Sample PA Agreement.pdf

Howard County, Maryland 1 PA-XXX-XXXX

HOWARD COUNTY, MARYLAND

AGREEMENT

PA-XXX-XXXX

THIS AGREEMENT (the “Agreement”) is made by and between HOWARD COUNTY, MARYLAND [as

Purchasing Agent for the Howard County Health Department, remove if not applicable], a body corporate and politic, (the "County") and [NAME, AND ADDRESS OF CONTRACTOR – ALL CAPS AND BOLD], Federal

Employer Identification Number XXXXXXXX (Do not include SSNs for privacy), Telephone Number XXX-XXX-

XXXX (the “Contractor”).

WHEREAS, the said Contractor, in consideration of the payments hereinafter specified and agreed to be made by said County, hereby covenants and agrees to perform all services [and provide all goods], in strict and entire conformity with Exhibit I entitled, “Services to be Performed [and Goods To Be Provided]”, any Purchase Order subsequently issued, the [Invitation for Bids / Request for Proposals] No. _________ IFB/RFP Title, the Contractor’s response [, the Best and Final Offer dated _________, if applicable] and any amendments or revisions thereto

(collectively, the “Bid/Proposal”), incorporated herein either by reference or attachment, as applicable.

NOW THEREFORE, in consideration of the mutual promises and covenants, the parties hereto agree that the County shall pay the Contractor, an amount as set forth herein, for services rendered [and goods provided] in accordance with this Agreement, the other exhibits/attachments hereto, the [Bid/Proposal], and the Purchase Order, all of which are hereby incorporated into and made a part of this Agreement. Notwithstanding any other terms or provisions of this Agreement, in the event the County is temporarily or permanently prevented, restricted or delayed in the performance of any or all of the duties and obligations imposed upon or assumed by it hereunder, by act of the

General Assembly of Maryland or the Howard County Council, by a court of competent jurisdiction or by administrative delay not due to the fault of the County (and its members and agents), the County shall not be liable directly or indirectly for any claims caused to or suffered by the Contractor or any other person in connection with or as a result of such prevention, restriction or delay. In addition, the parties hereto agree as follows:

1. Contractor's Duties

The Contractor shall be an independent Contractor and not an employee of the County and the

Contractor’s employees who are assigned to provide services to the County under this Agreement shall be employees of the Contractor and not the County. The Contractor shall be responsible for the reporting and remittance of all state and federal taxes, compensable worker’s compensation claims, and coverage of unemployment claims filed by its employees. The Contractor shall perform the services [and provide the goods] outlined in Exhibit I hereto. The

Contractor's services [and goods] will be provided with due care and in accordance with all applicable standards. The

Contractor shall perform the services [and provide the goods] for the Director of the Department of _________of the

County, or Designee, who shall have authority to administer the Agreement.

2. Compensation

2.1 In consideration of the services [and goods] to be provided by the Contractor, the County shall pay the Contractor

Howard County, Maryland 2 PA-XXX-XXXX

Select one of the following options: (These may be modified to fit a particular contract; they are just starting points for sample contract language.)

• in accordance with the unit prices set forth in the [Bid] [Proposal].

• the sum of $______________ (Dollars) (This one is usually used for firm fixed price contracts with a lump sum, one-time payment.)

• an hourly rate of $__________ per hour for an approximate total of ____ hours and shall reimburse the

Contractor for eligible expenses incurred by the Contractor in the performance of the Contractor’s responsibilities and obligation under this Agreement. The eligible expenses are set forth in Exhibit I.

• an amount equal to 90% of the amount invoiced pursuant to Paragraph 2.2 below. Ten percent (10%) of each disbursement shall be retained by the County and disbursed in a lump sum upon [completion of the services described herein] [delivery of the goods described herein] in a manner satisfactory to the

County, in its sole discretion. (This one is usually used for software purchases when you want to include retainage.)

2.2

In no event shall the compensation paid to the Contractor exceed the sum of

_______________________________ Dollars ($______) during the entire term of this

Agreement, including renewals thereof., [DELETE IF NOT APPLICABLE:] provided, however, that the County may entertain a request for adjustment in any year subsequent to the first year in accordance with

Select one:

• Section ___, Paragraph ____ of the solicitation.

• Paragraph ____ of this Agreement.

2.3 Price Adjustment: [USE THIS ONLY FOR A SOLE SOURCE, EXPEDITED or

INTERGOVERNMENTAL AGREEMENT AND PRICE ADJUSTMENTS WILL BE PERMITTED: Prices offered shall be firm against any increase for [number of years spelled out] year(s) from the effective date of this Agreement. Prior to the commencement of subsequent renewal periods, it shall be the Contractor’s responsibility to notify the County Office of Procurement and Contract Administration in advance of any requested price adjustments.

2.3.1 The County may entertain requests for escalation in accordance with the current Consumer

Price Index at the time of the request or up to a maximum 5% increase on the current pricing, whichever is lower. (For purposes of this section, “Consumer Price Index” shall mean the Mid-Atlantic Consumer Price Index-All Urban Consumers (CPI-U), Baltimore-

Columbia-Towson, MD, All Items, Not Seasonally Adjusted, as published by the United

States Department of Labor, Bureau of Labor Statistics.) All written requests shall be issued to the Office of Procurement and Contract Administration and such requests shall include detailed justification for the price adjustment, as well as all countermeasures developed by the Contractor to offset cost increases. The County reserves the right to grant or deny the request for a price increase and will do so in writing. If the price increase is approved, the price increase will be effective upon written approval and will remain firm through the renewal period.

2.3.2 If a price increase is requested following Agreement renewal and it has been longer than one year since the last increase, the County may entertain a request for escalation if it is in

Howard County, Maryland 3 PA-XXX-XXXX the County’s best interest. If the price increase is granted, the price increase will be effective upon approval and will remain firm through the renewal period, or for one year, at the County’s sole discretion.

2.3 [Renumber if necessary] The Contractor shall submit invoices to the County [SELECT

ONE OF THE FOLLOWING OPTIONS: [monthly] [quarterly] [insert another time period for submission of invoices]. The Contractor's invoices shall reflect the:

2.3.1 Contractor’s name

2.3.2 Address

2.3.3 Federal tax identification number

2.3.4 Contract number, (the first two digits are 44XXXXXXXX)

2.3.5 Purchase Order number, (the first digit is 2XXXXXXXXX)

2.3.6 Contract line number

2.3.7 Unit price and extended price (the unit price must match a contract line)

2.3.8 Description of goods provided and/or services performed

2.4 The proper form of County invoices requires that the information above be included on all invoices.

2.5 All invoices shall be submitted to Department name and address. Invoices in the proper form and approved by the County shall be paid by the County within 30 days of receipt thereof.

2.6 Invoices may be returned for correction. The County reserves the right to approve such invoices, in its sole discretion, and to request such detail and additional information as the County, in its discretion deems appropriate.

3. Term

3.1 This Agreement shall be effective

Select one of the following options:

• ____________ , 20 [Insert Date – spelled out]

• when it has been properly signed by all parties hereto and shall continue through [Insert Date – spelled out] (hereinafter defined as the “Initial Term”) [, at which time the

County may exercise its option to renew set forth in Paragraph 3.2 below], unless sooner terminated pursuant to

Paragraphs 5 and 6 hereof. [Insert for true requirements contract when the term is more than 12 months: This

Agreement is a requirements contract (indefinite delivery indefinite quantity contract) and does not require the payment of funds from appropriations of a later fiscal year.]

3.2 The County reserves the right, at its sole discretion, to renew this Agreement for [# years spelled out) additional one-year periods] on the same terms and conditions set forth herein. [INSERT ANY

CHANGES TO THE TERMS, i.e., COMPENSATION, UPON RENEWAL OF AGREEMENT, OTHERWISE, IT

MUST BE RENEWED ON THE SAME TERMS AND CONDITIONS] Unless set forth in a written amendment, the compensation and manner of payment set forth in Paragraph 2 shall remain as is. In the event any renewal changes the terms and conditions set forth herein, the approval of the Howard County Council may be required.

Howard County, Maryland 4 PA-XXX-XXXX

4. Contractor's Representations and Warranties: The Contractor hereby represents the following:

4.1 [USE FOR CORPORATIONS, LIMITED OR GENERAL PARTNERSHIPS OR

LIMITED LIABILITY COMPANIES; DELETE IF CONTRACTOR IS AN INDIVIDUAL] The Contractor is a

[corporation] [limited partnership] [general partnership] [limited liability company], duly formed and validly existing under the laws of the State of [INSERT STATE OF INCORPORATION FROM SDAT] and is qualified to do business and is in good standing in the State of Maryland.

4.2 [USE FOR CORPORATIONS, LIMITED OR GENERAL PARTNERSHIPS OR

LIMITED LIABILITY COMPANIES; DELETE IF CONTRACTOR IS AN INDIVIDUAL] The Contractor has the power and authority to consummate the obligations and responsibilities contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance required under this Agreement.

4.3 The person executing this Agreement for the Contractor warrants that he/she is duly authorized by the Contractor to execute this Agreement on the Contractor's behalf.

4.4 SELECT ONE OF THE FOLLOWING OPTIONS: A. [The services to be provided under this Agreement shall be performed competently and with due care, and in accordance with all applicable laws, codes, ordinances and regulations and licensing requirements.] OR B. [The goods to be delivered shall comply with the implied warranties of merchantability and fitness for use, and all express warranties created by this Agreement.]

4.5 The Contractor has obtained and shall continue to maintain, at its own cost, such licenses and certifications as are necessary to provide the services rendered under this Agreement and shall present such licenses to the County upon its request for the same.

4.6 All representations and warranties made in the Affidavit and the [Bid/Proposal] response remain true and correct in all respects.

4.7 If applicable, the Contractor has complied with Sections 14-101 through 14-108 of the

Election Law Article of the Annotated Code of Maryland, which requires that every person that enters into, during any 24 month period, one or more contracts, leases, or other agreements with the State, a county, or an incorporated municipality, or their agencies, involving a cumulative consideration of at least $200,000 (Two Hundred Thousand

Dollars) or more, shall file with the State Administrative Board of Election Laws a statement disclosing contributions to a candidate, or a series of such contributions, in a cumulative amount in excess of $500 (Five Hundred Dollars) made during the reporting period to a candidate for elective office in any primary or general election.

4.8 [USE FOR SOFTWARE, IF APPLICABLE] The Contractor certifies that the officer of the corporation who is executing this Agreement has read and understands Exhibit III, Data Processing Addendum

(“DPA”), of this Agreement.

5. Termination

5.1 Termination for Convenience: The County may terminate this Agreement for convenience, in whole or in part, whenever the County determines that such termination is in the best interest of the County, without showing cause, upon giving at least 30 days written notice to the Contractor. The County shall pay all reasonable costs incurred by the Contractor up to the date of termination. However, in no event shall the Contractor

Howard County, Maryland 5 PA-XXX-XXXX be paid an amount which exceeds the price bid for the work performed. The Contractor shall not be reimbursed for any profits which may have been anticipated but which have not been earned up to the date of termination.

5.2 Termination for Default: When the Contractor has not performed or has unsatisfactorily performed one or more material terms of the Agreement and therefore is in default, the County may terminate the

Agreement for default. Upon termination for default, payment may be withheld at the discretion of the County.

Failure on the part of a Contractor to fulfill the contractual obligations shall be considered just cause for termination of the Agreement. If the damages exceed the undisbursed sums available for compensation, the County shall not be obligated to make any further disbursements hereunder. The Contractor will be paid for work satisfactorily performed prior to termination less any excess costs incurred by the County in reprocuring and completing the work.

6. Remedies for Default

6.1 The County shall have the right upon the happening of any Default, without providing notice to the Contractor:

6.1.1 In addition to other available rights and remedies, to terminate this Agreement immediately, in whole or in part;

6.1.2 To suspend the Contractor's authority to receive any undisbursed funds; and/or

6.1.3 To proceed at any time or from time to time to protect and enforce all rights and remedies available to the County, by suit or any other appropriate proceedings, whether for specific performance of any covenant, term or condition set forth in this Agreement, or for damages or other relief, or proceed to take any action authorized or permitted under applicable law or regulations.

6.2 Upon termination of this Agreement for default, the County may elect to pay the

Contractor for services provided [and goods delivered] up to the date of termination, less the amount of damages caused by the default. If the damages exceed the undisbursed sums available for compensation, the County shall not be obligated to make any further disbursements hereunder.

7. Remedies Cumulative and Concurrent

No remedy herein conferred upon or reserved to the County is intended to be exclusive of any other remedies provided for in this Agreement, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder, or under this Agreement, or now or hereafter existing at law or in equity or by statute. Every right, power and remedy given to the County shall be concurrent and may be pursued separately, successively or together against the Contractor, and every right, power and remedy given to the County may be exercised from time to time as often as may be deemed expedient by the County.

8. Insurance

The Contractor shall be required to provide insurance required by the County pursuant to the insurance requirements specified in Section [D] of the [Invitation for Bids / Request for Proposals], including naming

“Howard County, Maryland, its officials, employees, agents and volunteers” as Certificate Holder and as Additional

Insured. The Contractor shall maintain the insurance coverages required by the County while this Agreement is in force and provide documentation of such insurance in a form satisfactory to the County. Such documentation may, in the discretion of the County, be in the form of binders or declarations from the insurance company.

9. Confidential Information

Howard County, Maryland 6 PA-XXX-XXXX

The Contractor shall not disclose any documentation and information disclosed to the Contractor in the course of its performance of duties hereunder with respect to the past, present and future County business, services and clients without the express written consent of the County.

10. Ethics

10.1 The Contractor certifies that the officer of the legal entity who is executing this Agreement has read and understands Exhibit II, entitled Howard County Charter and Code References to Ethics, which contains the provisions of Section 901(a) of the Howard County Charter dealing with conflicts of interest and Section 22.204 of the Howard County Code dealing with conflicts of interest.

10.2 The Contractor certifies that it has (1) not been a party to an agreement to bid a fixed or uniform price; (2) not offered nor will offer any gratuity to any county official or employee; and (3) not violated any of the fair employment provisions of Code Sec. 4.119 Ethics and Fair Employment Practices detailed in Exhibit II.

11. Assignment

Neither the County nor the Contractor shall assign or transfer its interest or obligations under this

Agreement to any third party, without the written consent of the other. Nothing herein shall be construed to create any personal or individual liability upon any employee, officer or elected official of the County, nor shall this

Agreement be construed to create any rights hereunder in any person or entity other than the parties of this

Agreement.

12. Delegation of Duties

The Contractor shall not delegate the Contractor’s duties under this Agreement without the prior written consent of the County.

13. Indemnification

13.1 The Contractor shall indemnify, hold harmless and defend the County, its employees, agents and officials from any and all claims, suits, or demands including reasonable attorney fees which may be made against the County, its employees, agents or officials resulting from any act or omission committed in the performance of the duties imposed by and performed under the terms of this Agreement by the Contractor or anyone under agreement with the Contractor to perform duties under this Agreement. The Contractor shall not be responsible for acts of negligence or willful misconduct committed by the County, its employees, agents and officials.

13.2 Any property or work to be provided by the Contractor under this Agreement will remain at the Contractor’s risk until written acceptance by the County; and the Contractor will replace, at the Contractor’s expense, all property or work damaged or destroyed by any cause whatsoever.

13.3 In the event that there is a conflict between the indemnification provision set forth in the

Purchase Order Terms and Conditions and/or the General Conditions of the solicitation and/or this Agreement, the terms set forth in the Agreement shall govern.

14. Integration and Modification

This Agreement sets forth the entire agreement between the parties relative to the subject matter hereof. No representation, promise or condition, whether oral or written, not incorporated herein shall be binding upon either party to this Agreement. No waiver, modification or amendment of the terms of this Agreement shall be effective unless made in writing and signed by an authorized representative(s) of all parties to this Agreement.

Howard County, Maryland 7 PA-XXX-XXXX

15. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of

Maryland without regard to any choice of law principles that would dictate the laws of any other jurisdiction. The parties agree that the exclusive venue for any and all actions related hereto shall be the appropriate Federal or State court located within the State of Maryland.

16. Conflicting Terms

16.1 The Contractor acknowledges that any Purchase Order issued on or after the effective date of this Agreement is hereby integrated and made a part of this Agreement, provided, however that if a conflict arises between the provisions of this Agreement and the Purchase Order, the provisions of this Agreement shall prevail.

16.2 In the event of a conflict between the [Bid/Proposal] and this Agreement, the provisions of this Agreement (without the conflicting terms in the Bid/Proposal) shall prevail.

17. Severability

If any of the provisions in this Agreement are declared by a court or other lawful authority to be unenforceable or invalid for any reason the remaining provisions hereof shall not be affected thereby and shall remain enforceable to the full extent permitted by law.

18. Time is of the Essence

Time is of the essence with respect to performance of the terms and conditions of this Agreement.

19. Funding

The contractual obligation of the County under this Agreement is contingent upon the availability of appropriated funds from which payment for this Agreement can be made.

[DELETE IF NOT APPLICABLE:] 20. Ownership of Goods

All finished or unfinished work, reports, or goods that are the subject of this Agreement [DELETE

IF NOT APPLICABLE: including any licenses or consents acquired by the Contractor for performance hereunder,] shall be and shall remain the property of the County.

21. Notice

Any notice required to be delivered shall be deemed to have been received when the notice has been sent by certified mail, return receipt, overnight carrier, email with a delivery receipt, or hand delivered, and there is written confirmation of delivery or refusal of receipt, to the following address and individual or at such other address and/or such other individual a party may identify in writing to the other party:

FOR THE COUNTY:

, Contract Analyst; Howard County, Maryland; Office of Procurement and Contract

Administration; 6751 Columbia Gateway Drive, Suite 226; Columbia, Maryland 21046; Telephone: 410-313-XXXX;

Email: name@howardcountymd.gov

[AND] if applicable:

mailto:name@howardcountymd.gov

Howard County, Maryland 8 PA-XXX-XXXX

, Title; Howard County, Maryland; Department name; Dept’ Address; Telephone: 410-

313-XXXX; Email: name@howardcountymd.gov

FOR THE CONTRACTOR:

Contact Name, Title; Company; Company address; Telephone; Email: name@email.com

22. No Waiver, Etc.

No failure or delay by the County to insist upon the strict performance of any term, condition or covenant of this Agreement, or to exercise any right, power, or remedy consequent upon a breach thereof, shall constitute a waiver of any such term, condition, or covenant or of any such breach, or preclude the County from exercising any such right, power, or remedy at any later time or times.

23. Reports, Audits, Inspections

23.1 At any time during normal business hours and as often as the County may deem necessary, the Contractor shall make available to and permit inspection and copying by the County, its employees or agents, of all records, information and documentation of the Contractor related to the subject matter of this Agreement, including, but not limited to, all contracts, invoices, payroll, and financial audits. The Contractor shall retain all records, information and documentation of the Contractor related to this Agreement, including, but not limited to, all contracts, invoices, payroll, and financial audits for at least three (3) years after the termination of this Agreement.

23.2 All invoices submitted to the County are subject to audit by the County.

23.3 The County may request the Contractor, at the expense of the Contractor, to have performed an independent audit of the Contractor’s financial information, including, but not limited to, balance sheets, statement of revenue and expenses, and receipts and disbursements.

[DELETE IF NOT APPLICABLE:] 24. American Manufactured Goods Required for Public Works.

24.1 The Contractor shall comply with Section 14-416 of the Maryland State Finance and

Procurement Article which requires a Contractor or subcontractor to use or supply American Manufactured goods in the performance of a contract for (a) constructing or maintaining a public work; or (b) buying or manufacturing machinery or equipment that is to be installed at a public work site, as the same may be amended from time to time.

24.2 This section does not apply: (a) if the County determines that: (i) the price of the American manufactured goods exceeds the price of a similar manufactured good that is not manufactured in the United States by an unreasonable amount; (ii) the item or a similar item is not manufactured or available for purchase in the United

States in reasonably available quantities; (iii) the quality of the item or a similar item manufactured in the United

States is substantially less than the quality of a comparably priced, similar, and available item that is not manufactured in the United States; or (iv) the procurement of a manufactured good would be inconsistent with the public interest; or (b) to emergency life safety and property safety goods.

24.3 The Contractor shall certify to the County whether the offered goods and/or services are provided in the United States.

mailto:name@howardcountymd.gov mailto:name@email.com

Howard County, Maryland 9 PA-XXX-XXXX

[DELETE IF NOT APPLICABLE:] 25. Wage Rate Requirements

The Contractor certifies that the officer of the corporation who is executing this Agreement has read and understands the wage rate section in the solicitation (reference Howard County Code, Sec. 4.122A Wage

Requirements).

[DELETE IF NOT APPLICABLE:] 26. HIPAA. Compliance with Federal HIPAA And State Confidentiality Law

A. The Contractor acknowledges its duty to become familiar with and comply, to the extent applicable, with all requirements of the federal Health Insurance Portability and Accountability Act (HIPAA), 42

U.S.C. §§ 1320 et seq. and implementing regulations including 45 CFR Parts 160 and 164. The Contractor also agrees to comply with the Maryland Confidentiality of Medical Records Act (Md. Code Ann. Health-General §§4-301 et seq., MCMRA). This obligation includes:

1. As necessary, adhering to the privacy and security requirements for protected health information and medical records under federal HIPAA and State MCMRA and making the transmission of all electronic information compatible with the federal HIPAA requirements; and

2. Providing good management practices regarding all health information and medical records.

B. [If the County determines that functions to be performed constitute business associate functions as defined in HIPAA, the Contractor must execute a business associate agreement as required by HIPAA regulations at 45 CFR §164.501. The fully executed business associate agreement must be submitted within 10 working days after notification of selection, or within 10 days after award, whichever is earlier. Upon expiration of the ten-day submission period, if the County determines that the Contractor has not provided the HIPAA agreement required by this solicitation, the Purchasing Agent, upon review of the Howard County Office of Law, may withdraw the recommendation for award and make the award to the next qualified contractor.] OR

[The County has determined that the functions to be performed constitute business associate functions as defined in HIPAA, the Contractor must agree to the Business Associate Agreement, attached hereto and incorporated herein as Attachment/Exhibit _, as required by HIPAA regulations at 45 CFR §164.501.]

C. Protected Health Information as defined in the HIPAA regulations at 45 CFR 160.103 and

164.501, as amended from time to time, means information transmitted as defined in the regulations, that is individually identifiable; that is created or received by a healthcare provider, health plan, public health authority, employer, life insurer, school or university, or healthcare clearinghouse; and that is related to the past, present, or future physical or mental health or condition of an individual, to the provision of healthcare to an individual, or to the past, present, or future payment for the provision of healthcare to an individual. The definition excludes certain education records as well as employment records held by a covered entity in its role as employer.

[INSERT ANY SPECIAL CLAUSES HERE, SUCH AS WARRANTIES, LIQUIDATED DAMAGES ETC.]

Howard County, Maryland 10 PA-XXX-XXXX

EXHIBIT I

SERVICES TO BE PERFORMED [AND GOODS TO BE PROVIDED]

Contract-specification information begins here. Indent the paragraphs and use 1.5 spacing to match the agreement – unless you are trying to keep a couple of sentence form going to a second page, then may consider single spacing. DO NOT ENTER ANY PRICING INFORMATION HERE FROM THE BID/PROPOSAL. This area is a descriptive field only for the services to be provided.

Note: There is only one space between the end of the description of the contract-specific information and the last sentence below. Do not leave multiple spaces.

The above are in addition to any other services set forth in the [Bid/Proposal].

Howard County, Maryland 11 PA-XXX-XXXX

EXHIBIT II

HOWARD COUNTY CHARTER AND CODE REFERENCES TO ETHICS

Charter Section 901. Conflict of Interest.

(a) Prohibitions. No officer or employee of the County, whether elected or appointed, shall in any manner whatsoever be interested in or receive any benefit from the profits or emoluments of any contract, job, work, or service for the County. No such officer or employee shall accept any service or thing of value, directly or indirectly, from any person, firm or corporation having dealings with the County, upon more favorable terms than those granted to the public generally, nor shall he receive, directly or indirectly, any part of any fee, commission or other compensation paid or payable by the County, or by any person in connection with any dealings with the County, or by any person in connection with any dealings with or proceedings before any branch, office, department, board, commission or other agency of the County. No such officer or employee shall directly or indirectly be the broker or agent who procures or receives any compensation in connection with the procurement of any type of bonds for County officers, employees or persons or firms doing business with the County. No such officer or employee shall solicit or accept any compensation or gratuity in the form of money or otherwise for any act or omission in the course of his public work; provided, however, that the head of any department or board of the County may permit an employee to receive a reward publicly offered and paid for, for the accomplishment of a particular task.

(b) Rules of construction; exceptions by Council. The provisions of this Section shall be broadly construed and strictly enforced for the purpose of preventing officers and employees from securing any pecuniary advantages, however indirect, from their public associations, other than their compensation provided by law.

In order, however, to guard against injustice, the Council may, by resolution, specifically authorize any County officer or employee to own stock in any corporation or to maintain a business in connection with any person, firm or corporation dealing with the County, if, on full public disclosure of all pertinent facts to the County Council by such officer or employee, the Council shall determine that such stock ownership or connection does not violate the public interest.

The County Council may, by ordinance, delegate to the Howard County Ethics Commission the power to make such determinations and to authorize the ownership or connection. Any ordinance which delegates this power shall provide for procedures including a public hearing, and shall establish criteria for determining when the ownership or connection does not violate the public interest.

(c) Penalties. Any officer or employee of the County who willfully violates any of the provisions of this Section shall forfeit his office. If any person shall offer, pay, refund or rebate any part of any fee, commission, or other form of compensation to any officer or employee of the County in connection with any County business or proceeding, he shall, on conviction, be punishable by imprisonment for not less than one or more than six months or a fine of not less than $100.00 or more than $1,000.00, or both. Any contract made in violation of this Section may be declared void by the Executive or by resolution of the Council. The penalties in this Section shall be in addition to all other penalties provided by law.

Code Section 4.119. Ethics and Fair Employment Practices.

(a) Conflict of Interest. Bidders, vendors, purchasers and county employees involved in the purchasing process shall be governed by the provisions of the Howard County Charter and Howard County law regarding conflict of interest. No vendor shall offer a gratuity to an official or employee of the county. No official or employee shall accept or solicit a gratuity.

(b) Discouragement of Uniform Bidding.

(1) It is the policy of the county to discourage uniform bidding by every possible means and to endeavor to obtain full and open competition on all purchases and sales.

(2) No bidder may be a party with other bidders to an agreement to bid a fixed or uniform price.

(3) No person may disclose to another bidder, nor may a bidder acquire, prior to the opening of bids, the terms and conditions of a bid submitted by a competitor.

(c) Fair Employment Practices

(1) Bidders, vendors and purchases may not engage in unlawful employment practices as set forth in Subtitle 2

“Human Rights” of Title 12 of the Howard County Code, Subtitle 6 of Title 20 of the State Government Article, Annotated Code of Maryland or

Sections 703 and 704 of Title VII of the Civil Rights Act of 1964 as amended. Should any bidders, vendors or purchasers engage in such unlawful employment practices, they shall be subject to being declared irresponsible or being debarred pursuant to the provisions of this subtitle.

(2) The Howard County Office of Human Rights shall notify the county purchasing agent when any bidder is found, by a court of competent jurisdiction, to have engaged in any high unlawful employment practices.

(3) If any bidder has been declared to be an irresponsible bidder for having engaged in an unlawful employment practice and has been debarred from bidding pursuant to this subtitle, the Howard County Office of Human Rights shall review the employment practices of such bidder after the period of debarment has expired to determine if violations have been corrected and shall, within 30 days, file a report with the county purchasing agent informing the agent of such corrections before such bidder can be declared to be a responsible bidder by the County Purchasing agent.

Howard County, Maryland 12 PA-XXX-XXXX

(4) Payment of subcontractors. All contractors shall certify in writing that timely payments have been made to all subcontractors supplying labor and materials in accordance with the contractual arrangements made between the contractor and the subcontractors.

No contractor will be paid a second or subsequent progress payment or final payment until such written certification is presented to the county purchasing agent.

Section 22.204. - Prohibited Conduct and Interests.

(a) Participation Prohibitions.

(1) Except as permitted by Commission regulation or opinion, an official or employee may not participate in:

(i) Except in the exercise of an administrative or ministerial duty that does not affect the disposition or decision of the matter, any matter in which, to the knowledge of the official or employee, the official or employee or a qualified relative of the official or employee has an interest.

(ii) Except in the exercise of an administrative or ministerial duty that does not affect the disposition or decision with respect to the matter, any matter in which any of the following is a party:

a. A business entity in which the official or employee has a direct financial interest of which the official or employee may reasonably be expected to know;

b. A business entity for which the official, employee, or a qualified relative of the official or employee is an officer, director, trustee, partner, or employee;

c. A business entity with which the official or employee or, to the knowledge of the official or employee, a qualified relative is negotiating or has any arrangement concerning prospective employment;

d. If the contract reasonably could be expected to result in a conflict between the private interests of the official or employee and the official duties of the official or employee, a business entity that is a party to an existing contract with the official or employee, or which, to the knowledge of the official or employee, is a party to a contract with a qualified relative;

e. An entity, doing business with the County, in which a direct financial interest is owned by another entity in which the official or employee has a direct financial interest, if the official or employee may be reasonably expected to know of both direct financial interests; or

f. A business entity that:

1. The official or employee knows is a creditor or obligee of the official or employee or a qualified relative of the official or employee with respect to a thing of economic value; and

2. As a creditor or obligee, is in a position to directly and substantially affect the interest of the official or employee or a qualified relative of the official or employee.

(2) A person who is disqualified from participating under paragraph 1. of this subsection shall disclose the nature and circumstances of the conflict and may participate or act if:

(i) The disqualification leaves a body with less than a quorum capable of acting;

(ii) The disqualified official or employee is required by law to act; or

(iii) The disqualified official or employee is the only person authorized to act.

(3) The prohibitions of paragraph 1 of this subsection do not apply if participation is allowed by regulation or opinion of the Commission.

(b) Employment and Financial Interest Restrictions.

(1) Except as permitted by regulation of the commission when the interest is disclosed or when the employment does not create a conflict of interest or appearance of conflict, an official or employee may not:

(i) Be employed by or have a financial interest in any entity:

a. Subject to the authority of the official or employee or the County agency, board, commission with which the official or employee is affiliated; or

b. That is negotiating or has entered a contract with the agency, board, or commission with which the official or employee is affiliated; or

(ii) Hold any other employment relationship that would impair the impartiality or independence of judgment of the official or employee.

(2) The prohibitions of paragraph (1) of this subsection do not apply to:

(i) An official or employee who is appointed to a regulatory or licensing authority pursuant to a statutory requirement that persons subject to the jurisdiction of the authority be represented in appointments to the authority;

(ii) Subject to other provisions of law, a member of a board or commission in regard to a financial interest or employment held at the time of appointment, provided the financial interest or employment is publicly disclosed to the appointing authority and the Commission;

(iii) An official or employee whose duties are ministerial, if the private employment or financial interest does not create a conflict of interest or the appearance of a conflict of interest, as permitted and in accordance with regulations adopted by the

Commission; or

(iv) Employment or financial interests allowed by regulation of the Commission if the employment does not create a conflict of interest or the appearance of a conflict of interest or the financial interest is disclosed.

(c) Post-Employment Limitations and Restrictions.

(1) A former official or employee may not assist or represent any party other than the County for compensation in a case, contract, or other specific matter involving the County if that matter is one in which the former official or employee significantly participated as an official or employee.

(2) For a year after the former member leaves office, a former member of the County Council may not assist or represent another party for compensation in a matter that is the subject of legislative action.

Howard County, Maryland 13 PA-XXX-XXXX

(d) Contingent Compensation. Except in a judicial or quasi-judicial proceeding, an official or employee may not assist or represent a party for contingent compensation in any matter before or involving the County.

(e) Use of Prestige of Office.

(1) An official or employee may not intentionally use the prestige of office or public position for the private gain of that official or employee or the private gain of another.

(2) This subsection does not prohibit the performance of usual and customary constituent services by an elected official without additional compensation.

(f) Solicitation and Acceptance of Gifts.

(1) An official or employee may not solicit any gift.

(2) An official or employee may not directly solicit or facilitate the solicitation of a gift, on behalf of another person, from an individual regulated lobbyist.

(3) An official or employee may not knowingly accept a gift, directly or indirectly, from a person that the official or employee knows or has the reason to know:

(i) Is doing business with or seeking to do business with the County office, agency, board or commission with which the official or employee is affiliated;

(ii) Has financial interests that may be substantially and materially affected, in a manner distinguishable from the public generally, by the performance or nonperformance of the official duties of the official or employee;

(iii) Is engaged in an activity regulated or controlled by the official's or employee's governmental unit; or

(iv) Is a lobbyist with respect to matters within the jurisdiction of the official or employee.

(4) (i) Subsection (4)(ii) does not apply to a gift:

a. That would tend to impair the impartiality and the independence of judgment of the official or employee receiving the gift;

b. Of significant value that would give the appearance of impairing the impartiality and independence of judgment of the official or employee; or

c. Of significant value that the recipient official or employee believes or has reason to believe is designed to impair the impartiality and independence of judgment of the official or employee.

(ii) Notwithstanding paragraph (3) of this subsection, an official or employee may accept the following:

a. Meals and beverages consumed in the presence of the donor or sponsoring entity;

b. Ceremonial gifts or awards that have insignificant monetary value;

c. Unsolicited gifts of nominal value that do not exceed $20.00 in cost or trivial items of informational value;

d. Reasonable expenses for food, travel, lodging, and scheduled entertainment of the official or the employee at a meeting which is given in return for the participation of the official or employee in a panel or speaking engagement at the meeting;

e. Gifts of tickets or free admission extended to an elected official to attend a charitable, cultural, or political event, if the purpose of this gift or admission is a courtesy or ceremony extended to the elected official's office;

f. A specific gift or class of gifts that the Commission exempts from the operation of this subsection upon a finding, in writing, that acceptance of the gift or class of gifts would not be detrimental to the impartial conduct of the business of the County and that the gift is purely personal and private in nature;

g. Gifts from a person related to the official or employee by blood or marriage, or any other individual who is a member of the household of the official or employee; or

h. Honoraria for speaking to or participating in a meeting, provided that the offering of the honorarium is not related, in any way, to the official's or employee's official position.

(g) Disclosure of Confidential Information. Other than in the discharge of official duties, an official or employee may not disclose or use confidential information, that the official or employee acquired by reason of the official's or employee's public position and that is not available to the public, for the economic benefit of the official or employee or that of another person.

(h) Participation in Procurement.

(1) An individual or a person that employs an individual who assists a County, agency or unit in the drafting of specifications, an invitation for bids, or a request for proposals for a procurement, may not submit a bid or proposal for that procurement, or assist or represent another person, directly or indirectly, who is submitting a bid or proposal for the procurement.

(2) The Commission may establish exemptions from the requirements of this section for providing descriptive literature, sole source procurements, and written comments solicited by the procuring agency.

Howard County, Maryland 14 PA-XXX-XXXX

[IF APPLICABLE FOR CLOUD SERVICES]

Exhibit III

Data Processing Addendum

This Data Processing Addendum (“DPA”) forms part of and is incorporated into Agreement Number CA/PA-XX-

XXXX (the “Agreement”) between Vendor Name (“Contractor”) and Howard County, Maryland (“County”), governing certain products and/or services provided by Contractor (collectively, the “Services”). This DPA is effective as of the same date as the Agreement (“Effective Date”).

1. DEFINITIONS. In this DPA:

1.1. Terms Defined Here.

(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, the subject entity, where control is the direct or indirect ownership or control of at least a majority of the voting rights, or otherwise the power to direct the management and policies, of the entity.

An entity is an Affiliate only so long as such control continues.

(b) “County Personal Data” means the Personal Information that County provides under the Agreement for

Contractor to process on behalf of the County in connection with the services provided by Contractor.

Unless the applicable Data Protection Law otherwise considers such information as Personal Information, County Personal Data does not include information that is: (i) deidentified, anonymized, aggregated, publicly available information, business contact data or (ii) information that is generated by or on behalf of Contractor and that is derived by or through the use of the Services.

(c) “Data Protection Law(s)” means any applicable data privacy and /or cybersecurity law, directive, regulation, order, rule, or County policy or statement to the extent applicable to the relevant party’s processing of County Personal Data, (as amended from time to time), including without limitation:

(i) the PIPA, the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule (45 Code of Federal Regulations (“CFR”) Part 164), Maryland Medical Records Statute, § 4-301 et seq. of the

Health-General Law of Maryland (“Md. Code, Health Law”);

(ii) §1-301 et seq. of the Financial Institutions Law of the Code of Maryland ('Md. Code, Fin. Inst. Law');

(iii) §3-712 of the Labor and Employment Law of the Code of Maryland, §13-101 et seq. of the Md.

Code, Com. Law;

(iv) The Student Data Privacy Law, §4-131 of the Education Law of the Code of Maryland (“Md. Code, Educ. Law”);

(v) The Family Educational Rights and Privacy Act (20 U.S.C. §1232g, 34 CFR Part 99)(“FERPA”);

(vi) Criminal Justice Information System (“CJIS”) laws, policies and rules, including without limitation

28 CFR 20, Article 27, §742—755, Code of Maryland, and the Code of Maryland Regulations

(“COMAR”) 12.15.01, .02, and .03.;

(vii) the Payment Card Industry Data Security Standard (“PCI-DSS”);

(viii) 42 C.F.R, Part 2, Md. Code, Health Law, §8-601 et. seq., applicable to alcohol and drug abuse treatment records;

(ix) Md. Code Ann., Human Svcs., §1-201 et seq., applicable to Department of Social Services (“DSS”) records;

Howard County, Maryland 15 PA-XXX-XXXX

(x) COMAR Title 7, Department of Human Services, applicable to all DSS records;

(xi) Maryland Public Information Act (Md. Code Ann., General Provisions (“GP”), §4-101 et seq);

(xii) Howard County Public Ethics Law, Subtitle 2, of Title 22 of the Howard County Code;

(xiii) GP, §4-311 applicable to personnel records;

(xiv) GP, §4-312, applicable to retirement records;

(xv) GP, §4-355, applicable to retirement committee records,

(xvi) Maryland Rule 11-121 applicable to juvenile court records;

(xvii) pertaining to the attorney client privilege, confidential attorney communication, and the attorney work product doctrine; and

(xviii) County’s privacy statement located at https://www.howardcountymd.gov/privacy-statement.

Contractor recognizes that this DPA does not restrict County’s rights to revise County’s privacy statement.

Nothing herein concedes the applicability of any Data Protection Law to County, the Services, or a particular consumer or data subject.

(d) “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 natural person, household, or device linked to same, wherever located. “PIPA” means the Personal Information

Protection Act, Md. Code Ann. Comm. Law 14-3504, and the regulations promulgated thereunder, as either may be amended from time to time.

(e) “System” means Contractor’s system or systems storing or processing County’s Personal Data.

1.2. Terms in Data Protection Laws. Terms defined in this DPA, or if not defined in the DPA then as defined in the

Agreement, or for which definitions in Data Protection Laws are incorporated by reference, will, to the greatest extent consistent with their meanings, apply to terms of similar effect in Data Protection Laws that apply to natural persons governed by such laws (including without limitation, “data subjects,” “personal data,”

“personal information,” “nonpublic personal information,” “personally identifiable information” “business,”

“business purpose,” “commercial purpose,” “consumer,” “personal…