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IV.6. Master Funding Agreement Amendment No. One – Southwest LRT; Elverum (CR2015-063) Reference Numbers SWLRT Project: 61001 Metropolitan Council: 14I059 Amendment 1 City of Hopkins: AMENDMENT NUMBER ONE To Metropolitan Council Contract No. 14I059 Master Funding Agreement Southwest Light Rail Transit Project City of Hopkins WHEREAS theCity of Hopkins, MN (City) and the Metropolitan Council(Council) collectively (Parties) entered into a Master Funding Agreement (Agreement) on April 1, 2015. The Parties agree to amend the following sections of the Agreement with additions indicated by underlining and deletions indicated by strikethroughs: 2.01 Transfer of Funds from Council to City. The Council will transfer Project funds to the City for the Project activities performed by the City. The transfer of funds from the Council to the City shall be in accordance with Subordinate Funding Agreements executed pursuant to this Article 2, each of which shall state the specific establish who will own any assets constructed or remaining upon completion of the work. Each such Subordinate Funding Agreement, in conjunction with this Agreement, shall be determined by the Council to constitute a subrecipient or vendor agreement with the Council for the purposes of any federal grant funds transferred to the City. The Council shall bear no responsibility for any costs incurred by the City for the Project that exceeds the amounts committed by Subordinate Funding Agreements as such agreements may from time to time be amended. 2.06(i) Transfer of Project Funds to the City Under Subordinate Funding Agreements. No invoice payment shall be made by the Council without prior written amendment to the applicable Subordinate Funding Agreement, which would cause distribution of Project funds to exceed, cumulatively through such payment, the maximum amount of authorized funding under the applicable Subordinate Funding Agreement. 3.06 Subcontractor Provisions . In addition to the requirements of section 4.06, if the City engages any contractors to perform any part of the Project activities, the City agrees that the contract for such services shall include, to the fullest extent allowed by law, all of the following provisions. These requirements are in addition to other requirements for such contracts set forth in this Agreement. a.The contractor must maintain all records and provide all reporting as required by this Agreement. b.The contractor must defend, indemnify, and save harmless the Council from all claims, suits, demands, damages, judgments, costs, interest, and expenses arising out of or by reason of the performance of the contracted work, caused in whole or in part by any act or omission of the contractor, including acts or omissions by any of its employees, subcontractors, or anyone for whose acts any of them may be liable. c.The contractor must provide and maintain insurance in amounts and types of coverage appropriate to the contracted work and naming the Council, the Counties Transit Improvement Board, and other funding partners as requested by the Council, as additional insureds, and shall provide to the City prior to commencement of the contracted work a certificate of insurance evidencing such insurance coverage. d.The contractor must be an independent contractor for the purposes of completing the contracted work. e.The contractor must acknowledge that the contract between the City and the contractor does not create any contractual relationship between the Council and the contractor. f.The contractor shall perform and complete the contracted work in full compliance with this Agreement and all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the contracted work. 3.063.07 Contract Information . The City shall, in connection with any contract entered into for the Project: a.Keep the Council informed as to the progress of such contract; b.Allow authorized representatives of the Council access to all meetings and documentation related to such contract; and c.Upon request, promptly provide the Council with copies of correspondence between the City and the contractor related to such contract. 4.06(e)(iv) Disadvantaged Business Enterprise Requirements . The City will report DBE activity, on the Disadvantage Disadvantaged Business Enterprise Reporting Form, to the Council on other purchase orders and invoices not included above with each Request for Payment. 4.08 No Federal Obligation. Monies provided under this Agreement may be financed in whole or in part by federal funds. However, payments to the City will be made by the Council. Pursuant to the Federal Transit Administration Master Agreement Section 2(f), the United States is not a party to this Agreement and no reference in this Agreement to the United States, the United States Department of Transportation, the FTA, or any representatives of the federal government makes the United States a party to this Agreement. The City shall include this clause in any contracts or Agreements agreements entered into pursuant to this Agreement. 5.06(h) Transfer of Project Funds to the City Under Subordinate Funding Agreements. No invoice payment shall be made by the City without prior written amendment to the applicable Subordinate Funding Agreement, which would cause the 2 distribution of funds to exceed, cumulatively through such payment, the maximum amount of authorized funding under the applicable Subordinate Funding Agreement. 5.12Use of Contractors . If the Council engages any contractors to perform any activities reimbursable by the City under Part Two of this Agreement, the Council agrees that the contract for such services shall include, to the fullest extent allowed by law, all of the following provisions. These requirements are in addition to other requirements for such contracts set forth in this Agreement. a.The contractor must maintain all records and provide all reporting as required by this Agreement. b.The contractor must defend, indemnify, and save harmless the City from all claims, suits, demands, damages, judgments, costs, interest, and expenses arising out of or by reason of the performance of the contracted work, caused in whole or in part by any negligent act or omission of the contractor, including negligent acts or omissions of its employees, subcontractors, or anyone for whose acts any of them may be liable. c.The contractor must provide and maintain insurance in amounts and types of coverage appropriate to the contracted work and naming the City as an additional insured, and provide to the Council a certificate of insurance evidencing such insurance coverage. d.The contractor must be an independent contractor for the purposes of completing the contracted work. e.The contractor must acknowledge that the contract between the Council and the contractor does not create any contractual relationship between the City and the contractor. f.The contractor shall perform and complete the contracted work in full compliance with this Agreement and all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the contracted work. 5.13 Contractor Information . The Council shall, in connection with any contract entered into for reimbursable work under Part Two of this Agreement: a.Keep the City informed as to the progress of such contract; b.Allow authorized representatives of the City access to all meetings and documentation related to such contract; and c.Upon request, promptly provide the City with copies of correspondence between the Council and the contractor related to any such contract; and. d.In addition to terms specified in this Agreement, include within the Contract Documents with the contractor appropriate insurance, indemnification, and liability provisions as negotiated and accepted by the Council and the contractor. The City expects the Contract Documents will include the following: the 3 defend and indemnify the City; the City will be a beneficiary of the performance and payment bonds; all warranties will extend to the City; and the City will be a third party beneficiary to the contract with the contractor with the authority to enforce the provisions of the contract. 6.04 Non-Waiver of Immunity and Limits. Nothing in this Agreement shall be construed to waive the immunities or liability limits provided in Minnesota Statutes, Section 3.736, or Minnesota Statutes, Chapter 466, or other applicable state or federal law. The provisions of Minnesota Statutes, Section 471.59, subdivision 1a, specifically apply to this Agreement. 6.11 Dispute Resolution. A dispute resolution process shall be used for any unresolved issue, dispute or controversy between the Parties before any legal remedies are exercised. The dispute resolution process contains a three level dispute resolution ladder that escalates a dispute from the project management level through the executive management level. The City is represented from Level 1 to 3 in the following order: City Engineer, Public Works Director, and City Manager. The Council is represented from Level 1 to 3 in the following order: Deputy General Manager, General Manager, and Regional Administrator. At each level, representatives of the Parties shall meet and continue to explore resolution until either party Party determines, in good faith, that effective resolution is not possible at the current level, and notifies the other party Party that the process is elevated to the next level. If either or both parties Parties make such a determination at any point during issue resolution at Level 3, then the dispute resolution process has been exhausted. 6.12 Project Director . The Council's Project Director for purposes of administration of this Agreement, and any Subordinate Funding Agreements entered into pursuant to this Agreement, is the person whose title is listed in Section 6.1110, or such other person designated in writing by the Council's Regional Administrator. The Project Director for purposes of administration of this Agreement and any Subordinate Funding Agreements entered into pursuant to this Agreement is the person whose title is listed in Section 6.10, or such other person designated in writing by the City. The City's Project Director shall: 6.12(c) Project Director. Attend meetings called by the Council's Project Director for Southwest Light Rail Project staff; and 6.14 Effective Date and Termination. This Agreement shall be effective January 29, 2015. This Agreement or a Subordinate Funding Agreement shall terminate upon the earliest of: a.Completion of construction of the Project and reimbursement of all costs provided for in this Agreement and all Subordinate Funding Agreements entered into pursuant thereto; b.A determination by the Council that the Project or Subordinate Funding Agreement cannot proceed; 4 c.A determination by the City that a Subordinate Funding Agreement transferring City funds to the Council cannot proceed, however this Agreement may not be terminated if a Subordinate Funding Agreement is outstanding; or d.A determination by the Council that sufficient funds do not exist, or are not reasonably projected to exist, in order to complete the Project or a Subordinate Funding Agreement. The City agrees that Project closeout or termination of this Agreement or any particular Subordinate Funding Agreement does not invalidate continuing obligations imposed on the City by this Agreement or such Subordinate Funding Agreements or any agreements entered into pursuant to the MFA or SFA this Agreement or a Subordinate Funding Agreement. Project closeout or termination of this Agreement does not alter the Council's authority to disallow costs and recover funds on the basis of a later audit or other review, and does not alter the City's obligation to return any funds determined to be due to the Council. The Council agrees that Project closeout or termination of this Agreement or any particular Subordinate Funding Agreement does not invalidate continuing obligations imposed on the Council by this Agreement or such Subordinate Funding Agreements or any agreements entered into pursuant to the MFA or SFA this Agreement or a Subordinate Funding Agreement. Project closeout or termination of this Agreement does not alter the City later audit or other review, and does not alter the Council's obligation to return any funds determined to be due to the City. Except as herein provided, all other terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF , the City and the Council have caused this amendment to be executed by their duly authorized representatives on the dates indicated below. CITY OF HOPKINS METROPOLITAN COUNCIL By: ___________________________ By: _________________________ Its Mayor Regional Administrator Date: _________________________ Date: ________________________ And By: ___________________________ City Manager Its Date: _________________________ 5