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HomeMy WebLinkAbout2009-17 IGA with CO Departmetn of Revenue regarding Authorization to Administer CDL Driver Skills TestingRESOLUTION NO. 17਍ഀ Series of 2009਍ഀ A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE਍ഀ TOWN OF VAIL, COLORADO AND THE STATE OF COLORADO DEPARTMENT OF਍ഀ REVENUE REGARDING THE AUTHORIZATION TO ADMINISTER COMMERCIAL DRIVER'S਍ഀ LICENSE DRIVER SKILLS TESTING; AND SETTING FORTH DETAILS IN REGARD਍ഀ THERETO.਍ഀ WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado਍ഀ is a home rule municipal corporation duly organized and existing under the laws of the State of਍ഀ Colorado and the Town Charter (the "Charter"); and਍ഀ WHEREAS, the members of the Town Council of the Town (the "Council") have been਍ഀ duly elected and qualified; and਍ഀ WHEREAS, the Town and the Colorado Department of Revenue (the "DOR") wish to਍ഀ enter into an Intergovernmental Agreement ("IGA") to authorize Commercial Driver's License਍ഀ ("CDL") Testing Units to administer and provide CDL Driver Skills Testing on behalf of the DOR.਍ഀ WHEREAS, the Town meets the necessary Commercial Driver's License ("CDL") Testing਍ഀ Units to administer and provide CDL Driver Skills Testing.਍ഀ WHEREAS, the Town's operations require the continued testing of employees for the਍ഀ necessary Commercial Driver's License ("CDL") skills to maintain service levels to the਍ഀ community.਍ഀ NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF਍ഀ VAIL, COLORADO THAT:਍ഀ Section 1. The Council hereby approves and authorizes the Town Manager to enter਍ഀ into the IGA with DOR, in substantially the same form as attached hereto as Exhibit A and in a਍ഀ form approved by the Town Attorney, for the authorization to provide CDL driver skills testing on਍ഀ behalf of the State of Colorado.਍ഀ Section 2. This Resolution shall take effect immediately upon its passage.਍ഀ INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of਍ഀ the Town of Vail held this 2nd day of June, 2009.਍ഀ Richar Cleveland਍ഀ Town Mayor਍ഀ A ro~ .OF,V਍ഀ Lo lei onaldsoEown le rk Resolution No. 17, Series 2009਍ഀ Department of Revenue਍ഀ TAA /਍ഀ Intergovernmental Agreement਍ഀ THIS AGREEMENT, made this day of 20 , by and between the਍ഀ State of Colorado for the use and benefit of the Department of Revenue, Motor Carrier Services਍ഀ Division, CDL Compliance Section, 1881 Pierce Street, Room 118, Lakewood, Colorado 80214,਍ഀ hereinafter referred to as "DOR", and਍ഀ a (name and type of governmental entity")਍ഀ (address), FEIN Number਍ഀ hereinafter referred to as the "CDL Testing Unit".਍ഀ FACTUAL RECITALS਍ഀ DOR is authorized by Sections 24-4-103, 42-2-111(1)(b), 42-2-403(2)(a), 42-2-406(3) and 407(8)਍ഀ C. R. S. to adopt rules and regulations as necessary for the Commercial Driver's License ("CDL'਍ഀ Program to ensure compliance and promote the safety and welfare of the citizens of Colorado; and਍ഀ DOR desires to memorialize and authorize CDL Testing Units to Administer and provide CDL਍ഀ Driver Skills Testing on behalf of DOR; and਍ഀ By reference, DOR adopts and incorporates into this agreement the Federal Motor Carrier Safety਍ഀ Regulations Parts 383, 384, 386, 390 and 391, Qualifications and Disqualification and Code of Federal਍ഀ Regulations, Title 49, Parts 383, 384, 386, 390 and 391, revised as of October 1, 2002.਍ഀ Required approval, clearance and coordination has been accomplished from and with appropriate਍ഀ agencies; and਍ഀ NOW, THEREFORE, it is hereby agreed that in consideration of the mutual covenants and agreements਍ഀ set forth, the sufficiency of which is hereby acknowledged, DOR and the CDL Testing Unit agree as਍ഀ follows:਍ഀ 1. PRIORITY OF INTERPRETATION. The provisions of this agreement shall be governing over the਍ഀ relationship of DOR and the CDL Testing Unit. Should conflict in any provisions of this agreement and਍ഀ any exhibits be identified, the priority of interpretation of the agreement shall be: first, the Special਍ഀ Provisions incorporated within the agreement; second, the terms and provisions of this agreement; and਍ഀ third, the Rules and Regulations for the CDL Program, ("Exhibit A"), hereby attached and incorporated਍ഀ herein.਍ഀ 2. STATEMENT OF WORK AND RESPONSIBILITIES.਍ഀ A. On behalf of DOR, The CDL Testing Unit shall competently provide CDL Driving Skills Testing,਍ഀ services to DOR and applicants pursuant to and consistent with the intent of all applicable Federal਍ഀ and State laws, the terms of this agreement; the Rules and Regulations for the Commercial਍ഀ Driver's License (CDL) Program, attached and incorporated herein as Exhibit A; and, the current਍ഀ CDL Tester's manual, hereby incorporated by reference.਍ഀ B. CDL Testing Unit shall at all times have a valid signed agreement with DOR prior to providing਍ഀ the services pursuant to the agreement. Additionally, the CDL Testing Unit and the CDL Driving਍ഀ Skills Tester shall be in possession of a valid license in accordance with Exhibit A of this਍ഀ agreement prior to providing services authorized by this agreement.਍ഀ C. The CDL Testing Unit shall have written permission from the landowner to administer the CDL਍ഀ vehicle basic control tests on areas not owned by the CDL Testing Unit. This written permission,਍ഀ substantially in a form equivalent to Attachment A, attached and incorporated herein, shall be਍ഀ submitted to DOR for approval prior to testing.਍ഀ D. The CDL Testing Unit agrees to:਍ഀ 1) Maintain an established place of business in Colorado with a vehicle fleet of no less than਍ഀ three CMV's owned, leased or registered to the testing unit, the business owner or an਍ഀ employee of the business; or਍ഀ 2) Maintain an adult education occupational business license with the Division of Private਍ഀ Occupational School, a division of the Colorado Department of Higher Education; or਍ഀ 3) Be an agency of government, public school district, private or parochial school or other type਍ഀ of pre-primary, primary, or secondary school transporting students from home to school or਍ഀ from school to home.਍ഀ 4) Comply with the Colorado Third Party Testing Professional Code of Ethics, attached and਍ഀ incorporated herein as Attachment B.਍ഀ 3. TERM. The term of this agreement is from July 1, 2009 or the date DOR executes this agreement,਍ഀ whichever is later and shall end June 30, 2010.਍ഀ DOR, in its sole discretion, may require continued performance for four (4) additional periods of twelve਍ഀ (12) months for any services at the terms specified in the agreement. DOR may exercise the option by਍ഀ written notice of its intent to renew to the CDL Testing Unit within thirty (30) days prior to the end of the਍ഀ current agreement term. Notice of intent does not commit DOR to a renewal. The renewal shall be in a਍ഀ form substantially equivalent to Attachment C of this agreement ("Option Letter"). The Option Letter਍ഀ shall not be valid until signed by DOR. The total duration of this agreement shall not exceed five (5)਍ഀ years.਍ഀ The term of this agreement is contingent upon the issuance or renewal of a valid CDL Testing Unit਍ഀ license. Permanent revocation of the CDL Testing Unit License shall be sufficient cause for immediate਍ഀ termination of this agreement.਍ഀ 4. INSPECTION AND ACCEPTANCE. The CDL Testing Unit shall permit DOR and federal agency਍ഀ monitoring and auditing of records and activities that are or have been undertaken pursuant to this਍ഀ agreement. DOR reserves the right to inspect services provided under this agreement at all reasonable਍ഀ times and places during the term of the agreement, including any extensions. "Services" as used in this਍ഀ clause includes services performed or tangible material produced or delivered in the performance of਍ഀ services. If any of the services do not conform to agreement requirements, DOR may require the CDL਍ഀ Testing Unit to perform the services again in conformity with the agreement requirements. When defects਍ഀ in the quality or quantity of service cannot be corrected by re-performance, DOR may require the CDL਍ഀ Testing Unit to take necessary action to ensure that the future performance conforms to the agreement਍ഀ requirements.਍ഀ 5. NON-EXCLUSIVE RIGHTS. It is understood and agreed by the CDL Testing Unit that DOR does਍ഀ not grant the CDL Testing Unit exclusive rights to provide the products and/or services under this਍ഀ agreement. DOR reserves the right to agreement from persons and entities other than the CDL Testing਍ഀ Unit, as may be in the best interest of DOR. This agreement shall remain in full force and affect should਍ഀ DOR enter into other agreements for the same or similar goods and services as provided under this਍ഀ agreement.਍ഀ 6. SUBCONTRACTORS. Pursuant to 42-2-407(1) C.R.S., the use of subcontractors in the performance਍ഀ of this agreement is not allowed. CDL Driving Skills Tests may be performed only by employees of਍ഀ DOR or by CDL Driving Skills Tester(s) employed by CDL Testing Units.਍ഀ 7. REPRESENTATIONS. WARRANTIES. AND PERFORMANCE STANDARDS. The CDL Testing਍ഀ Unit shall perform the services described in Section 2, "Statement of Work and Responsibilities", in਍ഀ accordance with the highest standard of care, skill and diligence provided by a professional person or਍ഀ company in performance of work similar to the service. The CDL Testing Unit wan-ants that (a) services਍ഀ provided under this agreement shall meet the descriptions in this agreement, (b) there are no pending or਍ഀ threatened suits, claims, or actions of any type with respect to the services provided and (c) the services਍ഀ shall be free and clear of any liens, encumbrances, or claims arising by or through the CDL Testing Unit਍ഀ or any party related to the CDL Testing Unit.਍ഀ The CDL Testing Unit expressly wan ants and guarantees complete performance of the work in a manner਍ഀ acceptable to DOR.਍ഀ 8. CONFLICT OF INTEREST/GIFTS GRATUITIES. During the term of this agreement, the CDL਍ഀ Testing Unit shall not engage in any business or personal activities or practices or maintain any਍ഀ relationships which conflict in any way with the full performance of the CDL Testing Unit's obligations਍ഀ under this agreement.਍ഀ Additionally, the CDL Testing Unit acknowledges that in governmental agreementing, even the਍ഀ appearance of a conflict of interest is harmful to the interests of DOR. Therefore, the CDL Testing Unit਍ഀ shall refrain from any practices, activities or relationships that could reasonably be considered to be in਍ഀ conflict with the full performance of CDL Testing Unit's obligations to DOR in accordance with the਍ഀ terns and conditions of this agreement, without the prior written approval of DOR.਍ഀ In the event that the CDL Testing Unit is uncertain whether the appearance of a conflict of interest may਍ഀ reasonably exist, the CDL Testing Unit shall submit to DOR a full disclosure statement setting forth the਍ഀ relevant details for DOR's consideration and direction. Failure to promptly submit a disclosure statement਍ഀ or to follow DOR's direction in regard to the apparent conflict shall be grounds for termination of the਍ഀ agreement.਍ഀ The CDL Testing Unit shall not, by itself or through any officer, director, employee, agent, partner,਍ഀ subagreementor or other representative, offer, give, grant, or otherwise deliver any gift, gratuity, or਍ഀ anything of monetary or non-monetary value to any employee of DOR or to any member of his/her਍ഀ immediate family or anyone living in his/her household. Failure by the CDL Testing Unit to ensure਍ഀ compliance with this provision may result, in DOR's sole discretion, in immediate termination of the਍ഀ agreement.਍ഀ 3਍ഀ 9. PERFORMANCE BOND. The CDL Testing Unit shall acquire a performance bond in the amount of਍ഀ five thousand dollars ($5,000.00) when the CDL Testing Unit is testing applicants outside of their testing਍ഀ unit. Such bond must inure to the benefit of DOR and shall be in force through the term of the agreement,਍ഀ including any extensions. A certificate evidencing coverage must be delivered to DOR prior to execution਍ഀ of the agreement and prior to each subsequent renewal. The bond agreement shall contain a provision਍ഀ that indicates that any modifications or cancellation of such bond can occur only sixty (60) days after਍ഀ written notice to DOR. In the event of default by the CDL Testing Unit, DOR will have the sole਍ഀ responsibility for selecting the alternate CDL Testing Unit.਍ഀ 10. PRESS CONTACTS/NEWS RELEASES. The CDL Testing Unit shall not initiate any press and/or਍ഀ media contact nor respond to press/media requests regarding this agreement and/or any related matters਍ഀ concerning DOR without the prior written approval of DOR.਍ഀ 11. CONFIDENTIALITY OF STATE RECORDS AND _INFORMATION. The CDL Testing Unit਍ഀ acknowledges that it may come into contact with confidential information in connection with this਍ഀ agreement or in connection with the performance of its obligations under this agreement, including but਍ഀ not limited, to personal records and information of individuals. It shall be the responsibility of the CDL਍ഀ Testing Unit to keep all State records and information confidential at all times and to comply with all਍ഀ Colorado State and Federal laws, rules and regulations concerning the confidentiality of information.਍ഀ Any request or demand for information in the possession of the CDL Testing Unit made by a third party਍ഀ who is not an authorized party to this agreement shall be immediately forwarded to the DOR's਍ഀ representative listed in the "Notices and Representatives" section of this agreement for resolution.਍ഀ The CDL Testing Unit shall provide and maintain a secure environment that ensures confidentiality of all਍ഀ State records and information wherever located. No State information of any kind shall be distributed or਍ഀ sold to any third party or used by the CDL Testing Unit or its agents in any way, except as authorized by਍ഀ the CDL Testing Unit and as approved by the DOR. State information shall not be retained in any files or਍ഀ otherwise by the CDL Testing Unit or its agents, except as set forth in this agreement and approved by the਍ഀ DOR. Disclosure of State records or information may be cause for legal action against the CDL Testing਍ഀ Unit or its agents. Defense of any such action shall be the sole responsibility of the CDL Testing Unit or਍ഀ its agents.਍ഀ If the CDL Testing Unit becomes aware of a breach of data security, it shall notify DOR immediately and਍ഀ cooperate with DOR regarding recovery, remediation, and the necessity to involve law enforcement, if਍ഀ any. The CDL Testing Unit shall be responsible for the cost of notifying each Colorado resident and਍ഀ residents of other states whose personal information may have been compromised. Notice shall be made਍ഀ as soon as possible within the legitimate needs of law enforcement and according to the requirements of਍ഀ DOR. The CDL Testing Unit shall be responsible for performing an analysis to determine the cause of਍ഀ the breach, and for producing a remediation plan to reduce the risk of incurring a similar type of breach in਍ഀ the future. The CDL Testing Unit shall present such analysis and remediation plan to DOR within ten਍ഀ (10) days of notifying DOR of the breach of data security. DOR reserves the right to adjust this plan, in਍ഀ its sole discretion. In the event that the CDL Testing Unit cannot produce the required analysis and plan਍ഀ within the allotted time, DOR, in its sole discretion, may perform such analysis and produce a਍ഀ remediation plan that the CDL Testing Unit shall comply with, at the CDL Testing Unit's sole cost.਍ഀ The CDL Testing Unit shall notify all of its agents, employees, subcontractors and assigns who will come਍ഀ into contact with State information that they are subject to the confidentiality requirements set forth਍ഀ herein, and shall provide each with a written explanation of the requirements before they are permitted to਍ഀ access information or data.਍ഀ 12. THIRD PARTY BENEFICIARIES. The enforcement of the terms and conditions of this agreement਍ഀ and all rights of action relating to such enforcement shall be strictly reserved to DOR and the CDL਍ഀ 4਍ഀ Testing Unit. Nothing contained in this agreement shall give or allow any claim or right of action਍ഀ whatsoever by any other third person. It is the express intention of DOR and the CDL Testing Unit that਍ഀ any such person or entity, other than DOR or the CDL Testing Unit, receiving services or benefits under਍ഀ this agreement shall be deemed an incidental beneficiary only.਍ഀ 13. NOTICES. The CDL Testing Unit shall notify the State in writing within three (3) business days of਍ഀ any of the following:਍ഀ • Any State or court ordered action imposing suspension, revocation, or cancellation upon the਍ഀ driver's license of a CDL Driving Skills Tester.਍ഀ • Any State or court ordered action imposing an "Out of Service" order or "Removal from Safety਍ഀ Sensitive Function" order on the driving status of a CDL Driving Skills Tester.਍ഀ • Any change in the CDL Testing Unit's name address, phone number, and testing location.਍ഀ • The CDL Testing Unit ceases business operations in Colorado.਍ഀ For the Testing Unit:਍ഀ Name਍ഀ Address਍ഀ Address਍ഀ Telephone Number਍ഀ For the State:਍ഀ State of Colorado਍ഀ Department of Revenue਍ഀ MCS- CDL਍ഀ Trish Aragon਍ഀ 1881 Pierce St., Room 118਍ഀ Lakewood, CO 80214਍ഀ 303-205-5670਍ഀ 14. LEGAL AUTHORITY. The CDL Testing Unit warrants that it possesses the legal authority to਍ഀ enter into this agreement and that it has taken all actions required by its procedures, by-laws, and/or਍ഀ applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to਍ഀ execute this agreement and to bind the CDL Testing Unit to its terms. The person(s) executing this਍ഀ agreement on behalf of the CDL Testing Unit warrant(s) that such person(s) have full authorization਍ഀ to execute this agreement.਍ഀ 15. REMEDIES. In addition to any other remedies provided for in this agreement, and without limiting਍ഀ its remedies otherwise available at law, the State may exercise the following remedial actions if the਍ഀ CDL Testing Unit substantially fails to satisfy or perform the duties and obligations in this਍ഀ agreement. Substantial failure to satisfy the duties and obligations shall be defined to mean be਍ഀ significant insufficient, incorrect or improper performance, activities, or inaction by the CDL Testing਍ഀ Unit. These remedial actions are as follows:਍ഀ A. Suspend the CDL Testing Unit's performance pending necessary corrective action as਍ഀ specified by the State without the CDL Testing Unit's entitlement to adjustment in਍ഀ schedule; and/or਍ഀ B. Request the removal from work on the agreement of employees or agents of the CDL਍ഀ Testing Unit whom the State justifies as being incompetent, careless, insubordinate,਍ഀ unsuitable, or otherwise unacceptable, or whose continued employment on the agreement਍ഀ the State deems to be contrary to the public interest or not in the best interest of the State;਍ഀ and/or਍ഀ C. Terminate the agreement for default.਍ഀ The above remedies are cumulative and the State, in its sole discretion, may exercise any or all of਍ഀ them individually or simultaneously.਍ഀ 15. TERMINATION FOR CONVENIENCE਍ഀ Termination਍ഀ The State may, when the interests of the State so require, terminate this agreement in whole or in part,਍ഀ for the convenience of the State. The State shall give at least ten (10) days advance written notice of the਍ഀ termination to the CDL Testing Unit specifying the part(s) of the agreement terminated and the਍ഀ effective date of termination. Exercise by the State of the Termination of Convenience Clause in no਍ഀ way implies that the State has breached the agreement.਍ഀ CDL Testing Unit's Obligations਍ഀ The CDL Testing Unit shall incur no further obligations in connection with the terminated work and on਍ഀ the date specified in the notice of termination the CDL Testing Unit shall stop work to the extent਍ഀ specified. The CDL Testing Unit shall also terminate outstanding orders and subcontracts as they relate਍ഀ to the terminated work. The CDL Testing Unit shall settle the liabilities and claims arising out of the਍ഀ termination of subcontracts and orders connected with the terminated work. The CDL Testing Unit must਍ഀ still complete and deliver to the State the work not terminated by the Notice of Termination and incur਍ഀ obligations as are necessary to do so.਍ഀ 16. TERMINATION FOR DEFAULT/CAUSE If the CDL Testing Unit refuses or fails to perform਍ഀ any of the provisions of this agreement, the State may notify the CDL Testing Unit in writing of the਍ഀ non-performance, and if not promptly corrected within the time specified, the State may terminate਍ഀ the CDL Testing Unit's right to proceed with the agreement or such part of the agreement as to਍ഀ which there has been delay or a failure to properly perform. In the event of termination, all finished਍ഀ or unfinished documents, data, studies, surveys, reports or other materials prepared by the CDL਍ഀ Testing Unit pursuant to this agreement shall, at the option of the State, become the State's਍ഀ property and, if in the possession of the CDL Testing Unit, shall immediately be returned to the਍ഀ State. The CDL Testing Unit shall continue performance of the agreement to the extent it is not਍ഀ terminated.਍ഀ Notwithstanding the above, the CDL Testing Unit shall not be relieved of liability to the State for਍ഀ any damages sustained by the State by virtue of any breach of the agreement by the CDL Testing਍ഀ Unit.਍ഀ Notwithstanding termination of the agreement and subject to any directions from the State, the਍ഀ CDL Testing Unit shall take timely, reasonable and necessary action to protect and preserve਍ഀ property in the possession of the CDL Testing Unit in which the State has an interest.਍ഀ 6਍ഀ Excuse for Nonperformance or Delaved Performance਍ഀ The CDL Testing Unit shall not be in default by reason of any failure in performance of this਍ഀ agreement in accordance with its terms if such failure arises as a result of "force majeure," as set਍ഀ forth in the "Force Majeure" section of this agreement. Upon request of the CDL Testing Unit, the਍ഀ State shall ascertain the facts and extent of such failure, and, if the State determines that any failure਍ഀ to perform was a result of force majeure, and that, but for the force majeure, the CDL Testing Unit's਍ഀ progress and performance would have met the terms of the agreement, the delivery schedule shall be਍ഀ revised accordingly, subject to the rights of the State.਍ഀ Erroneous Termination for Default਍ഀ If after notice of termination of the CDL Testing Unit's right to proceed under the provisions of this਍ഀ clause, it is determined for any reason that the CDL Testing Unit was not in default under the਍ഀ provisions of this clause, or that the delay was excusable, the rights and obligations of the parties਍ഀ shall be the same as if the notice of termination had been issued pursuant to the termination for਍ഀ convenience clause.਍ഀ 17. INSURANCE. If the CDL Testing Unit is a "public entity" within the meaning of the਍ഀ ColoradoGovemmental Immunity Act, CRS 24-10-101, et seq,. as amended ("Act"), the CDL਍ഀ Testing Unit shall at all times during the term of this agreement maintain such liability਍ഀ insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the਍ഀ Act. Upon request by the State, the CDL Testing Unit shall show proof of such insurance.਍ഀ 18. ASSIGNMENT AND SUCCESSORS. The CDL Testing Unit shall not assign rights or delegate਍ഀ duties under this agreement.਍ഀ 19. FORCE MAJEURE. Neither the CDL Testing Unit nor the State shall be liable to the other for any਍ഀ delay in, or failure of performance of, any covenant or promise contained in this agreement, nor shall any਍ഀ delay or failure constitute default or give rise to any liability for damages if, and only to the extent that,਍ഀ such delay or failure is caused by "force majeure". As used in this agreement "force majeure" means਍ഀ acts of God; acts of the public enemy; acts of the State and any governmental entity in its sovereign or਍ഀ agreementual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes,਍ഀ freight embargoes; illegality, or unusually severe weather.਍ഀ 20. WAIVER. The waiver of any breach of a term, provision, or requirement of this contract shall not਍ഀ be construed or deemed as waiver of any subsequent breach of such term, provision, or਍ഀ requirement, or of any other term, provision, or requirement.਍ഀ 21. INTEGRATION OF UNDERSTANDING. This agreement is intended as the complete integration of਍ഀ all understandings between the parties. No prior or contemporaneous addition, deletion, or other਍ഀ amendment hereto shall have any force or effect unless embodied herein in writing. No subsequent਍ഀ notation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless਍ഀ embodied in a written contract executed and approved pursuant to State Fiscal Rules.਍ഀ 22. SURVIVAL OF CERTAIN CONTRACT TERMS. Notwithstanding anything herein to the਍ഀ contrary, the parties understand and agree that all terms and conditions of this agreement and the exhibits਍ഀ and/or attachments hereto which may require continued performance, compliance, or effect beyond the਍ഀ termination or expiration date of the agreement shall survive such termination or expiration date and shall਍ഀ be enforceable by the State as provided herein in the event of such failure to perform or to comply by the਍ഀ CDL Testing Unit.਍ഀ 7਍ഀ 23. MODIFICATION AND AMENDMENT. This agreement is subject to such modifications as may be਍ഀ required by changes in Federal or State law, or their implementing regulations. Any such required਍ഀ modification shall automatically be incorporated into and be part of this agreement on the effective date਍ഀ of such change as if fully set forth herein. Except as provided above, no modification of this agreement਍ഀ shall be effective unless agreed to in writing by both parties in an amendment to this agreement that is਍ഀ properly executed and approved in accordance with applicable law.਍ഀ 24. COOPERATION OF THE PARTIES. The CDL Testing Unit and the State agree to cooperate fully,਍ഀ to work in good faith, and to mutually assist each other in the performance of this agreement. In਍ഀ connection herewith, the parties shall meet to resolve problems associated with this agreement. Neither਍ഀ party will unreasonably withhold its approval of any act or request of the other to which the party's਍ഀ approval is necessary or desirable. Disputes arising under this agreement that cannot be settled through਍ഀ an informal meeting may be resolved through the procedures set forth in the Colorado Procurement਍ഀ Code.਍ഀ 25. VENUE & CHOICE OF LAW. This agreement is made in the State of Colorado. CDL Testing਍ഀ Unit agrees that exclusive venue for any action between the parties for claims concerning this਍ഀ agreement shall be in the City and County of Denver, Colorado. In accordance with Special Provision 6,਍ഀ GENERAL, below, the laws of the State of Colorado shall control.਍ഀ 26. SECTION HEADINGS. The section headings or titles are for convenience only and shall have no਍ഀ substantive effect in the interpretation of the agreement.਍ഀ SPECIAL PROVISIONS਍ഀ These Special Provisions apply to all contracts except where noted in italics.਍ഀ 1. CONTROLLERS APPROVAL. CRS $24-30-202(1). This contract shall not be valid until it has been approved by the Colorado State਍ഀ Controller or designee.਍ഀ 2. FUND AVAILAB1LII Y. CRS 124-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon਍ഀ funds for that purpose being appropriated, budgeted, and otherwise made available.਍ഀ 3. GOVERNMENTAL IMMUNITY. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any਍ഀ of the imtramnities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq., or the਍ഀ Federal Tort Claims Act, 28 U.S.C. 1346(b) and 2671 et seq., as applicable now or hereafter amended.਍ഀ 4. INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither਍ഀ Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor and its employees and਍ഀ agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise਍ഀ provide such coverage for Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its਍ഀ employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable਍ഀ employment taxes and income taxes and local head taxes incurred pursuant to this contract. Contractor shall not have authorization, express or਍ഀ implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor shall (a) provide and keep਍ഀ in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when਍ഀ requested by the State, and (c) be solely responsible for its acts and those of its employees and agents.਍ഀ 5. COMPLIANCE WITH LAW. Contractor shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or਍ഀ hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices.਍ഀ 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and਍ഀ enforcement of this contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations਍ഀ shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in਍ഀ part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision਍ഀ tendered null and void by the operation of this provision shall not invalidate the remainder of this contract, to the extent capable of execution.਍ഀ 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extrajudicial body or person.਍ഀ Any provision to the contrary in this contact or incorporated heroin by reference shall be null and void.਍ഀ 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this contract shall਍ഀ not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing਍ഀ restrictions. Contractor hereby certifies and warrants that, during the term of this contract and any extensions, Contractor has and shall maintain਍ഀ in place appropriate system and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of਍ഀ this provision, the State may exercise any remedy available at law or inequity or under this contract, including, without limitation, immediate਍ഀ termination of this contract and any remedy consistent with federal copyright laws or applicable licensing restrictions.਍ഀ 9. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF WTEREST. CRS IJ24-18-201 and 24-50-507. The signatories aver that to their਍ഀ knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this contract.਍ഀ Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance਍ഀ of Contractor's services and Contractor shall not employ any person having such known interests.਍ഀ 10. VENDOR OFFSET. CRS U24-30-202 (1) and 24-30-202.4. [NeiApplfcabk to Intergovernmental agreements] Subject to CRS 124-30-202.4਍ഀ (3.5), the State Controller may withhold payment under the State's vendor offset intercept system for debts owed to State agencies for. (a) unpaid਍ഀ child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et਍ഀ seq.; (c) unpaid loans due to the Student Lean Division of the Department of Higher Education; (d) amounts required to be paid to the਍ഀ Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action.਍ഀ 11. PUBLIC CONTRACTS FOR SERV ICES. CRS §8-17.5-101. [Nor Applicable to agreements relating to the offer, isstmnce, or sale of਍ഀ secanVies, i mstment drhery servkes or find management seridees, sponsored protects, intergovernmental agreements, or informden਍ഀ technology servkes orproducer and services] Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an਍ഀ illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for਍ഀ employment in the United States to mxsfe n work under this contract. through participation in the E-Verify Program or the Department program਍ഀ established pursuant to CRS §8-17.5-102(5#c Contractor shall not knowingly employ or contract with an illegal alien to perform work under਍ഀ this contract or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or਍ഀ contract with an illegal alien to ocrfml work under this contract. Contractor (a) shall not use E-Vcrify Program or Department program਍ഀ procedures to undertake pre-employment screening of job applicants while this contract is being performed, (b) shall notify the subcontractor and਍ഀ the contracting State agency within three days if Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal਍ഀ alien for work under this contract, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal਍ഀ alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken਍ഀ pursuant to CRS §8-17.5-102(5), by the Colorado Department of Labor and Employment. If Contractor participates in the Department program,਍ഀ Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision a written, notarized affirmation,਍ഀ affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the਍ഀ Department program. If Contractor fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the contracting State਍ഀ agency, institution of higher education or political subdivision may terminate this contract for breach and, if so terminated, Contractor shall be਍ഀ liable for damages.਍ഀ 12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS 124-76.5-101. Contractor, if a natural person eighteen (18) years of age or older,਍ഀ hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to਍ഀ federal law, (b) shall comply with the provisions of CRS §24-76.5-101 at seq., and (c) has produced one form of identification required by CRS਍ഀ §24-76.5-103 prior to the effective date of this contract. Revised 1-1-09਍ഀ THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT਍ഀ CDL TESTING UNIT:਍ഀ By:਍ഀ Legal Name of Contracting Entity਍ഀ Social Security Number or FEIN਍ഀ Signature of Authorized Officer਍ഀ Print Name & Title of Authorized Officer਍ഀ CORPORATIONS:਍ഀ (A corporate attestation is required.)਍ഀ Attest (Seal)਍ഀ By:਍ഀ (Corporate Secretary or Equivalent, or਍ഀ Town/City/County Clerk਍ഀ STATE OF COLORADO:਍ഀ BILL RTITER, JR., GOVERNOR਍ഀ By:਍ഀ Joan Vecchi, Senior Director਍ഀ Motor Vehicle Division਍ഀ For the Executive Director਍ഀ Department of Revenue਍ഀ (Place corporate seal here, if available.)਍ഀ 10਍ഀ Exhibit A਍ഀ RULES AND REGULATIONS FOR THE COMMERCIAL਍ഀ DRIVER'S LICENSE (CDL) PROGRAM਍ഀ 1 CCR 204-12਍ഀ November 2008਍ഀ A. BASIS, PURPOSE AND STATUTORY਍ഀ (1) The Department is authorized to adopt rules and regulations as necessary for the Commercial਍ഀ Driver's License Program in accordance with Sections 24-4-103, 42-2-111(1)(b), 42-2-403(2)(a),਍ഀ 42-2-407(8), CRS.਍ഀ (2) The purpose of these rules is to ensure compliance with state and federal requirements to promote਍ഀ the safety and welfare of the citizens of Colorado.਍ഀ B. INCORPORATION BY REFERENCE OF FEDERAL RULES਍ഀ (1) Adoption: The Department incorporates by reference the Federal Motor Carrier Safety਍ഀ Regulations Part 383, 384, 390, and 391, Qualifications and Disqualification of Drivers.਍ഀ (2) The Federal Regulations incorporated or referenced by this rule are published in the Code of਍ഀ Federal Regulations, Title 49, Part 383, 384, 390, and 391, revised as of May 2007. Material਍ഀ incorporated by reference in this rule does not include later amendments to or editions of the਍ഀ incorporated material. The Federal rules and regulations referenced or incorporated in these rules਍ഀ are on file and available for inspection by contacting the Motor Carrier Services Division of the਍ഀ Department of Revenue, 1881 Pierce Street, Room 118, Lakewood, Colorado, 80214, 303-205-਍ഀ 5600, and copies of the materials may be examined at any state publication depository library.਍ഀ *Matter incorporated by reference.਍ഀ C. DEFINITIONS਍ഀ (1) AAMVA: American Association of Motor Vehicle Administrators is a voluntary, nonprofit, tax਍ഀ exempt, educational unit that represents state and provincial officials in the United States and਍ഀ Canada who administer and enforce motor vehicle laws.਍ഀ (2) CDL: Commercial Driver's License means a license issued to an individual in accordance with the਍ഀ requirements of the federal "Commercial Motor Vehicle Safety Act of 1986.11 The document਍ഀ issued by the Department entitles the holder while having such document in his/her immediate਍ഀ possession, to drive a motor vehicle of certain classes and endorsements upon the highways਍ഀ without supervision.਍ഀ (3) CDL Instruction Permit: The permit issued by the Department entitling the applicant, while਍ഀ having such permit in his/her immediate possession, to drive a motor vehicle of certain classes਍ഀ and/or endorsements upon the highways with a driver that possesses a CDL with the same class਍ഀ and/or endorsements or higher, as the CDL Instruction Permit driver.਍ഀ (4) CDL Vehicle Class: A group or type of vehicle with certain operating characteristics.਍ഀ (5) CDLIS: Commercial Driver's License Information System is the central database that stores the਍ഀ list of CDL drivers, in addition, the drivers' state of record.਍ഀ 11਍ഀ (6) CDL driving tester or driving tester: An individual licensed by the Department under the਍ഀ provisions of Section 42-2-407, CRS to administer CDL driving tests.਍ഀ (7) CDL testing unit or testing unit: A business, association, or governmental entity licensed by the਍ഀ Department under the provisions of 42-2-407, CRS to administer CDL driving tests.਍ഀ (8) CMV: Commercial Motor Vehicle means a motor vehicle designed or used in commerce to਍ഀ transport passengers or property, if the vehicle, has a gross vehicle weight rating of 26,001 or more਍ഀ pounds or such lesser rating determined by federal regulation; or is designed to transport sixteen or਍ഀ more passengers, including the driver; or is transporting hazardous materials and is required to be਍ഀ placarded.਍ഀ (9) CRS: Colorado Revised Statutes.਍ഀ (10) Department: Colorado Department of Revenue.਍ഀ (11) Disqualifications: The suspension, revocation, cancellation, or any other withdrawal by the਍ഀ Department of a person's privilege to drive a CMV or a determination by the FHWA under the਍ഀ rules of practice for motor carrier safety contained in Part 386 of this title, that a person is no longer਍ഀ qualified to operate a CMV under Part 391; or the loss of qualification that automatically follows਍ഀ conviction of an offense listed in FMCSR 383.51਍ഀ (12) DPOS: Division of Private Occupational School, a division of the Colorado Department of Higher਍ഀ Education.਍ഀ (13) Designed to Transport: The manufacturer's original rated capacity of the vehicle.਍ഀ (14) Endorsements: This is a letter indicator added to a CDL and/or permits that indicate successful਍ഀ completion of the appropriate knowledge and/or skill test(s) that allows the operation of a special਍ഀ configuration of vehicle(s).਍ഀ (a) T = Double/triple trailers਍ഀ (b) P = Passenger਍ഀ (c) N = Tank vehicles਍ഀ (d) H = Hazardous materials (Not indicated on permit)਍ഀ (e) S = School buses਍ഀ (f) X = Combination of tank vehicle and hazardous materials (Not indicated on਍ഀ permit)਍ഀ (g) M = Motorcycle਍ഀ (h) 3 = Three wheel motorcycle਍ഀ (15) Exemptions: Regulatory relief given to a person or class of persons normally subject to regulations਍ഀ without the exception.਍ഀ (16) Farm Custom Harvester: An individual engaged in seasonal custom-harvesting operations.਍ഀ (17) Farm-Related Service Industry: Is an entity with special Federal Motor Carrier Safety਍ഀ Administration designation that provides farm-related services such as:਍ഀ (a) Agri-chemical businesses;਍ഀ 12਍ഀ (b) Custom harvesters;਍ഀ (c) Farm retail outlets and suppliers; and਍ഀ (d) Livestock feeders.਍ഀ (18) FHWA: Federal Highway Administration is an agency within the USDOT.਍ഀ (19) FMCSA: Federal Motor Carrier Safety Administration is an agency within the USDOT.਍ഀ (20) FMCSR: Federal Motor Carrier Safety Regulations (49 CFR Parts 350-399).਍ഀ (21) GCWR: Gross Combination Weight Rating is the value specified by the manufacturer as the਍ഀ loaded weight of the combination (articulated) vehicle. In the absence of a value specified by the਍ഀ manufacturer, GCWR will be determined by adding the GVWR of the power unit and the total਍ഀ weight of the towed unit and any weight thereon.਍ഀ (22) Government: means a state, county, city and county, municipality, school district, special਍ഀ improvement district, and every other kind of district, agency, instrumentality, or political਍ഀ subdivision thereof organized pursuant to law and any separate entity created by intergovernmental਍ഀ contract cooperation only between or among the state, county, city and county, municipality, school਍ഀ district, special improvement district, and every other kind of district, agency, instrumentality, or਍ഀ political subdivision thereof.਍ഀ (23) GVWR: Gross Vehicle Weight Rating is the value specified by the manufacturer as the loaded਍ഀ weight of a single vehicle.਍ഀ (24) Intrastate Driver. A driver authorized to operate a CMV within the boundaries of਍ഀ Colorado, and not authorized to transport items of interstate commerce or hazardous materials.਍ഀ (25) Interstate Commerce: Trade, traffic or transportation in the United States between a਍ഀ place in the state and a place outside of such state, including outside of the United States oi• between਍ഀ two places in a state as part of trade, traffic, or transportation originating or terminating outside the਍ഀ state or the United States.਍ഀ (26) Interstate Driver: A CDL holder authorized to cross state lines and transport interstate commerce਍ഀ while operating a CMV.਍ഀ (27) NDR: National Driver Register maintains the national database of driver histories. Each਍ഀ applicant's driving history shall clear NDR prior to the issuance of a CDL.਍ഀ (28) Non-Profit: An organization filing with the United States Code 26USC Section਍ഀ 501(c).਍ഀ (29) CDL Passenger Vehicle: For the purposes of these rules a passenger vehicle designed to transport਍ഀ 16 or more passengers, including the driver.਍ഀ (30) Paved Vehicle Control Testing Area: For the purpose of these rules, a paved testing area is a਍ഀ surface made up of materials and adhesive compounds of a sufficient depth and strength prepared to਍ഀ provide a durable, solid, smooth surface upon which an applicant will demonstrate basic vehicle਍ഀ control skills.਍ഀ (31) Public Transportation Entity: A mass transit district, mass transit authority, or any other public਍ഀ entity authorized under the laws of this state to provide transportation services to the general public.਍ഀ 13਍ഀ (32) Representative Vehicle: A motor vehicle, that represents the group or type of motor vehicle that an਍ഀ applicant operates or expects to operate.਍ഀ (33) Restrictions: Prohibits the operation of certain types of vehicles or restricts operating a CMV਍ഀ within designated boundaries.਍ഀ (34) Salaried: A paid employee.਍ഀ (35) USDOT: United States Department of Transportation.਍ഀ (36) Vehicle Test Area Marking: The paved testing area will be painted to delineate boundaries for each਍ഀ of the vehicle control skill tests. The area provides a defined test area with traffic cones placed਍ഀ according to Department standards.਍ഀ D. APPLICANT LICENSING REQUIREMENTS਍ഀ (1) Each applicant for a CDL or instruction permit shall be a resident of Colorado, at least 18 years of਍ഀ age, and comply with the testing and licensing requirements of the Department.਍ഀ (a) The CDL and instruction permit will indicate the class of license, any endorsements and਍ഀ any restrictions for that individual driver. The CDL is valid for the operation of a non-਍ഀ CMV including a motorcycle with the appropriate motorcycle endorsement on the਍ഀ license.਍ഀ (b) A valid CDL may be transferred from another state authorized to issue a CDL.਍ഀ (2) Prior to the issuance of a CDL or instruction permit, each applicant shall provide evidence of his/her਍ഀ social security number (SSN) in accordance with Department procedures.਍ഀ (3) Each applicant shall meet the medical and physical qualifications under FMCSR Part 391.41 * and਍ഀ have this examination verified on a DOT medical examination form. Unless the following exceptions਍ഀ apply, each driver shall carry this medical examination form or the medical examiner's certificate on਍ഀ his/her person when operating a CMV:਍ഀ (a) Individuals holding a waiver issued by the Colorado State Patrol or the FMCSA.਍ഀ (b) Those who are exempted under FMCSR Part 391.2* for an individual engaged in farm਍ഀ custom operations; custom harvesting; transporting farm machinery, supplies or both; and਍ഀ certain farm vehicles.਍ഀ *Matter incorporated by reference.਍ഀ E. ENDORSEMENTS਍ഀ (1) T-Double/Triple Trailers: Required to operate a CMV used for drawing two or more vehicles or਍ഀ trailers with a GCWR that is 26,001 lbs. or more and combined GVWR of the vehicles being towed਍ഀ are in excess of 10,000 lbs.਍ഀ (2) P-Passenger: Required to operate a vehicle designed by the manufacturer to transport 16 or more਍ഀ passengers, including the driver.਍ഀ 14਍ഀ (3) N-Tank Vehicles: Required to operate a vehicle to haul liquid or liquid gas in a permanently mounted਍ഀ cargo tank rated at 119 gallons or more or a portable tank rated at 1,000 gallons or more.਍ഀ (4) H-Hazardous Materials: Required to transport materials that require the motor vehicle to display a਍ഀ placard under the hazardous materials regulations.਍ഀ (5) S-School Buses: Required to operate a school bus used to transport public, private, parochial or any਍ഀ other type of pre-primary, primary, or secondary students from home to school, from school to home਍ഀ or to and from school sponsored events.਍ഀ (6) X-Combination Tank/Hazmat: Required to operate vehicles that meet the definition of (3) and (4).਍ഀ F. RESTRICTIONS਍ഀ (1) Intrastate: The letter "K" is added to the CDL of a driver between the ages of 18 through 20, and/or਍ഀ a driver who has been issued a valid medical waiver from the Colorado State Patrol. Under this਍ഀ CDL restriction, the driver shall not:਍ഀ (a) Operate a CMV outside the state boundaries;਍ഀ (b) Transport interstate commerce as defined in the FMCSR 390.5*; or਍ഀ (c) Transport hazardous materials requiring a placard or commodities with a hazard਍ഀ class or subject to the "poison by inhalation hazard" shipping description.਍ഀ * Matter incorporated by reference.਍ഀ (2) Air brake: The letter "L" is added to the CDL of an individual restricted from operating vehicles਍ഀ equipped with air brakes. Air-over-hydraulic or assisted brake systems are not considered full air਍ഀ brake systems.਍ഀ (a) The "L" restriction is removed by successfully completing the air brake knowledge test਍ഀ and the driving skill test's in a vehicle equipped with air brakes and is representative of਍ഀ the vehicle class.਍ഀ (b) Before taking the driving skill tests in a vehicle equipped with air brakes, the individual਍ഀ shall have in his/her possession a CDL permit without the "L" restriction.਍ഀ (3) No Tractor Trailer: The letters No Trctr Trlr, restrict operation of a truck tractor unit (laden or਍ഀ unladed) designed and used to draw a semi-trailer or tractor. A "NO TRCTR TRLR" will be placed਍ഀ on the Class A CDL restricting the driver from operating a Class A vehicle with a power unit that਍ഀ has a GVWR of 26,001 lbs. or more.਍ഀ (a) The "NO TRCTR TRLR" restriction can be removed by successfully completing the਍ഀ driving skill tests in a Class A vehicle with a power unit that has a GVWR of 26,001 lbs.਍ഀ or more.਍ഀ (b) Before taking the driving skill tests in a Class A vehicle with a power unit that has a਍ഀ GVWR of 26,001 lbs. or more, the driver shall have in their possession a CDL Instruction਍ഀ permit without the "NO TRCTR TRLR" restriction.਍ഀ 15਍ഀ G. EXEMPTIONS਍ഀ (1) FMCSR Part 383.3. Applicability authorizes the state to grant certain groups exceptions from the਍ഀ CDL requirements.਍ഀ (a) FMCSR - Part 383.3 (c): Exception for certain military drivers.਍ഀ (b) FMCSR - Part 383.3 (d)(1 and 2): Exception for farmers and firefighters are applicable਍ഀ to CRS 42-2-402 (4)(b)(III) and (IV).਍ഀ (c) FMCSR - Part 383.3 (d)(3): Exception for drivers removing snow and ice.਍ഀ (d) FMCSR - Part 383.3 (f): Restricted CDL for certain drivers in farm-related service਍ഀ industries.਍ഀ (2) FMCSR Part 391.2 specifies the exceptions to the physical qualifications for individuals engaged in਍ഀ custom harvesting operations in FMCSR 391.2*.਍ഀ * Matter incorporated by reference.਍ഀ H. ENTITY ELIGIBLE TO APPLY FOR A TESTING UNIT LICENSE਍ഀ (1) The Department may authorize a testing unit to administer the CDL driving skill tests on behalf of the਍ഀ Department if such training and testing is equal to the training and testing of the Department.਍ഀ (2) Enter into a written contract with the Department and agree to:਍ഀ (a) Maintain an established place of business in Colorado with a vehicle fleet of no less than਍ഀ three CMV's owned, leased or registered to the testing unit, the business owner or an਍ഀ employee of the business; or਍ഀ (b) Maintain an adult education occupational business license with the Division of Private਍ഀ Occupational School, a division of the Colorado Department of Higher Education; or਍ഀ (c) Be an agency of government, public school district, private or parochial school or other਍ഀ type of pre-primary, primary, or secondary school transporting students from home to਍ഀ school or from school to home.਍ഀ 1. TESTING UNIT REQUIREMENTS਍ഀ (1) An entity shall apply for and receive a CDL testing unit license from the Department in order to਍ഀ administer CDL driving skull tests for the licensing period. The CDL testing license expires on਍ഀ June 30'" of each year. The license(s) for both the testing unit and driving tester(s) shall be਍ഀ displayed in the place of business.਍ഀ (a) Testing unit license fees are: $300.00 initial license; $100.00 annual renewal fee;਍ഀ (b) Driving Tester License fees are: $100.00 initial license; $50.00 annual renewal fee;਍ഀ (c) Driving tester license transfer fee: $50.00. Transferring from one unit to another within਍ഀ six months of leaving a unit.਍ഀ 16਍ഀ (d) Fees are waived for units and testers that only provide public transportation.਍ഀ (e) Public transportation units that test outside of their unit and do not provide public਍ഀ transportation only, shall submit the appropriate fees.਍ഀ (f) If a license is not renewed on or before June 30'h of each year, the initial fees will apply.਍ഀ Unit and driving tester license(s) may be suspended or inactivated until appropriate fees਍ഀ and documentation are submitted.਍ഀ (g) Licenses can be renewed 60 days prior to June 30'h of each year.਍ഀ (2) Testing units shall only test with a valid license issued by the Department.਍ഀ (3) Testing units shall ensure that each driving tester has a valid license issued by the Department to਍ഀ administer CDL driving skill tests.਍ഀ (4) The testing unit shall notify the Department in writing within 3 working days of the termination or਍ഀ separation of any driving tester.਍ഀ (5) The place of business shall be a separate establishment and may not be part of a home. The CDL਍ഀ testing unit shall comply with city zoning and code requirements. The unit's physical address shall਍ഀ not be a post office box.਍ഀ (6) The testing unit shall have written permission from the landowner to administer the CDL vehicle਍ഀ basic control tests on areas not owned by the testing unit. This written permission shall be਍ഀ submitted to the Department for approval prior to testing.]਍ഀ (7) The testing unit shall maintain at least one salaried employee who is licensed and designated as a਍ഀ CDL driving tester.਍ഀ (8) The testing unit shall ensure that the unit's driving tester(s) administer the CDL driving skill tests as਍ഀ outlined by Department.਍ഀ (9) The testing unit shall ensure that the unit's driving tester(s) complete all CDL Third Party Testing਍ഀ forms correctly.਍ഀ (10) The testing unit shall ensure that the unit's driving tester(s) administer the CDL driving skill tests to਍ഀ drivers in the vehicle class and/or endorsement(s) that the driver has on his or her instruction permit਍ഀ or CDL.਍ഀ (11) The testing unit is responsible for ensuring that the testers attend all mandated training provided by਍ഀ the CDL Compliance Section. Failure of the tester to attend scheduled training may result in the਍ഀ suspension of testing privileges.਍ഀ (12) The testing unit shall submit a weekly testing schedule to the CDL Compliance section. This weekly਍ഀ testing schedule will start on Monday and conclude on Sunday. Weekly schedules shall be਍ഀ submitted by electronic mail or faxed no later than the Friday prior to the week of testing. The਍ഀ weekly testing schedule shall include the: unit's name, unit's number, the driver's name, tester's਍ഀ number, location, date and time of test. The CDL Compliance section shall be notified of all਍ഀ canceled tests at least four (4) hours prior to the scheduled test or as soon as the testing unit or਍ഀ driving tester is aware of the change.਍ഀ 17਍ഀ (13) Driving testers within a testing unit shall administer a minimum of four (4) complete CDL driving਍ഀ skill tests during the previous licensing period to be eligible for renewal.਍ഀ (14) The testing unit shall ensure that the unit's driving tester only issues the Colorado CDL Driving਍ഀ Skill Test Completion form for the class of vehicle that the applicant has successfully completed the਍ഀ driving skill test.਍ഀ (15) The testing unit will allow CDL driving skill tests only on Department approved testing areas and਍ഀ routes.਍ഀ (16) All three portions of the CDL driving skill tests shall be conducted during daylight hours.਍ഀ (17) The testing unit shall enter into an agreement with the Department containing, at a minimum,਍ഀ provisions that:਍ഀ (a) allow the FMCSA, the Department and their representatives to conduct random਍ഀ inspections and audits without prior notice;਍ഀ (b) require the Department to conduct on-site inspections at least annually;਍ഀ (c) require all driving testers to meet the same training and qualifications as state examiners,਍ഀ to the extent necessary to conduct CDL driving skill tests in compliance with these rules਍ഀ and regulations;਍ഀ (d) Required that, at least on an annual basis, Department employees shall take the tests਍ഀ administered by the testing unit as if the state employee were a test applicant, or the਍ഀ Department shall test a sample driver(s) who was tested by the third party to compare਍ഀ pass-fail results; and਍ഀ (e) Allow the Department the right to take prompt and appropriate remedial action against਍ഀ any testing unit or driving tester when such driving tester fails to comply with਍ഀ Department or federal standards or any other items of the contract or the rules and਍ഀ regulations.਍ഀ (f) Ensure driving testers that test outside of their unit obtain the AAMVA CDL third party਍ഀ tester certification by December 31" of each year, as required by the Department.਍ഀ AAMVA membership fees are the responsibility of the driving tester.਍ഀ (18) Charge fees only in accordance with 42-2406, CRS. A tester and a testing unit shall only charge਍ഀ for tests administered.਍ഀ (a) The fees for the administration of driving skill tests for commercial drivers shall not਍ഀ exceed the sum of one hundred seventy-five dollars.਍ഀ (b) The fees for the administration of driving skill tests for commercial drivers to any਍ഀ employee or volunteer of a nonprofit organization that provides specialized transportation਍ഀ services for the elderly and for persons with disabilities, to any individual employed by a਍ഀ school district, or to any individual employed by a board of cooperative services shall not਍ഀ exceed one hundred dollars.਍ഀ (c) The fees for the administration of a retest for a commercial driver after failing all or any਍ഀ of the driving tests shall not exceed one hundred seventy-five dollars.਍ഀ 18਍ഀ (d) The fees for the administration of a retest for a commercial drivers to any employee or਍ഀ volunteer of a nonprofit organization that provides specialized transportation services for਍ഀ the elderly and for persons with disabilities, to any individual employed by a school਍ഀ district, or to any individual employed by a board of cooperative services shall not exceed਍ഀ one hundred dollars.਍ഀ (19) Make all CDL testing records available for inspection during regular business hours.਍ഀ (20) Hold the state harmless from liability resulting from the administration of the CDL program.਍ഀ (21) Make annual application for renewal of the unit's testing license and individual tester license(s)਍ഀ before the license expires on June 30"' of each year.਍ഀ J. DRIVING TESTER REQUIREMENTS਍ഀ (1) The driving tester shall possess a valid USDOT medical card and a valid CDL with the appropriate਍ഀ class and endorsement(s) to operate the vehicle(s) in which the CDL driving skill tests are਍ഀ administered.਍ഀ (2) The driving tester shall conduct the full CDL driving skill tests in accordance with Department਍ഀ procedures and shall use state grading forms.਍ഀ (3) The driving tester shall administer all portions of the CDL driving skill tests in English.਍ഀ (4) Interpreters are not allowed for any portion of the driving skill tests.਍ഀ (5) The driving tester agrees as part of the application to hold the State harmless from the liability of਍ഀ CDL driving skill testing.਍ഀ (6) The driving tester shall test in the CDL class of vehicle or endorsement(s) group authorized by the਍ഀ Department.਍ഀ (7) Prior to administering the CDL driving skill tests, the tester shall ensure that the applicant has in਍ഀ his/her immediate possession, a current USDOT medical card, a current CDL instruction permit or਍ഀ a current CDL for operating the class and endorsement(s) of vehicle being used for testing.਍ഀ (8) The driving tester shall ensure that the vehicle that the CDL Skill tests will be administered in shall਍ഀ be in proper working and mechanical order.਍ഀ (9) A driving tester removed from performing a safety sensitive function, shall not perform any਍ഀ functions under the CDL Third Party Testing Program.਍ഀ (10) The vehicle inspection, the basic vehicle control skills and the on-road driving tests shall be਍ഀ administered by the same tester in sequential order with no more than a 15-minute break between਍ഀ each test and the road test. Tests shall be scheduled to avoid the lunch break.਍ഀ (11) The driving tester shall be employed by a licensed testing unit prior to attending a new CDL Third਍ഀ Party tester's training class.਍ഀ (12) The driving tester may only administer the CDL driving skill tests on a test area and route that has਍ഀ been approved by the Department. With prior approval from the Department, a driving tester may਍ഀ use an alternate test area and route that has been approved by the Department.਍ഀ 19਍ഀ (13) The driving tester shall inform the applicant that he/she maybe randomly selected for a retest as਍ഀ mandated by the FMCSR 383.75(a)(2)(iv)*. The driving tester shall ensure that the applicant reads਍ഀ and signs the DR2736 (Colorado CDL Driving Skill Test Completion form).਍ഀ * Matter incorporated by reference.਍ഀ (14) The driving tester may administer CDL driving skill tests as an employee of, and on behalf of, the਍ഀ licensed testing unit. The driving tester may administer tests for more than one unit. However the਍ഀ driving tester shall be licensed under each unit to conduct testing on his/her behalf. The tester shall਍ഀ keep all CDL records separate for each testing unit. License fees shall apply.਍ഀ (15) If an applicant fails any portion(s) of the CDL driving skill tests they shall return on a different day਍ഀ and perform all three (3) portions of the test over.਍ഀ (16) The driving tester shall administer at least four (4) complete CDL driving skill tests within the਍ഀ twelve-month period preceding the application for renewal from the Department.਍ഀ (17) The driving tester shall verify the identity of the driver by comparing the photo on a drivers' license਍ഀ with the driver.਍ഀ (18) Upon leaving a testing unit, the driving tester's license may be transferred to another testing unit਍ഀ within 6 months. If the tester is not employed at a licensed testing unit within 6 months, the tester਍ഀ will be required to attend a new tester training class to be licensed by the Department. All training਍ഀ and license fees shall apply and are the responsibility of the tester.਍ഀ (19) The driving tester cannot administer CDL tests to a driver that he/she has trained within the same਍ഀ day.਍ഀ K. COURSE AND ROUTE REQUIREMENTS਍ഀ (1) A testing unit shall have a paved area for the CDL vehicle inspection; vehicle control skill testing਍ഀ that is large enough to administer all of the required CDL control maneuvers. These include:਍ഀ (a) Solid painted lines and traffic cones shall be used to mark the testing boundaries in਍ഀ accordance with Department standards.਍ഀ (i) Traffic cones used to mark the test boundaries shall be a minimum of twelve਍ഀ inches in height and the same size traffic cones shall be used for each maneuver.਍ഀ Traffic cones shall be replaced when they are no longer retaining the original਍ഀ shape and color.਍ഀ (b) The vehicle control testing area shall be cleared to a condition that allows the applicant to਍ഀ readily determine the boundary lines and cones during the test.਍ഀ (i) The testing area boundaries shall be cleared of snow, debris, or vehicles that਍ഀ would obstruct the applicant's view during the vehicle control maneuvers.਍ഀ (ii) Testing on dirt, sand or graveled area is not allowed.਍ഀ (c) The testing unit shall request and receive approval from the Department for any਍ഀ change(s) to the approved road test route prior to administering a CDL road test.਍ഀ 20਍ഀ L. RIGHTS਍ഀ (1) The driving tester may refuse to test an applicant. The tester shall notify the CDL Compliance਍ഀ section if an applicant is refused a test and refer that applicant to the CDL Compliance Section.਍ഀ (2) Governmental driving testers who want to test outside of their own unit shall request, in writing,਍ഀ and receive approval from the CDL Compliance Section prior to administering CDL tests.਍ഀ M. RECORDING AND AUDITING REQUIREMENTS਍ഀ (1) An applicant who has successfully completed the driving skill tests shall be issued the "Colorado਍ഀ CDL Driving Skill Test Completion" form (DR 2736). The testing unit will retain the carbon copy਍ഀ of this form and attach it to all of the applicant's score form(s) for the testing unit's records. This਍ഀ form is not authorization to the driver to drive unsupervised.਍ഀ (2) The CDL Compliance Section shall be notified in writing after an applicant fails the road test਍ഀ portion of the driving test. All failures shall be reported on the monthly report and testers shall fax਍ഀ or send electronically the failed road test (front and back) score form to the CDL Compliance਍ഀ Section no later than 5 p.m. of the following business day.਍ഀ (3) The testing unit shall maintain all pass/fail records for three years. These will include the CDL਍ഀ driving skill testing records for each driver tested, the dates of the testing, the applicant's਍ഀ identification information, the vehicle information and the name and state assigned tester number਍ഀ who administered the test. If a testing unit becomes unlicensed, the unit shall return all testing਍ഀ records to the Department within 30 days.਍ഀ (4) A testing unit shall prepare and submit a monthly report of testing results to the Department. The਍ഀ report shall include: the unit's name, the unit's number, the name of each applicant tested, CDL਍ഀ permit Number, endorsements (H, X, P), the length of time it took to administer the test (i.e. start਍ഀ and completion time), and the pass/fail results. These reports shall be submitted to CDL਍ഀ Compliance Section by the fifth day of each month.਍ഀ (a) After three years, testing units may destroy all pass/fail records (shred, burn).਍ഀ (5) During CDL compliance audits and/or inspections, driving testers shall cooperate with the਍ഀ Department and FMCSA, by allowing access to testing areas and routes, furnishing driving skill਍ഀ testing records and results, and other items pertinent to the mandated inspection. The tester must਍ഀ surrender testing records upon request. The tester may make copies and retain copies of such਍ഀ records.਍ഀ (6) If the testing unit provided the vehicle for the initial test, the testing unit will furnish the vehicle for਍ഀ a driver selected for a retest. No fees, including any vehicle rental fees required for testing will be਍ഀ collected for this mandatory evaluation. The Department shall not be held liable during retests for਍ഀ any damage, injury or expense incurred.਍ഀ (7) If the driver tested in his/her own vehicle, the driver selected shall supply the vehicle for the test.਍ഀ (8) The testing unit will not be authorized to conduct any further testing if the CDL Compliance਍ഀ Section determines that the testing unit is not cooperating with the audit requirements.਍ഀ 21਍ഀ N. BOND਍ഀ (1) A testing unit that is not an agency of government, or any Colorado school district, shall maintain a਍ഀ bond in the amount of $20,000.00 with the Department. A surety company authorized to do਍ഀ business within the State of Colorado shall execute the bond.਍ഀ (a) The bond shall be for the use and benefit of the Department in the event of a monetary਍ഀ loss within the limitations of the bond, attributable to the willful, intentional or negligent਍ഀ conduct of the testing unit or its agent(s) or employee(s).਍ഀ (b) If the amount of the bond is decreased or terminated, or if there is a final judgment਍ഀ outstanding on the bond, the testing unit's license shall be suspended. The suspension਍ഀ shall continue until satisfactory steps are taken to restore the original amount of the bond਍ഀ required by the Department.਍ഀ (2) A testing unit that is an agency of government, or any Colorado school district, that will administer਍ഀ CDL driving tests outside of their unit, shall maintain a bond in the amount of $5,000.00 with the਍ഀ Department. A surety company authorized to do business within the State of Colorado shall execute਍ഀ the bond.਍ഀ (a) The bond shall be for the use and benefit of the Department in the event of a monetary਍ഀ loss within the limitations of the bond, attributable to the willful, intentional or negligent਍ഀ conduct of the testing unit or its agent(s) or employee(s).਍ഀ (b) If the amount of the bond is decreased or terminated, or if there is a final judgment਍ഀ outstanding on the bond, the testing unit's license shall be suspended. The suspension਍ഀ shall continue until satisfactory steps are taken to restore the original amount of the bond਍ഀ required by the Department.਍ഀ 0. ETHICAL REQUIREMENTS FOR THIRD PARTY TESTING UNITS਍ഀ (1) No advertisement shall imply that a unit can issue or guarantee the issuance of a CDL.਍ഀ (2) No advertisement shall imply that the unit has any influence over the Department in the issuance of਍ഀ a license.਍ഀ (3) No tester, employee, or agent for the testing unit will be permitted to solicit on the premise of a਍ഀ Colorado State Driver License Office.਍ഀ (4) No test can be administered unless the applicant is present.਍ഀ (5) A fee cannot be collected unless an applicant is present.਍ഀ P. REVOCATION, CANCELLATION OR SUSPENSION OF TESTING UNITS AND TESTERS.਍ഀ (1) The license of a testing unit or driving tester may be suspended or revoked for willful or negligent਍ഀ actions that may include but are not limited to any of the following:਍ഀ (a) Misrepresentation on the application to be a testing unit or driving tester;਍ഀ 22਍ഀ (b) Improper testing and certification of an applicant who has applied for a CDL;਍ഀ (c) Falsification of test documents or results;਍ഀ (d) Violations of the provision of the CDL rules related to the testing unit and driving testers;਍ഀ (e) Failure to employ a minimum of at least one licensed CDL tester,਍ഀ (f) Willful action to avoid or the refusal to cooperate in a CDL Compliance audit and record਍ഀ review; and਍ഀ (g) Violations of the contract terms and conditions; and਍ഀ (h) For cause.਍ഀ (2) Summary Suspension: The Department may issue an immediate cease testing notice if it has਍ഀ reasonable grounds to believe that a testing unit or driving tester has deliberately and willfully਍ഀ violated the provisions of these rules or the law, or that the public health, safety or welfare਍ഀ imperatively requires emergency action. The cease testing notice shall operate as a summary਍ഀ suspension of the license, and testing shall not be permitted until the issue is resolved. The notice਍ഀ shall state the reason(s) for the order, shall offer the tester or testing unit a hearing, and shall be sent਍ഀ to the tester or testing unit at issue. If the tester or testing unit requests a hearing, proceedings for਍ഀ suspension or revocation of the license shall be promptly instituted and determined.਍ഀ (3) Appeal Process: A testing unit or driving tester may contest a cease testing notice, notice of਍ഀ suspension or a notice of violation by requesting a hearing. The request must be submitted in਍ഀ writing and appropriately labeled, such as "CDL Cease Testing Appeal," to the Department of਍ഀ Revenue, Hearings Division, 1881 Pierce Street, Room 106, Lakewood, Colorado, 80214.਍ഀ Subsequent appeal may be had as provided by law.਍ഀ (4) Material incorporated by reference in this rule does not include later amendments to or editions of਍ഀ the incorporated material. Copies of the material incorporated by reference may be obtained by਍ഀ contacting the Division of Motor Vehicles, Division of MCS of the Department of Revenue, 1881਍ഀ Pierce Street, Room 118, Lakewood, Colorado, 80214, 303-205-5600, and copies of the materials਍ഀ may be examined at any state publication depository library.਍ഀ 23਍ഀ Attachment A਍ഀ LAND USE AUTHORIZATION਍ഀ The land used for the purposes of driver skill testing not owned by the CDL Testing Unit shall require਍ഀ written permission from the respective landlord or land owner on this form and submit to the CDL਍ഀ Compliance Section for approval prior to driver skill testing.਍ഀ This certification confirms that਍ഀ is the property owner of the land located at:਍ഀ Property address਍ഀ Landowner (print)਍ഀ This property will be used for the purposes of CDL driver skill testing and access to the testing area will਍ഀ be granted to the CDL Compliance Section for inspection at any time.਍ഀ grants permission to਍ഀ Landowner (print) Landowner Representative (print)਍ഀ for the purposes of਍ഀ CDL Testing Unit name਍ഀ administering the CDL driving skills test and State inspections.਍ഀ Landowner Representative (signature) Phone # Date਍ഀ This authorization expires on਍ഀ For: CDL Compliance Section਍ഀ (Date, if applicable)਍ഀ 24਍ഀ Attachment B਍ഀ Colorado Third Party Testing਍ഀ Professional Code of Ethics਍ഀ It shall be the guiding purpose and the individual duty of every licensed Third Party Testing unit and਍ഀ Tester to:਍ഀ RECOGNIZE that this is a position of highest public trust, and that many people depend upon the਍ഀ wisdom of your decisions.਍ഀ IMPARTIALLY administer all official duties without regard to race, gender, creed, national origin,਍ഀ position or influence.਍ഀ CONDUCT all examinations in a manner reflecting their importance to public safety.਍ഀ SERVE the public with all possible promptness and courtesy.਍ഀ REJECT all presents and favors from applicants or others relating to your official duties.਍ഀ CONVEY only authorized information to the public.਍ഀ SERVE people with disabilities in an impartial manner.਍ഀ WORK only by official testing standards - never substituting personal ideas for prescribed methods.਍ഀ MAINTAIN professional appearance and demeanor.਍ഀ INTERACT professionally with co-workers, supervisors, medical and vision specialists, and other਍ഀ professionals.਍ഀ MAINTAIN awareness of developments in the safety related field.਍ഀ UPHOLD the honor and dignity of the profession, by reporting any fraudulent activities.਍ഀ CARRY out all duties not specifically covered by this code with the safety and welfare of the public as਍ഀ the controlling motive.਍ഀ 25਍ഀ Attachment C਍ഀ OPTION LETTER No.਍ഀ (Date) , Fiscal Year (`FY")਍ഀ In accordance with Section of the Contract dated (Contract Routing No.਍ഀ between the State of Colorado, Department of Revenue, and਍ഀ (CDL Testing Unit's Name), DOR਍ഀ hereby exercises the option for an additional year's performance period from਍ഀ ,20 _ through , 20਍ഀ State of Colorado:਍ഀ Bill Ritter, Jr., Governor਍ഀ By:਍ഀ For the Executive Director਍ഀ Colorado Department of Revenue਍ഀ Date:਍ഀ 26਍ഀ