HomeMy WebLinkAboutAGR-7152 - HOWROYD-WRIGHT EMPLOYMENT AGENCY INC DBA APPLEONE EMPLOYMENT SERVICES - PROFESSIONAL SERVICES AGREEMENT FOR CONDITIONS OF SERVICER-'?I
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PROFESSIONAL SERVICES AGREEMENT
Conditions of Service]
THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made at
Orange, Califomia, on this 26` day of March, 2021 (the "Effective Date") by and between the
CITY OF ORANGE, a municipal corporation ("City"), and HOWROYD-WRIGHT
EMPLOYMENT AGENCY, INC., a Califomia corporation doing business as APPLEONE
EMPLOYMENT SERVICES ("Contractor"),who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement,
Contractor shall provide to the reasonable satisfaction of City temporary staffing services as set
forth in Exhibit"A,"which is attached hereto and incorporated herein by reference. As a material
inducement to City to enter into this Agreement, Contractor represents and warrants that it is
independently engaged in the business of providing such services and is experienced in performing
the work. Contractor has thoroughly investigated and considered the scope of services and fully
understands the difficulties and restrictions in performing the work. Contractor shall perform all
services in a manner reasonably satisfactory to City and in a manner in conformance with the
standards of quality normally observed by an entity provided such services to a municipal agency.
All services provided shall conform to all federal, state and local laws, rules and regulations and
to the best professional standards and practices. The terms and conditions set forth in Exhibit "A"
shall control over any terms and conditions in this Agreement to the contrary.
Monica Espinoza, Human Resources Director ("City's Project Manager"), shall be the
person to whom Contractor will report for the performance of services hereunder. It is understood
that Contractor's performance hereunder shall be under the supervision of City's Project Manager
or his/her designee), that Contractor shall coordinate its services hereunder with City's Project
Manager to the extent required by City's Project Manager, and that all performances required
hereunder by Contractor shall be performed to the satisfaction of City's Project Manager and the
City Manager.
2. Gomnensation and Fees.
a. Contractor's total compensation for all services performed under this
Agreement,shall not exceed THIRTY THOUSAND DOLLARS and 00/100($30,000.00)without
the prior written authorization of City.
b. The above compensation shall include all costs, including, but not limited
to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental,
subsistence and all related expenses.
c. The rate charged by Contractor shall be Forty-Four Percent(44%) over the
pay rate for the City position being filled, as set forth in the then-current pay scale provided by
City to Contractor.
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3. P men .
a. As scheduled services are completed, Contractor shall submit to City an
invoice for the services completed, authorized expenses and authorized extra work actually
performed or incurred.
b. All such invoices shall state the basis for the amount invoiced, including
services completed, the number of hours spent and any extra work performed.
c. Reserved.
d. Payment shall constitute payment in full for all services, authorized costs
and authorized extra work covered by that invoice.
4. Change Orders. No payment for extra services caused by a change in the scope or
complexity of work,or for any other reason, shall be made unless and until such extra services and
a price therefor have been previously authorized in writing and approved by City as an amendment
to this Agreement. City's Project Manager is authorized to approve a reduction in the services to
be performed and compensation therefor. All amendments shall set forth the changes of work,
extension of time,and/or adjustment of the compensation to be paid by City to Contractor and shall
be signed by the City's Project Manager, City Manager or City Council, as applicable.
5. Licenses. Contractor represents that it and any subcontractors it may engage,
possess any and all licenses which are required under state or federal law to perform the work
contemplated by this Agreement and that Contractor and its subcontractors shall maintain all
appropriate licenses,including a City of Orange business license,at its cost,during the performance
of this Agreement.
6. Indenendent Contractor. At all times during the term of this Agreement,
Contractor and all of its employees and"Temporary Employees" supplied to the City, shall be an
independent contractor and not an employee of City. City shall have the right to control Contractor
only insofar as the result of Contractor's services rendered pursuant to this Agreement. City shall
not have the right to control the means by which Contractor accomplishes services rendered
pursuant to this Agreement. Contractor shall, at its sole cost and expense, furnish all facilities,
materials and equipment which may be required for furnishing services pursuant to this Agreement.
Contractor shall be solely responsible for,and shall indemnify,defend and save City harmless from
all matters relating to the payment of its subcontractors, agents and employees, including
compliance with social security withholding and all other wages, salaries, benefits, taxes,
exactions, and regulations of any nature whatsoever. Contractor acknowledges that it and any
subcontractors, agents or employees employed by Contractor shall not, under any circumstances,
be considered employees of City, and that they shall not be entitled to any of the benefits or rights
afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay,
Public Employees Retirement System benefits, or health, life, dental, long-term disability or
workers'compensation insurance benefits.
7. Contractor Not Agent. Except as City may specify in writing, Contractor shall
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Contractor shall have no authority, express or implied, to bind City to any obligation
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whatsoever.
8. Designated Persons. Only those qualified persons authorized by City's Project
Manager shall perform work provided for under this Agreement.
9. Assignment or Subcontracting. No assignment or subcontracting by Contractor
of any part of this Agreement or of funds to be received under this Agreement shall be of any force
or effect unless the assignment has the prior written approval of City. City may terminate this
Agreement rather than accept any proposed assignment or subcontracting. Such assignment or
subcontracting may be approved by the City Manager or his/her designee.
10. Reserved
11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor
shall do all things necessary and incidental to the prosecution of Contractor's work.
12. Reserved.
13. Reserved•
14. Products of Contractor. The documents, studies, evaluations, assessments,
reports,plans, citations, materials,manuals, technical data, logs, files, designs and other products
produced or provided by Contractor for this Agreement shall become the property of City upon
receipt. Contractor shall deliver all such products to City prior to payment for same. City may use,
reuse or otherwise utilize such products without restriction.
15. Equal Em loyment O portuni . During the performance of this Agreement,
Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for
employment because of race, color,religion, sex, national origin,mental or physical disability, or
any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, color, religion,
sex, national origin,mental or physical disability, or any other basis prohibited by applicable law.
Such actions 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. Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees
placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, national origin, mental or physical
disability, or any other basis prohibited by applicable law.
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c. Contractor shall cause the foregoing paragraphs(a)and(b)to be inserted in
all subcontracts for any work covered by this Agreement, provided that the foregoing provisions
shall not apply to subcontracts for standard commercial supplies or raw materials.
16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a consultant to influence any decision of City
in which Contractor knows or has reason to know that Contractor, its officers, partners, or
employees have a fmancial interest as defined in Section 87103 of the Government Code.
Contractor further agrees that it shall not be eligible to work as the design/build firm for the proj ect
that is the subject of this Agreement.
17. Indemnitv.
a. To the fullest extent pernutted by law, Contractor agrees to indemnify,
defend and hold City,its City Council and each member thereof, and the officers, officials,agents
and employees of City(collectively the "Indemnitees") entirely harmless from all liability to the
extent caused by:
1) Any and all claims under workers' compensat'ion acts and other
employee benefit acts with respect to Contractor's employees or Contractor's subcontractor's
employees arising out of Contractor's work under this Agreement, including any and all claims
under any law pertaining to Contractor or its employees' status as an independent contractor and
any and all claims under Labor Code section 1720 related to the payment of prevailing wages for
public works projects; and
2) Any claim, loss, injury to or death of persons or damage to property
caused by any negligent act, neglect, default, or willful misconduct other than a professional act
or omission of Contractor, or person, firm or corporation employed by Contractor, either directly
or by independent contract,including all damages due to loss or theft sustained by any person,firm
or corporation including the Indemnitees, or any of them, arising out of, or in any way connected
with the work or services which are the subject of this Agreement, including injury or damage
either on or off City's property; but not for any loss, injury, death or damage caused by the
negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall
indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted
against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay
or satisfy any judgment that may be rendered against the Indemnitees,or any of them,in any action,
suit or other proceedings as a result of coverage under this subparagraph.
b. To the fullest extent permitted by law, Contractor agrees to indemnify and
hold Indemnitees entirely harmless from all liability arising out of any claim, loss, injury to or
death of persons or damage to property to the extent caused by its negligent professional act in the
performance of professional services pursuant to this Agreement.
c. Except for the Indemnitees, the indemnifications provided in this
Agreement shall not be construed to extend any third party indemnification rights of any kind to
any person or entity which is not a signatory to this Agreement.
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d. The indemnities set forth in this section shall survive any closing,
rescission,or termination of this Agreement, and shall continue to be binding and in full force and
effect in perpetuity with respect to Contractor and its successors.
18. ns r n e.
a. Contractor shall carry workers' compensation insurance as required by law
for the protection of its employees during the progress of the work. Contractor understands that it
is an independent contractor and not entitled to any workers'compensation benefits under any City
program.
b. Contractor shall maintain during the life of this Agreement the following
minimum amount of comprehensive general liability insurance or commercial general liability
insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) all the
insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover
bodily injury, death and property damage and be written on an occurrence basis.
c. Contractor shall maintain during the life of this Agreement, the following
minimum amount of automotive liability insurance: the greater of(1) a combined single limit of
One Million Dollars ($1,000,000); or (2) all the insurance coverage and/or limits carried by or
available to Contractor. Said insurance shall cover bodily injury, death and property damage for
all owned,non-owned and hired vehicles and be written on an occurrence basis.
d. Any insurance proceeds in excess of or broader than the minimum required
coverage and/or minimum required limits which are applicable to a given loss shall be available
to City. No representation is made that the minimum insurance requirements of this Agreement
are sufficient to cover the obligations of Contractor under this Agreement.
e. Each policy of general liability and automotive liability shall provide that
City, its officers, officials, agents, and employees are declared to be additional insureds under the
terms of the policy, but only with respect to the work performed by Contractor under this
Agreement. A policy endorsement to that effect shall be provided to City along with the certificate
of insurance.In lieu of an endorsement,City will accept a copy of the policy(ies)which evidences
that City is an additional insured as a contracting party. The minimum coverage required by
Subsection 18.b and c, above, shall apply to City as an additional insured.
f.Reserved.
g. The insurance policies maintained by Contractor shall be primary insurance
and no insurance held or owned by City shall be called upon to cover any loss under the policy.
Contractor will determine its own needs in procurement of insurance to cover liabilities other than
as stated above.
h. Before Contractor performs any work or prepares or delivers any materials,
Contractor shall furnish certificates of insurance and endorsements, as required by City,
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evidencing the aforementioned minimum insurance coverages on forms acceptable to City,which
shall provide that the insurance in force will not be canceled or allowed to lapse without at least
ten(10) days' prior written notice to City.
i.All insurance maintained by Contractor shall be issued by companies
admitted to conduct the pertinent line of insurance business in California and having a rating of
Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide. In the
case of professional liability insurance coverage,such coverage shall be issued by companies either
licensed or admitted to conduct business in California so long as such insurer possesses the
aforementioned Best rating.
j Contractor shall immediately notify City if any required insurance lapses or
is otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self-insure the risk and charge Contractor for such
costs and any and all damages resulting therefrom, by way of set-off from any sums owed
Contractor.
k. Contractor agrees that in the event of loss due to any of the perils for which
it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.
1.Contractor shall include all subcontractors, if any, as insureds under its
policies or shall furnish separate certificates and endorsements for each subcontractor to City for
review and approval. All coverages for subcontractors shall be subject to all of the requirements
stated herein.
19. Termination. City may for any reason terminate this Agreement by giving
Contractor not less than five(5)days'written notice of intent to terminate. Contractor may for any
reason terminate this Agreement by giving City not less than thirty (30) days' written notice of
intent to terminate. Upon receipt of such notice, Contractor shall immediately cease work, unless
the notice from City provides otherwise. Upon the termination of this Agreement, City shall pay
Contractor for services satisfactorily provided and all allowable reimbursements incurred to the
date of termination in compliance with this Agreement, unless termination by City shall be for
cause, in which event City may withhold any disputed compensation. City shall not be liable for
any claim of lost profits.
20. Maintenance and InspecNon of Records. In accordance with generally accepted
accounting principles, Contractor and its subcontractors shall maintain reasonably full and
complete books, documents, papers, accounting records, and other information (collectively, the
records")pertaining to the costs of and completion of services performed under this Agreement.
City and its authorized representatives shall have access to and the right to audit and reproduce
any of Contractor's records regarding the services provided under this Agreement.Contractor shall
maintain all such records for a period of at least three(3)years after ternunation or completion of
this Agreement. Contractor agrees to make available all such records for inspection or audit at its
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offices during normal business hours and upon three (3)days' notice from City, and copies
thereof shall be furnished if requested.
21. Comnliance with all Laws/Immi ration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. If the work provided for in this Agreement constitutes a"public works," as
that term is defined in Section 1720 of the California Labor Code,for which prevailing wages must
be paid, to the extent Contractor's employees will perform any work that falls within any of the
classifications for which the Department of Labor Relations of the State of California promulgates
prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it,
shall pay not less than the specified prevailing rates of wages to all such workers. The general
prevailing wage determinations for crafts can be located on the website of the Department of
Industrial Relations (www.dir.ca.ov/DLSR). Additionally, to perform work under this Contract,
Contractor must meet all State registration requirements and criteria,including project compliance
monitoring.
c. Contractor represents and warrants that Contractor:
1) Has complied and shall at all times during the term of this
Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes,
and orders, including, without limitation, the Immigration Reform and Control Act of 1986
IRCA); and
2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
3) Has properly maintained, and shall at all times during the term of
this Agreement properly maintain, all related employment documentation records including,
without limitation, the completion and maintenance of the Form I-9 for each of Contractor's
employees; and
4) Has responded, and shall at all times during the term of this
Agreement respond, in a timely fashion to any government inspection requests relating to
immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the
Department of Homeland Security, the Department of Labor, or the Social Security
Administration.
d. Contractor shall require all subcontractors or subconsultants to make the
same representations and warranties as set forth in Subsection 21.b.
e. Contractor shall, upon request of City, provide a list of all employees
working under this Agreement and shall provide,to the reasonable satisfaction of City,verification
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that all such employees are eligible to work in the United States. All costs associated with such
verification shall be borne by Contractor. Once such request has been made, Contractor may not
change employees working under this Agreement without written notice to City, accompanied by
the verification required herein for such employees.
f.Contractor shall require all subcontractors or sub-consultants to make the
same verification as set forth in Subsection 21.d.
g. If Contractor or subcontractor knowingly employs an employee providing
work under this Agreement who is not authorized to work in the United States, and/or fails to
follow federal laws to determine the status of such employee,that shall constitute a material breach
of this Agreement and may be cause for immediate termination of this Agreement by City.
h. Contractor agrees to indemnify and hold City, its officers, officials, agents
and employees harmless for,of and from any loss, including but not limited to fines,penalties and
corrective measures City may sustain by reason of Contractor's failure to comply with said laws,
rules and regulations in connection with the performance of this Agreement.
22. Governing Law and Venue. This Agreement shall be construed in accordance
with and governed by the laws of the State of California and Contractor agrees to submit to the
jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in
Orange County, California.
23. Integration. This Agreement constitutes the entire agreement of the parties. No
other agreement,oral or written,pertaining to the work to be performed under this Agreement shall
be of any force or effect unless it is in writing and signed by both parties. Any work performed
which is inconsistent with or in violation of the provisions of this Agreement shall not be
compensated.
24. Notice. Except as otherwise provided herein, all notices required under this
Agreement shall be in writing and delivered personally, by e-mail, or by first class U.S. mail,
postage prepaid, to each party at the address listed below. Either party may change the notice
address by notifying the other party in writing. Notices shall be deemed received upon receipt of
same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e-
mail shall be deemed received on the date of the e-mail transmission.
CONTRACTOR" CITY"
Howroyd-Wright Employment Agency, Inc. City of Orange
dba AppleOne Employment Services 300 E. Chapman Avenue
327 W. Broadway Orange, CA 92866-1591
Glendale, CA 91204
Attn.: Michael A. Hoyal Attn.: Monica Espinoza
Telephone: 818-240-8688 Telephone: 714-744-7255
E-Mail: mhoyal@ainl.com E-Mail: mespinoza@cityoforange.org
25. Counterparts. This Agreement may be executed in one or more counterparts,each
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of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as
original signatures.
IN WITNESS of this Agreemenf, the parties have entered into this Agreement as of the
year and day first above written.
CONTRACTOR" CITY"
HOWROYD-WRIGHT EMPLOYMENT CITY OF ORANGE, a municipal corporation
AGENCY, INC., a California corporation
doing business as APPLEONE EMPLOYMENT
SERVICES
DocuSigned by: By:
V} . (ewra y, ck tto, City Manager
By DA9414E8ABE2474..-
Printed Name: Brett w. Howroyd
Title: Presi dent
s e ed by: APPROVED AS TO FORM:
D
i.,a., a. rby,
DY SEpo nec snna
PT'iTlted Name: Mi chael A. Hoyal
Tltle: rh;o Cin nri l l ffirur MaryE. nning
Senior Assistant City Att rne
TE:City requires the following signature(s)on behalf of the Contractor:
1) the Chairman of the Board, the President or a Vice-President, A(2) the
Secretary, the Chief Financial Of cer, the Treasurer, an Assistant Secretary
or an Assistant Treasurer. If only one corporate officer exists or one corporate
officer holds more than one corporate office,please so indicate.
The corporate officer named in a corporate resolution as authorized to enter into
this Agreement. A copy of the corporate resolution, certified by the
Secretary close in time to the execution of the Agreement,must be provided to
City.
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EXHIBIT "A"
COPE OF SERVICES
Beneath this sheet.]
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EXHIBIT"A"
AppleOne°
CONDITIONS OF SERVICE
This Conditions of Service ("COS") is between the City of Orange, California ("Client") and Howroyd- Wright
Employment Agency, Inc.dba AppleOne Employment Services ("AppleOne"). In consideration of the parties' mutual
covenants,conditions, and promises contained herein,the parties agree as follows:
TEMPORARY AND TEMPORARY-TO-HIRE SERVICES
1.Employees or associates of AppleOne and any of its subcontractors temporarily assigned to Client shall be
referred to in the singular as "Temporary Employee" and in the plural as "Temporary Employees." Temporary
Employees are subject at all times to ClienYs direct and indirect supervision; AppleOne does not supervise such
employees on their assignments. Client further agrees that while on assignment with Client, Temporary Employees
shall not be permitted, without express advance written approval by an officer of AppleOne, to i) engage in travel or
otherwise operate a motor vehicle or any non-office machinery or equipment on behalf of Client, ii) handle cash or
valuables or negotiable instruments (Client shall also not pay Temporary Employees directly or advance any funds to
them.), iii) be permitted unsupervised or uncontrolled access to confidential or proprietary information, including
confidential access codes, iv)be permitted unsupervised access to or control of ClienYs business premises,v)remove
any property of Client from ClienYs business premises,vi)purchase,consume or distribute any alcohol,or vii)consume
drugs, unless advance written authorization is provided by a physician.Should any Temporary Employee be permitted
to engage in any of the activities described in i) -vii)above, AppleOne shall have no responsibility arising therefrom,
and Client agrees to indemnify, defend and hold harmless AppleOne for any and all liabilities, losses, claims, injuries,
suits,judgments, expenses, charges,fines, interest or penalties (collectively, "Losses") resulting from the employee's
conduct.
2.Background check services are available for an additional fee to Client and must be agreed to in a writing
between AppleOne and Client.Background check services may be conducted by one or more of AppleOne's preferred,
independent third-party vendors (e.g., A-Check Global). Client shall indemnify, defend and hold harmless AppleOne
for any and alf Losses arising from or related to i) the background checks and the performance thereof and ii)
AppleOne's assignment of any Temporary Employees to Client,at ClienYs request,before the full completion of Client-
or AppleOne-required background checks, including any legal requirements associated therewith..
3. AppleOne provides its services in compliance with its obligations as an equal opportunity and affirmative action
employer.AppleOne's recruiting procedures are free of discrimination based on race, religion,ancestry, color, national
origin, age, gender identity or expression, genetic information, marital status, medical condition, physical or mental
disability, protected veteran status, sex(including pregnancy),sexual orientation, or any other characteristic protected
by applicable federal, state or local laws.AppleOne also consider qualified applicants regardless of criminal histories,
consistent with legal requirements.
4. Client agrees to immediately contact its AppleOne representative or the AppleOne Human Resources Hotline at
800) 270-9120 upon receipt of any complaint by a Temporary Employee regarding, but not limited to, any of the
following: sexual harassment, discrimination, retaliation, bullying, wage and hour issues, meal and rest breaks or any
other employment-related concern. Further, Client agrees to comply with the American with Disabilities Act and any
local health accommodation requirements, and upon request by AppleOne, agrees to participate in an interactive
process with AppleOne and any Temporary Employee who seeks a reasonable workplace accommodation.
5.Client agrees to indemnify, defend and hold harmless AppleOne and its subsidiaries and related entities, and
all of their respective officers,directors,shareholders,employees, agents and representatives(collectively,"AppleOne
Parties") for Losses arising out of any violation of laws by Client. In addition, Client agrees to comply with all laws,
regulations and ordinances relating to work site health and safety, and agrees to provide Temporary Employees a safe
and healthful workplace. Client agrees to indemnify, defend and hold harmless AppleOne Parties for Losses arising
out of Client's violations of the Occupational Safety and Health Act of 1970, or any similar state law with respect to
workplaces owned, leased or supervised by Client, and/or to which Temporary Employees are assigned. For any
serious injury, illness or death of a Temporary Employee occurring in a place of employment or in connection with an
AppleOne employee's assignment with Client, Client shall notify AppleOne immediately (Notification to AppleOne is
also required in the event of any accident or medical treatment.)and is required to report immediately, by telephone or
Conditions of Service 2020 Page 11 of 14 AppleOne Confidential Information
Legal Template 03102020
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fax, to the nearest Occupational Safety and Health Administration ("OSHA") office. Client is authorized and required
by AppleOne to make the report on behalf of both AppleOne and Client. Client shall provide to OSHA all information
required by applicable law, as well as AppleOne's name, address, phone number and contact person, and the
Temporary Employee's name. Client shall notify AppleOne immediately after the report has been made.
6.Client will not reassign or relocate a Temporary Employee without prior written authorization by AppleOne.
Client agrees to assume all liability for any third party claim arising after any reassignment or relocation that occurs
without such authorization.
7.Client understands that Temporary Employees are assigned to Client to render temporary services, and that
absent an agreement to the contrary, are not assigned to become employed by Client. Client acknowledges the
considerable expense incurred by AppleOne to advertise, recruit, evaluate, train and quality control its employees.
Client will not, without prior written authorization by AppleOne, hire an AppleOne employee, interfere with the
employment relationship between AppleOne and its employee, or directly or indirectly cause an AppleOne employee
to transfer to another temporary help service.
8.Client understands that AppleOne may refer candidates for ClienYs evaluation or assign AppleOne employees
to render temporary services at Client often while such persons seek direct hire employment through AppleOne. If
Client, either directly or indirectly, such as through any company within ClienYs control, solicits, offers employment to
and/or hires any AppleOne candidate or employee as an employee or consultant in any position, or utilizes such
person's services through another temporary or outsourcing service, or any party affiliated with Client refers such
person to any other employer and said person becomes employed by that employer: i)at any time from the date such
person's identity is provided by AppleOne to Client until six (6) months thereafter, or ii) within six (6) months after
termination of such person's temporary assignment through AppleOne at Client, whichever is the later, Client agrees
to pay AppleOne a direct hire fee in accordance with AppleOne's standard fee schedule stipulated by the parties to be
equal to thirty percent (30%) of such person's first year annualized wage or salary. Unless Client presents written
evidence to AppleOne of ClienYs prior knowledge of an AppleOne referred candidate i)within three (3)business days
of AppleOne's referral of such candidate to Client, or ii) prior to ClienYs interview of such candidate, or iii) prior to
AppleOne's assignment of such candidate at Client, whichever is earliest, Client understands and agrees that Client
is liable for the payment of any direct hire fee due to AppleOne pursuant to this COS.
9. AppleOne offers temporary-to-hire services to Client. An AppleOne employee temporarily assigned to Client
is an employee of AppleOne until released to Client. Should Client be interested in hiring an AppleOne referred
candidate or employee, Client shall contact AppleOne,who will esta6lish the terms and conditions for releasing such
person to ClienYs payroll, including the conversion fee to be paid by Client if such terms are not otherwise agreed to
between the parties. If any Client accounts are in default according to the payment terms in Section 12, Client shall
bring the accounts current prior to the hiring. If Client hires an AppleOne employee with a Client account in default,
Client agrees to pay AppleOne a conversion fee equivalent to the direct hire fee as set forth in Section 8 of this
COS.
INVOICING AND PAYMENT
10. Client understands that Temporary Employees must be paid weekly, and agrees to promptly review and
approve or verify timecards or hours worked. Client will be liable for any and all charges incurred based upon Client
approved or verified timecards or hours or similar information submitted by Client to AppleOne. If timecards or hours
lack timely Client approval or verification, AppleOne will process payroll and invoices based upon the timecards or
hours submitted by the employees.
11. Client shall reimburse AppleOne for any expenses that are incurred by AppleOne or Temporary Employees,
which are reasonably related to,and arise out of,the services provided to Client or the discharge of duties by Temporary
Employees for Client under the terms of this COS ("Reimbursable Expenses"). Such Reimbursable Expenses may
include a reasonable amount for Temporary Employee internet service or mobile device service for remote work,
Client-required equipment and tools, Client-required uniforms, pre-employment health screening (e.g., COVID-19
testing)and fit for duty doctor's visit costs. Expenses for travel shall not be invoiced or reimbursed unless such travel
expenses have been previously authorized by Client.
12. AppleOne shall invoice Client weekly for services and any other obligations hereunder. Clienf agrees that
payment of invoices is due upon receipt. Client agrees that an account balance that remains unpaid thirty(30)days
after the invoice date will be considered in default and that AppleOne may assess a default charge of one and one-half
percent (1.5%) per month on any such balance. Client agrees to pay any such default charges and any costs of
collection, including attorneys'fees.
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13. ClienYs payment method (Check box.): ApplePay's eCheck. Client may sign up at www.applepay.com.
ACH/Other shall be discussed between Client and the AppleOne representative. Notwithstanding anything to the
contrary in this COS, in the event that AppleOne is subject to any third party fees or costs related to AppleOne's
compliance with Client's invoicing or payment policies or practices (e.g., Ariba fees, credit card fees, etc.), AppleOne
will pass such fees or costs through to Client without markup.
14. Client and AppleOne acknowledge that through the Patient Protection and Affordable Care Act of 2010, as
amended ("ACA"), and regulations promulgated thereby, statutory requirements have been imposed upon certain
employers of certain employees working in the United States. AppleOne is committed to fulfilling its ACA obligations
through offering ACA-compliant benefits to eligible contingent workers, including Temporary Employees. In
demonstrating ClienYs commitment to ACA compliance, Client agrees to share in ACA-related costs by paying a$0.54
surcharge for each hour of service provided by each AppleOne employee assigned to Client. The surcharge will be
billed to Client in a separate line item oh the invoice.
15. Client, or federal, state or local laws, either currently existing or enacted in the future, may mandate that
Temporary Employees undergo specific training(e.g.,sexual harassment prevention training),presentations and other
curricula ("Trainings"), where the payment of wages is required by law. Unless otherwise agreed to by the parties in
writing, the parties agree that AppleOne will invoice Client for the time spent by Temporary Employee on such
Trainings, as well as for voting, as allowed by applicable law, according to the regular markup percentage or bill rate
that AppleOne charges for such employee.
16. Federal,state or local laws,either currently existing or enacted in the future, may require AppleOne or Client to
provide one or more Temporary Employees with certain paid sick, quarantine or COVID-19-related leave (Each such
law is a "Paid Leave Law."). AppleOne and Client agree to comply with all provisions of each Paid Leave Law with
respect to Temporary Employees as such laws become effective.Unless otherwise agreed to by the parties in a writing,
to address the costs for compliance with a Paid Leave Law, the parties agree that AppleOne will invoice Client for
the paid leave of a Temporary Employee according to the regular markup percentage or bill rate that AppleOne
charges for such employee provided that the specific criteria required for the payment of leave to such employee under
the applicable law has been met.
17. Unless otherwise agreed to by the parties elsewhere in the COS and/or in any of the COS's mutually
agreed upon ancillary exhibit(s) or document(s), to the extent that AppleOne may be required to pay the Temporary
Employee overtime under any federal, state or local law, AppleOne, as applicable, will bill Client i) based upon the
Temporary Employee's legally applicable hourly pay rate for overtime work plus the markup percentage for the
Temporary Employee, or ii) an overtime bill rate, which will be calculated by applying a multiplier of 1.5 or 2.0 (for
double time,where applicable)to the Temporary Employee's hourly bill rate.
18. Additional agreed upon pricing for the services to Client under this COS may be set forth in one(1) or more
exhibit(s) to this COS or as mutually agreed upon by the parties in writing. The parties agree that upon thirty(30)
days'written notice to Client, pricing under this COS may change if AppleOne's expenses for statutory or other fixed
costs increase, or if new or additional statutory or government-imposed taxes,fees or costs are incurred by AppleOne
after the Effective Date. These taxes, fees or costs may include, but are not limited to those related to: Workers'
Compensation Insurance, State Unemployment Insurance, federal, state or local taxes, regulations or ordinances
including but not limited to Wage Determinations, Health &Welfare Benefits, SCLS/SCA, vacation pay, holiday pay,
Paid Leave Laws or minimum wage laws), or an increase in the ACA surcharge. The parties agree that such written
notice may be in the form of an electronic communication, including email.
OTHER TERMS
19. Despite anything to the contrary in the COS,Client shall defend,indemnify and hold harmless AppleOne Parties
from and against any and all Losses to the extent caused by ClienYs failure to inform AppleOne, in writing,that Client
or any job orders or. services hereunder, are subject to Federal Acquisition Regulation and/or Defense Federal
Acquisition Regulation Supplement, Service Contract Labor Standards, formerly known as the McNamara-O'Hara
Service Contract Act of 1965 ("SCLS/SCA"), Davis-Bacon Act of 1931, Federal Paid Sick Leave (EO 13706), or any
other federal law where a security clearance or any kind of government-issued credential or designation is required.
20. To the maximum extent permitted by applicable law, neither Client nor AppleOne shall have any liability for
any indirect, consequential, special or incidental damages, damages for loss of profits or revenues, whether in an
action in contract or tort, even if such party has been adVised of the possibility of such damages, unless such party
has engaged in gross negligence or willful misconduct or the damages arise from a third party claim for which a party
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is entitled to indemnification in this COS.
21. This COS supersedes any and all other agreements,either oral or written,between the parties or anyone acting
on behalf of a party hereto, with respect to the subject matter hereof. This COS contains all of the covenants,
conditions, warranties, representations, inducements, promises or agreements (oral, written, on a website, or
otherwise) ("Promises") between the parties with respect to the subject matter hereof. Each party hereto
acknowledges that no Promises have been made by any party, or anyone acting on behalf of any party,which are not
embodied herein, and that no other Promises, which are not contained herein, shall be valid or binding. Any oral
Promises or modifications concerning this COS shall be of no force or effect, except by a subsequent written
amendment to this COS.
22. The confidential and/or proprietary information of the disclosing party will be held in strict confidence by the
receiving party and will not be disclosed by the receiving party to any third party, or used by the receiving party for its
own purposes, except to the extent that such disclosure or use is necessary in the perFormance by the receiving party
of its obligations under this COS. The receiving party upon the request of the disclosing party will destroy or return
all writings or documents that contain information subject to the protections of this section.
23. In the event that any provision of this COS shall be unenforceable or inoperative as a matter of law, the
remaining provisions shall remain in full force and effect.
24. A waiver of a breach of any covenant, condition, or promise of this COS shall not be deemed a waiver of any
succeeding breach of the same or any other covenant,condition, or promise of this COS. No waiver shall be deemed
to have been given unless given in writing.
25. The parties agree that this COS (and/or any of the COS's mutually agreed upon ancillary exhibit(s) or
document(s)) may be electronically signed and that any electronic signature appearing on this COS (and/or such
exhibit(s) or document(s)) is the same as a handwritten signature for the purposes of validity, enforceability and
admissibility. Further, the parties agree that this COS may be executed in counterparts, each of which together shall
be deemed one and the same instrument. Moreover, the exchange of this entire executed COS (and/or such
exhibit(s)or document(s))that is in photostatic or portable document format(.pdf)form by electronic mail or by another
electronic means shall be considered original(s)and shall constitute effective execution and delivery of the original(s).
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