Account #.

5) Type of Account (i.e. Checking or Savings).

6) Email address of Contractor's Accounts Receivable/Finance Department who should receive the remittance information (the receipt that the funds reached Contractor's bank account).

The Contractor must submit invoices to the following recipient in order for Contractor's invoices to be considered received by the County:

(Name of County Contact for Invoices)

Street Address

City, State, Zip Code

E-mail Address cc: APinvoices@milwaukeecountywi.gov

As a matter of practice, the County attempts to pay all invoices within 30 days of receipt of an accurate invoice from Contractor and County’s acceptance of the corresponding services that comply with the terms of this Agreement.

6. Cost of Performance of Obligations. Contractor is responsible for all charges, costs, and fees incurred as a result of performing its obligations and rendering its services under this

Agreement, unless otherwise indicated. The Contractor shall indemnify and hold the

County harmless from any claims for payment of such charges, costs, and fees by any third party.

7. Fees, Permits, Taxes, and Licenses. Milwaukee County is exempt from Federal Excise Taxes and Wisconsin State Sales Taxes. Any billing submitted by Contractor must be without such taxes; billings including such taxes will be rejected. Contractor shall be responsible for all federal, state, and local permits, licenses, tariffs, and fees, together with all governmental filing related to such permits, licenses, tariffs, and fees, which arise out of Contractor’s performance of services under this Agreement, or which arise as a result of any compensation paid to Contractor under this Agreement.

8. Taxpayer Identification Number. The Contractor shall provide its taxpayer identification number to the County upon request. If the Contractor’s taxpayer identification number changes during the Term, the Contractor shall notify the County of the change.

9. County Rights of Access and Audit. The Contractor, Lessee, or other party to the

Agreement, its officers, directors, agents, partners and employees shall allow the County

Audit Services Division and department contract administrators (collectively referred to as

“Designated Personnel”) and any other party the Designated Personnel may name, with or without notice, to audit, examine and make copies of any and all records of the Contractor, Lessee, or other party to the Agreement, related to the terms and performance of the

Agreement for a period of up to three years following the date of last payment, the end date of this Agreement, or activity under this Agreement, whichever is later. Any subcontractors or other parties performing work on this Agreement will be bound by the same terms and responsibilities as the Contractor. All subcontracts or other agreements for work performed on this Agreement will include written notice that the subcontractors or other parties understand and will comply with the terms and responsibilities. The

Contractor, Lessee, or other party to the Agreement, and any subcontractors understand and will abide by the requirements of Section 34.09 (Audit) and Section 34.095

(Investigations Concerning Fraud, Waste, and Abuse) of the Milwaukee County Code of

Ordinances (“MCCO”).

10. Non-Discriminatory Contracts.

a. Compliance with MCCO §56.17(1a).

The Contractor shall comply with MCCO §56.17(1a), which states:

“In the performance of work or execution of this contract, the contractor shall not discriminate against any employee or applicant for employment because of race, color, national origin or ancestry, age, sex, sexual orientation, gender identity and gender expression, disability, marital status, family status, lawful source of income, or status as a victim of domestic abuse, sexual assault or stalking, which shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training including apprenticeships. The contractor will post in conspicuous places, available for employment, notices to be provided by the county setting forth the provisions of the nondiscriminatory clause. A violation of this provision shall be sufficient cause for the county to terminate the contract without liability for the uncompleted portion or for any materials or services purchased or paid for by the contractor for use in completing the contract.”

b. Compliance with MCCO §56.17(1d).

The Contractor shall comply with MCCO §56.17(1d), which states:

“The Contractor agrees that it will strive to implement the principles of equal employment opportunities through an effective affirmative action program, and will so certify prior to the award of the contract, which program shall have as its objective to increase the utilization of women, minorities and handicapped persons, and other protected groups, at all levels of employment in all divisions of the contractor's workforce, where these groups may have been previously under-utilized and under-represented. The contractor also agrees that in the event of any dispute as to compliance with the aforestated requirements, it shall be his/her responsibility to show that he/she has met all such requirements.”

c. Violations. When a violation of the non-discrimination, equal opportunity or

Affirmative Action provisions of this Section has been determined by County, Contractor shall immediately be informed of the violation and directed to take all action necessary to halt the violation, as well as such action as may be necessary to correct, if possible, any injustice to any person adversely affected by the violation, and immediately take steps to prevent further violations.

If, after notice of a violation to Contractor, further violations of this Section are committed during the Term, County may terminate the Agreement by contacting the Contractor via the information set forth in the Notices below. Such termination shall be without liability for the uncompleted portion or any materials or services purchased or paid for by the Contractor for use in completing the

Agreement, or it may permit Contractor to complete the Agreement, but, in either event, Contractor may be ineligible to bid on any future contracts let by County.

11. Publicity, Marketing, and Use of Milwaukee County’s Name or Marks. The Contractor shall not use the name, seal, insignia, logo, image, or any other intellectual property or likeness of Milwaukee County in any marketing, advertising, press release, publication, case study, or other promotional materials without the County’s prior written consent. The

County expressly grants the Contractor permission to include its name and logo in any client list(s) compiled and used by the Contractor for purposes of demonstrating current or past performance but does not permit the Contractor to use these marks in any manner which implies Milwaukee County’s endorsement of the Contractor and/or its goods or services. The Contractor further agrees not to issue any public statements, media releases, or respond to inquiries from the press regarding this Agreement or the

Contractor’s relationship with the County without first obtaining written approval from the

County. This provision shall survive termination of this Agreement.

12. Indemnity. Contractor agrees to the fullest extent permitted by law to indemnify, defend and hold harmless, County, and its agents, officers and employees, from and against all loss or expense including costs and reasonable attorney’s fees by reason of statutory benefits under Workers’ Compensation Laws, or liability for damages including suits at law or in equity, caused by any wrongful, intentional, or negligent act or omission of Contractor and/or its agents which may arise out of or are connected with the activities covered by this Agreement. The County’s liability is limited by Wis. Stats. Section 893.80 for general liability and Wis. Stats. Section 345.05(3) for automobile liability.

13. Insurance.

Contractor shall, at its sole expense, maintain the following insurance:

A. Commercial General Liability Insurance including contractual coverage: The limits of this insurance for bodily injury and property damage combined shall be at least:

Each Occurrence Limit $1,000,000

General Aggregate Limit $2,000,000

Products – Completed Operations Limit $2,000,000

Personal and Advertising injury Limit $1,000,000

B. Business Automobile Liability Insurance:

Should the performance of this Agreement involve the use of automobiles, Contractor shall provide comprehensive automobile insurance covering the ownership, operation and maintenance of all owned, non-owned and hired motor vehicles. Contractor shall maintain limits of at least $1,000,000 per accident for bodily injury and property damage combined.

C. Workers’ Compensation Insurance:

Such insurance shall provide coverage in amounts not less than the statutory requirements in the state where the work is performed, even if such coverages are elective in that state.

D. Employers Liability Insurance:

Such insurance shall provide limits of not less than $1,000,000 per occurrence for bodily injury; $1,00,000 per employee for bodily injury by disease, and $1,00,000 policy aggregate.

E. Professional Liability/Errors and Omissions:1

This insurance shall insure the professional services of the Contractor for the scope of services to be provided under this contract. Such insurance shall provide limits of not less than $2,000,000 per occurrence.

Additional Requirements:

F. Contractor shall require the same minimum insurance requirements, as listed above, of all its contractors, and subcontractors, and these contractors, and subcontractors shall also comply with the additional requirements listed below.

G. If any of the coverage noted above is provided on a claim made and reported period, coverage shall be maintained for not less than 2 years (24 months) after the end of the

Contract by either an extended reporting period (ERP) provision or by maintaining the coverage in force.

1 Professional liability (a/k/a Errors & Omissions insurance) is required for Contractors providing professional services, including, but not limited to architects, engineers, financial services, accounting, audit, legal services, consulting, and medical professionals.

H. The insurance specified in (A.), (B.), and (D.) above shall: (a) name Milwaukee County including its directors, officers, employees and agents as additional insureds by endorsement to the policies, and, (b) provide that such insurance is primary coverage with respect to all insureds and additional insureds.

I. Milwaukee County should also be granted a waiver of subrogation in its favor on the insurance specified under the insurance policy terms of in (A.), (B.), (C.) and (D.) above.

J. The above insurance coverages may be obtained through any combination of primary and excess or umbrella liability insurance. County may require higher limits or other types of insurance coverage(s) as necessary and appropriate under the applicable purchase order.

K. Except where prohibited by law, all insurance policies shall contain provisions that the insurance companies waive the rights of recovery or subrogation, by endorsement to the insurance policies, against Milwaukee County, its subsidiaries, its agents, servants, invitees, employees, co-lessees, co-venturers, affiliated companies, contractors, subcontractors, and their insurers.

L. Contractor shall provide certificates evidencing the coverages, limits and provisions specified above on or before the execution of the Agreement and thereafter upon the renewal of any of the policies. Contractor shall require all insurers to provide County with a thirty (30) day advanced written notice of any cancellation, nonrenewal or material change in any of the policies maintained in accordance with this Agreement.

Coverage must be placed with carriers with a current A. M. Best rating of A Minus or better.

14. Confidentiality. Contractor agrees that all work product and oral reporting shall be provided only to or as directed by County employees working on this Agreement. Contractor further agrees that, aside from obligations under the public records law as more fully described in this Agreement and as determined in cooperation with the County, Contractor shall maintain all materials and communications, regardless of form, medium or method of communication, developed under or relating to this Agreement as confidential and shall disclose them only to or as directed by County employees working on this Agreement.

Contractor shall only use confidential information for activities pursuant to and related to the performance of this Agreement. Contractor shall take all necessary steps to safeguard the confidentiality of such material or information in conformance with applicable local, state, and federal law. Contractor understands that breach of confidentiality, especially regarding information that is not subject to public records law disclosure, will harm or create liability for the County and will require Contractor to indemnify County as provided in of this Agreement. This provision shall survive termination of this Agreement.

15. Prohibited Practices.

a. Conflict of Interest. During the Term, the Contractor shall not hire, retain or utilize for compensation any member, officer, or employee of County or any person who, to the knowledge of the Contractor, has a conflict of interest.

b. Code of Ethics. Contractor hereby attests that it is familiar with Milwaukee

County’s Code of Ethics which states, in part, “No person shall offer or give to any public official or employee, directly or indirectly, and no public official or employee shall solicit or accept from any person, directly or indirectly, anything of value if it could reasonably be expected to influence the public official's or employee's vote, official actions or judgment, or could reasonably be considered as a reward for any official action or inaction or omission by of the public official or employee.”

Additionally, the Contractor shall ensure all subcontractors and employees are familiar with the statement above.

16. Non-Conviction for Bribery. The Contractor hereby declares and affirms that, to the best of its knowledge, none of its officers, directors, partners, or employees directly involved in obtaining contracts have been convicted of bribery, attempted bribery, or conspiracy to bribe under the laws of any state or of the federal government.

17. Debarment or Suspension. Contractor hereby declares and affirms that, to the best of its knowledge and belief, its principals, owners, officers, shareholders, key employees, directors, and/or member partners:

a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency;

b. Have not, within a three-year period preceding the Effective Date, been convicted of, or had a civil judgment rendered against them for, commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or governmental transaction or contract under a public or governmental transaction, violation of Federal or State antitrust statutes, or commission of embezzlement, theft, forgery, falsification or destruction of records, making false statements, or receiving stolen property;

c. Are not presently indicted for or otherwise criminally charged by a governmental entity with commission of any of the offenses set forth in the subsection above;

and

d. Have not, within a three-year period preceding the Effective Date, had one or more public or governmental transactions terminated for cause or for default.

18. Contractor Code of Conduct. The Contractor shall comply with the Milwaukee County

Contractor Code of Conduct. A failure to adhere to these requirements may result in contract termination, penalties, or other remedial actions as deemed necessary by

Milwaukee County. All parties agree to adhere to the requirements set forth therein.

19. Public Records. Both Parties understand that the County is bound by the public records law, and as such, all of the terms of this Agreement are subject to and conditioned on the provisions of Wis. Stat. § 19.21, et seq. Contractor hereby agrees that it shall be obligated to assist the County in retaining and timely producing records that are subject to the

Wisconsin Public Records Law upon any statutory request having been made, and that any failure to do so shall constitute a material breach of this Agreement, whereupon the

Contractor shall then and in such event be obligated to indemnify, defend and hold the

County harmless from liability under the Wisconsin Public Records Law occasioned by such breach. Except as otherwise authorized by the County in writing, records that are subject to the Wisconsin Public Records Law shall be maintained for a period of three years after receipt of final payment under this Agreement.

20. Independent Contractor. Nothing contained in this Agreement shall constitute or be construed to create a partnership or joint venture between County or its successors or assigns and Contractor or its successors or assigns. In entering into this Agreement, and in acting in compliance herewith, Contractor is at all times acting and performing as an independent contractor, duly authorized to perform the acts required of it hereunder.

Nothing contained in this Agreement shall give Contractor any authority to supervise, manage, and/or direct County employees.

21. Electronic Documents Considered Writing. Any document properly transmitted by computer access will be considered a “writing” delivered in connection with this Agreement.

Electronic documents will be considered signed by a Party if they contain an agreed-upon electronic identification symbol or code as required by law. Electronic documents will be deemed received by a Party when accessible by the recipient on the computer system.

22. Compliance with Laws. The Contractor agrees to comply with all applicable federal, state, and local statutes, laws, rules, regulations, ordinances, and all policies, procedures, standards, and regulations of any accreditation agencies or bodies. The Contractor agrees to hold the County harmless from any loss, damage, or liability resulting from a violation on the part of the Contractor of any such laws, rules, regulations, policies, procedures, standards, or ordinances.

23. Choice of Law. This Agreement shall be governed, interpreted, construed, and enforced in accordance with the internal laws of the State of Wisconsin, without regard to its conflict of laws principles. Any litigation over the enforceability of the provisions herein or to enforce any rights hereunder shall be in state court with venue in Milwaukee County.

24. Assignment Limitation, Subcontracts. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns; provided, however, that neither

Party shall assign its obligations hereunder without the prior written consent of the other.

Assignment of any portion of the work by subcontract must have the prior written approval of County.

25. Severability. If any part of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the remainder of this Agreement, unless the Agreement so construed fails to meet the essential business purposes of the Parties as manifested herein.

26. Modification and Waiver. This Agreement may not be modified and none of its terms may be waived, except in writing and signed by authorized representatives of both Parties. To the extent that any term in any document, other than a writing signed by both Parties that expressly purports to amend this Agreement, is contrary to, or conflicts with this

Agreement, the terms of this Agreement shall control. A waiver by a Party of any default shall not be deemed a waiver of a prior or subsequent default of the same or other provisions of this Agreement. The failure of a Party to enforce, or the delay by a Party in enforcing, any of its rights shall not be deemed a continuing waiver or a modification of this Agreement.