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HomeMy WebLinkAbout5E - Laker Lines Vehicles Lease D~ ~,TE: AGENDA #: PREPARED BY: CITY COUNCIL AGENDA REPORT 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 AGENDA ITEM: April 4, 2005 5E Kelly Meyer, Assistant to the City Manager CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO ENTER INTO A MASTER LEASE AGREEMENT WITH THE METROPOLITAN COUNCIL FOR LAKER LINES VEHICLES. DISCUSSION: ISSUES: ALTERNATIVES: History: In January 2001, the City Council chose to opt-out of the Minnesota Valley Transit Authority (MVTA) in order to provide improved local transit services to Prior Lake residents. In March 2002, the City Council approved an Agreement with the Metropolitan Council for the City to receive reimbursement for a $470,458 expenditure for the purchase of two 44-passenger Bluebird buses. These buses operate Prior Lake's regular express commuter transit services - Laker Lines. On April 1, 2002, the Laker Lines buses were put into service. Current Circumstances: In essence, the Metropolitan Council purchased the Laker Lines buses for the City. The City then leases the buses back from the Met Council for $1 per year to operate our transit service. As a result of a 2004 Met Council asset management audit, auditors directed the Met Council to complete any outstanding paperwork (including title transfers and lease agreements) with those opt-out municipalities that had received capital funding for their fleet vehicles. Prior Lake has completed the title transfers, and the action before the Council tonight is to authorize entering into the lease agreement for a term ending December 31, 2009, which is the projected life expectancy of the vehicles. The proposed lease agreement is attached. This action is housekeeping in nature so that the paper trail reflects the current practice. The City's current operation of the transit service meets all of the provisions and federal requirements of lease agreement. The City Attorney has reviewed the proposed agreement, and her questions and/or changes have been addressed. (1) Motion and Second as part of the Consent Agenda to Approve Resolution 05-XX authorizing the Mayor and City Manager to enter into a Master Lease Agreement with the Metropolitan Council for Laker Lines vehicles. (2) Take no action and direct the staff accordingly. RECOMMENDED MOTION' Alternativ www. cityofpriorlake, com I:\COUNCIL~AGNRPTS\2005\MET RESOLUTION 05-XX 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 A RESOLUTION APPROVING AN MASTER LEASE AGREEMENT WITH THE METROPOLITAN COUNCIL FOR LAKER LINES TRANSIT VEHICLES. Motion By: Second By: WHEREAS, In January 2001, the City Council chose to opt-out of the Minnesota Valley Transit Authority in order to provide improved local transit services to Prior Lake residents; and WHEREAS, the City entered into an agreement to have the Met Council reimburse the City for the purchase of its two Laker Lines 44-passenger fleet vehicles; and WHEREAS, WHEREAS, in essence, the Metropolitan Council purchased these transit vehicles for the City; and the Met Council requires the City to enter into a Lease Agreement for a term ending December 31, 2009 at an annual lease payment of $1.00. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA that: 1. The recitals set forth above are incorporated herein. . The Mayor and City Manager are hereby authorized to enter into a Master Lease Agreement with the Metropolitan Council for Laker Lines transit vehicles for a period ending December 31, 2009. PASSED AND ADOPTED THIS 4TH DAY OF APRIL, 2005. YES NO Haugen Haugen Fleming Fleming LeMair LeMair Petersen Petersen Zieska Zieska City Manager, City of Prior Lake www.cityofpriorlake.com Phone 952.447.4230 / Fax952.447.4245 Contract No. 04M020 MASTER LEASE AGREEMENT BETWEEN THE METROPOLITAN COUNCIL AND THE CITY OF PRIOR LAKE FOR REGIONAL FLEET VEHICLES THIS MASTER LEASE AGREEMENT for Regional Fleet Vehicles is (hereinafter also referred to as "Agreement") made and entered into this 1st day of November, 2004, by and between the METROPOLITAN COUNCIL, (hereinafter referred to as the "Council") having its principal place of business at 230 East Fifth Street, St. Paul, Minnesota 55101 and the CITY OF PRIOR LAKE (hereinafter referred to as "Lessee") with its principal place of business at 16200 Eagle Creek Avenue SE, Prior Lake, MN 55372. RECITALS WHEREAS, the Council owns, and may in the future own, vehicles which are available for use by regional transit providers; and WHEREAS, such vehicles may have been purchased in whole or in part with federal funds; and WHEREAS, the Lessee operates public transit service in the Twin Cities Metropolitan Area and has, from time to time, the need for vehicles of the type available from the Council; and WHEREAS, the Council is willing to lease the vehicles identified in this Agreement to the Lessee under the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Council and the Lessee agree as follows: AGREEMENT I. PURPOSE OF AGREEMENT The Metropolitan Council was established by Minnesota law to plan for the orderly and economical development, public and private, of the Twin Cities Metropolitan Area. The Council is required by Minnesota law to coordinate transit operations within the Twin Cities Metropolitan Area. The Lessee operates regional transit services within the Council's jurisdiction. This Agreement expresses the understanding of the parties regarding lease of regional fleet vehicles, some of which may have been purchased in whole or in part with federal funds, so as to promote the Council's interests in coordinating and maintaining the integrity of the metropolitan transit system and in ensuring adequate documentation of the operation and maintenance of the leased regional fleet vehicles. If the Council and Lessee have entered into any grant and/or operating agreements under which the Lessee utilizes any of the vehicles covered by this lease, and if any such agreement addresses the same topics covered in this Agreement, the provisions of that Agreement or contract xvhich are more stringent shall apply to the vehicles covered by such agreement or contracta. II. TERM OF AGREEMENT Unless terminated earlier in accordance with the provisions of this Agreement, this Master Lease Agreement shall be effective with respect to each vehicle covered by this lease until December 31, 2009. Thereafter, and subject to the termination provisions of this Agreement, this Master ]~[ease Agreement shall automatically renew for subsequent one calendar year terms unless either party gives written notice to the other party, prior to the beginning of such subsequent calendar year, that it does not wish to renew the Master Lease Agreement. Notwithstanding any termination of this Agreement, the terms and conditions of this lease shall remain in effect for all Council-owned vehicles in Lessee's possession until returned to the Council. in accordance with Article V. III. LEASE AND USE OF COUNCIL VEHICLES 3.01 Lease of Council Vehicles and Associated Equipment. For $1.00 per year, and other good and valuable consideration, the receipt of which is hereby acknowledged, and subject to the satisfaction of all terms and conditions contained herein, the Council hereby agrees to lease to Lessee and Lessee agrees to lease from the Council the Council-owned vehicles identified in this Lease Agreement, together with all replacement pans, additions, accessories and associated equipment incorporated and/or affixed thereto for the use specified in Section 3.02. The Council-owned vehicles leased to Lessee at the time of execution of this Agreement are listed in Exhibit A, which is attached to and incorporated into this Lease Agreement. The parties recognize that the specific vehicles placed in the possession of Lessee and leased to Lessee under the terms of this Lease Agreement may change from time to time. Accordingly, the Council's Authorized Representative, as identified in Section 9.07, shall update the list of Council Vehicles shown on Exhibit A on a periodic basis and provide a revised Exhibit A to Lessee reflecting such update. All Council-owned vehicles leased to Lessee are collectively referred to in this Lease Agreement as "Council Vehicles". The provisions of this Lease Agreement shall apply to all Council Vehicles in Lessee's possession, regardless of whether or not Exhibit A has been updated. This Agreement creates a lease or rental of the Council Vehicles only, and not a sale thereof or the creation of a security interest therein. The Council shall remain the sole owner of the Council Vehicles and nothing contained herein, either possession of the Council Vehicles or the payment of any money hereunder, shall enable the Lessee to acquire any right, title or other interest to the Council Vehicles described herein. 3.02 Lessee Use of Council Vehicles. Lessee shall only use Council Vehicles for public transit purposes; Lessee shall only use Council Vehicles within the Twin Cities Metropolitan Area as defined in Minnesota Statutes, section 473.121, subdivision 2; and Lessee shall only use Council Vehicles for purposes that are consistent with the parties' grant or operating agreement, if any, or other agreements to which such vehicles are assigned, the Council's Transit Capital Improvement Program, Transportation Policy Plan, and other Council-adopted regional transportation policy. Lessee shall promptly notify the Council's Authorized Representative when a Council Vehicle is no longer being used by Lessee for the above-described purposes, and the Council will direct Lessee where and when to return the Council Vehicle in accordance with Article 5 3.03 Lessee's Responsibilities. During the term of the lease, Lessee shall be responsible, at its sole cost and expense, for all ongoing operation and maintenance expenses the Council Vehicles and associated equipment including, without limitation: A. consumables including tires, fuel, motor oil and other fluids; B. proper handling and disposal of all waste material generated from use of the vehicles including any toxic or hazardous waste; and C. insurance, as required by Article 6. 3.04 Lessee's Representations and Warranties. Lessee represents and warrants that: A. Lessee agrees to promptly pay when due all taxes, license and registration fees, to the extent there are any, now or hereafter imposed by any governmental body or agency upon the Council Vehicles for the use, ownership, delivery, leasing, possession, storage, operation, maintenance, repair, return or other disposition of the Council Vehicles. B. Lessee shall comply fully with all laws, regulations and rules relating to the Council Vehicles and the use, maintenance and operation thereof. Additionally, Lessee shall comply with all manufacturers' instructions and warranty requirements, and with conditions and requirements of all policies of insurance relating to the Council Vehicles and their use. Co Lessee agrees to use the Council Vehicles with due care and for the purpose for which they are intended. Lessee shall maintain the Council Vehicles in good repair, condition and working order and will furnish all parts and services required therefore, all at its sole cost and expense. Lessee shall, at its expense, make all modifications and improvements to the Council Vehicles required by law, and shall not make other modifications or improvement to the Council Vehicles without the prior written consent of the Council. All parts, modifications and improvements to the Council Vehicles shall, when installed or made, immediately become the property of the Council and part of the Council Vehicles for all purposes. Do Lessee shall grant access 'to the Council Vehicles to the Council, its designee or thc manufacturer, as provided for in Article 4, at all reasonable times for inspection, repair, maintenance, installation of engineering changes and for any other reasonable purpose. E. Lessee shall fumish, employ, and otherwise have absolute control and supervision over the operation of the Council Vehicles and the use thereof. 3.05 Risk of Loss or Damage. Lessee hereby assumes and shall bear the entire risk of loss, theft, destruction, collision, damage, condemnation, or other casualty, whether or not insured against, of the Council Vehicles from any and every cause whatsoever, and will hold the Council harmless from and against such risk. All such risk of loss for each Council Vehicle shall be on the Lessee from the date of Lessee's possession of the Council Vehicle until the time at which Lessee returns the Council Vehicle to the location designated by the Council in accordance with Article 5. In the event a Council Vehicle is physically damaged to a material extent by any occurrence whatsoever, or is lost, stolen, condemned or destroyed, the Lessee shall immediately notify the Council of such occurrence. No loss or damage to a Council Vehicle or any part thereof shall affect any obligation of Lessee under this Lease but such obligation sl~all continue in full force and effect. If any insurance proceeds are recovered as a result ot' any loss, theft, destruction, collision, damage, condemnation, or other casualty of a Council Vehicle, tl~e Lessee, in accordance with Council direction, shall either: (a) remit to the Council the sum of thc insurance proceeds plus the amount of any insurance deductible or self-insurance retention; or (b) apply the insurance proceeds to the cost of repairing or replacing the Council Vehicle. Any such replacement vehicle shall be considered a Council Vehicle for the purposes of th is Agreement and Lessee shall take any actions necessary to place the title of such a replacement vehicle in the name of the Council. 3.06 Acknowledgment. LESSEE ACKNOWEDGES THAT: LESSEE ACCEPTS EACH COUNCIL VEHICLE AS IS; COUNCIL IS NOT THE MANUFACTURER OF THE COUNCIL VEHICLES NOR THE MANFACTURERS' AGENT NOR A DEALER THEREIN; LESSEE IS SATISFIED THAT EACH COUNCIL VEHICLE IS SUITABLE AND FIT FOR ITS PURPOSES; AND COUNCIL HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY WITH RESPECT TO THE COUNCIL VEHICLES, EXPRESSED OR IMPLIED, AND THE COUNCIL SPECIFICALLY DISCLAIMS ANY WARRANTY OF MECHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THE QUALITY, CONDITION OR CAPACITY OF THE COUNCIL VEHICLES OR THE MATERIALS IN THE COUNCIL VEHICLES OR WORKMANSHIP OF THE COUNCIL VEHICLES, TI-I E COUNCIL'S TITLE TO THE COUNCIL VEHICLES, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER. THE COUNCIL SHALL NOT BE LIABLE TO LESS FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY COUNCIL VEHICLES OR THE USE OR MAINTENANCE THEREOF OR THE FAILURE OR OPERATIONS THEREOF, OR THE REPAIR, SERVICE OR ADJUSTMENT THEREOF, OR BY ANY DELAY OR FAILURE T() PROVIDE ANY SUCH MAINTENANCE, REPAIRS, SERVICE OR ADJUSTMENTS, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF OR FOR ANY LOSS OF BUSINESS HOWSOEVER CAUSED. THE COUNCIL SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND INCLUDING ANY LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE COUNCIL VEHICLES. 3.07 Initial Condition Report. The Council shall participate with Lessee in the preparation of an Initial Condition Report for each Council Vehicle leased under this Agreement using the form set forth in Exhibit B, which is attached hereto and incorporated herein. IV. VEHICLE MAINTENANCE, REPAIR, AND SAFETY 4.01 Lessee Responsible for Vehicle Maintenance. Lessee shall at its sole cost and expense maintain all Council Vehicles and their equipment, including safety and emergency equipment, in optimal working condition to minimize breakdowns, to maximize passenger and driver safety, and to meet applicable local, state, and federal standards. No driver shall be required or allowed to operate a vehicle that is not in safe operating condition and does not meet all such standards. All maintenance on Council Vehicles and equipment must be done by mechanics licensed under applicable local and state standards. 4.02 Repair and Replacement. In addition to the Lessee's obligations under Section 3.05, and subject to Section 3.07 Lessee shall be responsible for the repair and/or replacement o~' any Council Vehicle that is mechanically or electrically broken, worn, damaged or misplaced if such breakage, wear, damage or misplacement occurs before the earliest of: the end of the useful life of the Council Vehicle, or the time at which the Council Vehicle is returned to the location designated by the Council in accordance with Article 5. The Council shall notify Lessee of any warranties in force on the Council Vehicles at the time transfer to Lessee. Lessee shall have all warranty service on Council Vehicles carried out by thc manufacturer's authorized dealers in the State of Minnesota or independent repair garages capable of providing both warranty service and replacement parts sufficient for fleet operators, order to preserve the manufacturer/vendor warranty on the Council Vehicles. Warranty service may also be accomplished by reimbursing the Lessee for expenses incurred at a repair thcility mutually agreed upon between the Lessee and the Council or by reimbursing the Lessee mutually agreed expenses incurred at the Lessee's maintenance facility, provided that all su~: h work must have the manufacturer's or vendor' s prior written approval before Lessee initiates any warranty work. Lessee shall notify the Council in a timely manner of any failures relating to systems or components under warranty. The Council must approve any resolution of warranty issues. Lessee shall seek prior authorization from the Council before having any major components replaced. Major components shall be defined as engines, transmissions and other major components that qualify under state or federal law as a capital replacement component. Replacement engines for buses will be certified to the most current EPA standards or better. Lessee shall ensure that repairs are made in a timely manner and a Council Vehicle shall not be placed in back in service until all safety related repairs are made. No Council Vehicle shall be placed in service that does not pass Minnesota state inspections or that does not meet all local, state and federal safety standards. 4.03 Vehicle Record File. An Individual Vehicle Record File must be maintained for each Council Vehicle. At a minimum, the file must include the following information: A. vehicle information as requested in the Council's "Fleet Inventory Profile"; B. vehicle maintenance and repair history, including description of maintenance and rcpa ir performed, vendor or facility doing the work, cost, date, and mileage; C. vehicle equipment check log verifying that special equipment has been checked according to the manufacturer's suggested schedule or semi-annually, whichever comes first; D. documentation that maintenance was performed according to the schedule established by the Lessee and approved by the Council; E. vehicle maintenance requests submitted by drivers, including what action was taken and when; and F. vehicle pre-trip inspection logs, signed by the driver. The Vehicle Record File for any Council Vehicle shall be made available to the Council's Authorized Representative or designee upon request. 4.04 Vehicle Safety Inspections. The Council reserves the right to conduct periodic mechanical inspections, including fluid sampling, of the Council Vehicles and to inspect and audit vehicle maintenance records. Such inspection or monitoring may be conducted with or without notification of the Lessee. In no instance will inspections interfere with the Lessee's ability to meet its service obligations. All inspections shall be done at the Lessee's maintenance facility. The Lessee shall make available to the Council staff a maintenance bay to perl'brm sucl~ inspections should it be requested. Any Council inspections are solely for the benefit or' thc Council and shall in no way diminish the sole responsibility of the Lessee to operate and maintain the Council Vehicles in safe operating condition. If the Council chooses to inspect a Council Vehicle, all costs associated with said inspection shall be born by the Council. V. RETURN OF VEHICLES 5.01 Return of Vehicles. Upon termination of the lease term or upon earlier termination as may be provided by this agreement, all Council Vehicles in Lessee's possession shall be returned by the Lessee to the Council at a location designated by the Council within the Twin Cities Metro Area unless the Council directs Lessee to dispose of or transfer the Council Vehicles in another manner. In addition, individual Council Vehicles shall be returned by the Lessee to the Council in thc manner specified in this section in any of the following cases: · when such a vehicle is no longer being used by Lessee for the purposes specified in Section 3.02, or · when the grant or operating agreement for which the Council Vehicle was assigned terminates, unless the Council authorizes the Lessee in writing to utilize the Council Vehicle under another operating agreement then in effect, or · upon the request of the Council. A Council Vehicle must be returned without Lessee's graphics if requested by the Council. Unless directed otherwise by the Council's Authorized Representative, each Council Vehicle upon return must be in a good enough working condition so that it may be brought to an auction or storage under its own power. Upon the return of each vehicle, the originals of the Council Vehicle Record File and any other records held by the Lessee applicable to the Council Vehicle shall be provided to the Council. 5.02 Return Condition Report. Upon the return of each Council Vehicle leased under this agreement, Lessee shall participate with the Council in the preparation of a Return Condition Report for such vehicle using the form set forth in Exhibit C which is attached to and nmde a part of this Agreement. Exhibit C specifies what is deemed to be normal wear and tear on thc Council Vehicles. The cost of repairs required to bring the vehicles into good operating condition equal to the condition upon original receipt of the Council Vehicles by Lessee, excepting normal wear and tear, shall be the responsibility of Lessee. If there is d i sagrecmcm regarding required repairs, the Council will make the final decision if the item's cost (materials and labor) is less than $1,500. If repair cost for the disagreed item is $1,500 or greater, the lwo parties must agree on a non-affiliated third party expert mechanic who will decide if the repair is necessary to return the Council Vehicle to the Council in good operating condition. The parties will share equally in the cost of the examination by the third party expert mechanic. VI. INDEMNIFICATION AND INSURANCE 6.01 Indemnification. Lessee shall save and protect, hold harmless, indemnify, and defend the Council, its members, officers, agents and employees and volunteer workers against any and all claims, expenses, (including attorneys' fees), losses, damages or lawsuits for damage arising from or related to Lessee's use of the Council Vehicles or the fulfilling of Lessee's responsibilities under this Agreement. 6.02 Insurance. Lessee shall procure and maintain for the Term, and for two (2) years after the Term, insurance against damages which may arise from or in connection with the transit service subsidized under this Agreement provided by Lessee or its agents, representatives, employees, or subcontractors. mo Limits. Coverage shall be at least as broad as the following, with limits NO LESS THAN those established by the Minnesota Municipal Tort Claims Act: (1) Commercial General Liability (CGL) coverage on an occurrence form, including liability arising from premises, operations, independent contractors, products-completed operations, personal injury and Bo Co advertising injury, and contractual liability assumed under this agreement, with limits not less than $300,000 per person, and $1,000,000 per occurrence. The general aggregate limit shall not be less than $2,000,000 and shall apply separately to this Agreement. (2) 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. (3) Workers' compensation coverage as required by the state of Minnesota. (4) Business automobile coverage for liability, physical damage (comprehensive and collision), PIP, and 'UM/UI'M arising out of thc operation, maintenance or use of each Council. Vehicle used to provide the transit services outlined in Lessee's approved Management Plan and budget, whether the vehicle is owned, non-owned, rented or leased, with a Liability limit not less than the maximum tort liability limits stated in Minnesota Statutes section 466.04. UM/UIM and PIP limits shall not be less than statutory requirements. Deductibles and Self-Insured Retention. 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 Lessee shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions (1) The Council and its members, officials, employees, agents, and volunteers are to be covered as an additional insured under CGL, Business Arno. · under commercial umbrella. Lessee's insurance coverage shall contain special limitations on the scope of protection affbrded to the Council and its members, officials, employees, agents, or volunteers. (2) For any claims related to this Agreement, Lessee'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 Council or its members, officials, employees, agents, and volunteers shall be excess of Lessee's insurance and shall not contribute to it. (3) Any failure to comply with reporting provisions of the policies, including breaches of warranties shall not affect coverage provided to the Council or its members, officials, employees, agents, or volunteers. (4) Lessee 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 ot' the requirements stated in this Agreement. (5) Lessee'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. (6) Lessee and its insurers shall agree to waive all rights of subrogation against the Council and its members, officials, employees, agents, and volunteers for losses arising from performance of this Agreement. 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. 6.03 Verification of Coverage. The certificates of insurance and endorsements Ibr each insurance policy are to be signed by a person authorized by that insurer to bind coverage 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 Lessee's business or interests. It is the sole responsibility of Lessee 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 Lessec's liability under this Agreement nor to fulfill the indemnification provisions and requirements of this Agreement. Notwithstanding the policy or policies of insurance, Lessee and its contractor shall obligated for the full and total amount of any damage, injury, or loss connected with this Agreement. Lessee may satisfy the insurance requirements by warranting to the Council that it is self-insured and able to entertain claims in an amount sufficierit to indemnify the Council as provided in paragraph 6.01 above. In this instance, Lessee shall provide evidence acceptable to the Council, that Lessee 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. 6.03 Underlying Insurance. Lessee shall require indemnification and insurance coverage as it deems appropriate from its subcontractors providing services subsidized by this agreement. 6.04 Non-Waiver of Municipal Immunity and Limits. Nothing in this Agreement 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. VII. TERMINATION 7.01 Termination for Convenience. Either party, upon sixty (60) days written notice to the other party, may terminate this agreement with or without cause. 7.02 Termination for No Council Vehicles. This Agreement shall automatically terminate if Lessee is no longer in possession of any Council Vehicles. 7.03 Default. Lessee shall be in default under this Agreement if it fails to comply with the terms of this Agreement. If the parties have one or more operating agreements, Lessee shall also be in default under this Agreement if Lessee is in default under the terms ot~ anv of the parties' grant or operating agreements. Upon determination of non-compliance, thc Council slnall notify the Lessee of the claimed non-compliance. 7.04 Termination for Default. Upon default by Lessee and failure to cure said dc'lhult within 30 days of notice, the Council may immediately terminate this Agreement. If this Agreement is terminated due to default by Lessee, the Council shall not be precluded fi'om recovering actual damages to which it may be entitled and may exercise any other rights it has in law or equity to secure performance of this Agreement. VIII. FEDERAL REQUIREMENTS The requirements of this Article shall only apply to Council Vehicles that were purchased in whole or in part with federal dollars. In addition, if federal law changes throughout the term of this Lease, the requirements of this Article shall automatically change with the modified the federal law. 8.01 Federal Requirements. Purchase of the property which is the subject of this Agreement was funded in whole or in part by the United States Department of Transportation, Federal Transit Administration. The requirements in this Article VIII are in addition to and, unless inconsistent and irreconcilable, do not supplant requirements found elsewhere in this Agreement. If any requirement in this article is inconsistent with a provision found el sewhere this Agreement and is irreconcilable with such provision, the requirement in this article shall prevail. 8.02 Incorporation of Specific Federal Requirements. Specifically, and without limitation, the Lessee agrees to comply with the federal requirements set forth in Exhibit i), which is attached to and made a part of this Agreement, and agrees to require, unless specificz~lly exempted, third party contractors at every tier to comply with the same. 8.03 Compliance with Federal Requirements; Incorporation of Specific Documents by Reference. The Lessee agrees to comply with all federal statutes, rules, FTA Circulars, 10 Executive Orders, guidance, and other requirements which may be applicable to this Agreement. In particular, and without limitation, the Lessee agrees to comply with all applicable terms and conditions of the following documents with respect to the vehicles leased to Lessee under this Agreement: FTA Master Agreement (www. fta. dot.gov/library/legal/agree.htm) Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, 49 CFR Part 18 (www. access.gpo, gov/nara/cfr/waisidx_98/49cfr 18_98.html) · Grant Management Guidelines, FTA Circular 5010.1C (www. fta.dot.gov/library/policy/5010.1C/cover.htm) The listed documents are incorporated by reference into this Agreement. Copies of these documents are available at the internet websites indicated or, upon request by the Lessee, from the Council. 8.04 Provisions Subject to Change. The Lessee acknowledges that federal requirements in this article are subject to change and agrees that the most recent of these requirements shall govern this Agreement at any particular time. 8.05 No Federal Obligation. The property which is the subject of this Agreement was funded in whole or in part by federal funds. However, the United States is not a party to this Agreement and no reference in this Agreement to the United States, USDOT, FTA, or any representatives of the federal government makes the United States a party to this Agreement. The Lessee shall include this clause in any contracts or agreements under this Agreement. IX. GENERAL PROVISIONS 9.01 Amendments. The terms of this Agreement may be changed by mutual agreement of the parties. Such changes shall be effective only upon the execution of written amendments signed by authorized representatives of the Council and the Lessee. 9.02 Assignment. Without prior written consent of the Council, Lessee will not sell, assign, sublet, pledge or otherwise encumber any interest in this Lease of the Council Vehicles. The Council may assign its interest in this Lease and sell or grant a security interest in all or any part of the Council Vehicles without notice to or the consent of Lessee. Lessee agrees not to assert against any assignee of the Council any claim or defense Lessee may have against the Council. 9.03 Contract Complete. This Agreement contains all negotiations and agreements between the Council and Lessee. No other understanding regarding this Agreement, whether written or oral, may be used to bind either party. 9.04 Government Data Practices. Lessee must comply with the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, as it applies to all data providcd by the Council under this Agreement, and as it applies to all data created, collected, received, 11 stored, used, maintained, or disseminated by Lessee under this Agreement. The civil remedies of Minnesota Statutes, section 13.08, apply to the release of the data referred to in this clause by tl~¢ Lessee. 9.05 Consultation. Lessee agrees to notify the Council immediately of any change in conditions, local law, or any other event that may affect Lessee's ability to perform its responsibilities in accordance with the terms of this Agreement. 9.06 Compliance With Law. Lessee agrees to conduct its activities in compliance with all applicable laws and regulations. Lessee is responsible for obtaining all licenses, permits, or other approvals necessary for the operation of Council Vehicles and for making payment of any taxes or assessments related to this Agreement. are' 9.07 Authorized Representatives and Notice. The parties' Authorized Representatives Council: Carol Becker Council Authorized Representative Metropolitan Council Office of Metropolitan Transportation Services Mears Park Centre, 7th Floor 230 East Fifth Street. Saint Paul, Minnesota 55101 Lessee: Kelly Meyer City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, Minnesota 55372 or such other persons or addresses as either party may designate for itself in writing to thc other party. Notice for purpose of this Agreement shall be sufficient if delivered personally or if given by certified mail to the addresses shown above, and if mailed shall be deemed to have been given the day of mailing. 9.08 Equal Employment Opportunity; Affirmative Action. The Lessee agrees to comply with all applicable laws, rules, and regulation relating to nondiscrimination and affirmative action in public purchase, involvement, and use. In particular, the Lessee agrees not to discriminate against any employee or applicant for employment because of race, color, creed. religion, sex, sexual orientation, national origin, marital status, disability, status with regard to public assistance, membership or activity in a local civil rights commission, or age, and to take affirmative action to insure that applicants and employees are treated equally with respect to all aspects of employment, rates of pay and other forms of compensation, and selection tbr training. 12 9.09 Nonwaiver. The failure of the Council at any time to insist upon the strict performance by Lessee of any or all the terms, conditions, and covenants herein shall not be deemed a waiver by the Council of any subsequent breach or default by Lessee in the terms, conditions and covenants herein contained. 9.10 Venue. Venue for all legal proceedings arising out of this agreement, or its breach, must be in the appropriate state or federal court with competent jurisdiction in Ramsey County, Minnesota. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives on the dates set forth below. This Agreement is effective upon final execution by, and delivery to, both parties. METROPOLITAN COUNCIL LESSEE By: Manager Regional Transportation Services Title: Date: 13 Exhibit A Council Vehicles BUS NO. YEAR MANUFACTURER MODEL VIN 512 2002 Bluebird LTC-37 513 2002 Bluebird LTC-37 1BAGKBXA02F206190 1BAGKBXA22F206191 BUS Brake System front - rear - park - door - misc - Suspension System rods - bellows - axles - shocks - trailing arms - misc. - Steering System Power Unit - Hydraulics - Steering Rods - Sway Bars - Body Condition Damage - Doors - Panels - Paint - Mirrors - Glass - Lighting - Interior Seating - Stantions - Graffiti - Lighting - Floors - Ceiling & Walls - Drivers Seat- Exhibit B Regional Fleet Initial Condition Report H.V.A.C. Heating System - A.C. System- Wabasto - Engine Reman. - Rebuilt - Original - Conditions - Transmission Rebuilt - Warranty Repaired - Original - Condition - Comments BUS Brake System front - rear - park - door - misc - Suspension System rods - bellows - axles - shocks - trailing arms - misc. - Steering System Power Unit - Hydraulics - Steering Rods - Sway Bars - Body Condition Damage - Doors - Panels - Paint - Mirrors - Glass - Lighting - Interior Seating - Stations - Graffiti - Lighting - Floors - Ceiling & Walls- Drivers Seat- Exhibit C Regional Fleet Return Condition Report H.V.A.C. Heating System - A.C. System- Wabasto - Engine Rebuilt - Original - Conditions - Transmission Rebuilt - Warranty Repaired - Original - Condition - Comments Exhibit D Federal Transit Administration Requirements The Lessee acknowledges that this Lease Agreement involves property the purchase of which was funded in whole or in part by the United States Department of Transportation (USDOT), Federal Transit Administration (FTA). The requirements in this exhibit are in addition to and, unless inconsistent and irreconcilable, do not supplant requirements found elsewhere in this agreement, if any requirement of this exhibit is inconsistent with a provision found elsewhere in this agreement and is irreconcilable with such provision, the requirement in this exhibit shall prevail. Whenever the term "Contractor" appears in this exhibit it shall refer to the "Lessee." Fly America Requirements The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America Act") in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. Energy Conservation The Contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the federal Energy Policy and Conservation Act. Access to Records and Reports The Contractor agrees to provide the Metro Council, the FTA Administrator, the Comptroller General of the United States, and any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17, to provide the FTA Administrator or the Administrator's authorized representatives, including any project management oversight (PMO) contractor, access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(aX1), which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309, or 5311. The Contractor agrees to permit any of the foregoing parties to reproduce such documents by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. In addition to any requirements for maintenance of Work records and documents in other sections of this Contract. Contractor agrees to maintain such records and documents until the FTA Administrator, thc Comptroller General, or any of their duly authorized representatives have disposed of all litigation, appeals, claims or exceptions arising from the performance of this Contract Federal Changes The Contractor shall comply with the required FTA clauses set forth in this contract and with all applicable FTA regulations, policies, procedures and directives including, without limitation, those listed directly or by reference in the agreement between the Metro Council and FTA. The Contractor's failure to comply with applicable FTA regulations, policies, procedures, and directives, as they may be amended or promulgated from time to time during the term of this contract, shall constitute a material breach of this contract. Recovered Materials The Contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR part 247. No Obligation by the Federal Government The Metro Council and Contractor acknowledge and agree that, notwithstanding any concurrence by the federal government in or approval of the solicitation or award of this Contract, absent the exp,'ess written consent by the federal government, the federal government is not a party to this Contract and shall not be subject to any obligations or liabilities to the Metro Council, Contractor, or any ,~ther party (whether or not a party to the Contract) pertaining to any matter resulting from this Contract. The Contractor agrees to include the preceding clause in each subcontract under this Contract, modified only to identify the subcontractor that will be subject to the provisions. Program Fraud and False or Fraudulent Statements or Related Acts The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. Section 3801 et seq., and USDOT regulations, "Program Fraud Civil Remedies," 49 CFR part 31, apply to its actions pertaining to this contract. Upon execution of this contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement is has made, it .makes, it may make, or causes to be made, pertaining to the contract or the FTA-assisted project for whi ch th is contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose thc penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contraci connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. Section 5307, the Federal Government reserves the right to impose the penalties of 18 U.S.C. Section 1001 and 49 U.S.C. Section 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. The Contractor agrees to include the above language in each subcontract under this contract, modified only to identify the subcontractor that will be subject to the provisions. Civil Rights. The following requirements apply to this Contract: . Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it ~vill not discriminate against any employee or applicant for employment because of race, color, creed, ha ti origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable federal implementing regulations and other implementing requirements FTA may issue. 2. Equal Employment Opportunity. The following equal employment opporlunit), requirements apply to this Contract: a. Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 42 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of this Contract. The Contractor agrees to take affirmative action to ensure that applicants arc employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitmcm or recruitment advertising, layoff or termination; rates of pay or othe.r forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. b. Age. In accordance with section 4 of the Age Discrimination in Employment Ac~ ot' 1967, as amended, 29 U.S.C. §§ 623 and Federal transit law at 49 U.S.C. § 532, thc Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. c. Disabilities. In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. addition, the Contractor agrees to comply with any implementing requirements FTA may issue. Inclusion in Subcontracts. The Contractor agrees to include the requirements of this section in each subcontract under this contract, modified only to identify the subcontractor that will be subject to the provisions. Disadvantaged Business Enterprise ("DBE"). o , Nondiscrimination. Pursuant to 49 CFR section 26.13, the Contractor, sub-recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the Council deems appropriate. The Contractor shall include this requirement in all subcontracts pursuant to this contract. Prompt Payment. The Contractor agrees to pay subcontractors within ten (10) calendar days of the Contractor' s receipt of payment from the Council for undisputed sm'vices provided by the subcontractor. The Contractor agrees to pay subcontractors all tmdisputcd retainage payments within ten (10) calendar days of the Contractor's receipt of payment retainage from the Council. The Contractor shall not postpone or delay any undisputed payments owed subcontractors without good cause and without prior written consent o1' thc Council. The Contractor agrees to include in all subcontracts a provision requiring thc usc of appropriate alternative dispute resolution mechanisms to resolve payment disputes. Thc Contractor will not be reimbursed for work performed by subcontractors unless and until the Contractor ensures that subcontractors are promptly paid for work they have pcrVormcd. Failure to comply with the provisions of this section may result in the Co u nc il fi nd in g Contractor in noncompliance with the DBE provisions of this contract. Incorporation of FTA Terms Specific provisions in this contract include, in part, certain standard terms and conditions required by USDOT, whether or not expressly set forth in the contract provisions. All contractual provisions required by USDOT, as set forth in 49 CFR section 18.36 and FTA Circular 4220.1 D, dated April 15, 1996, are hereby incorporated by reference. Notwithstanding anything to the contrary in this contract, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this contract. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any Metro Council requests which would cause the Metro Council to be in violation the FTA terms and conditions. National Intelligent Transportation Systems Architecture and Standards To the extent applicable, the Contractor agrees to conform to the National Intelligent Transportation Systems (ITS) Architecture and Standards as required by section 5206(e) of TEA-21,23 U.S.C. § 502 note, and to comply with FTA Notice, "FTA National ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq., January 8, 2001, and other Federal requirements that may be issued. Clean Water The Contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq. The Contractor agrees to report each violation to the Metro Council and understands and agrees that the Metro Council will, in turn, report each violation as required to assure notification to FTA and the appropriate Environmental Protection Agency (EPA) Regional Office. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. Certification of Restrictions on Lobbying; Disclosure The Contractor certifies that no federal appropriated funds have been paid or will be paid by or on behalf of the Contractor for influencing or attempting to influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and thc extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, cooperative agreement. The certification of this compliance ("Lobbying Restriction Certification") submitted by Contractor in connection with this Work is incorporated in, and made a par! or', this contract. The Contractor further certifies that, if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee or any federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the Works funded by the funds allocated to the Contractor in this agreement, the Contractor shall complete and submit to the Metro Council, Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. The Contractor certifies that it will require the language of this certification be included in the award documents for any subcontracts equal to or in excess of $100,000.00 under this agreement, and that all subcontractors shall certify and disclose accordingly to the Contractor. All certifications and disclosures shall be forwarded to the Metro Council by the Contractor. The certifications referred to in this section (including the "Lobbying Restriction Certification" submitted by Contractor in connection with this Work and incorporated in, and made a part ot; this contract) are material representations of fact upon which the Metro Council relies when this contract is made. Clean Air The Contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. section 7401 et seq. The Contractor agrees to report each violation to the Metro Council and understands and agrees that the Metro Council will, in turn, report each violation as required to assure notification to FTA and the appropriate Environmental Protection Agency (EPA) Regional Office. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. Integrity Certification By signing this contract, the Contractor certifies that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this contract by any Federal department or agency. This certification is a material representation fact upon which the Metro Council relies in entering this contract. If it is later detcrmi ned that thc Contractor knowingly rendered an erroneous certification, in addition to other remedies availabl ~ to t la~ Federal Government, the department or agency with which this transaction originated may pttrsue available remedies, including suspension and/or debarment. The Contractor shall provide to Council immediate written notice if at any time the Contractor learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. Charter Service Operations The Contractor agrees to comply with 49 U.S.C. section 5323(d) and 49 CFR part 604, which provide that recipients and subrecipients of FTA assistance are prohibited from providing charter service using federally-funded equipment or facilities if there is at least one private charter operator willing and able to provide the service, except under one of the exceptions at 49 CFR section 604.9. Any charter service provided under one of the exceptions must be "incidental," i.e., it must not interfere with or detract from the provision of public transit services. School Bus Operations Pursuant to 49 U.S.C. section 5323(f) and 49 CFR part 605, recipients and subrecipients of FTA assistance may not engage in school bus operations exclusively for the transportation of students and school personnel in competition with private school bus operators unless qualified under specified exemptions. When operating exclusive school bus service under an allowable exemption, recipic.~ts and subrecipients may not use federally-funded equipment, vehicles, or facilities. Contract Work Hours and Safety Standards Act; Overtime Requirements No Contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in workweek, unless such laborer or mechanic receives compensation at a rate not less than one and half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. In thc event of any violation of these Overtime Requirements, the Contractor and any subcontractor responsible for a violation shall be liable for the unpaid wages. In addition, the Contractor and subcontractor shall be tiable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation oft he Overtime Requirements, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the Overtime Requirements clause forth in this paragraph. The Council shall, upon its own action or upon written request of an authorized representative of thc Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under this contract or any other Federal contract with ~lae same Contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same Contractor, such sums as may be determined to bc necessary to satisfy any liabilities of the Contractor or subcontractor for unpaid wages and liquidalcd damages as provided in the Liquidated Damages clause set forth in this paragraph. As required by the Contract Work Hours and Safety Standards Act, the Contractor and any subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three (3) years from the completion of this Contract tbr all laborers and mechanics working at the site of the work on the Contract. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1 (b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever the Secretary of Labor has found under 29 C.F.R. section 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1 (b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. If the Contractor employs apprentices or trainees under approved programs, the Contractor shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. The Contractor or subcontractor shall insert in any subcontracts the clauses set tbrth in this paragraph and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this paragraph. Transit Employee Protective Provisions The Contractor agrees to comply with applicable transit employee protective requirements. To the extent that FTA determines that transit operations are involved, the Contractor agrees to carry out thc transit operations work on the underlying Contract in compliance with terms and conditions determined by the U.S. Secretary of Labor to be fair and equitable to protect the interests of employees employed under this Contract and to meet the employee protective requirements of 49 U.S.C. section 5333(b), and U.S. Department of Labor (DOL) guidelines at 29 C.F.R. part 215, and any amendments thereto. These terms and conditions are identified in the letter of certification from the U.S. DOL to FTA applicable to the Council's Work from which Federal assistance is provided to support work on the underlying Contract. The Contractor agrees to carry out that work in compliance with thc conditions stated in that U.S. DOL letter. The Contractor also agrees to include any applicable requirements in each subcontract involving transit operations financed in whole or in part with Fcdcral assistance provided by FTA. Drug Use and Alcohol Testing Program The Contractor agrees to establish implement and maintain a drug and alcohol testing program that complies with 49 CFR Parts 655 and 40, produce any documentation necessary to establish its compliance with Parts 655 and 40, and, to the extent provided by law, permit any authorized representative of the United States Department of Transportation or its operating administrations, and Metro Council, to review the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 655 and audit the testing process and documentation with reasonable notice. The Contractor will annually certify its compliance with Parts 655 by March 1 of each year of the Agreement. To certify compliance, the Contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants" and "Cooperative Agreements," which is published annually in the Federal Register. The Contractor shall submit to Metro Council written evidence of a program and certify compliance with the regulations including a copy of the Policy Statement developed to implement its drug and alcohol testing program, prior to commencement of service under this Agreement. The Contractor further agrees to notify Metro Council in writing of any changes or modifications to its drug and alcohol-testing program prior to implementing such changes or modifications.