HomeMy WebLinkAbout13.A.1. Proposed Contract with Schmitty and Sons for Bus Service
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CITY OF SHAKO PEE
MEMORANDUM
CASELOG NO: NA
TO: Honorable Mayor and City Council
Mark McNeill, City Administrator
FROM: R. Michael Leek, Community Development Director
SUBJECT: Proposed Contract with Schmitty and Sons for Bus Service
MEETING DATE: July 3, 2007
INTRODUCTIONIDISCUSSION:
On May 1, the draft contract for bus service with Schmitty and Sons was shared with the Council.
As presented it was a three~party agreement. In the meantime, the City of Prior Lake re-bid its
bus service contract. Schmitty and Sons was the successful bidder, and their new bid will result
in significantly reduced operating costs for Shakopee Transit. The City Attorney recommends
that the contract be structured as a direct agreement between the City of Shakopee and Schmitty
and Sons. The draft as modified by him is attached for the Council's review and adoption.
The new express service will begin on Monday, July 16, 2007.
VISIONING RELATIONSIDP:
The proposed service and agreement supports adopted Goal B: High quality of life.
ALTERNATIVES:
1. Approve the contract for bus services with Schmitty and Sons, and authorize the appropriate
City officials to execute the agreement.
2. Do not approve the contract for bus services.
3. Table the item for additional information.
STAFF RECOMMENDATION:
Staff recommends alternative number 1.
ACTION REQUESTED:
Approve the contract for bus services with Schmitty and Sons, and authorize the appropriate City
officials to execute the agreement. .4 ~~
R. Michael Leek
Community Development Director
H:\CC\2007\07-03\Contract Schmitty and sons rpt.doc
CONTRACT To PROVIDE Bus SERVICE
THIS CONTRACT To PROVIDE Bus SERVICE (hereinafter "Contract'? is entered into this day
of July, 2007 by and between the CITY OF SHAKOPEE, a Minnesota municipal corporation (hereinafter
"Shakopee") and SCHMITTY AND SONS TRANSIT, INC., a Minnesota corporation (hereinafter
"Contractor") .
RECITALS
Whereas, on May 8, 2007, the City of Prior Lake issued Request for Bids to provide round-trip
commuter transit services from Prior Lake to downtown Minneapolis for Prior Lake Laker
Lines Bus Service; and
Whereas, on May 22, 2007, the City of Prior Lake issued Addendum No.1, which addressed the
questions submitted by the potential bidders; and
Whereas, after evaluation of the bids received, staff recommended that the Prior Lake City Council
award the bid to Schmitty and Sons School Buses, Inc.; based on the evaluation criteria
and process set out in the Request for Bids, the Contractor was rated the most responsive
to the Request for Bids; and
Whereas, at its June 4, 2007 meeting, the Prior Lake City Council awarded the contract for the Bus
Service to Contractor by Resolution No. 7-111; and
Whereas, in 2005, the Prior Lake City Council adopted with certain conditions, a study identified as
the Unified Transit Management Plan, that recommended certain partnerships among
Scott County entities in order to provide additional transit options to serve in the area; and
Whereas, the City of Prior Lake subsequently entered into a partnership with the City of Shakopee,
Scott County, and the Metropolitan Council to jointly acquire land and construct a 500 stall
regional park & ride facility to be know as South bridge Crossings Station; and
Whereas, the City of Shakopee and the City of Prior Lake desire to coordinate in providing
operations to the South bridge Crossings Station; and
Whereas, the City of Shakopee desires to utilize the same independent transit provider currently
utilized by Prior Lake's Laker Lines;
Whereas, the City of Prior Lake and Contractor wish to support and facilitate the operation of the
new Shakopee transit express service; and
Whereas, the City of Shakopee desires to enter into a Contract with Contractor under substantially
the same terms and conditions as the contract between the Contractor and the City of
Prior Lake
Now, Therefore, the City of Shakopee and the Contractor, pursuant to the mutual promises and
covenants set forth herein, the sufficiency of which is not disputed, hereby enter into this Contract for Bus
Service.
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SECTION 1
DEFINITIONS
The following terms shall be defined as follows:
1.1 Addendum No. 1 to Reauest for Bids. "Addendum No. 1 to Request for Bids" as set out in
Exhibit B.
1.2 Advertisement for Bids. "Advertisement for Bids" as set out in Exhibit C.
1.3 Affirmative Action Policy. "Affirmative Action Policy" as set out in Paragraph 6.1.
1.4 Bid. "Bid" as set out in Exhibit D.
1.5 Certificate of Insurance. "Certificate of Insurance" as set out in Paragraph 7.1.
1.6 City. "City" shall refer to the City of Shakopee.
1.7 City Attorney. "City Attorney" Shakopee City Attorney James Thomson, Kennedy & Graven, 470
U.S. Bank Plaza, 200 South Sixth Street, Minneapolis, MN 55402
1.8 City's Authorized Representative. City's Authorized Representative is Michael Leek,
Community Development Director of the City of Shakopee, or other persons who may from time
to time be designated by the Shakopee City Administrator..
1.9 Contract. "Contract" as defined in the preamble.
1.10 Contract Documents. "Contract Documents" as defined in Section 3.
1.11 Contractor. "Contractor" means Schmitty and Sons Transit, Inc.
1.12 Daily Inspection Report. "Daily Inspection Report" is a log that indicates that the items listed in
Paragraph 8.12.11 were inspected and the results of such inspection.
1.13 Incident. "Incident" as defined in Paragraph 7.5.1.
1.14 Loaned Capital Eauipment. "Loaned Capital Equipment" is an alternate transit vehicle,
provided by the Contractor to substitute for any Transit Vehicle that cannot provide Bus Service.
1.15 Monthly Reports. "Monthly Reports" are those reports required to be submitted by the
Contractor with its invoice as set out in Paragraph 9.2.
1.16 Notice. "Notice" as set out in Paragraph 11.1.
1.17 Notice of Termination, "Notice of Termination" as set out in Paragraph 11.1.2.
1.18 Performance Bond. "Performance Bond" is the performance bond obtained by the Contractor as
described in Paragraph 5.2.
1.19 Bus Service. "Bus Service" is the round-trip commuter transit services originating from the City
of Shakopee or South bridge Crossings Transit Station to the Minneapolis I St. Paul Metropolitan
area.
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1.20 Proiect Manaaer. "Project Manager" is the designated employee of Schmitty & Sons Transit, Inc.
who is responsible for all aspects of the Bus Service.
1.21 Public Works Garaae. "Public Works Garage" is the City of Shakopee's Public Works
Department garage located at 500 Gorman Street, Shakopee, Minnesota.
1.22 Recitals. "Recitals" as defined in Section 2.
1.23 Reauest for Bids. "Request for Bids" as set out in Exhibit A.
1.24 Transit Vehicles. "Transit Vehicles" are any transit vehicles, owned by the Metropolitan Council
and leased to the City of Shakopee for the purposes of providing Bus Service.
1.25 Vehicle Record File. "Vehicle Record File" is a file that contains the information set out in
Paragraph 9.8.
SECTION 2
RECITALS
The Recitals set forth above are incorporated herein as if fully set forth herein.
SECTION 3
CONTRACT AND CONTRACT DOCUMENTS
The following documents attached hereto and incorporated herein shall be referred to as the "Contract
Documents" all of which shall be taken together as a whole as the agreement between the parties as if
they were set out verbatim and in full herein, all of which are on file in the office of the Prior Lake City
Manager:
. The Request for Bids dated May 8, 2007 (incorporated herein as Exhibit A)
. The Addendum No. 1 to Request for Bids dated May 22, 2007 (incorporated herein
as Exhibit B)
. The City of Prior Lake's Advertisement for Bids published on May 12, 2007 and May
19,2007 in the Prior Lake American (incorporated herein as Exhibit C)
. The bid submitted by Contractor on May 30, 2007 (incorporated herein as Exhibit D)
. The Performance Bond
. The Certificate(s) of Insurance
. This Contract
SECTION 4
EFFECTIVE DATE AND TERM
This Contract is effective as of the date set forth above. Contractor shall provide Bus Service
commencing on Julv 9. 2007 for a three-year period expiring Julv 9. 2010, unless otherwise
terminated or extended pursuant to the provisions of this Contract. This Contract may be extended
by City for an additional two-year period, to June 14, 2012; and thereafter at the sole discretion of
the City in incremental terms of two years; provided the City and the Contractor mutually agree
upon the operating cost reimbursement rates (see Section 9,1.1 below) to be paid to the Contractor
during such period.
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SECTION 5
REQUIREMENTS FOR OPERATION OF BUS SERVICE
5.1. General Reauirements. The Contractor shall provide all necessary personnel, expertise,
equipment and facilities that may be needed to provide Bus Service; provided that Shakopee
shall acquire the Transit Vehicles at its sole cost and expense.
5.2. Performance Bond. The Contractor shall execute and deliver to Shakopee in a form and
substance satisfactory to the Shakopee City Attorney in an amount equivalent to 5% of the
annual value of the portion of the Contract with the City, within 15 calendar days after execution
shall of this Contract. The Performance Bond shall be maintained in force throughout the entire
term of the Contract.
5.3. Coordination of Services. The Bus Service is to be a part of a region-wide transit service. The
Contractor shall participate in regional transit planning activities as reasonably requested by the
City and as required by the Metropolitan Council. It is anticipated that the Contractor shall spend
approximately 8 hours per month of staff time on regional transit planning activities.
5.3.1. Scheduling, service design and fare collection procedures are developed on a region-wide
basis and the Contractor shall be required to conform to all applicable regional public
transit requirements, including, but not limited to the interchangeability of bus transfers
and passes.
5.4. Hours of Service. During the morning rush-hour period (6:00 a.m. - 9:00 a.m.), a minimum of 5
trips shall be operated from Shakopee andlor South bridge Crossings Transit Station to the
downtown Minneapolis metropolitan area, or such other route and destination as required by the
City and agreed to by the Contractor; and in the afternoon rush-hour period (3:00 p.m. - 6:00
p.m.) a minimum of 5 trips shall be operated from the downtown Minneapolis metropolitan area,
or such other route and destination as required by the City and agreed to by the Contractor, to
Shakopee and the South bridge Crossings Transit Station. The City shall establish the schedule
and stops with the participation of the Contractor.
5.4.1. The City reserves the right to adjust the routes as well as pickup and drop-off times and
locations, with Notice; provided all pickup and drop-off locations must be along the route
between Shakopee and downtown Minneapolis, unless mutually agreed to in writing by
the City and the Contractor.
5.5. Davs of Service. The Bus Service shall operate Monday through Friday. Bus Service shall not be
provided on the following national holidays: New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, and Christmas Day.
5.5.1. Service may be reduced or eliminated on the following days by mutual agreement
between the Contractor and the City:
5.5.1.1. If Independence Day, Christmas Day or New Year's Day falls on Tuesday, then
the Monday before the holiday may qualify for reduced or eliminated service;
5.5.1.2. If Independence Day, Christmas Day or New Year's Day falls on Thursday,
then the Friday following the holiday may qualify for reduced or eliminated
service; and
5.5.1.3. The Friday following Thanksgiving may qualify for reduced or eliminated
service.
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5.5.2. Service may be reduced or eliminated by mutual agreement between the City and the
Contractor during periods of adverse weather conditions, such as periods of snow or ice.
Any delays, changes or reductions in morning express service, shall be determined no
later than one hour in advance of the trip. Any delays, changes or requctions in evening
express service shall be determined no later than one hour in advance of the trip.
5.6. Service Area. The City reserves the right to expand or reduce the service area. The terms of
such expansion of service shall be mutually agreed upon by Contractor and the City.
5.7. Dissemination of Promotional and Service Information. The Contractor shall disseminate
materials to passengers as requested by the City, including, but not limited to, service and
promotional materials. The City shall supply all materials for dissemination to passengers.
Contractor shall not be allowed to disseminate any of its own service or promotional materials or
allow others to disseminate any materials to passengers, without prior authorization from the City.
5.8. Facilities. Telephone and Other Eauipment.
5.8.1. The Contractor shall provide facilities, equipment, supplies and manpower sufficient to
deliver the Bus Service, including, but not limited to: facilities for driver and other field staff
daily assignments; Transit Vehicle inspections and reporting activities; Transit Vehicle
maintenance; scheduling and dispatch activities; service communication system;
telephone equipment; and facsimile (FAX) machine.
5.8.2. The Contractor shall provide sufficient staff and telephone, voice mail, and cell phone as
appropriate to be available to answer service inquiries from City during all hours of
operation.
5.8.2.1. Weather. If Bus Service routes or times need to be changed or suspended
due to adverse weather conditions, the Contractor shall post the notices to a
City-provided voice mail system, and advise the City accordingly.
5.8.2.2. Complaints.
5.8.2.2.1. All complaints received by the Contractor shall be reported in writing to
the City's Authorized Representative within 24 hours of receipt. The
Contractor shall respond to all requests by the City's Authorized
Representative for information concerning complaints to the extent the
information is reasonably available to the Contractor in order to assist
the City in investigating any complaint(s). All information, however,
required by the Metropolitan Council must be. provided by the
Contractor. This information required by the Metropolitan Council must
be provided on the form, if any, provided by the Metropolitan Council.
The Contractor may be required by the City to conduct its own internal
investigation and provide the City with written findings in a format
mutually agreed upon by the City and the Contractor. The Contractor
shall follow the City's reasonable direction with respect to resolving the
complaint.
5.8.2.2.2. The Contractor must refer all callers with a complaint or a
commendation regarding the Bus Service to the City's Authorized
Representative.
5.8.3. The Contractor shall provide dispatch services starting at least one-half hour before
commencement of the first trip in the morning and shall continue through the conclusion of
the last trip in the afternoon.
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5.8.4. The Contractor shall maintain an accurate clock or watch in clear sight of the driver in the
Transit Vehicles.
5.9. Service Communication Svstem. The Contractor shall provide a service communication system
linking the Transit Vehicles to the dispatch services. The Contractor shall be responsible for
maintaining the service communication system and shall have all necessary or required by
warranty scheduled maintenance and repairs done in a timely manner. The Contractor shall
maintain a backup service communication system to ensure that all in-service Transit Vehicles
may be contacted at all times. The Contractor shall be responsible for any and all costs
associated with providing the service communications system.
5.10. Staff. The Contractor shall provide adequate staff and personnel to provide the Bus Service.
5.10.1. Drua Testina. The Contractor shall require drug testing in compliance with the
requirements of 49 CFR 655 and any other applicable statutes, rules or regulations, of all
employees in safety-sensitive transportation positions. The Contractor shall be
responsible for drug testing, and any associated costs therewith, of all safety-sensitive
employees. If the requirements of 49 CFR 655 or any other applicable statute, rule or
regulation change during the term of the Contract period, the Contractor shall be required
to conform to the new requirements.
5.10.2. A Contractor shall annually provide the City with a signed copy of the Contractor's most
current Federal Transit Administration drug and alcohol policy.
5.10.3. Contractor shall prohibit smoking, eating or drinking in the Transit Vehicle.
5.10.4. Contractor shall require its drivers to present a neat and clean appearance and wear a
clean and pressed driver uniform. The Contractor shall submit proposed uniforms for the
approval of the City, which approval will not be unreasonably withheld, conditioned or
delayed.
5.11. Drivers. Contractor shall provide drivers to operate the Transit Vehicles with the following
minimum standards:
5.11.1. Drivers must have appropriate and valid Minnesota State Driver's License as well as any
other licenses or permits required by law to operate the Transit Vehicles.
5.11.2. Contractor must conduct a criminal history check and Department of Licensing
commercial and personal driving record check of each Driver as required herein.
5.11.2.1. A driver shall never have been convicted of a felony offense involving theft,
fraud, burglary, robbery, crimes against children or adults or any such similar
offense, and must have not been convicted for any other felony offense within
the previous 10 years.
5.11.2.2. A driver shall never have been convicted of a serious traffic violation within the
past 3 years, including but not limited to any of the following violations: (a)
driving under the influence of alcohol or drugs; (b) driving with a greater than
the legal blood alcohol level as permitted by state law; (c) leaving the scene of
an accident; (d) using a commercial vehicle in the commjs~ion of a felony; (e)
reckless driving and/or reckless endangerment drivers charged with a felony
offense or serious traffic violation operating the Transit Vehicles; (f) driver's
license cancellation under Minnesota Statute Section 171.18 as amended from
time to time or recodified; (g) operation of a vehicle without a license; or
(h) operation of a vehicle without insurance.
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5.11.3. Contractor shall require drivers to report such offense(s) or violation(s) as set out in
paragraphs 5.11.2.1. and 5,11.2.2. to the Contractor within 3 days of being convicted, The
Contractor shall notify the City within 24 hours thereafter and remove said driver from the
Bus Service upon receiving notification from the driver.
5.11.4. Be knowledgeable about the primary service region and be familiar with the service area
covered by the Bus Service.
5.11.5. Be capable of operating the lift and tie-down equipment and be knowledgeable and able
to properly perform securing procedures, solely as they relate to the transportation of
passengers with mobility-assisting devices, such as wheelchairs or motorized scooters,
5.11.6. Be able to use the service communication system and use standard radio protocols.
5.11.7. Be able to collect fares in accordance with the City's fare structure.
5.11.8. Be able to clearly communicate information essential to the assistance and transport of
passengers.
5.12. Driver Trainina. The Contractor shall provide driver training prior to the operation of the Transit
Vehicles, which shall, at a minimum, consist of defensive driving, emergency procedures,
emergency evacuation, first-aid, disability awareness, lift operation, securement devices, use of
fire extinguishers, and use of the service communications system.
5.13. Proiect Manaaer. The Contractor shall provide a Project Manager, housed at Contractor's
facility, who shall oversee the proper operation of the Bus Service. Dave Mohr shall be the
Contractor's Project Manager. If the Project Manager is replaced, the City must approve the new
Project Manager, which approval will not be unreasonably withheld, conditioned or delayed.
5.13.1. A Project Manager shall be assigned to oversee the Bus Service for no less than 1 year at
a time. If the Project Manager is reassigned prior to the end of this t-year commitment,
the Contractor shall appoint a senior management person as the Project Manager for the
remainder of that 1 year term; otherwise, the Contractor shall be liable to and pay to the
City a penalty in the amount of $3,750.00. This provision does not apply if the Project
Manager resigns from the Contractor.
5.13.1.1. In the absence of the Project Manager, another designated senior
management person reasonably acceptable to the City shall be responsible for
all duties of the Project Manager as set forth in this Contract. A Project
Manager shall be on duty and available at all times during hours of service
operation.
5.13.2. The Contractor's Project Manager shall provide supervision of all personnel associated
with the Bus Service and shall manage the Bus Service account and. operation records.
The Project Manager shall also be responsible for establishing and maintaining the level
of customer service required by the City.
5.13.3. The Project Manager shall be responsible for ensuring, at no additional cost to the City,
that management and operations staff are available for periodic meetings with the City,
including meetings and training sessions, prior to the start of service and throughout the
term of this Contract. The City shall provide the Contractor with reasonable written notice
of each such meeting. Electronic notices are permissible.
5.13.4. The Project Manager shall provide technical information to prepare the Bus Service
schedule and work with the City to develop promotional materials. The City shall be
responsible for the cost of all service and promotional materials.
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SECTION 6
AFFIRMATIVE ACTION AND NON-DISCRIMINATION
6.1. Affirmative Action. The Contractor agrees that it will comply with the City's Affirmative Action
Policy as follows:
Declaration of Policy of Affirmative Action
The City of Shakopee acknowledges that equal opportunity for all persons is a
fundamental human value. Consequently, it is the policy of the City to provide equal
opportunity in employment and personnel management for all persons; to provide
access to, admission to, full utilization and benefit of training and promotional
opportunities without discrimination because of race, color, creed, religion, national
origin, sex, age, marital status, affectional preference, public assistance status,
handicap or disability; and to otherwise promote full realization of human rights with
the City to the extent permitted by law. To implement this policy, the City requires
that every person making application for, currently employed by, or applying for
future vacancies in the employ of the City will be considered on the basis of
individual ability and merit, without discrimination or favor.
In furtherance of this policy, the City establishes an affirmative action plan, providing
for and assuring fair and equitable treatment in all phases of public employment,
including selection, compensation, benefits, training opportunities, promotions,
transfers, layoffs and other terms, conditions and privileges of employment. The
concept of this affirmative action policy is consistent and fundamental to the
maintenance of effective equal opportunity
6.2. Non-Discrimination. The Contractor agrees to abide by all provisions of Minn. Stat. Section
181.59, as may be amended or recodified from time to time, entitled Discrimination on Account of
Race, Creed, or Color Prohibited in Contract, and the provisions of Minn. Stat. Section 363.03, as
may be amended or recodified from time to time, entitled Unfair Discriminatory Practices.
6.3. Americans with Disabilities Act and Minnesota Human Riahts Act. The Contractor shall not
discriminate against any qualified persons with a disability 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; the hiring or advancement
or discharge of employees; compensation; job training; and other terms and conditions, and
privileges of employment pursuant to the Americans With Disabilities Act of 1990 and Minnesota
Human Rights Act.
6.4. The Contractor agrees that it will not discriminate in hiring, advancem$nt, compensation,
discharge and any other terms and conditions of employment against any applicants for
employment or employees based upon race, gender, national origin, age,: sexual orientation,
affectional preference and/or any other characteristic protected by federal, state or City statutes,
regulations or ordinances. The Contractor agrees that it will comply with Title VII of the Civil
Rights Act of 1964, the Equal Pay Act, Age Discrimination in Employment Act, Minnesota Human
Rights Act, Minnesota Age Discrimination Act, all as amended, from time to time or recodified and
other federal, state and City statutes and ordinances prohibiting discrimination in employment.
6.5. The Contractor agrees not to discriminate against members of the public in the provision of
services under this Contract based upon any disability, pursuant to the Americans With
Disabilities Act and the Minnesota Human Rights Act, both as amended. The Contractor further
agrees to offer reasonable accommodations in the provision of services under this Contract to
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persons with disabilities as required by the Americans With Disabilities Act and the Minnesota
Human Rights Act, both as may be amended from time to time or recodified.
SECTION 7
INSURANCE,INDEMNIFICATION AND LIABILITY
7.1. Insurance Reauirements. The Contractor shall obtain and maintain the minimum insurance set
forth below and as required by law. The Contractor shall be responsible for all premiums and/or
deductibles associated with all insurance covering the Transit Vehicles. By requiring the
Contractor to provide, at a minimum, the amount of insurance set forth in Sections 7.1.1 and
7.1.2, the City shall not be deemed to have evaluated or assessed the Contractor's potential
liability or risks arising under the Contract Documents. The Contractor shall evaluate its own risks
and, if it deems appropriate and/or prudent, it is solely the Contractor's decision to maintain
greater limits and/or broader coverage.
7.1.1 General Liabilitv
. Bodily injury liability insurance affording limits of $2,000,000 each occurrence,
$2,000,000 aggregate, for bodily injury or death suffered or alleged to have been
suffered by any person or persons by reason or arising out of any provision or
responsibility required as a condition of the Contract Documents.
. Property damage liability affording limits of $2,000,000 each occurrence and
$2,000,000 aggregate for damages to property suffered or alleged to have been
suffered by any persons(s) by reason or arising out of any provision or responsibility
required as a condition of the Contract Documents.
. If such insurance is written on a combined single limit (CSL) basis, the limit of liability
required is $2,000,000 per occurrence, $2,000,000 aggregate, CSL.
7.1.2 Automobile Liabilitv
. Automobile liability insurance with a combined single limit of $5,000,000. Obtaining a
single policy or obtaining a primary automobile liability policy and an umbrella or
excess liability insurance policy may satisfy this coverage. Coverage shall be in a form
reasonably acceptable to the City.
. Comprehensive and collision insurance for each Transit Vehicle in an amount and
manner sufficient to cover repair or replacement of a Transit Vehicle.
. The City shall be included as an additional insured with respect to the automobile
liability and comprehensive and collision insurance.
. Deductibles shall not exceed $5,000 per occurrence.
. Such insurance shall include personal injury, blanket contractual, broad form property
damage, products and completed operations liability, owned and non-owned vehicles,
and Minnesota Stop-Gap (employer's liability) and other insurance as may be deemed
appropriate by the City. Payments by the City to the Contractor under this Contractor
will be increased to compensate the Contractor for additional costs it may incur as a
result of the City requiring any such other insurance, but only if such insurance
exceeds $5 million on a combined single limit basis.
. All liability insurance policies shall include the City and its elected officials, officers,
officials, agents, employees and attorneys as additional insureds. Such insurance
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shall be provided on forms and by insurance companies reasonably satisfactory to the
City.
. No provisions in this section shall be construed to limit the liability of the Contractor for
work not performed in accordance with this Contract or in accordance with any
express or implied warranties. The Contractor's liability for the work performed
pursuant to the Contract Documents shall extend as far as the appropriate periods of
limitation provided by law.
. The Contractor shall provide a Certificate of Insurance in a form acceptable to the City
as verification of compliance with this Section at least 30 days before the
commencement of the Bus Service, and 60 days before any contemplated renewal or
change in coverage. With respect to the interests of the City, such insurance shall
provide that it may not be cancelled, reduced in coverage or limits, or non-renewed
without providing the City with 30 days' written Notice. The evidence of insurance
shall include a copy of the amended insurance policy which shows the City has been
added as an additional insured, in addition to the Certificate of Insurance.
. Any payment for services under this Contract shall be withheld until an approved
Certificate of Insurance is on file with the City.
. The City reserves the right at any time during the term of this Contract to change the
amounts and types of the insurance required by giving Contractor 60 days' written
Notice; provided any increase in cost to the Contractor resulting from changes to the
amounts, if over $5 million, or types of insurance as requested by the City shall be
paid by the City. All insurance requirements, forms and certificates shall be subject to
the approval of the City Attorney, risk assessor or any other party retained by the City
to evaluate the adequacy of the Contractor's coverage; provided such approval will not
be unreasonably withheld, conditioned or delayed.
7.2. Indemnification. The Contractor shall defend, indemnify and hold harmless Shakopee and its
City Council, officers, agents, employees, attorneys and joint powers entities from and against
any and all claims, causes of action, judgments, liability, losses, costs, expenses and damages
(including but not limited to reasonable attorneys' fees) arising out of or in connection with
negligent acts or omissions by the Contractor in providing Shakopee Bus Service.
7.3. Worker's Compensation. The Contractor and its subcontractors shall maintain workers'
compensation insurance for all persons performing services under this Contract in form and limits
as required by state and federal statutes. The Contractor and its subcontractors shall also
maintain employer's liability insurance in an amount, in a form and with a company reasonably
satisfactory to the City for the benefit of all employees not protected by worker's compensation
laws.
7.4. Independent Contractor. Contractor and the City agree that the personnel engaged in providing
services under this Contract shall be and remain employees of Contractor, and that those
personnel shall not be considered employees of the City. Contractor agrees that the City shall
not be liable for claims asserted by those personnel for discrimination, alleged unlawful
discrimination, harassment, retaliation or reprisal by the Contractor or subcontractor, or other
alleged unlawful practices by the Contractor or subcontractor arising under any federal, state, or
local statute, ordinance, or regulation; alleged wrongful discharge; breach of contract; breach of
implied contract; failure to keep any promise; breach of a covenant of good faith and fair dealing;
breach of fiduciary duty; estoppel; defamation; infliction of emotional distress; fraud;
misrepresentation; negligence; harassment; constructive discharge; assault; battery; false
imprisonment; invasion of privacy; interference with contractual or business relationships; and
violation of any other principle of common law or action brought under any equity principle of
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Contractor or subcontractor agrees to indemnify and hold harmless the City for any such claims
asserted by personnel performing services under this Contract; provided,however, that this
indemnification obligation does not cover claims based upon acts or omissions by the City or its
personnel.
7.5. Incident Notification.
7.5.1 An Incident is defined as:
7.5.1.1 An accident, incident and/or situation involving a vehicle and/or property damage,
personal or real, which prevents a Transit Vehicle from proceeding in service
operation;
7,5.1.2 A situation or incident where there has been any contact or collision between a
Transit Vehicle and another vehicle, a fixed object, or a person, whether or not
damage has occurred, or any occurrence in or near the Transit Vehicle which
results in injury or suspected injury to a passenger or injury to any other person
resulting from operation of a Transit Vehicle; or
7.5.1.3 A situation or incident in which first aid or on-site medical attention is given, in or
near a Transit Vehicle as a result of an injury to a passenger or injury to any
other person resulting from operation of a Transit Vehicle.
7.5.2 The Contractor shall immediately orally report all situations and Incidents, Contractor shall
send the City's Authorized Representative a written report detailing each situation or
Incident within 24 hours of the situation or Incident.
7,5.3 The Contractor shall not be required to perform any medical or quasi-medical functions
beyond basic first aid for passengers. In the event of illness on board a Transit Vehicle,
the Contractor shall require the driver to advise the dispatcher by radio and request
assistance from 911, as appropriate.
SECTION 8
VEHICLES
8.1. The City shall be responsible for acquisition of the Transit Vehicles and payment of all acquisition
costs. Contractor shall assist City with acquisition of the Transit Vehicles.
8.2. Deliverv. The Transit Vehicles shall at all times be owned by the City, unless the City chooses, in
its sole discretion, at some time in the future to transfer its ownership interest in the Transit
Vehicles; provided the Contractor is under no obligation to acquire the Transit Vehicles from the
City.
8.3. Loaned Capital Eauipment.
8.3.1 If a Transit Vehicle is inoperable or out of service for maintenance work and a City
provided spare bus is not available, Contractor shall provide Loaned Capital Equipment to
mitigate any disruption in Bus Service. The City shall pay Contractor on a per trip basis for
Loaned Capital Equipment. The usage rate for Loaned Capital Equipment per trip is
$64.00. In the event of a breakdown, accident or malfunction of a Transit Vehicle during
in-service time, Loaned Capital Equipment shall generally be put into service no later than
30 minutes, but no longer than 60 minutes following the breakdown.
ON: 133325 11
8.3.2 The Contractor shall provide city oral or electronic Notice of its use of any Loaned Capital
Equipment.
8.3.3 Loaned Capital Equipment shall be the equivalent or better than the Transit Vehicles
provided by the City.
8.4. Exclusive Use of Vehicles. The Transit Vehicles shall be 100% dedicated to the City's use.
Contractor shall not use the Transit Vehicles for any other use. The Transit Vehicles may be
used to provide other transportation services, as needed or requested by the City; provided the
City must use the Contractor and give the Contractor 15 days' Notice.
8.5. Return of Transit Vehicles to the City. Unless otherwise directed by the City, the Contractor
shall return the Transit Vehicles to the City's Public Works Garage on the day the Contract term
expires or on the day the Contract is terminated as allowed under this Contract. The Transit
Vehicles shall be returned in good operating condition, excepting normal wear and tear.
8.6. Repair or Replacement.
8.6.1 In the event of a minor breakdown, malfunction or accident, the Transit Vehicle shall be
repaired within a period of 7 calendar days from the date of breakdown, malfunction or
accident (provided such 7 -day period shall be extended if the repair may not be completed
due to circumstances beyond the reasonable control of the Contractor).
8.6.2 In the event of a major breakdown, malfunction or accident, the parties shall agree upon a
mutually acceptable period to repair the Transit Vehicle.
8.6.3 Procedures for repairs in excess of $750 dollars must be submitted for approval by the
City in writing in advance.
8.7. Fare Collection Boxes. The Metropolitan Council will provide the City with fare boxes for the
Transit Vehicles. Installation and maintenance of the fare boxes shall be the responsibility of the
Contractor. Loaned Capital Equipment shall not be required to have a fare box permanently
installed. If Loaned Capital Equipment is placed in service, the Contractor shall have a procedure,
acceptable to the City, in place to conveniently and accurately collect and secure passenger fares
and passes and issue transfers.
8.8. Vehicle Operation. Maintenance. Inspection and Storaae.
8.8.1 Transit Vehicles or Loaned Capital Equipment shall be operated in conformance with
operating standards and procedures and all lawful orders, rules, statutes, or regulations of
any federal, state or local agency having jurisdiction over matters dealing with the Bus
Service, and with due regard for the safety, comfort and convenience of passengers and
the general public as well as to minimize breakdowns and malfunctions.
8.8.2 Contractor shall not require or allow a Transit Vehicle to be operated that is not in safe or
proper condition,
8.8.3 The Contractor shall provide and maintain indoor storage and maintenance facilities for
the storage and servicing of the Transit Vehicles or Loaned Capital Equipment.
8.8.4 The Contractor shall perform all maintenance and repairs of the Transit Vehicles in strict
accordance with the manufacturer's recommended schedule and in strict accordance with
the Transit Vehicle warranty. The Contract shall use only manufacturer's recommended
replacement parts for the Transit Vehicles.
ON: 133325 12
8.8.4.1 Contractor shall be responsible for delivering Transit Vehicles to service
maintenance shops for any necessary warranty work at no cost to the City.
8.8.4.2 Parts. Lubricants. Supplies: The Contractor shall at its sole c:;ost and expense
maintain storage of and provide lubricants, repair parts, and supplies required for
the orderly maintenance and operation of the Transit Vehicles used for the Bus
Service. The Contractor shall maintain reasonable inventory levels to assure timely
repair of Transit Vehicles and appurtenant equipment. The Contractor supplied
parts inventory shall remain the property of the Contractor upon completion of the
term or termination of this Contract.
8.8.4.3 Safety Eauipment: The Contractor shall be responsible for replacement of all
safety equipment including fire extinguishers, reflectors, and other auxiliary safety
equipment that is broken, worn out, consumed or misplaced.
8.8.4.4 Component Repair/Replacement: The City that owns the Transit Vehicle in need of
a repair or replacement part shall bear the cost of single part replacement only for
those parts that exceed $750.000 in cost. If the Contractor recommends either
repair or replacement of a component or group of components that are no longer
operational, have exceeded their useful life, or for which there is an ongoing
pattern of concern, such recommendation must be in writing and include a
minimum of three (3) quotes from authorized vendors certified to repair and/or
rebuild Transit Vehicles. The written recommendation must also outline the
warranty provided for the parts and labor. All engine and transmission repairs and
rebuilds that exceed the $750.00 threshold will be billed to the City for parts and
labor. Written authorization to proceed with the repair or replacement must be
obtained from the City before the Contractor undertakes any repair in excess of
the $750.00 threshold. Requests for repairs in excess of $750 dollars must be
submitted for approval to the City in writing in advance.
8.8.4.5 Mid-Life ReBuild: Contractor shall make recommendations in writing to the City
when a Transit Vehicle should undergo a mid-life rebuild. The written
recommendation shall include a description of the work to be completed, including
parts and labor, and a minimum of three (3) quotes for the work. The City must
authorize any mid-life rebuild in writing, and shall bear all costs for the work.
8.8.4.6 Paint: The Contractor shall be responsible for repainting any scratches and dents
on the Transit Vehicles that have occurred due to accidents/incidents while in the
custody and supervision of the Contractor. If either City determines that a paint job
is necessary due to the age or wear and tear on its Transit Vehicles, the
Contractor will facilitate the painting work, and the City shall bear the cost thereof.
8.8.5 The Contractor shall be responsible for the repair of all Transit Vehicles' bus components
damaged as the result of accidents, breakdowns, malfunctions or vandalism. In the event
a Transit Vehicle is destroyed in an accident, the Contractor will. use commercially
reasonable efforts to replace the Transit Vehicle with an identical model; provided,
however, it is understood that it may not be possible to locate an identical model and, in
such event, the Contractor will replace the destroyed Transit Vehicle with a model which is
then readily available in the marketplace and which is as close as possible to the
specifications of the destroyed Transit Vehicle. Any replacement vehicle shall be subject
to the approval of the City, which approval will not be unreasonably withheld or delayed.
The City shall own said replacement vehicle.
8.8.6 Contractor shall supply the proper fuel recommended for use in the Transit Vehicles as
well as all other fluids, including but not limited to engineer, radiator transmission.
DN: 133325 13
Contractor shall not overfill the fuel tank such that fuel spills over the exterior of the Transit
Vehicle. Contractor shall repair damage to the Transit Vehicles' bodies and paint due to
fuel spillage.
8.8.7 The Contractor shall supply and maintain all tires for the Transit Vehicles and ensure
proper tread depth and inflation at all times.
8.8.8 Transit Vehicle Drivers shall maintain the heating and air conditioning system of the
Transit Vehicles to ensure a comfortable climate for passengers at all times. Transit
Vehicles or Loaned Capital Equipment with faulty or inadequate heating and air
conditioning systems shall not be used to provide Bus Service,
8.9. City Inspection. The City reserves the right to conduct periodic inspections of its Transit
Vehicles, with or without notification to the Contractor. In no instance shall inspections interfere
with the Contractor's ability to meet its service obligations. All in-depth inspections shall be
completed at the Contractor's maintenance facility. The Contractor shall make available to City
staff a maintenance bay to perform such inspections should it be requested and the Transit
Vehicles' maintenance records.
8.10. Vehicle Cleanina.
8.10.1 Dailv Cleanino. The Contractor shall provide daily cleaning of the Transit Vehicles. Daily
cleaning shall include sweeping, dusting and spot mopping of the interiors. Trash shall be
emptied after each trip.
8.10,2 Twice Weeklv Cleanino. At least twice weekly, Contractor shall fully wash the exterior and
clean the interiors of the Transit Vehicles, which shall include a full mopping, washing the
windows, and cleaning the driver's area.
8.10.3 Monthlv Cleanino. Contractor shall perform monthly cleanings, including cleaning the
dashboard, ceilings, walls and other interior areas and surfaces. The interiors of the
Transit Vehicles shall be free of noxious odors from cleaning products, vermin control
products and engine exhaust fumes.
8.10.4 Cleanino Supplies. The Contractor shall be responsible for maintaining cleaning supplies
in each Transit Vehicle. At a minimum, the cleaning supplies shall include the following:
. paper towels
. throw-away plastic gloves
. cleaning solution to clean, disinfect and deodorize. The solution used shall be non-
toxic, non-staining and bio-friendly.
. waste receptacle
. small broom and dust pan
8.10.5 The Contractor shall be responsible for maintaining a sanitary clean-up kit on each Transit
Vehicle. The cleaning kit shall contain Zephynamic, or a similar product. The cleaning kit
shall include a minimum of the following:
. 1 Clean-up Absorbent Pack
. 1 pair disposable latex gloves
. 1 scoop, waterproof Michelman coated
. 1 scraper, waterproof Michelman coated
. 1 red plastic bags with twist ties
. 2 disposable towels
. 1 antiseptic hand wipe
ON: 133325 14
. 1 eye protection
. 1 respiratory mask
8.11. Transit Vehicles InsDections.
8.11.1 Dailv Inspection. Contractor shall perform a daily Transit Vehicle inspection before the
first morning trip. Contractor shall record the results of each daily inspection on a Daily
Inspection Report.
8.11.1.1 The daily Transit Vehicle inspection shall include, but is not limited to,
inspecting the following to assure the Transit Vehicle is in sound operating
condition:
. walk-around visual inspection
. directional signals and flashers
. headlights, brake lights and taillights
. windshield wipers and washers
. interior lights
. horn
. parking brake
. door operation, including emergency exits and alarms
. fire extinguisher charge
. full-cycle of lift function
. sufficient tie-down equipment for each wheelchair seating position
. tires
. heating/defrosting/air -conditioning
. fluid levels
. service communication system
8.11.1.2 Copies of Daily Inspection Reports shall be kept on file. in the Contractor's
office and shall be available for inspection by the City, the Minnesota
Department of Public Safety, and any other agency having reason to
inspect the Transit Vehicle Inspection Reports.
8.11.2 Weeklv Inspection. Passenger reading lamps shall be inspected at least weekly, and
burned-out bulbs replaced promptly.
8.11.3 State of Minnesota Vehicle Inspection. Transit Vehicles must undergo any required State
of Minnesota inspections.
8.11.3.1 Transit Vehicles or Loaned Capital Equipment that do not pass any
required State of Minnesota inspection shall not be used for the Bus
Service until its deficiencies are corrected. The City shall advise Contractor
of time within which repairs to correct such deficiencies shall be completed.
City may impose, as liquidated damages in accordance with Paragraph
10.8, a daily amount equal to Contractor's cost to provide Bus Service.
SECTION 9
ON: 133325 15
PAYMENT, INFORMATION AND REPORTS
9.1. Contractor shall be compensated by the City for operating costs only as set forth below, minus
the farebox collection. Any farebox collection shortfall will be deducted from the total rate paid to
the Contractor, except if noted on revenue and ridership log where passenger refused to pay.
9.2. For services rendered for Shakopee, Contractor shall bill the City of Shakopee.
9.2.1 Operating Costs.
Year 1 Year 2 Year 3 Year 4 Year 5
(6/15/07- 6/14/08) (6/15/08- 6/14/09) (6/15/09- 6/14/10) (6/15/10- 6/14/11) (6/15/11- 6/14/12)
Hourly Charge $68.00 $70.04 $72,14 $75,39 $78.78
Full Size Bus
Pull-Out Charge - .
Daily (charged once
per bus per day) ex. $125.70 $129.47 $133,36 $139.36 $145.63
3 buses used to
provide 5 routes = 3
pull out charges.
9.2.2 Trip Time. For the purposes of calculating charges, the trip time per trip shall be
presumed to be 2.25 hours, including pre-trip inspections, passenger boarding, deadhead
miles, and in-service time.
9.2.3 Fuel Cap. The City shall pay fuel costs over the fuel cap of $2.00 per gallon (including
taxes) .
9.2.4 Other Services: Costs for additional services not covered in this Contract such as in-plant
Transit Vehicle inspections, will be negotiated between the City and Contractor, and
confirmed in writing by said City, prior to performance of the requested services.
9.3. Monthlv Reports. Monthly invoices and required reports shall be furnished by the Contractor to
the City's Authorized Representative. The City may, at its sole discretion, require additional
information to be added to the Monthly Report. Contractor shall use a form approved by the City.
The Contractor shall submit the following information monthly with its invoice (this information
may be submitted by the Contractor to the City either in the Monthly Reports or in other reports to
be provided to the City):
9.3.1 Incident report including the date, vehicle number, driver, description of Incident or
situation, name, address, and phone number of all parties involved and follow-up
summary of actions taken until resolution of all aspects of the Incident or situation.
9.3.2 Complaints, commendations and recommendations (phone and written) including name of
person making the complaint, commendation or recommendation, description, summary
of the actions taken and status.
9.3.3 Incidents of rider illegal activity or dangerous behavior on a Transit Vehicle and actions
taken by Contractor to notify the City of the incident(s}.
9.3.4 Passenger summary update containing, at a minimum, the following information: (1)
number of inbound passengers by origin; (b) number of outbound passengers by
destination; and (c) number of times lift is deployed by origin and destination.
ON: 133325 16
9.3.5 Fare box report, including the following information: (1) number of passenger trips paid
with cash; (2) number of passenger trips paid with coupons; and (3) number of passenger
trips paid with passes segregated by type of pass.
9.3.5.1 Fare Box Collections. Fare box collections shall be equal to the total value for all
passengers boarding including cash fare, value of transfers, value of tickets and
value of free-ride coupons.
9.3.6 Daily arrival and departure times for each Transit Vehicle at each designated starting
location, intermediate location, and ending location.
9.3.7 Any maintenance work due under the warranty schedules for the preceding month and
when such work was performed as well as a list of the warranty work due in the reporting
month. The Contractor must provide a written explanation for any warranty work due but
not performed.
9.4. Billina Cvcle. The billing cycle shall run from the 1 st of the month until the last day of the month.
The invoice is due to the City within 10 days following the end of the billing cycle. The City shall
not delay processing the Contractor's invoice unless all required reports are not submitted.
9.4.1 The City, after receipt of a properly completed invoice and all required reports, will
authorize the payment of the Contractor for authorized services satisfactorily performed.
Acceptance of such payment by the Contractor shall constitute full compensation for all
supervision, labor, supplies, materials, work, equipment and the use thereof. The City
shall reimburse the Contractor within 30 calendar days after a properly completed invoice
and all required reports are received.
9.5. Prompt Payment to Subcontractors. The Contractor shall pay any subcontractor within 10 days
of the Contractor's receipt of payment by the City for undisputed services provided by the
subcontractor. If the Contractor fails within that time to pay the subcontractor any undisputed
amount for which the Contractor has received payment by the City, the Contractor shall pay
interest to the subcontractor on the unpaid amount at the rate of 1.5% per month or any part of a
month. The minimum monthly interest penalty payment for an unpaid balance of $100.00 or
more is $10.00. For an unpaid balance of less than $100.00, the Contractor shall pay the actual
interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect
interest penalties from the Contractor shall be awarded its costs and disbursements, including
attorneys' fees, incurred in bringing the action. The Contractor shall, by an appropriate
agreement with each subcontractor, require each subcontractor to make payments to its
subcontractors in a similar manner.
9.6. General Record KeeDina and Data Collection. The Contractor shall qe responsible for
collecting information and preparing Monthly Reports for the City. This information shall be
retained by the Contractor throughout the term of this Contract and delivered to the City at the
termination of this Contract.
9.6.1 Additional information and reports may be required from the Contractor only as mutually
agreed upon by the City and the Contractor. If any additional information is required by
Metropolitan Council, such information shall be required from the Contractor. Any data
collected is the sole property of the City and requests for information about data collected
shall be directed to the City.
9.6.2 No data shall be disseminated to individuals or entities not authorized to receive the
collected data. The contractor shall notify the City of any request for data.
ON: 133325 17
9.7. Records. The Contractor shall maintain books, records, documents and other evidence directly
pertinent to performance of the work under the Contract in accordance with generally accepted
accounting principles and practices and with all Metropolitan Council guidelines for service
providers.
9.7.1 The Contractor shall maintain all financial information and data used in preparation or
support of the cost submission for any negotiated Contract or change order.
9.7.2 Pursuant to Minn. Stat. Section 16C.05, subd. 5, the Contractor shaH allow the City or
other persons or agencies authorized by the City or by law, including the Legislative
Auditor or the State Auditor, access to the records of the Contractor at reasonable hours,
and upon reasonable notice, including all books, records, documents and accounting
procedures and practices of the Contractor relevant to the subject matter of this Contract,
including, but not limited to financial, personnel, maintenance and operating records, for
purposes of audit. The Contractor will provide appropriate facilities for such access,
inspection, audit and copying.
9.7.3 The Contractor shall keep a mileage log to account for non-deadhead and non-service
mile for each Transit Vehicle service provider. Contractor shall document the reason for
non-deadhead and non-service miles.
9.8. Vehicle Record File. The Contractor shall maintain an Vehicle Record File for each Transit
Vehicle. At a minimum, the Individual Record File shall include:
. Vehicle identification and license numbers.
. Vehicle maintenance and repair history, including description of maintenance and repair
performed, Contractor or facility doing the work, cost, date and mileage.
. Vehicle equipment check log verifying that all inspections have been performed according
to the manufacturer's suggested schedule or semi-annually, whichever comes first.
. Documentation that preventative maintenance was performed according to the schedule
established by Transit Vehicle manufacturer, the Contractor and as approved by the City
(which approval will not be unreasonably withheld, conditioned or delayed).
. Vehicle maintenance requests submitted by drivers, including what action was taken and
when.
SECTION 10
DEFAULT, WAIVER AND TERMINATION
10.1. Default. All terms of this Contract are material. In the event Contractor breaches or defaults on a
material term of this Contract, City shall provide Contractor with written Notice of said breach. The
Notice shall set out the nature of the breach or default in detail. The Contractor shall have 10
calendar days to cure the breach or default unless the Notice of breach or default prescribes a
longer period of time to cure or remedy the defect or breach.
10.2. Remedies in the Event of Breach or Default. Whenever a breach or default occurs and said
breach or default is not cured within the time set forth in this Contract, the City 'may take anyone
or more of the following actions without providing contractor additional time to cure. The City
shall provide contractor a written statement indicating what action it is taking.
10.2.1 City may withhold payments to Contractor.
10.2.2 City may terminate its participation in this Contract.
ON: 133325 18
10.2.3 City may collect a penalty if and to the extent authorized under paragraph 10.7 herein.
10.2.4 City may assess liquidated damages to the extent authorized under paragraph 10.8
herein.
10.2.5 City may institute legal action against Contractor or utilize the performance bond
delivered hereunder, to collect, payor reimburse the City for:
10.2.5.1 The cost of curing any default or breach by the Contractor in the
performance of the Contract.
10.3. No Remedv Exclusive. None of the remedies set forth in paragraph 1 0.2 are exclusive; the
selection of one remedy does not preclude the City from pursuing any and all other remedies.
10.4. Termination for Lack of Fundina. The City may terminate this Contract in whole or in part upon
30 days' Notice for lack of funding or if the City chooses to opt back in to the Metropolitan
Council's transit system by written Notice of Termination. If the City terminat~s this Contract for
lack of funding, the Contractor shall be paid its costs for services satisfactorily performed up to
the date of termination as specified in the Notice of Termination. The Contractor shall submit its
invoice within 30 days, together with any reports required herein.
10.5. Termination for Failure to Meet Performance Standards. Contractor shall meet the
performance standards set by Metropolitan Council for public transit service. In the event that the
Bus Service does not meet the performance measures adopted by the Metropolitan Council, the
City may consider such failure to be a default by the Contractor of its obligations under this
Contract and initiate termination of its participation in this Contract as provided by Section 10.1
above.
10.6. Termination for Lack of City Ridership. If the City reasonably concludes that the ridership in
the Bus Service is insufficient to merit continued operation, City may terminate its participation in
this Contract upon a Notice of Termination in the same manner as provided for a termination for
lack of funding as provided in Section 10.4 above.
10.7. Penaltv.
10.7.1 In addition to the provisions and remedies set out in paragraph 10.2, the City reserves
the right to assess a penalty equal to the cost to the City of one Transit Vehicle round-
trip per occurrence for the breach of any of the following:
10.7.1.1 Customer Service. The Contractor receives 3 or more substantiated,
legitimate Complaints regarding customer service; miss~d trips; or Transit
Vehicle cleanliness in a period of 30 days regarding the Bus Service. A
missed trip is defined as a trip not actually operated. The City shall not be
billed for any missed trips.
10.7.1.2 Maintenance Issues. The Transit Vehicles are unable to be used to
provide Bus Service for any period longer than 2 weeks due to a failure to
maintain the Transit Vehicle in good operational condition. The Contractor
fails to put the Transit Vehicle back into service within the 2 weeks
prescribed unless the Contractor proves to the sole satiSfaction of the City
that the failure is beyond the control of the Contractor.
10.7.2 The penalties set out in this Paragraph 10 and its subparts may be assessed through
withholding or deduction of payment due to Contractor for services rendered.
ON: 133325 19
10.8. Calculation of Liauidated Damaaes. Given the nature of the services provided under this
Contract, it is extremely difficult to determine the actual amount of damages to the City and the
general public from the Contractor's breach. The anticipated harm to the City for loss of use,
inconvenience, loss of funding, additional staff time, and the frustration of the City's public goals
served by this Contract are immeasurable.
10.8.1.1 The Contractor and the City agree that the sum of $250.00 (per day) shall be a
reasonable estimation of the damages incurred by the City in the event of a
breach.
10.8.1.2 However, if Contractor fails to provide the Bus Service, the Contract will be
terminated without liability to the City, and the Performance Bond shall be
forfeited as liquidated damages in accordance with this Paragraph because of
such failure, breach or default.
10.9. Effect of Termination. Upon termination of this Contract, the Contractor will only be paid for
services performed through the effective date of termination.
SECTION 11
MISCELLANEOUS PROVISIONS
11.1. Notices.
11.1.1 Any notice, demand, or communication required or permitted to be given by any
provision of this Contract shall be deemed to have been sufficiently given or served if
sent electronically, by telecopy or facsimile transmission, delivered by messenger or
overnight courier, or mailed, certified first class mail, postage prepaid, return receipt
requested, and addressed as set forth below. Such notice shall be effective, (a) if
delivered by messenger or by overnight courier, upon actual receipt (or if the date of
actual receipt is not a business day, upon the next business day); (b) if sent by
telecopy or facsimile transmission, upon confirmation of receipt (oriif the date of such
confirmation of receipt is not a business day, upon the next busil1less day); or (c) if
mailed, upon the earlier of three (3) business days after deposit in the mail and the
delivery as shown by return receipt therefor. The Contractor or the City may change its
address by giving notice in writing of its new address.
11.1.1.1 If to City of Shakopee: City Administrator
City of Shakopee
129 South Holmes Street
Shakopee, Minnesota 55379
ATTN: Michael Leek
11.1.1.2 With a copy to: Shakopee City Attorney
James Thomson
Kennedy & Graven
470 U.S. Bank Plaza
220 South Sixth Street
Minneapolis, MN 55402
11.1.1.3 If to Contractor: Schmitty and Sons Transit, Inc.
21160 Holyoke Avenue
Lakeville, MN 55044
ATTN: Dave Mohr
ON: 133325 20
11.1.1.4 With a copy to: Winthrop & Weinstine, P.A.
3000 Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, MN 55402
ATTN: Mark T. Johnson
11.1.2 Notice of Termination. A Notice of Termination shall be delivered by the method as
set out in Paragraph 11.1.1. This Contract shall be terminated as provided in Section
10 above.
11.1.3 Waiver. Failure of contractor or City at any time to require performance of any
provision of this Contract shall not affect its right to require full performance thereof at
any time thereafter and the waiver by either party of a breach of any such provision
shall not be taken or held to be a waiver of any subsequent breach thereof or as
nullifying the effectiveness of such provision.
11.2. Unavoidable Occurrences.
11.2.1 The City shall not be responsible for any loss or damage sustained or claimed to be
sustained by the Contractor through the failure of the Contractor to maintain at all
times a timely operating schedule. The Contractor must report all.failures to provide
on-time service due to weather, traffic conditions, or naturally qccurring disasters
within 24 hours of such occurrence.
11.2.2 Force Maieure. The Contractor shall not be required to operate the ,Bus Service in the
event of any riot, civil strike or disturbances, closing of streets, road~, routes or bridges
where re-routing is impossible, flood, fire or any other cause beyond its control.
11.3. Headinas. Headings at the beginning of paragraphs hereof are for convenience of reference,
shall not be considered a part of this Contract, and shall not influence its construction.
11.4. Assianment. This Contract shall not be assignable without the prior written consent of the City,
except as provided for in paragraph 11.4.1. Consent by the City shall not be unreasonably
withheld. The City reserves the right to consider the character, reputation, experience and
financial stability of any proposed assignee. This Contract shall be binding upon and inure to the
benefit of the Contractor's heirs, representatives, successors and assigns.
11.4.1 Subcontractors. The Contractor may subcontract minor non-integral services and
functions such as the cleaning and maintenance of the Transit Vehicles. No portion of
the actual delivery of Bus Service shall be subcontracted.
11.5. Services Not Provided For. No claim for services furnished by the Contractor not specifically
provided for herein shall be paid by the City, unless said services receive prior written authorization
by the City
11.6. Contract Controls. In the event that any provision of this Contract conflicts with any provision in the
Contract Documents, this Contract controls.
11.7. Severability. In the event any provisions of this Contract shall be held invalid, illegal, or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof, and the remaining provisions shall not in any way be
affected or impaired thereby.
11.8. Entire Aareement. The entire agreement of the parties is contained in the Contract Documents.
This Contract supersedes all oral agreements and negotiations between the parties relating to the
ON: 133325 21
subject matter hereof as well as any previous agreements presently in effect between the parties
relating to the subject matter hereof.
11.9. Governina Law. This Contract shall be controlled by laws of the State of Minnesota. The words
herein and hereof and words of similar import, without reference to any particular section or
subdivision, refer to the Contract Documents as a whole rather than to any particular section or
subdivision hereof.
11.10. Amendment to this Contract. This Contract shall be amended by the parties hereto only by
written instrument executed in accordance with the same procedures and formality followed for
the execution of this Contract.
11.11. Execution of Counterparts. This Contract may be simultaneously executed in several
counterparts, each of which shall be an original, and all of which shall constitute but one and the
same instrument.
11.12. No Third Party Recourse. Third parties shall have no recourse against the City.
SECTION 12
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed the day and year
first above written.
CITY OF SHAKOPEE:
By:
John Schmitt, Mayor
By:
Mark McNeill, City Administrator
By:
Judy Cox, City Clerk
ON: 133325 22
STATE OF MINNESOTA )
)ss.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 2007 by
John Schmitt, Mark McNeill, and Judy Cox respectively the Mayor, City Administrator, and City Clerk of
the CITY OF SHAKOPEE, a Minnesota municipal corporation, on behalf of the corporation and pursuant
to the authority granted by its City Council.
Notary Public
STATE OF MINNESOTA )
)ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this day of ,
2007 by DAN SCHMITT, the President of SCHMITTY AND SONS TRANSIT, INC., a Minnesota
corporation.
Notary Public
Attachments:
. The Request for Bids dated May 8, 2007 (incorporated herein as Exhibit A)
. The Addendum No. 1 to Request for Bids dated May 22, 2007 (incorporated herein as
Exhibit B)
. The City's Advertisement for Bids published on May 12, 2007 and May 19, 2007 in the Prior
Lake American (incorporated herein as Exhibit C)
. The bid submitted by Contractor on May 30, 2007 (incorporated herein as Exhibit D)
. The Performance Bond
. The Certificate(s) of Insurance
. FT A Drug and Alcohol Policy
APPROVED AS TO FORM AND EXECUTION:
James Thomson
Shakopee City Attorney
ON: 133325 23