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CR 2004-014 Met Council Grant for HOP-A-RIDE . C \ T \' or ~ January 28,2004 HOPKINS Council Report 04- ] 4 . MET COUNCIL GRANT FOR HOP-A-RIDE Proposed Action Staff recommends the following motion: Move to approve the grant for the :2004 H()p-A~Ride service from the Metropo]ita11 Council and authorize the Mayor and City Manag,er to si~n the a'd,reement. Overview The Hop-A-Ride service is an advance-reservation, shared-ride, door-to-door transportation service for anyone who needs transportation within the Hopkins City limits. The CLltTent system service operates Monday through Thursday from 7:00 a.m. to 5:00 p.m. and 7;OU a.1ll. to 4:()U p.m. on Friday. Two hours of additional service have been added per clay in the peak time. There are six additional destinations outside the City limits. They arc: 1. Methodist Hospital; 2. Opportunity Workshop in Opus II; e 3. Shady Oak Beach; 4. Kll011wood shopping area; 5. ICA food shelf; 6. Park Nicollet Medical Ccnter. Primary Issue to Consider . How is the Hop-A-Ride service funded? Each year the City receives the bulk of the funding for the Hop-A-Ride service from the Met Council. The 2004 funding from the Met Council is $93,990. This was the amoLlnt that the City Council approved in the 2004 budget. The City's genera] fund and revenue from the ticket sales pwvide the balance of the funding. Supporting Documents . Contract Nan S. Anderson . Planner Agreement No. SG-04-10 . METROPOLITAN COUNCIL PERFORMANCE-BASED TRANSIT FUNDING AGREEMENT WITH THE CITY OF HOPKINS THIS AGREEMENT is made between the Metropolitan Council, a political subdivision of the state of Minnesota, ("the Council") and the City of Hopkins ("the Contractor"), a political subdivision of the state of Minnesota, with its regular place of business at Hopkins Hop-A-Ride, 1010 - 1st Street So. Hopkins, 11N 55343. WHEREAS, the Council is authorized in accordance with Minnesota Statutes sections 473.375, subd. 13, and 473.384 to enter into and administer contracts for financial assistance to transit providers in the metropolitan area; and WHEREAS, the Council has authorized its Regional Administrator to enter into this agreement with the Contractor; and WHEREAS, the Contractor is a transit provider in the metropolitan area, is eligible to receive financial assistance from the Council for the transit services as described in this agreement, and has represented that it has the necessary expertise and persOlmel to provide the transit service. . NOW, THEREFORE, in consideration of the mutual promises in this agreement, the parties agree as follows: I. DEFINITIONS 1.01 Total Service Cost. "Total Service Cost" means the total operating expense incurred by the Contractor for providing the transit service outlined in the Contractor's approved Management Plan and budget, comprised of the total of direct costs and the allocated portion of indirect costs. 1.02 Operating Revenue. "Operating Revenue" includes all revenues derived from the transit services subsidized under this agreement including, but not limited to, fares, passenger donations, and advertising revenue. 1.03 Contractor. For purposes of this agreement, any reference to "Contractor" includes its subcontractors who have been approved to provide service subsidized under this agreement. 1.04 Management Plan. "Management Plan" means the plan for providing the transit service subsidized by this agreement, and includes any amendments submitted to and approved by the Council after the date of this agreement. The Management Plan for the transit funded under this agreement was approved on November 12,2003, and is incorporated in this agreement . by this reference. II. SUBSIDIZED SERVICES Page 1 of 12 2.01 Contractor's Responsibilities. The Contractor agrees to arrange to provide those transit services specified in the Management Plan. The Contractor shall coordinate, . manage, provide for, and control all necessary activities to operate the transit service and shall provide project management according to the Management Plan. The Contractor's responsibilities include, without limitation, providing for: operating and scheduling vehicles and personnel; maintaining equipment; developing administrative procedures; compiling performance statistics and financial reports; and developing methods to maximize service effectiveness and efficiency_ The Contractor shall provide for full and competent technical services to handle and correct any and all problems that arise associated with the operation ofthe transit services subsidized under this agreement. 2.02 Regional Performance Standards. The parties agree that the transit services subsidized under this agreement shall meet the established regional performance standards and confornl to regional transit policy as described in the Transit Redesign Plan, as may be amended from time to time. Should the Transit Redesign Plan be amended, the Contractor will be notified and have the opportunity to review all proposed changes and provide comments to the Council. 2.03 Subcontracting. The Contractor shall not assign or subcontract its obligations under this agreement to any third parties unless the Council shall first approves the subcontractor and the terms of any subcontracts. The Council retains the right to disapprove any third party contracts. Consent to any subcontract or assigmnent does not relieve the Contractor of its primary responsibility for providing the transit service subsidized under this agreement. 2.04 Independent Contractor Status. Under the terms of this agreement, the . Contractor is an independent contractor and has and retains full control and supervision of the services and full control over the employment and direct compensation and discharge of all persons assisting in the performance of the services subsidized under this agreement. The Contractor agrees to be solely responsible for all matters relating to payment of employees, including compliance with social security, all payroll taxes and withholding, reemployment compensation, workers' compensation, and all other regulations governing such matters. The Contractor agrees to be responsible for its mvn acts and those of its subordinates, employees, agents, and any and all subcontractors during the Term. 2.05 Alcohol Misuse and Prohibited Drug Use Testing Program. The Contractor agrees to establish and implement a drug and alcohol testing program that complies with Federal Transit Administration regulations on "Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations" (49 CFR Part 655) and "Procedures for Transportation Workplace Drug and Alcohol Testing" (49 CFR Part 40). The Contractor further agrees to produce any documentation necessary to establish the Contractor's compliance with 49 CFR Parts 655 and 40 and permit any authorized representative of the United States Department of Transportation or its operating administrations, the Milmesota Department of Transportation, or the Council to inspect the facilities and records associated with the implementation ofthe drug and alcohol testing program as required under 49 CFR Parts 655 and 40 and to review the testing process. The Contractor agrees to certify its compliance with Parts 655 and 40 within thirty (30) days of signature of this agreement, and to submit the annual Management Information System (MIS) reports to the Council no later than February 15 of the succeeding calendar year. The Contractor . must also require and provide documentation of oversight of U. S. Department of Page 2 of 12 Transportation-compliant drug and alcohol programs established for all its subcontractors perfonning safety-sensitive functions as defmed in 49 CFR Part 655. . Ill. TERM This agreement shall be in effect for transit service operated from January 1, 2004, through December 31,2004 ("the Term"). Either party, upon sixty (60) days' vvritten notice, may terminate provision of transit services under this agreement. IV. FUNDING OF SERVICES 4.01 Reimbursement. The Council agrees to reimburse the Contractor a portion of the Total Service Cost for expenses incurred in providing the service described in the Management Plan. The reimbursement shall be paid out of state transit assistance funds and the Metropolitan Area Transit Fund in an amount not to exceed the sum of $93.990.00 ("the Council Subsidy Amount"). The Contractor may retain all Operating Revenue collected. The Contractor agrees to provide funds necessary in addition to the Council Subsidy Amount for full payment of aU expenses of providing the transit service as described in the Management Plan. 4.02 Expense and Revenue Accounting. For purposes of accounting for total costs under this agreement, operations expenses and administration expenses shall be separately accounted for. Operations expenses shall include only those expenses directly attributed to operating the transit service subsidized under this agreement. Operating expenses shall be separated out by direct charges and allocated/indirect charges. Direct charges are those charges . that directly and exclusively benefit the transit service. Indirect charges are those charges benefiting more than one program and/or activity which are distributed to all programs and activities on a prorated basis. Expense and revenue allocations among programs and/or activities shall be done uniformly for both costs and revenues. The Contractor shall use an allocation method approved by the Council in the Contractor's Management Plan. 4.03 Requests for Payment. For the transit service subsidized by this agreement, the Council shall pay the Contractor upon submission of approved monthly requests for payment. A montWy report of service and ridership, as described in paragraph 7.02.A, and the monthly report required by paragraph 7.03 must accompany each request for payment. Each request for payment shall be submitted not later than thirty (30) days after the end of the month in which the services were provided. The Council will review and approve the monthly requests for payment and issue a check within thirty (30) days of receipt. The final request for funds under this agreement may be submitted within sixty (60) days of the last day services are provided. Requests for payment shall be sent monthly to: Metropolitan Council Attn.: Office of Metropolitan Transportation Services Mears Park Centre 230 East Fifth Street Saint Paul, Minnesota 55101 . The payment request and summary report shall be prepared in a form developed by the Council and shall be supported by such copies of invoices, payrolls, driver trip sheets, dispatch logs, and other documents as may be requested by the Council. Page 3 of 12 4.04 Advances. The Council may, in its sole discretion, advance to the Contractor a portion of the Council Subsidy Amount not to exceed two months' projected subsidy. This . advance (including any interest eamed on the advance) shall be used for expenses of the transit services subsidized by this agreement and shall be reconciled before the end of the Term. 4.05 Reconciliation Mter Audit. All invoices and related records are subject to audit by the Council. If, as a result of further review, corrections, or audits, it is determined that the Council has overpaid the Contractor, the Contractor shall, within thirty (30) days of demand, refund to the Council the amount of the overpayment. The Council may retain the amount of any overpayment arising out of a previous funding agreement with the Contractor from funds otherwise payable under this agreement. Within thirty (30) days of completion of an audit or other review, the Council shall make a final payment to the Contractor of the amount of any unpaid balance in accordance with the provisions of this agreement. 4.06 Funding Assumption. Funding of the transit services subsidized under this agreement is based on the receipt of adequate revenues as described in the Metropolitan Council 2004 Unified Operating Budget -- Transportation Division -- Metropolitan Transportation Services. If insufficient revenues are received, the Council Subsidy Amount may be reduced by the Council upon sixty (60) days' written notification to the Contractor. v. MANAGEMENT OPERATIONS 5.01 Personnel. All personnel providing transit services shall know and understand the transit system design. All personnel, including any subcontractors' employees, shall . maintain a courteous attitude, answering to the best of their ability any passenger questions regarding the provision of service. Personnel shall record all passenger complaints and operational problems. The Contractor shall supply and furnish all personnel as are necessary for the safe, sound, and efficient delivery, operation, supervision, and maintenance of the transit service and the vehicles and equipment used. The Contractor shall at all times have a designated person who shall be available at all reasonable times to report to and consult with the Council's Project Administrator. This person shall also provide information and be able to respond to questions concerning project accounts including all revenues collected, operating records, and personnel. The Contractor shall obtain the services of trained, qualified, and licensed drivers meeting all applicable standards and requirements of law and regulations and as necessary for the safe operation of transit vehicles used in providing the service. The Contractor shall establish an information and safety meeting policy providing a means of instructing drivers on safety issues and updating drivers on administrative procedures relating to services subsidized under this agreement. The Contractor.s driver selection procedures shall include a background reference check and criminal history check for all driver applicants before hiring. 5.02 Revenue Collection. All revenues derived from the operation of the transit services subsidized under this agreement, whether from passengers or from other sources, shall be thorougWy and accurately accounted for monthly. The montWy accounting shall show the date all revenue was received and type and kind of service from which the revenue is derived. . All accounting shall be in accordance with generally accepted accounting principles. Page 4 of 12 5.03 Passenger Fares. The Contractor shall provide for collection from each passenger using such fares as approved in the Council-adopted Fare Policy, or that are otherwise . approved by the Council in the Contractor's Management Plan. 5.04 Reporting of Incidents. The Contractor shall notify the Council at the fIrst opportunity of any accident when a person dies as a direct result of the accident; or when a person must be taken to a medical treatment facility as a direct result of the accident; or when there is property damage estimated at greater than $5,000; or if the incident involved a driver operating a vehicle under the influence of alcohol or drugs. In addition, the Contractor must fIle an incident report with the Council's Project Administrator, using forms approved by the Council, whenever an incident occurs which may negatively affect the transit service on or involving a vehicle providing service under this contract or involving any other equipment or property maintained under this contract, including any accident, personal injury, criminal activity, property damage, or any other incident involving property, passengers, or potential passengers of the service provided under this agreement. The incident report must be sent to the Council by facsimile transmission or electronic mail within 24 hours of the reported incident. VI. VEHICLE REQUIREMENTS 6.01 General Requirements. The Contractor shall provide and have available the number and types of regularly-assigned vehicles described in the Management Plan. Back-up vehicles shall be of sufficient size and shall be available at the place where any regularly- assigned vehicle has sustained a breakdown within thirty (30) minutes of the breakdown, so that the passengers may be transferred and resume their traveL In the event of any breakdown or . malfunction of a regularly-assigned vehicle, the vehicle shall be repaired or replaced within a period of seven (7) calendar days from the date of breakdown. Any replacement vehicle shall be of equal or better general condition and age as the vehicle that it replaces. All vehicles when providing service under this agreement, including back-up vehicles, shall have a clearly visible service identity marking. 6.02 Vehicle Operation, Maintenance, and Housing. Vehicles shall be operated, maintained, and housed in conformance with any administrative procedures adopted by the Council and any lawful orders, rules, or regulations of any federal, state, or local agency having jurisdiction over the Contractor including, but not limited to, Motor Carrier Safety Rules, and with due regard for the safety, comfort, and convenience of passengers and the general public. 6.03 Inspection by the Council. The Council reserves the right to inspect and reject, temporarily or permanently for good cause, by notice to the Contractor, any vehicle the Contractor proposes to use or subsequently uses which the Council deems unacceptable. VII. DOCUMENT A TION OF SERVICE DELIVERY 7.01 Records. The Contractor agrees to keep and maintain all records pertaining to the transit services subsidized under this agreement for a period of six (6) years from the date of final payment, and to allow the Council to copy and inspect all of the required records at any time during regular business hours. Upon request, the Contractor shall, in a timely fashion, . furnish to the Council copies of all reports required by law or regulation to be furnished to the Councilor any other governmental body or authority having legal jurisdiction over operational Page 5 of 12 matters of the Contractor. The Contractor shall, at the end of the Term, tum over in a timely fashion any and all records that are requested by the Council. 7.02 Project Operational Records. The Contractor agrees to maintain operational . records docwnenting the performance of the transit service consistent with Federal Transit Administration National Transit Database reporting requirements. Operational records shall include, but are not limited to: A. Monthly Summaries. The Contractor shall prepare and submit a summary report monthly. The report shall be submitted within thirty (30) days of the last day of service for each month. This summary shall include: 1. Totals of the following operating data itemized separately for each route and trip and vehicle: the hours of service provided, the number of miles operated, the nwnber of passengers carried classified by fare categories, the amount of revenue collected, and any other items requested by the Council. 2. Documentation of major operational problems, significant variations in ridership, revenues, and expenses, passenger complaints and commendations, along with descriptions of actions taken. .., .t\n invoice submitted for services rendered with operating statistics .:J. summarizing total purchase of service, cost, revenues, and Council subsidy. . 4. Reconciliation of reported fares with reported hours of service and passenger trips and an explanation of any discrepancy. B. Financial Records. The Contractor shall separately account for all expenditures for the transit subsidized under this agreement, and any other relevant financial records or documents. The Contractor shall keep complete books of accounts following generally accepted accounting principles reflecting its operations pursuant to this agreement, and shall impose similar requirements on any subcontractors providing service subsidized under this agreement. 7.03 National Transit Database Reporting Requirements. In order to maintain its status as an eligible recipient of federal transit funding, the Council and its contractors providing transit service must report celtain data and operating statistics to the National Transit Database. Accordingly, the reporting requirements of the National Transit Database are incorporated in this agreement by this reference. Using forms approved by the Council, the Contractor must report monthly to the Council in compliance with the National Transit Database line item reporting requirements, and must submit year-end reporting statistics no later than March 1 of the succeeding calendar year. The Contractor must provide the Council with access, during reasonable business hours, to any source documents needed to meet the National Transit Database reporting requirements. This includes driver manifests or trip sheets, vehicle maintenance records, contract budget information, customer complaints, incident reports, and . aggregated drug and alcohol test results. Page 6 of 12 ---------- --- 7.04 Audits. As required by Minnesota Statutes section 16C.05, the records, books, documents, and accounting procedures and practices of the Contractor and of any subcontractor . relating to work performed pursuant to this agreement shall be subject to audit and examination by Council and the Legislative Auditor and State Auditor. The Contractor shall permit the Councilor its designee to inspect and copy all accounts, records and business documents, including those of any subcontractor, at any time during regular business hours as necessary to audit this agreement. Within thirty (30) days after completion, the Contractor shall deliver to Council a copy of any financial or operational audit of the Contractor done by the Contractor or at its request or at the direction of any governmental agency or department. 7.05 Inspections. The Council shall have the right in its discretion to monitor, examine, and investigate all elements of the transit service subsidized under this agreement. The Contractor shall cooperate with the Council and assist with inspections as requested by Council and as authorized by Minnesota Statutes section 473.129, subdivision 9, and including passenger sampling by the Council for purposes of reporting to the National Transit Database. 7.06 Surveys. On-board passenger surveys may be required by the Council for the purpose of project evaluation; if so, the Contractor agrees to perform passenger surveys in the marmer and at the times agreed upon by the Council and the Contractor. The survey shall be administered by the Contractor in a manner acceptable to Council. The results of the surveys required under this agreement shall be provided to the Councilor the Contractor depending upon which party tabulates the survey. VIII. INDEl\fNITY AND INSURANCE . 8.01 Indemnification. The Contractor agrees that it will indemnify, defend, and hold harmless the Council and its members, officials, employees, agents, and volunteers against all claims, danlages, losses, and expenses, including reasonable attorneys' fees, arising out of this agreement caused in whole or in part by any act or omission of the Contractor or of any subcontractor, by anyone directly or indirectly employed by any of them, or by anyone for whose acts or omissions any of them may be liable, except where caused by the sole negligence or willful misconduct of the Council. 8.02 Insurance. The Contractor shall procure and maintain for the Term, and for two (2) years after the Term, insurance against injuries to persons or damage to property which may arise from or in connection with the transit service subsidized under this agreement provided by the Contractor or its agents, representatives, employees, or subcontractors. Coverage shall be at least as broad as the following, with limits NO LESS THAN those established by the Minnesota Municipal Tort Claims Act: (a) Commercial General Liability (CGL) coverage on an occurrence form, with limits not less than $300,000 per person for injury, death, or property damage by wrongful act or omission, and $1,000,000 for any number of claims arising out of a single occurrence. (b) Employer's Liability coverage with limits not less than $100,000 per employee . for bodily injury by accident, $100,000 per employee for bodily injury by disease, and $300,000 all employees for bodily injury by disease. Page 7 of 12 (c) Workers' compensation coverage as required by the state of Minnesota. (d) Business automobile coverage for liability arising out of the operation, . maintenance or use of each vehicle used to provide the transit services outlined in the Contractor's approved Management Plan and budget, whether the vehicle is owned, non-owned, rented or leased, with a limit not less than the maximum tort liability limits stated in Minnesota Statutes section 466.04. Any deductibles or self-insured retention must be declared to and approved by the Council. At the option of the Council, either: the insurer shall reduce or eliminate such deductibles or self- insured retention as respects the Council and its members, officials, employees, agents, and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The general liability policy is to contain, or be endorsed to contain, the following provisions: (a) The Council and its members, officials, employees, agents, and volunteers are to be covered as an additional insured under CGL, Business Auto, and under the commercial umbrella. The Contractor's insurance coverage shall contain no special limitations on the scope of protection afforded to the Council and its members, officials, employees, agents, or volunteers. (b) For any claims related to this agreement, the Contractor's insurance coverage shall be primary as respects the Council and its members, officials, employees, agents, and volunteers. Any insurance or self-insurance program maintained by . the Councilor its members, officials, employees, agents, and vohmteers shall be excess of the Contractor's insurance and shall not contribute to it. (c) Any failure to comply with reporting provisions of the policies, including breaches of warranties shall not affect coverage provided to the Councilor its members, officials, employees, agents, or volunteers. Cd) The Contractor shall include all subcontractors as insured under its policies or furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated in this agreement. (e) The Contractor's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Each insurance policy in Section 8.02 shall contain, or be endorsed to contain, the following prOVISIOn: (a) The insurer shall agree to \vaive all rights of subrogation agalnst the Councll and its members, officials, employees, agents, and volunteers for losses arising from performance of this agreement. . Page 8 of 12 Each insurance policy required by this paragraph shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after . sixty (60) days' prior written notice by certified mail, return receipt requested, has been given to the Council. Insurance is to be placed with insurers with Best's rating of no less than A:VII. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by the Council before payment for any transit services subsidized under this agreement is made. The Council reserves the right to require complete, certified copies of all required insurance policies at any time. The Council does not represent in any way that the insurance specified in this agreement, whether in scope of coverage or limits, is adequate or sufficient to protect the Contractor's business or interests. It is the sole responsibility of the Contractor to determine the need for and to procure additional coverage which may be needed in connection with this agreement. Furthermore, the procuring of such required policy or policies of insurance shall not be construed to limit Contractor's liability under this agreement nor to fulfill the indemnification provisions and requirements of this agreement. Notwithstanding the policy or policies of insurance, the Contractor is obligated for the full and total amount of any damage, injury, or loss caused by negligence or neglect connected with this agreement. The Contractor may satisfy the insurance requirements by warranting to the Council that it is self-insured and able to entertain claims in an amount sufficient to indemnify the Council as provided in paragraph 8.01 above. In this instance, the Contractor shall provide evidence . acceptable to the Council, that the Contractor has made provision to satisfy claims to the extent of the Council's legal liability. This paragraph shall not be construed to waive the liability limits provided in the Minnesota Municipal Tort Claims Act. 8.03 Underlying Insurance. The Contractor shall require indemnification and insurance coverage as it deems appropriate from its subcontractors providing services subsidized by this agreement. 8.04 Non-Waiver of Municipal Immunity and Limits. Nothing in this contract shall be construed to waive the municipal immunities or liability limits provided in the Minnesota Municipal Tort Claims Act or other applicable state or federal law IX. GENERAL PROVISIONS 9.01 Amendments. This agreement and the Management Plan may be amended only by written amendments signed by authorized representatives of the Council and the Contractor. 9.02 Default. The Contractor shall be in default if it abandons or delays unnecessarily the performance of services under this agreement; fails to procure insurance or to self-insure as warranted to the Council; fails to maintain or produce records required; or in any maImer refuses or fails to comply with the specifications or appropriate instructions of the Council relative to this agreement. Upon the Council's determination of non-compliance, and in recognition of the e unique circumstances of the problem, the Council staff shall seek compliance through the following steps prior to declaring a default: Page 9 of 12 --oral communications; --written notice demanding corrective action; and --formal written notice of default. . The Contractor shall have seven (7) days after receiving written notice of default to cure the default or show good cause for such delay, abandorunent, refusal, or neglect to comply with this agreement or Council specifications or instructions. If the default continues after the seven-day period without good cause, the Council may declare the Contractor in default and terminate this agreement. 9.03 Termination. Upon default by the Contractor, and failure to cure as provided above, the Council may immediately terminate the agreement and related payments to the Contractor. Notwithstanding termination of the agreement and payments, the Contractor shall not be relieved of its obligations under this agreement. In the event of termination due to default by the Contractor, the Council may recover actual damages to which it may be entitled, may withhold any payments to the Contractor until the amount of actual damages due the Council is determined, and may exercise any other rights it has to secure performance ofthis agreement. The Contractor may, upon sixty (60) days' written notice, terminate its provision of services under this agreement if the Contractor is not otherwise in default of this agreement. No later than thirty (30) days after the Contractor submits notice of termination to the Council, the Contractor shall submit a final invoice for all sums then owing. The Contractor shall also submit documentation in support of the invoice as requested by the Council. Within thirty (30) days of Council approval of this final invoice and acknowledgement that the Contractor is not otherwise in default ofthis agreement, the Council will pay the Contractor for services satisfactorily e provided to the date of termination of the agreement. 9.04 Notice. Notice for purposes of this agreement shall be sufficient if given by certified mail sent to the addresses listed below, and shall be deemed to have been given the day of mailing. COUNCIL: CONTRACTOR: Metropolitan Council City of Hopkins Attn.: Transportation Services Hopkins Hop-A-Ride Mears Park Centre 1010 - 1st Street So. 230 East Fifth Street Hopkins, MN 55343 Saint Paul, Minnesota 55101 9.05 Unavoidable Occurrences. The Contractor shall not be held responsible for failure to provide on-time service due to weather or traffic conditions, unavoidable vehicle malfunctions, or naturally occurring disasters if reported to Council within forty-eight (48) hours. If the Council revenues as assumed in the 2004 Unified Operating Budget -- Transportation Division -- Metropolitan Transportation Services are insufficient to meet current requirements or if appropriations for the Council are reduced resulting in the lack of funds sufficient to meet all of its needs, the Council may upon sixty (60) days' notice to the Contractor tenninate this agre~ment. . Page 10 of 12 The Council shall not be responsible for any loss or damage sustained or claimed to be sustained by the Contractor or its subcontractors through the failure of the Contractor or its subcontractors . to maintain at all times a timely operating schedule. The Contractor shall not be required to furnish the service or any portion in the event of its inability to do so by virtue of any concerted refusal of its employees to work or any strike of any kind or character of its or its subcontractors, including a so-called wild-cat strike or slowdown or stoppage; any riot, civil strike or disturbances; closing of streets, roads, routes, or bridges; destruction of any means or methods or any of its property necessary for the performance of this agreement; flood, fire, or any other cause beyond its control. 9.06 Licenses and Taxes. The Contractor and its subcontractors shall procure and keep current any and all licenses, permits, or certificates which are or may be required by properly constituted authorities for the performance of the transit service. Furthermore, the Contractor and its subcontractors shall pay when due all taxes assessed on property owned by them to be used in connection with the furnishing of the service, including storage facilities and vehicles. 9.07 Equal Employment Opportunity. In conjunction with the execution of its obligations, the Contractor agrees that it and any subcontractors shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, natural origin, sex, sexual orientation, marital status, status with regard to public assistance, disability, age, membership or activity in a local civil rights commission, or political affIliation, and shall take affIrmative actions to ensure applicants are employed and employees are treated during . employment without regard to race, color, creed, religion, national origin, sex, sexual orientation, marital status, status with regard to public assistance, disability, age, membership or activity in a local civil rights commission, or political affiliation, in all matters, including employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff, return from layoff or termination; rates of payor other forms of compensation; and selection for training or apprenticeship. The Contractor further agrees that it, and any subcontractors under this agreement, shall not discriminate against any qualified disabled person who is an employee or applicant for employment and shall take affirmative action to ensure that such qualified individuals are treated without regard to their disability in regard to job application procedures; hiring, advancement or discharge of employees; compensation; job training; and other terms, conditions, and privileges of employment, pursuant to the Americans with Disabilities Act. The Contractor is encouraged to obtain from the Minnesota Commissioner of Human Rights and keep in force a certificate of compliance with the equal employment opportunity and affirmative action obligations of Minnesota Statutes section 473.144. 9.08 Civil Rights Act Of 1964; Minnesota Human Rights Act. The Contractor hereby agrees that it will comply with Title VI of the Civil Rights Act of 1964 (PL 88-352) and all requirements imposed by the u.s. Department of Transportation, to the end that, in accordance with Title VI of the Act, no person in the United States shall, on the ground ofrace, . color, sex or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity funded by this agreement. Page 11 of 12 The Contractor further agrees to comply with the provisions ofthe Minnesota Human Rights Act in regard to non-discrimination in public accommodations and public services. 9.09 Americans With Disabilities Act Of 1990. The Contractor hereby agrees that it . will comply with the Americans with Disabilities Act of 1990 and all rules and regulations thereunder, including those imposed by the u.s. Department of Transportation, to the end that, in accordance with the Americans with Disabilities Act, no qualified disabled person shall, by reason of such disability, be excluded from the participation in or be denied the benefits of transportation services, programs, or activities, or otherwise be subject to discrimination. 9.10 Non- Waiver. The failure of the Council at any time to insist upon the strict performance of any or all of the terms, conditions, and covenants in this agreement shall not be deemed a waiver of any subsequent breach or default in the terms, conditions, and covenants contained in this agreement. 9.11 Jurisdiction aod Veolle. Venue for all legal proceedings arising out of this agreement, or breach of this agreement, shall be in the state or federal court with competent jurisdiction in Ramsey County, Minnesota. 9.12 Warranty of Legal Ca,pacity. The individual signing this agreement on behalf of the Contractor represents and warrants on the Contractor's behalf that the individual is duly authorized to execute this agreement on the Contractor's behalf and that this agreement constitutes the Contractor's valid, binding, and enforceable agreement. IN \VITNESS WHEREOF, the parties have caused this agreement to be executed by their duly . authorized representatives. METROPOLITAN COUNCIL Approved as to fonn: By: Office of General Counsel Regional Administrator Date: CITY OF HOPKINS By: By: Its: Its: Date: Date: . 50-04-1 a.doc Page]20fl2