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HomeMy WebLinkAbout114084 EXPRESS EMPLOYMENT PROFESSIONALS - CONTRACT - RFP - 7418 TEMPORARY PERSONNEL SERVICESSERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and Express Employment Professionals, hereinafter referred to as "Service Provider". WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit "A", consisting of three (3) pages and incorporated herein by this reference. 2. Contract Period. This Agreement shall commence November 1, 2012, and shall continue in full force and effect until October 31, 2013, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed four (4) additional one year periods. Renewals and pricing changes shall be negotiated by and agreed to by both parties. The Denver Boulder Greeley CPIU published by the Colorado State Planning and Budget Office will be used as a guide. Written notice of renewal shall be provided to the Service Provider and mailed no later than ninety (90) days prior to contract end. 3. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the performance is actually prevented, the Service Provider must provide written notice to the City of such condition within fifteen (15) days from the onset of such condition. 4. Early Termination by City/Notice. Notwithstanding the time periods contained provide the back-up information needed for each specific Purchase Order, the Service Provider will work with the department involved to provide a quotation for each temporary employee assignment that includes: a. A description of the work to be performed; b. The number and categories of employees required; c. The location and time for initiation and performance of the work; d. The payment procedures and amounts; e. A description of the labor, materials, and support to be provided by the City; f. Identification of the supervisor/project manager for the department; and g. Any other special circumstances relating to the performance of the work assignment. The Service Provider shall have available and/or be able to provide an adequate n umber of qualified, dependable personnel in each category for temporary employment by the City on request. The exact requirements in a given situation, such as the number of temporary employees, the categories required, days, dates, hours, and so on, will be determined by the various departments and agencies as needs may arise, and will be specified by the Purchase Order. 6. The Service Provider will provide an employee evaluation form to the City department project manager for each assignment. Completed evaluation forms shall be maintained by the Service Provider and copies shall be provided to the Human Resources Department on request. In addition, the Service Provider will also provide a company evaluation form (for evaluation of the Service Provider's performance) to the City department project manager for each assignment. Completed evaluation forms shall also be maintained by the Service Provider, and copies shall be provided to the Human Resources Department on request. As requested by the City department prior to assignment or acceptance of any temporary employee, the Service Provider will provide copies of resumes, employment applications, test results, at least one satisfactory work reference, employment eligibility verification via the E-Verify Program, and any other relevant information to the department. To the extent permissible by law, the Service Provider will perform appropriate background checks, credit checks, and drug testing as requested by the City on their contract employees. Background checks, credit checks, and/or drug testing costs will be passed through directly to the City at their actual cost, without any additional markup added by Service Provider. The Service Provider will not assign to the City any person for whom they have background or other information which, in the Service Provider's opinion, would lead a reasonable person to question the suitability of that person for assignment to the City. 8. If any Employee provided by the Service Provider is deemed unsatisfactory within the first four working hours of the assignment, the Service Provider will replace that employee, and the City will not be responsible for payment of hours worked by that employee; up to a maximum of four (4) hours. Should the City feel that the temporary employee is not suitable for the assignment, the City will notify the Service Provider, who will in turn be responsible for removing the employee from the City assignment. 9. Service Provider's average turn -around time after receiving an order is typically within 24 hours. For positions requiring high level skill sets and specific experience, resumes and candidates are presented within 48 hours. 10. In the event that the City should elect to hire a Temporary Associate provided by the Service Provider as an employee of the City of Fort Collins for the position the Service Provider has assigned them to, then the Service Provider has requested that the Temporary Associate remain on their payroll for a minimum of 420 regular working hours. If the City desires to hire the Associate prior to the completion of 420 regular working hours, the Service Provider requests that their office be contacted in advance. In the event that "ear ly conversion" (i.e., prior to the completion of a minimum of 420 regular working hours) is requested, the following Conversion Form ula will apply: • 0-52.5 days = Prorated based on $750 fee for entry-level clerical general laborer positions. Candidates with higher -level skills will be reviewed by Service Provider and City on a case -by -case basis. o How to Calculate (X = # of days worked) • 100-(X'{100/52.5)) _ % of the Conversion Fee to be paid by the City • 52.5 days and over = No Fee to convert 11. Open Postings: Any Temporary Associate provided by the Service Provider who happens to apply independently and be accepted for hire for a publicly posted City position shall not be subject to the "420-hour minimum" rule. 12. Service Provider agrees to utilize "Behavioral Interviewing" questions with all candidates provided to the City; in order to determine proper behavioral fit for the working environment and managerial style of the requesting City department; in addition to assessment of the requisite skills required to perform the duties outlined by the requesting department supervisor. Behavioral Interviewing questions are used to determine the candidate's strengths and weaknesses, ideal work environment, likes and dislikes. If any Employee provided by the Service Provider is deemed an unsatisfactory behavioral fit within the first four working hours of the assignment, the Service Provider will replace that employee, and the City will not be responsible for payment of hours worked by that employee; up to a maximum of four (4) hours. 13. Fixed Markup Pricing (see Exhibit C — Pricing) will be the standard pricing methodology employed for this Service Agreement. Other optional pricing methodologies provided for herein include (but are not limited to) the following: • Fixed Fee per Project • Client Payrolled Employee (CPE) • Direct Placement Staffing The City reserves the right to discuss additional pricing scenarios with the Service Provider as necessary during the life of this agreement, in the event the City deems it necessary. EXHIBIT "B" INSURANCE REQUIREMENTS 1. The Service Provider will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreem ent. The City, its officers, agents and employees shall be named as additional insureds on the Service Provider's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement: Workers' Compensation insurance with statutory limits as required by Colorado law. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $1 00,000 disease each employee. B. Commercial General & Vehicle Liability. The Service Provider shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. ACORO® CERTIFICATE OF LIABILITY INSURANCE 10/1/2013 DATE (MMIDD YYYY) 9/25/2012 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER LOCkIOn Companies, LLC-1 Kansas City 444 W. 47th Street, SultC 900 Kansas City MO 64112-1906 (816) 960-9000 CONTACT PHONE FAX Eutl Me No), E-MAIL ADDRESS: INSURERS AFFORDING COVERAGE NAIC# INSURER A: New I -lam Shire Insurance CompanyCompirry 23841 INSURED EXPRESS SERVICES, INC. INSURER B: Zurich Anl ❑Can Insilrance Compiny16535 INSURER C: American Guarantee and Liab. Ins. Co. 26247 1352730 DHA: EXPRESS EMPLOYMENTPROFESSIONALS 8516 NW EXPRESSWAY OKLAHOMA CITY, OK 73162 IN SURER D: INSURER E INSURER F : COVERAGES EXPSE01 BF CERTIFICATE NUMBER: 11957536 REVISION NUMBER: XXXXXXX THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR rypE OF INSURANCE ADD INSR SUER WVD POLICY NUMBER POLICY EFF MMIDDIYYYY POLICY EXP MMIDDIYYYY LIMITS B GENERAL LIABILITY Y N 5854213 10/1/2012 HEL12013 EACH OCCURRENCE DAMAGE TO RENTED PREMISES (Ea occurrence) $ 1.000 000 X MMERCIAL GENE BILITY MED EXP (Any meperson) $ 10-000 CLAIMS -MADE X OCCUR PERSONAL S ADV INJURY $ 5000000 STAFFING SERVICE GENERAL AGGREGATE $ AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMPIOP AGO S 5,000-000 GEN'L X POLICY PRO- D AUTOMOBILE LIABILITY Y N 5854213 10/1/2012 10/I/2013 COMBINED (Ea accident) $ 1.000.000 BODILY INJURY (Per person) $ X'X'X'Xxxx ANY AUTO ALL OSCHEDULED AUUTOSS AUTOS BODILY INJURY Per Incident $ XXXXXXX Ix PROPERTY DAMAGE $XXXXXXX HIRED AUTOS X NON-0WNED AUTOS $XXXXXXX G UMBRELLA LIAR X' OCCUR Y N 5498877 10/l/2012 10/l/2013 EACH OCCURRENCE S 20000000 X' EXCESS LIAB CLAIMS -MADE AGGREGATE IS 20,000,000 DED I I RETENTIONS IS xxxxxxx A WORKERS COMPENSATION ANDEMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNEWEXECUTIVE ❑ OFFICERIMEMBER EXCLUDED? N NIA N SEE ATTACHED POLICY #'S 10/1/2012 10/I/2013 W $TATB- X TORVLIMIT H- ER E.L. EACH ACCIDENT $ 1,000,000 E. L. DISEASE - EA EMPLOYEE $ 1000000 (Mandatory in NH) If yes, describe under E. L. DISEASE -POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS below B CRIME/FIDELITY N N 5854213 10/l/2012 10/l/2013 CRIMP/FIDELITY: 5,000,000 STAFFING E&O E&O OCC/AGG: 5,000,000 COVERAGE DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) ALL INSURANCE CARRIERS SI ]OWN ON THIS CER I']FICA 'I E HAVE AN A.M. BFSIRATING OF A X V OR BE FINER UNLESS OTHERWISE NOTED. LOCATION: 1016 - FORT COLLINS, CO / TYPE OF COMPANY: MUNICIPALITY / JOB DESCRIPTION: GENERAL CLERICAL AND ADMI,NISTRATI V E SUPPORT' POSITIONS / CITY OF FORT COLLINS IS LISTED AS AN ADDITIONAL. INSURED AS RESPECTS TO WORK PERFORMED BY TEMPORARY ASSOCIATES, AS PER WRITTEN CONTRACT AND/OR STAFFING AGREEMENT, EXCEPT FOR NEGLIGENCE OR WILLFUL MISCONDUCT OF CI"I'Y OF FORT COLLINS. ADDITIONAL INSURED DOES NOT APPLY 'r0 WC, E&O OR FIDELITY. CERTIFICATE HOLDER CANCELLATION See Attachment SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 11957536 AUTHORIZED REPRESENTATIVE CITY OF FORT COLLINS ATTN: JAMES B. O'NEILL 215 NORTH MASON STREET FORT COLLINS CO 80521 00 I &WJA ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD c 1988-2010 AFDFfD CORPORATION. All rights reserved Express Services, Inc. Workers' Compensation Policy Schedule: Policies Periods: 10/1/12 - 10/1/13 New Hampshire Insurance Company Policy No. WC043464654 NAIC # 23841 States Covered: AK, AR, CO, DC, DE, GA, HI, ID, MS, MT, NC, NH, NM, NV, OK, PA, RI, SD, TN, UT, VA, WV New Hampshire Insurance Company Policy No. WC043464655 NAIC # 23841 States Covered: AL, AZ, CT, IA, IL, IN, KS, KY, LA, MD, MI, MN, MO, NE, NJ, NY, OR, SC National Union Fire Insurance Company of Pittsburgh, PA Policy No. WC043464659 NAIC #19445 States Covered: MA, ND, OH, WA, WI, WY MONOPOLISTIC STATES (Employers Liability/Stop Gap Only) Insurance Company of the State of PA Policy No. WC043464656 NAIC # 19429 States Covered: CA Illinois National Insurance Company Policy No. WC043464657 NAIC # 23817 States Covered: FL New Hampshire Insurance Company Policy No. WC043464658 NAIC # 23841 States Covered: TX Illinois National Insurance Company Policy No. WC043464660 NAIC # 23817 States Covered: ME National Union Fire Insurance Company of Pittsburgh, PA Policy No. WC6636146 NAIC # 19445 States Covered: OH Excess Self Insured National Union Fire Insurance Company of Pittsburgh, PA Policy No. WC6636147 NAIC # 19445 States Covered: WA Excess Self Insured Miscellaneous Attachment: M460401 Master ID: 1352730, Certificate ID: 11957536 EXHIBIT "C" PRICING All clerical and administrative support positions will be billed at a fixed markup percentage using the formula of the pay rate plus forty-one and a half percent (41.50%) of the pay rate. The fixed markup percentage for payment of invoices by credit card will be forty-three percent (43.00%) of the pay rate. Examples: Job Title Receptionist Data Entry Clerk Administrative Assistant I Administrative Assistant II/ Secretary Pay Rate/Hour $10.00 - $11.00 $10.50 - $11.50 $11.00 - $12.00 $13.00 - $15.00 Bill Rate/Hour $14.15 - $15.57 $14.86 - $16.28 $15.57 - $16.98 $18.40 - $21.23 Non -clerical will be billed at a fixed markup percentage using the formula of the pay rate plus forty-two and seventy hundredths (42.70%) of the pay rate. The fixed markup percentage for payment of invoices by credit card will be forty-four and seventy hundredths percent (44.70%) of the pay rate. Examples: Job Title Pay Rate Bill Rate General Laborer $10.00 $14.27 Stagehand $12.00 $17.12 Markup percentages are intended to remain fixed for the life of the contract. If any circumstances arise due to a change in governmental policy which render it detrimental to Service Provider to maintain these stated fixed markup percentages; in the spirit of partnership, the City Project Manager and the Service Provider's representative agree to meet within ten (10) working days from written notice given in order to negotiate a.mutually-acceptable Markup Percentage in order to accommodate the additional burden imposed by newly -imposed legislation. Pay rate increases may not exceed the Denver -Boulder CP I-lJ as published by the Colorado State Planning and Budget Office; they will be renewed and negotiated annually upon notice of intent to renew the contract. Fixed Fee per Project: This option provides for a set of temporary employees whose employment is determined by the lifespan of a specific project or projects. These services will be based on a mutually agreed upon scope of work and number of hours required. The City will provide project specifications documentation and City -staff availability to ensure that Service Provider thoroughly understands the project before providing a quotation for a Purchase Order. It is agreed upon that this option is typically appropriate for higher -level or professional -level temporary -employee requirements. Client Payrolled Employee (CPE) Program: This option gives the City the ability to have the Service Provider provide pay roll functions for temporary employees whom are recruited directly by the City (typically, retired employees or personnel whom the City has previously worked with that possess the qualifications for an assignment). Service Provider will enter into their payroll system the basic employee information to trigger the payroll function which incorporates all tax withholdings, Service Provider's standard benefits (when applicable), etc. All CPE positions will be billed at a fixed markup percentage using the formula of the pay rate plus thirty percent (30.00%) of the pay rate without benefits. Direct Placement Staffing Process: Service Provider has the ability to identify and recruit the best possible candidates avail able for permanent placements. The fee for Direct Placement Services is eighteen percent (18.00%) of the employee's annual salary upon hire by the City. Employee Conversion from Express Employment Professionals to City Employee: In the event that the City should elect to hire a Temporary Associate provided by the Service Provider as an employee of the City of Fort Collins for the position the Service Provider has assigned them to, then the Service Provider has requested that the Temporary Associate remain on their payroll for a minimum of 420 regular working hours. If the City desires to hire the Associate prior to the completion of 420 regular working hours, the Service Provider requests that their office be contacted in advance. In the eve nt that "early conversion" (i.e., prior to the completion of a minimum of 420 regular working hours) is requested, the following Conversion Formula will apply: 0-52.5 days = Prorated based on $750 fee for entry-level clerical general laborer positions. Candidates with higher -level skills will be reviewed by Service Provider and City on a case -by -case basis. o How to Calculate (X = # of days worked) 100-(X`{100/52.5)) = % of the Conversion Fee to be paid by the City 52.5 days and over = No Fee to convert EXHIBIT D FEDERAL CONTRACT REQUIREMENTS FEDERAL TRANSIT ADMINISTRATION Federally Required and Other Model Contract Clauses 1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES No Obligation by the Federal Government. (1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express w ritten consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above claus a in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT_ STATEMENTS AND Program Fraud and False or Fraudulent Statements or Related Acts. (1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seg. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Contractor als o acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected w ith a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to im pose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. (3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 3. ACCESS TO RECORDS AND REPORTS Access to Records - The following access to records requirements apply to this Contract: A. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. B. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. C. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). D. FTA does not require the inclusion of these requirements in subcontracts. Requirements for Access to Records and Reports by Types of Contract Contract Characteristics Operational Service,I Contract " ,;Turnkey,, Construction Architectural ' Engineering Acquisition of Rolling Stock h Professional Services' :. I State Grantees None Those None None None None a. Contracts below imposed on SAT ($100,000) state pass None thru to Yes, if non- None unless None unless None unless b. Contracts above unless' Contractor competitive non- non- non-competitive $100,000/Capital non- award or if competitive competitive award Projects competitive funded thru2 award award award 5307/5309/53 11 II Non State Grantees ' Those a. Contracts below Yes' imposed on Yes Yes Yes Yes SAT ($100,000) non -state b. Contracts above Yes' Grantee Yes Yes Yes Yes $100,000/Capital pass thru to Projects Contractor Sources of Authority: ' 49 USC 5325 (a) 2 49 CFR 633.17 ' 18 CFR 18.36 (i) 4. FEDERAL CHANGES Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 5. TERMINATION a. Termination for Convenience (General Provision) The City may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its c osts, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City to be paid the Contractor. If the Contractor has any property in its possession belonging to the City , the Contractor will account for the same, and dispose of it in the manner the City directs. b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies i n accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the City may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the City that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the City, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. c. Opportunity to Cure (General Provision) The City in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions If Contractor fails to remedy to the City's satisfaction the breach or default of any of the herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Service Provider. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said.notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: City: Copy to: Service Provider: City of Fort Collins City of Fort Collins Express Employment Professionals Attn: Purchasing Attn: Joan Busch, Human 2850 McClelland Drive, Suite 100 PO Box 580 Resources Fort Collins, CO 80525 Fort Collins, CO 80522 PO Box 580 Attn: Jeanne Fangman, Franchise Fort Collins, CO 80522 Owner/Manager In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Such payment shall be the Service Provider's sole right and remedy for such termination. 5. Contract Sum. The City shall pay the Service provider for the performance of this Contract, subject to additions and deletions provided 'herein, per the attached Exhibit "C", consisting of two (2) pages, and incorporated herein by this reference. 6. City Representative. The City will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the services provided under this agreement. All requests concerning this agreement shall be directed to the City Representative. 7. Independent Service provider. The services to be performed by Service Provider are those of an independent service provider and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Service Provider's compensation hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. 8. Personal Services. It is understood that the City enters into the Agreement terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor of written notice from the City setting forth the nature of said breach or default, the City shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude the City from also pursuing all available remedies against Contractor and its sureties for said breach or default. d. Waiver of Remedies for any Breach In the event that the City elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by the City shall not limit the City's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract. 6. CIVIL RIGHTS REQUIREMENTS Civil Rights - The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disabili ty. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race. Color, Creed, National Origin, S ex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et sec., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action 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 apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Acme - In accordance w ith section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. DISADVANTAGED BUSINESS ENTERPRISE (DBE) a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial A ssistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The City has an overall DBE goal of 9.9%. There is no specific contract goal for this project but the City encourages bids from DBE firms in this project. b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT -assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as City of Fort Collins deems appropriate. Each subcontract the contractor signs w ith a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). The successful bidder/offeror will be required to report its DBE participation obtained through race -neutral means throughout the period of performance d. The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor's receipt of payment for that work from the City of Fort Collins. Ir addition, it is required to return any retainage payments to those subcontractors within 30 days after incremental acceptance of the subcontractor's work by the City of Fort Collins and contractor's receipt of the partial retainage payment related to the subcontractor's work. e. The contractor must promptly notify City of Fort Collins whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of City of Fort Collins. [3 Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. 9. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) Background and Applicability In conjunction with the Office of Management and Budget and other affected Federal agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This government -wide regulation implements Executive Order 12549, Debarment and Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 Stall. 3327). The provisions of Part 29 apply to all grantee contracts and subcontracts at any level expected to equal or exceed $25,000 as w ell as any contract or subcontract (at any level) for Federally required auditing services. 49 CFR 29.220(b). This represents a change from prior practice in that the dollar threshold for application of these rules has been lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in the regulation as "covered transactions." Grantees, contractors, a nd subcontractors (at any level) that enter into covered transactions are required to verify that the entity (as well as its principals and affiliates) they propose to contract or subcontract with is not excluded or disqualified. They do this by (a) Checking the Excluded Parties List System, (b) Collecting a certification from that person, or (c) Adding a clause or condition to the contract or subcontract. Thi s represents a change from prior practice in that certification is still acceptable but is no longer required. 49 CFR 29.300. Grantees, contractors, and subcontractors who enter into covered transactions al so must require the entities they contract with to comply with 49 CFR 29, subpart C and include this requirement in their own subsequent covered transactions (i.e., the requirement flows down to subcontracts at all levels). Clause Lanquage The following clause language is suggested, not mandatory. It incorporates the optional method of verifying that contractors are not excluded or disqualif ied by certification. Suspension and Debarment This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29. 945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by (insert agency name). If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to (insert agency name), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such com pliance in its lower tier covered transactions. 10. BREACHES AND DISPUTE RESOLUTION Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of City's [title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision: Performance During Dispute - Unless otherwise directed by City, Contractor shall continue performance under this Contract w hile matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. . Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the City is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City, (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 11. LOBBYING Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR § 20.110(d) - Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A. Modifications have been made to the Lobby ing Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. - Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/ 19/96) is mandated by 49 CFR Part 20, Appendix A Byrd Anti -Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non -Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and C ooperative Agreements (To be submitted with each bid or offer exceeding $100, 000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member, of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65. to be codified at 2 U.S.C. 1601, etseq.)] (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a -civil penalty of not less than $10,000 and not more than $100,000 for each such failure. [Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] The Contractor, certifies or affirms the truthfulness and accuracy of each states ent of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., t this a 'fication and disclosure, if any. Signature of Contractor's Authorized Official �yrt -4k�—Name and Title of Contractor's Authorized Official )o ta- Date 12. CLEAN AIR Clean Air- (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 13. CLEAN WATER REQUIREMENTS Clean Water - (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, _ 33 U.S.C. 1251 et sec. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 14. FLY AMERICA REQUIREMENTS The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 30 1- 10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government -financed international air travel and transporta tion of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an approp riate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. 15. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT Background and Application The Contract Work Hours and Safety Standards Act is codified at 40 USC 3701, et seq. The Act applies to grantee contracts and subcontracts "financed at least in part by loans or grants from ... the [Federal] Government." 40 USC 3701(b)(1)(B)(iii) and (b)(2), 29 CFR 5.2(h), 49 CFR 18.36(i)(6). Although the original Act required its application in any construction contract over $2,000 or non- construction contract to which the Act applied over $2,500 (and language to that effect is still found in 49 CFR 18.36(i)(6) ), the Act no longer applies to any "contract in an amount that is not greater than $100,000." 40 USC 3701(b)(3) (A)(iii). The Act applies to construction contracts and, in very limited circumstances, non - construction projects that employ "laborers or mechanics on a public work." These non - construction applications do not generally apply to transit procurements because transit procurements (to include rail cars and buses) are deemed "commercial items." 40 USC 3707, 41 USC 403 (12). A grantee that contem plates entering into a contract to procure a developmental or unique item should consult counsel to determine if the Act applies to that procurement and that additional language required by 29 CFR 5.5(c) must be added to the basic clause below. The clause language is drawn directly from 29 CFR 5.5(b) and any deviation from the model clause below should be coordinated with counsel to ensure the Act's requirements are satisfied. Clause Lanquage Contract Work Hours and Safety Standards (1) Overtime requirements - No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one - half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefore- shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be I iable. to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, em ployed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. (3) Withholding for unpaid wages and liquidated damages - The (write in the name of the grantee) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. (4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section. 16. TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS Transit Employee Protective Provisions. (1) The Contractor agrees to the comply with applicable transit employee protective requirements as follows: (a) General Transit Employee Protective Requirements - To the extent that FTA determines that transit operations are involved, the C ontractor agrees to carry out the transit operations work on the underlying contract in compliance with terms and conditions determined by the U.S. Secretary of (b) Labor to be fair and equitable to protect the interests of employees employed under this contract and to meet the employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the letter of certification from the U.S. DOL to FTA applicable to the FTA Recipient's project from which Federal assistance is provided to support work on the underlying contract. The Contractor agrees to carry out that work in compliance with the conditions stated in that U.S. DOL letter. The requirements of this subsection (1), however, do not apply to any contract financed with Federal assistance provided by FTA either for projects for elderly individuals and individuals with disabilities authorized by 49 U.S.C. § 5310(a)(2), or for projects for nonurbanized areas authorized by 49 U.S.C. § 5311. Alternate provisions for those projects are set forth in subsections (b) and (c) of this clause. If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5310(a)(2), and if the U.S. Secretary of Transportation has determined or determines in the future that the employee protective requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for the state and the public body subrecipient for which work is performed on the underlying contract, the Contractor agrees to carry out the Project in compliance with the terms and conditions determined by the U.S. Secretary of Labor to meet the requirements of 49 U.S.C. § 5333(b), U.S. DOL guidelines at 29 C.F.R. P art 215, and any amendments thereto. These term s and conditions are identified in the U.S. DOL's letter of certification to FTA, the date of which is set forth Grant Agreement or Cooperative Agreem ant with the state. The Contractor agrees to perform transit operations in connection with the underlying contract in compliance with the conditions stated in that U.S . DOL letter. (c) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. § 5311 in Nonurbanized Areas - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5311, the Contractor agrees to comply with the terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labo r, dated May 31, 1979, and the procedures implemented by U.S. DOL or any revision thereto. (2) The Contractor also agrees to include the any applicable requirements in each subcontract involving transit operations financed in whole or in part with Federal assistance provided by FTA. 17. CHARTER BUS REQUIREMENTS Charter Service Operations - The contractor agrees to comply with 49 U.S.C. 5323(d) and 49 CFR Part 604, which provides that recipients and subrecipients of FTA assistance are prohibited from providing charter service usi ng federally funded equipment or facilities if there is at least one private charter op erator willing and able to provide the service, except under one of the exceptions at 49 CFR 604.9. Any charter service provided under one of the exceptions must be "incidental," i.e., it must not interfere with or detract from the provision of mass transportation. 18. SCHOOL BUS REQUIREMENTS School Bus Operations - Pursuant to 69 U.S.C. 5323(f) and 49 CFR Part 605, recipients and subrecipients of FTA assistance may not engage in school bus operations exclusively for the transportation of students and school personnel in competition with private school bus operators unless qualified under specified exemptions. When operating exclusive school bus service under an allowable exemption, recipients and subrecipients may not use federally funded equipment, vehicles, or facilities. 19. DRUG AND ALCOHOL TESTING Introduction FTA's drug and alcohol rules, 49 CFR 655 are unique among the regulations issued by FTA. First, they require recipients to ensure that any entity performing a safety -sensitive function on the recipient's behalf (usually subrecipients and/or contractors) implement a complex drug and alcohol testing program that complies with Part 655. Second, the rules condition the receipt of certain kinds of FTA funding on the recipient's compliance with the rules; thus, the recipient is not in compliance with the rules unless every entity that performs a safety -sensitive function on the recipient's behalf is in compliance with the rules. Third, the rules do not specify how a recipient ensures that its subrecipients and/or contractors comply with them. How a recipient does so depends on several factors, including whether the contractor is covered independently by the drug and alcohol rules of another Department of Transportation operating administration, the nature of the relationship that the recipient has with the contractor, and the financial resources available to the recipient to oversee the contractor's drug and alcohol testing program. In short, there are a variety of ways a recipient can ensure tha t its subrecipients and contractors com ply with the rules. Therefore, FTA has developed three model contract provisions for recipients to use "as is" or to modify to fit their particular situations. Explanation of Model Contract Clauses Under Option 1, the recipient ensures the contra ctor's compliance with the rules by requiring the contractor to participate in a drug and alcohol program administered by the recipient. The advantages of doing this are obvious: the recipient maintains total control over its compliance with 49 CFR 655. The disadvantage is that the recipient, w hich may not directly employ any safety -sensitive employees, has to implement a complex testing program. Therefore, this may be a practical option only for those recipients which have a testing program for their employees, and can add the contractor's safety -sensitive employees to that program. Under Option 2, the recipient relies on the contr actor to implement a drug and alcohol testing program that complies with 49 CFR 655, but retains the ability to monitor the contractor's testing program; thus, the recipient has less control over its compliance with the drug and alcohol testing rules th an it does under option 1. The advantage of this approach is that it places the respon sibility for complying with the rules on the entity that is actually performing the safety -sensitive function. Moreover, it reserves to the recipient the power to ensure that the contractor complies with the program. The disadvantage of Option 2 is that without adequate monitoring of the contractor's program, the recipient may find itself out of compliance with the rules. based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the City. 9. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement or cause of action arising out of performance of this Agreement. 10. Warranty. a. Service Provider warrants that all work performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for work of a similar nature. b. . Unless otherwise provided in the Agreement, all materials and equipment incorporated into any work shall be new and, where not specified, of the most suitable grade of their respective kinds for their intended use, and all workmanship shall be acceptable to City. C. Service Provider warrants all equipment, materials, labor and other work, provided under this Agreement, except City -furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period beginning with the start of the work and ending twelve (12) months from and after final acceptance under the Agreement, regardless whether the same were furnished or performed by Service Provider or by any of its subcontractors of any tier. Upon receipt of written notice from City of any such defect or nonconformances, the affected item or part thereof shall be redesigned, repaired or replaced by Service Provider in a manner and at a time acceptable to City. 11. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform Under option 3, the recipient specifies some or all of the specific features of a contractor's drug and alcohol compliance program. Thus, it requires the recipient to decide what it wants to do and how it wants to do it. The advantage of this option is that the recipient has more control over the contractor's drug and alcohol testing program, yet it is not actually administering the testing program. The disadvantage is that the recipient has to specify and understand clearly what it wants to do and why. Drug and Alcohol Testing Option 1 The contractor agrees to: (a) participate in (grantee's or recipient's) drug and alcohol program established in compliance with 49 CFR 655. Drug and Alcohol Testing Option 2 The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 655, produce any documentation necessary to establish its compliance with Parts 655, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of (name of State), or the (insert name of grantee), to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 655 and review the testing process. The contractor agrees further to certify annually its compliance with Parts 655 before (insert date) and to submit the Management Information System (MIS) reports before (insert date before March 15) to (insert title and address of person responsible for receiving information). To certify compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreem ents," which is published annually in the Federal Register. Drug and Alcohol Testing Option 3 The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 655, produce any documentation necessary to establish its compliance with Parts 655, and perm it any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of (name of State), or the (insert name of grantee), to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 655 and review the testing process. The contractor agrees further to certify annually its compliance with Parts 655 before (insert date) and to submit the Management Information System (MIS) reports before (insert date before March 15) to (insert title and address of person responsible for receiving information). To certify compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreem ents," which is published annually in the Federal Register. The Contractor agrees further to [Select a, b, or c] (a) submit before (insert date or upon request) a copy of the Policy Statement developed to implement its drug and alcohol testing program; OR (b) adopt (insert title of the Policy Statement the recipient wishes the contractor to use) as its policy statement as required under 49 CFR 655; OR (c) submit for review and approval before (insert date or upon request) a copy of its Policy Statement developed to implement its drug and alcohol testing program. In addition, the contractor agrees to: (to be determined by the recipient, but may address areas such as: the selection of the certified laboratory, substance abuse professional, or Medical Review Officer, or the use of a consortium). 20. ENERGY CONSERVATION REQUIREMENTS Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 21. RECYCLED PRODUCTS Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247,. and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. 22. CONFORMANCE WITH ITS NATIONAL ARCHITECTURE To the extent applicable, the Contractor agrees to conform to the National Intelligent Transportation Systems (ITS) Architecture and Standards as required by SAFETEA-LU § 5307(c), 23 U.S.C. § 512 note, and follow the provisions of FTA Notice, "FTA National ITS Architecture Policy on Transit Projects," 66 Fed. Reg. 1455 at seq., January 8, 2001, and any other implementing directives FTA may issue at a later date, except to the extent FTA determines otherwise in writing. 23. ADA ACCESS Accessibility. Facilities to be used in public transportation service must comply with 42 U.S.C. Sections 12101 et seq. and DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 CFR Part 37; and Joint ATBCB/DOT regulations, "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 CFR Part 1192 and 49 CFR Part 38. Notably, DOT incorporated by reference the ATBCB's "Americans with Disabilities Act Accessibility Guidelines" (ADAAG), revised July 2004, which include accessibility guidelines for buildings and facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added specific provisions to Appendix A modifying the ADAAG, with the result that buildings and facilities must comply with both the ADAAG and amendments thereto in Appendix A to 49 CFR Part 37. 24. CITY OF FORT COLLINS BID PROTEST PROCEDURES The City of Fort Collins has a protest procedure, covering any phase of solicitation or award, including but not limited to specification or award. The protest procedures are available from the Purchasing Department, City of Fort Collins, 215 N. Mason, Street, 2nd Floor, P. O. Box 580, Fort Collins, CO. 80522. You may also request a copy of the procedures by emailing: Purchasino cDfcoov.com or calling 970-221-6775. according to the terms of this agreement, such party may be declared in default thereof. 12. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default. 13. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. 14. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit B, consisting of one (1) page, attached hereto and incorporated herein by this reference. The Service Provider before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk Management, P. O. Box 580 Fort Collins, Colorado 80522 one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. 15. Entire Agreement. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. 16. Law/Severabi lity. The laws of the State of Colorado shall govern the construction interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 17. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Service Provider represents and agrees that: a. As of the date of this Agreement: 1. Service Provider does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Service Provider will participate in either the e-Verify program created in Public Law 208, 104th Congress, as am ended, and expanded in P ublic Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program") or the Department Program (the "Department Program"), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Service Provider shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. c. Service Provider is prohibited from using the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. d. If Service Provider obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Service Provider shall: 1. Notify such subcontractor and the City within three days that Service Provider has actual knowledge that the subcontractor is em ploying or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease' employing or contracting with the illegal alien; except that Service Provider shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor ha s not knowingly employed or contracted with an illegal alien. e. Service Provider shall comply with any reasonable request by the Colorado Department of Labor and Employment (the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. f. If Service Provider violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Service Provider shall be liable for actual and consequential damages to the City arising out of Service Provider's violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Service Provider violates this provision of this Agreement and the City terminates the Agreement for such breach. 18. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit "D", consisting of fifteen (15) pages, attached hereto and incorporated herein by this reference. OF FOnT G•• . c C Assistant CITY OF FORT COLLINS, COLORADO a municipal corporation By: _ Or." (V, James . O eill II, CPPO, FNIGP Directo of urchasing and Risk Management Date: C-> 23 ) Express Emplo rofessionals PRI AME \\ CORPORATE PRESIDENT OR VICE PRESIDENT Date: 4:1c51C1!%1��� o�ZFJ/� (Corporate Seal) ' J`-Lj�r�A :. .. EXHIBIT "A" SCOPE OF SERVICES; GENERAL SERVICES CATEGORY This section is intended to outline and define the categories in the general scope of work that may be needed by the City. The items or tasks listed in each category are examples of the types of specific services that the City anticipates are likely to be required or may potentially be required in the General Services category. It is possible that additional or extended similar services may be required at some point of time and the City may choose to utilize the Service Provider under such circumstances. However, the City makes no assurance that any specific service described in this section will be needed during the initial one-year term of any contract that may be awarded pursuant to this Request for Proposal, or any extension of such a contract. Provide support for various departments whenever the support workload exceeds the time available to City staff. Requests for General temporary employees may come from a wide range of City agencies and departments, covering temporary personnel categories representing a diversity of skills and duties. Requests for temporary personnel support will go directly to the Service Provider from each individual department or agency. The Service Provider will then work directly with the department to meet the need. The Service P rovider's project manager will need good communication skills and a focus on customer service. Pursuant to the Request for Proposal, the Service Provider will serve as the Primary Contractor for General Services. As a standard practice, it is the intent of the City that a City department that determines that it needs General temporary personnel services, beyond the department's and the City's internal resources, would contact the Service Provider regarding the specifics of the need. If the Service Provider is unable to m eet the need with sufficient qualified personnel in the time frame required, other contractors would be contacted. 2.a. If Service Provider is unable to respond within a reasonable period of time after receiving an order, Service Provider will call a secondary Service Provider with the order on behalf of the City; and will communicate to the City's Project Manager status of the'order request within 24-48 hours. 3. The Service Provider will maintain a listing of all temporary employees who have worked on assignments with the City. This list shall include, at a minimum, the following information: a. The employee's name and social security number; b. The employee's position classification, and training or skill level(s), as appropriate; c. The agency/department assignment; d. The employee's total hours worked, salary per hour and cost per hour, and total cost; e. The supervisor's performance rating of the employee; f. The total hours assigned per classification; and g. The total cost to the City for all employees provided. Utilizing this listing, the Service Provider will report all activity with the City to the Human Resources Department and the Purchasing Division on a quarterly basis, within two weeks after the end of the quarter. 4. Each separate assignment requiring temporary employee(s) for a department will be authorized through the issuance of a Purchase Order based on the Service Agreement. To