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C07-26 McDonald Transit Associates-Manage, Maintain, and Operate Fixed Route And ADA/Dial a Ridee Including Call Center Services 1 AGREEMENT 2 BETWEEN 3 CITY OF BEAUMONT 4 AND 5 MCDONALD TRANSIT ASSOCIATES, INC. 6 7THIS AGREEMENT is made and entered into this t� day of December, 2007, by and 8 between the City of Beaumont, 550 East 6th Street, Beaumont, California 92223, (hereinafter 9 referred to as "CITY"), and McDonald Transit Associates, Inc. (hereinafter referred to as 10 "CONTRACTOR"). 11 12 WITNESSETH: 13 WHEREAS, CITY desires the services of CONTRACTOR to manage, maintain and operate 14 its Fixed Route and Americans with Disabilities Act(ADA)/Dial-A-Ride (DAR)and all related services 15 including call center services; and 16 WHEREAS, CONTRACTOR represents it has the experience and capability to manage, 17 maintain and operate the CITY's Fixed Route and ADA/DAR and all related services including call 18 center services. 19 NOW, THEREFORE, it is mutually understood and agreed by CITY and CONTRACTOR as 20 follows: 21 22 ARTICLE 1. CITY DESIGNEE 23 The City Manager of the CITY or his or her designee shall have the authority to act for and 24 exercise any of the rights of CITY as set forth in this Agreement. 25 1 1 ARTICLE 2. STATEMENT OF WORK 2 A. CONTRACTOR shall perform the work necessary to complete in a manner 3 satisfactory to CITY the services set forth in Exhibit A, entitled "Scope of Work" attached to and, by 4 this reference, incorporated in and made a part of this Agreement. 5 B. CONTRACTOR shall provide the personnel listed below to perform the above- 6 specified services, which persons are hereby designated as key personnel under this Agreement. 7 Name Functions 8 To Be Chosen by City General Manager 9 Kenneth Housden Start-Up Specialist 10 To Be Chosen by City Customer Service Coordinator 11 C. No person named in paragraph B of this Article, or his/her successor approved by 12 CITY, shall be removed or replaced by CONTRACTOR, nor shall his/her agreed-upon function or 13 level of commitment hereunder be changed, without the prior written consent of CITY. Should the 14 services of any key person become no longer available to CONTRACTOR, the resume and 15 qualifications of the proposed replacement shall be submitted to CITY for approval as soon as 16 possible, but in no event later than seven (7)calendar days prior to the departure of the incumbent 17 key person, unless CONTRACTOR is not provided with such notice by the departing employee. 18 CITY shall respond to CONTRACTOR within seven (7) calendar days following receipt of these 19 qualifications concerning acceptance of the candidate for replacement. 20 21 ARTICLE 3. TERM OF AGREEMENT 22 A. This Agreement shall commence upon execution by both parties, and shall continue 23 in full force and effect for two years thereafter, unless earlier terminated or extended as provided in 24 this Agreement. 25 2 1 B. CITY, at its sole discretion, may elect to extend the term of this Agreement twice, for an 2 additional twenty-four(24) months for each extension. The cost of service during each extension 3 period shall be negotiated at least 90 days before the end of the immediately-preceding term. If a 4 cost satisfactory to the CITY cannot be negotiated,this Agreement shall terminate. 5 6 ARTICLE 4. PAYMENT 7 A. For CONTRACTOR's full and complete performance during the billing period of the 8 Services under this Agreement, CITY agrees to pay CONTRACTOR the fixed monthly fee as set 9 forth in Exhibit B, entitled "Cost of Services", which is attached to and by this reference made a part 10 of this Agreement. 11 B. On or before the 10th of each month, CONTRACTOR shall submit an invoice for 12 services to the CITY's Resources Director, itemizing CONTRACTOR's services within and on behalf 13 of the City. Contractor shall bill the City of Banning separately for CONTRACTOR's services within 14 and on behalf of that City. Each invoice shall cite this Agreement, the time period covered by the 15 invoice and the amount of payment requested; all relevant back-up documentation, including 16 monthly operations summaries, and productivity attained. CITY shall remit payment within thirty(30) 17 days of receipt and approval of each invoice. If any portion of the invoice is disputed by CITY, CITY 18 agrees to reimburse CONTRACTOR for all undisputed costs. Disputed costs shall be resolved in 30 19 days and be included in the subsequent month's payment to CONTRACTOR. 20 C. CONTRACTOR acknowledges and agrees that CITY shall only be responsible for 21 services rendered by CONTRACTOR to CITY, and that CITY is not responsible for any unpaid 22 invoices that are the responsibility of the City of Banning. 23 3 1 ARTICLE 5. FARE BOX REVENUE 2 All cash revenues collected by CONTRACTOR shall be delivered to and retained by CITY. 3 CONTRACTOR shall report in writing, all fares, transfers and passes received and an accurate 4 passenger count for each month by service type. 5 6 ARTICLE 6. INDEPENDENT CONTRACTOR 7 CONTRACTOR is and shall at all times remain a wholly independent CONTRACTOR and 8 not an officer, employee or agent of CITY. CONTRACTOR shall have no authority to bind CITY in 9 any manner, or to incur any obligation, debt or liability of any kind on behalf of or against CITY, 10 whether by contract or otherwise, unless such authority is expressly conferred under this Agreement 11 or is otherwise expressly conferred in writing by CITY. 12 The personnel performing the services under this Agreement on behalf of CONTRACTOR 13 shall at all times be under CONTRACTOR's exclusive direction and control. Neither CITY, nor any 14 elected or appointed boards, officers, officials, employees or agents of CITY, shall have control over 15 the conduct of CONTRACTOR or any of CONTRACTOR's officers, employees, or agents except as 16 set forth in this Agreement. CONTRACTOR shall not at any time or in any manner represent that 17 CONTRACTOR or any of CONTRACTOR's officers, employees, or agents are in any manner 18 officials, officers, employees or agents of City. 19 Neither CONTRACTOR, nor any of CONTRACTOR's officers, employees or agents, shall 20 obtain any rights to retirement, health care or any other benefits which may otherwise accrue to 21 CITY's employees. CONTRACTOR expressly waives any claim CONTRACTOR may have to any 22 such rights. 23 4 1 ARTICLE 7. CITY-FURNISHED EQUIPMENT 2 CITY shall provide CONTRACTOR with the revenue vehicles necessary for CONTRACTOR 3 to perform its obligations under this Agreement. CONTRACTOR shall be liable to CITY for any 4 damage to or loss of CITY vehicles, fareboxes and other components of said vehicles when caused 5 by CONTRACTOR's negligence, abuse or misuse of vehicle, but in no event shall such liability 6 exceed the replacement cost of the vehicle(s)or other property damaged or lost. 7 Unless otherwise provided in this Agreement, upon delivery to CONTRACTOR or 8 manufacture or acquisition by it of any materials, parts, tooling or other property to which CITY 9 possesses title, or which CITY has otherwise furnished to CONTRACTOR, CONTRACTOR assumes 10 the risk of, and shall be responsible for, any damages to or loss of such property. In any event, upon 11 the conclusion of this Agreement or upon demand by CITY, CONTRACTOR shall return such 12 property to CITY in the condition in which it was received, except for reasonable wear and tear, and 13 except for such property as has been reasonably consumed in the performance of the Services 14 under this Agreement. 15 16 ARTICLE 8. INSURANCE 17 A. CONTRACTOR shall procure and maintain insurance coverage during the entire 18 term of the Agreement. Coverage shall be full coverage and not subject to self-insurance provisions. 19 The CONTRACTOR shall provide the following insurance coverage: 20 1. Commercial General Liability, to include Premises/Operations, Contractual, 21 Operations, Independent Contractors, and Personal Injury Liability with at least$5,000,000 of 22 coverage; 23 2. Automobile Liability Insurance with the following limits: 24 a) Primary Bodily Injury with limits of$5,000,000 per person; and 25 b) Primary Bodily Injury with limits of$5,000,000 per accident; and 5 1 c) Primary Property Damage with limits of$5,000,000; 2 3. Workers' Compensation with limits as required by the State of California; 3 4. Employer's Liability with limits of$5,000,000; and 4 B. Proof of such coverage, in the form of an insurance company issued policy 5 endorsement and a broker-issued insurance certificate, must be received by CITY within ten (10) 6 calendar days from the date of execution of the Agreement; with the City of Beaumont, its officers, 7 directors, employees and agents designated as additional insureds. Furthermore, CITY reserves the 8 right to request certified copies of all related insurance policies. 9 C. CONTRACTOR shall furnish to CITY's Resources Director a broker-issued certificate 10 of insurance showing the required coverage for CONTRACTOR and further providing that: 11 1. CITY is named as additional insured(s)on the Comprehensive General 12 Liability and Comprehensive Automobile Liability insurance with respect to performance 13 hereunder; and 14 2. The coverage shall be primary and noncontributory as to any other insurance 15 with respect to performance hereunder; and 16 3. Thirty(30) days prior written notice of cancellation or material change in 17 insurance coverage to be given to CITY. 18 19 ARTICLE 9. CHANGES 20 By written notice or order, CITY may, from time to time, order suspension of work or make 21 changes in the general scope of this Agreement, including, but not limited to,the services furnished 22 to CITY by CONTRACTOR as described in the Scope of Work. If any such work suspension or 23 change causes an increase or decrease in the price of this Agreement or in the time required for its 24 performance, CONTRACTOR shall promptly notify CITY thereof, and an equitable adjustment shall 6 1 be negotiated. However, nothing in this clause shall excuse CONTRACTOR from proceeding 2 immediately with the agreement as changed. 3 4 ARTICLE 10. DISPUTES 5 A. Except as otherwise provided in this Agreement, any dispute arising under this 6 Agreement which is not disposed of by supplemental agreement shall be decided by CITY's 7 Resources Director, who shall reduce the decision to writing and mail or otherwise furnish a copy 8 thereof to CONTRACTOR. The decision of the Resources Director shall be final and conclusive 9 unless, within thirty(30)calendar days from the date of receipt of such copy, CONTRACTOR mails 10 or otherwise furnishes to the Resources Director, a written appeal addressed to CITY's City 11 Manager. The decision of the CITY's City Manager or duly authorized representative for the 12 determination of such appeals shall be final and conclusive. Pending the decision of a dispute 13 hereunder, CONTRACTOR shall proceed diligently with the performance of this Agreement. 14 15 ARTICLE 11. NOTICE OF LABOR DISPUTE 16 Whenever CONTRACTOR has knowledge that any actual or potential labor dispute may 17 delay performance of the Agreement, CONTRACTOR shall immediately notify and submit all 18 relevant information to CITY and assist CITY in developing a plan to continue service. 19 CONTRACTOR shall insert the substance of this entire clause in all subcontracts hereunder. 20 21 ARTICLE 12. TERMINATION 22 Termination for convenience 23 CITY may, by giving 120-day written notice in the second year of this Agreement, terminate 24 the Agreement in whole or in part in its sole and absolute discretion. Upon termination of this 7 1 Agreement, CITY shall only be liable for payment for services rendered or supplies furnished prior to 2 the effective date of termination. 3 Termination for default 4 CITY may, by written notice of default to the CONTRACTOR, terminate the contract in whole 5 or in part if the CONTRACTOR fails to: 6 1. Perform the services as identified and/or within the time specified in this Agreement 7 or any extension; 8 2. Progress successfully through services thereby endangering performance of this 9 Agreement; or 10 3. Perform any of the other provisions of this Agreement. 11 CITY's right to terminate this Agreement may be exercised if the CONTRACTOR does not cure, as 12 provided in Article 13, or make a good effort to cure, such failure within five(5)days after receipt of a 13 written notice from CITY. 14 15 ARTICLE 13. DEFAULT 16 In the event that CONTRACTOR is in default under the terms of this Agreement, the CITY 17 shall not have any obligation or duty to continue compensating CONTRACTOR for any work 18 performed after the date of default. Instead, the CITY may give notice to CONTRACTOR of the 19 default and the reasons for the default. The notice shall include the timeframe in which 20 CONTRACTOR may cure the default. This timeframe is presumptively thirty(30)days, but may be 21 extended, though not reduced, if circumstances warrant. During the period of time that 22 CONTRACTOR is in default, the CITY shall hold all invoices and shall, when the default is cured, 23 proceed with payment on the invoices. In the alternative, the CITY may, in its sole discretion, elect 24 to pay some or all of the outstanding invoices during the period of default. If CONTRACTOR does 25 not cure the default, the CITY may take necessary steps to terminate this Agreement under Article 8 1 14. Any failure on the part of the CITY to give notice of the CONTRACTOR's default shall not be 2 deemed to result in a waiver of the CITY's legal rights or any rights arising out of any provision of 3 this Agreement. 4 5 ARTICLE 14. INDEMNIFICATION 6 A. Indemnification for Professional Liability. Where the law establishes a professional 7 standard of care for CONTRACTOR's Services, to the fullest extent permitted by law, 8 CONTRACTOR shall indemnify, protect, defend and hold harmless CITY and any and all of its 9 officials, employees and agents ("Indemnified Parties")from and against any and all losses, 10 liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are 11 caused in whole or in part by any negligent or wrongful act, error or omission of CONTRACTOR, its 12 officers, agents, employees or sub-CONTRACTORs(or any entity or individual that CONTRACTOR 13 shall bear the legal liability thereof) in the performance of professional services under this 14 Agreement. 15 B. Indemnification for Other than Professional Liability. Other than in the performance 16 of professional services and to the full extent permitted by law, CONTRACTOR shall indemnify, 17 protect, defend and hold harmless City, and any and all of its employees, officials and agents from 18 and against any liability(including liability for claims, suits, actions, arbitration proceedings, 19 administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether 20 actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, 21 and expert witness fees), where the same arise out of, are a consequence of, or are in any way 22 attributable to, in whole or in part, the performance of this Agreement by CONTRACTOR or by any 23 individual or entity for which CONTRACTOR is legally liable, including but not limited to officers, 24 agents, employees or sub-contractors of CONTRACTOR. 9 1 C. General Indemnification Provisions. CONTRACTOR agrees to obtain executed 2 indemnity Agreements with provisions identical to those set forth here in this section from each and 3 every sub contractor or any other person or entity involved by, for, with or on behalf of 4 CONTRACTOR in the performance of this Agreement. In the event CONTRACTOR fails to obtain 5 such indemnity obligations from others as required here, CONTRACTOR agrees to be fully 6 responsible according to the terms of this section. Failure of CITY to monitor compliance with these 7 requirements imposes no additional obligations on CITY and will in no way act as a waiver of any 8 rights hereunder. This obligation to indemnify and defend CITY as set forth here is binding on the 9 successors, assigns or heirs of CONTRACTOR and shall survive the termination of this Agreement 10 or this section. 11 The provisions of this section do not apply to claims occurring as a result of CITY's sole 12 negligence or willful acts or omissions. 13 14 ARTICLE 15. WARRANTY 15 The CONTRACTOR warrants and represents that it is fully experienced and properly 16 qualified to perform the class of services required for this Agreement and that it is properly licensed, 17 equipped, organized and financed to perform the Services. 18 The CONTRACTOR warrants and represents that all Services shall be in accordance with 19 this Agreement. In the event of a breach of this warranty, the CONTRACTOR shall take all 20 necessary and required actions to correct the breach and the consequences thereof, at the 21 CONTRACTOR's sole expense, in the most expeditious manner as permitted by existing 22 circumstances. If the CONTRACTOR does not promptly take steps to correct the breach upon 23 notification by CITY, the CITY, without waiving any other rights or remedies it may have at law or 24 otherwise, may do so or cause others to do so and the CONTRACTOR shall promptly reimburse the 25 CITY for all expenses and costs incurred in connection therewith. 10 1 ARTICLE 16. ASSIGNMENT AND SUBCONTRACTING 2 A. Neither this Agreement nor any interest herein nor claim hereunder may be assigned 3 by CONTRACTOR either voluntarily or by operation of law, nor may all or any part of this Agreement 4 be subcontracted by CONTRACTOR, without the prior written consent of CITY. Consent by CITY 5 shall not be deemed to relieve CONTRACTOR of its obligations to comply fully with all terms and 6 conditions of this Agreement. 7 8 ARTICLE 17. AUDIT AND INSPECTION OF RECORDS, EQUIPMENT, FACILITIES 9 CONTRACTOR shall provide CITY such access to CONTRACTOR's accounting books, 10 records, payroll documents, equipment, and facilities which relate to services provided under this 11 Agreement as is necessary for the purposes of examining and inspecting facilities and equipment 12 and auditing all accounting books, records, work data, documents and activities related hereto. 13 CONTRACTOR shall maintain such books, records, data and documents in accordance with 14 generally accepted accounting principles and shall clearly identify and make such items readily 15 accessible to such parties during CONTRACTOR's performance hereunder and for a period of four 16 (4)years from the date of final payment by CITY. CITY's right to inspect and to audit books and 17 records directly related to this Agreement shall also extend to all subcontractors identified in this 18 Agreement. CONTRACTOR shall permit CITY to reproduce by any means whatsoever or to copy 19 excerpts and transcriptions as reasonably necessary. 20 21 ARTICLE 18. COMPLIANCE WITH LAW 22 CONTRACTOR warrants that in the performance of this Agreement, it shall comply with all 23 applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and 24 regulations promulgated thereunder. 25 11 1 ARTICLE 19. OWNERSHIP OF REPORTS AND DOCUMENTS 2 Upon termination of this Agreement, the originals of all letters, documents, reports and other 3 products and data produced under this Agreement shall be delivered to, and become the property of 4 CITY. Copies may be made for CONTRACTOR's records but shall not be furnished to others 5 without written authorization from CITY. Such deliverables shall be deemed works made for hire 6 and all rights in copyright therein shall be retained by CITY. 7 8 ARTICLE 20. FINISHED AND PRELIMINARY DATA 9 A. All of CONTRACTOR's finished technical data, developed specifically for the CITY, 10 including but not limited to, technical documentation and user documentation, photoprints and other 11 graphic information required to be furnished under this Agreement, shall be CITY's property upon 12 payment and shall be furnished with unlimited rights and, as such, shall be free from proprietary 13 restriction except as elsewhere authorized in this Agreement. CONTRACTOR further agrees that it 14 shall have no interest or claim to such finished, CITY-owned, technical data; furthermore, said data 15 is subject to the provisions of the California Public Records Act. 16 B. It is expressly understood that any title to preliminary technical data is not passed to 17 CITY but is retained by CONTRACTOR. Preliminary data includes roughs, visualizations, software 18 design documents, layouts and comprehensives prepared by CONTRACTOR solely for the purpose 19 of demonstrating an idea or message for CITY's acceptance before approval is given for preparation 20 of finished artwork. Preliminary data title and right thereto shall be made available to CITY if 21 CONTRACTOR causes CITY to terminate this Agreement and a price shall be negotiated for all 22 preliminary data. 23 12 1 ARTICLE 21. NOTICES 2 All notices hereunder and communications regarding the interpretation of the terms of this 3 Agreement, or changes thereto, shall be effected by delivery of said notices in person or by 4 depositing said notices in the U.S. mail, registered or certified mail, return receipt requested, 5 postage prepaid and addressed as follows: 6 7 To CONTRACTOR: To CITY: 8 McDonald Transit Associates, Inc. City of Beaumont 9 4500 Mercantile Plaza Dr., Suite,307 550 East 6th Street 10 Fort Worth, TX 76137 Beaumont, CA 92223 11 12 ATTN: Robert T. Babbitt ATTENTION: Elizabeth Urtiaga 13 President and CEO Resources Director 14 (817)232-9551 (951) 769-8521 15 FAX: (817)232-9560 FAX: (951) 769-8525 16 17 ARTICLE 22. ENTIRE AGREEMENT 18 This Agreement, including the attached Exhibits "A" and "B", is the entire, complete, final and 19 exclusive expression of the parties with respect to the matters addressed therein and supersedes all 20 other Agreements or understandings,whether oral or written, or entered into between Contractor 21 and City prior to the execution of this Agreement. No statements, representations or other 22 Agreements, whether oral or written, made by any party which are not embodied herein shall be 23 valid and binding. No amendment to this Agreement shall be valid and binding unless in writing duly 24 executed by the parties or their authorized representatives. 25 13 1 ARTICLE 23. WAIVER 2 Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement 3 shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any 4 breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a 5 waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by 6 City of any work or services by Contractor shall not constitute a waiver of any of the provisions of 7 this Agreement. 8 9 ARTICLE 24. MODIFICATION OF AGREEMENT 10 No amendment to or modification of this Agreement shall be valid unless made in writing and 11 approved by the Contractor and by the City Council. The parties agree that this requirement for 12 written modifications cannot be waived and that any attempted waiver shall be void. 13 14 ARTICLE 25. AUTHORITY TO EXECUTE 15 The person or persons executing this Agreement on behalf of Contractor represents and 16 warrants that he/she/they has/have the authority to so execute this Agreement and to bind 17 Contractor to the performance of its obligations hereunder. 18 19 ARTICLE 26. LAW TO GOVERN VENUE 20 This Agreement shall be interpreted, construed and governed according to the laws of the 21 State of California. In the event of litigation between the parties, venue in state trial courts shall lie 22 exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, 23 venue shall lie exclusively in the Central District of California, in Los Angeles. 24 14 1 ARTICLE 27. SEVERABILITY 2 If any term, condition or covenant of this Agreement is declared or determined by any court 3 of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this 4 Agreement shall not be affected thereby and the Agreement shall be read and construed without the 5 invalid, void or unenforceable provision(s). 6 7 ARTICLE 28. FORCE MAJEURE 8 Either party shall be excused from performing its obligations under this Agreement during the 9 time and to the extent that it is prevented from performing by an unforeseeable cause beyond its 10 control including, but not limited to: labor strikes, any incidence of fire, flood, acts of God; 11 commandeering of material, products, plants or facilities by the federal, state or local government; 12 national fuel shortage; or a material act of omission by the other party; when satisfactory evidence of 13 such cause is presented to the other party, and provided further that such nonperformance is 14 unforeseeable, beyond the control and is not due to the fault or negligence of the party not 15 performing. 16 17 IN WITNESS WHEREOF,the Parties hereto have executed this Agreement to be effective 18 as of the date first above written. 19 20 MCDONALD R Sy( SO I CITY = AU • 21 By B /,LdL , 22 Robert T. Babbitt Alan C. Ka.:nic.- 23 President City Manager 24 25 15 1 EXHIBIT"A" 2 2 SCOPE OF SERVICES 3 4 I. Consultant will perform the following Services: 5 6 A. Provide necessary management and administrative personnel whose expertise will 7 ensure efficient operation of services including scheduling of personnel on routes 8 and other daily functions ; 9 10 B. Operate and manage existing ADA/Dial-A-Ride service at optimal levels; 11 12 C. Operate and manage existing Fixed Route service at optimal levels; 13 14 D. Collect all fares from passengers and submit cash revenue to the City's Finance 15 Department daily in a secure manner; 16 17 E. Provide call center services in accordance with current business operating hours; 18 19 F. Safety and training for all transit personnel; 20 21 G. Fleet maintenance operations including properly maintaining, ensuring full 22 operability, body-damage free, and clean vehicles; 23 24 H. Representation at all meetings involving RCTC in which City personnel's attendance 25 is required; 16 1 I. Interface with RCTC regarding grants or any other matters as they arise; 2 3 J. Provide immediate supervisory personnel response to all emergencies; 4 5 K. Maintain cleanliness and safety of all transit facilities including bus shelters; 6 7 L. TransTrack and data entry relating to routes, passengers and fares. 8 9 M. Management oversight of operating budgets and related procurement functions; 10 policies and procedures; and compliance with laws and regulations 11 12 II. As part of the Services, Consultant will prepare and deliver the following tangible work 13 products to the City: 14 15 A. Complete and comprehensive annual Short Range Transit Plan; 16 17 B. CHP annual terminal inspection, safety compliance report, and air quality reports with 18 satisfactory ratings in all categories; 19 20 C. Written and oral reports to City Council as may be necessary; 21 22 D. Written and oral reports to the TAC of Pass Transit Agency as may be necessary 23 17 1 III. During performance of the Services, Consultant will keep the City appraised of the status of 2 performance by delivering the following status reports: 3 4 A. Monthly Operating Report to include monthly operating data as follows: Vehicle 5 Revenue Hours, Vehicle Revenue Miles, Vehicle Productivity, Total Vehicle Hours, 6 Total Vehicle Miles, Deadhead Hours, Deadhead Hours from Gate to First Pick-Up, 7 Deadhead Hours from Last Drop-off to the Yard, Deadhead Miles, Scheduled Trips, 8 Total Trips, Total Passengers by Fare Type, No-Shows, and Cancelled Trips on 9 Service Day, Missed Trips, Average Ride Time, On Time Performance, All Trip 10 Denials, Cash Fare Receipts by Day(projected and actual),Wheelchair/ADA 11 Passengers, Odometer by Vehicle/Peak Vehicle Activity, and Vehicle Failures. 12 13 B. Monthly Operating Report data entry into RCTC's web-based TransTrack software 14 program; 15 16 C. Maintenance reports, driver manifests and/or maintenance record evaluations; 17 18 D. Completed accident and incident reports as well as customer comments/complaints; 19 20 E. Monthly billings reflecting a detailed accounting of cost broken down by FTE, the 21 tasks being performed, and the required hours. 22 18 1 IV. The tangible work products and status reports will be delivered to the City pursuant to the 2 following schedule: 3 4 A. Monthly Operating Reports are due on or before the third business day of the 5 following month; 6 7 B. TransTrack data must be entered on or before the third business day of the following 8 month; 9 10 C. Maintenance reports, driver manifests and/or maintenance record evaluations on or 11 before the third business day of the following month; 12 13 D. Completed accident and incident reports as well as customer comments/complaints 14 within 5 hours after such written report is taken; 15 16 V. Consultant will utilize the following personnel to accomplish the Services: 17 18 A. Project Manager 19 20 B. Assistant Project Manager 21 22 C. Customer Service Coordinator(Dispatcher) 23 24 19 1 VI. AMENDMENT 2 The Scope of Services, including services, work products, and personnel, are subject to 3 change by mutual Agreement. In the absence of mutual Agreement regarding the need to change 4 any aspects of performance, Consultant shall comply with the Scope of Services as indicated above. 20 1 2 City of Beaumont - Year 1 3 Task Annual Annual Article 2 - Statement of Work Annual Exhibit AI $227,800 Exhibit All 10,000 Exhibit AIII 10,000 Exhibit AIV 10,000 Total $257,800 Exhibit AV - Project Manager $120,600 Assistant Project Manager $79,200 Customer Service Coordinator $58,000 Total $257,800 4 5 Note: Insurance requirements are not included above and are assessed separately. 6 Article 8 - Insurance $300 per month per City- General Liability 7 $700 per month per Vehicle- Auto Liability and Physical Damage 8 9 Worker Compensation for McDonald Transit employees included in employee costs. 21 1 2 City of Beaumont - Year 2 3 Task Annual Annual Article 2 - Statement of Work Annual Exhibit AI $239,190 Exhibit All 10,500 Exhibit AIII 10,500 Exhibit AIV 10,500 Total $270,690 Exhibit AV - Project Manager $126,630 Assistant Project Manager $83,160 Customer Service Coordinator $60,900 Total $270,690 4 5 Note: Insurance requirements are not included above and are assessed separately. 6 Article 8 - Insurance $300 per month per City- General Liability 7 $750 per month per Vehicle- Auto Liability and Physical Damage 8 9 Worker Compensation for McDonald Transit employees included in employee costs. 10 11 12 13 14 22 Minutes -�, Beaumont City Council Beaumont Redevelopment Agency Beaumont Financing Authority Beaumont Utility Authority 550 E. 6th Street, Beaumont, California City Council Workshop (4:00 p.m.) Closed Session (5:00 p.m.) . Regular Session (6:00 p.m.) Tuesday, November 6, 2007 WORKSHOP SESSION Workshop began 4:00 p.m. Place: Civic Center, Room 5 Roll Call: Mayor Pro Tern DeForge, Council Member Berg, Council Member Killough, Council Member Dressel were present. Mayor Fox was excused. 1) Wind Storm Update (4:00 p.m. to 4:15 p.m.) 2) Discussion on Mobile Command Center for Beaumont Police & Fire Departments (4:15 p.m. to 4:45p.m.) 3) Animal Care Update (4:45p.m. to 5:00 p.m.) Items included in the workshop session are for discussion purposes only. No action by the city council is taken at this time. This portion of the agenda is to give input and receive clarification for items on the scheduled agenda or for future agenda's. CLOSED SESSION - No Action Taken Closed Session began at 5:00 p.m. Place: Civic Center Conference Room Roll Call: Mayor Pro Tem DeForge, Council Member Berg, Council Member Killough, Council Member Dressel were present. Mayor Fox was excused. a. Pursuant to Government Code Section 54957.6, Conference with Labor Negotiator—City Negotiator as Personnel Director Alan Kapanicas Employee Organizations and Staffing b. Pursuant to Government Code Section 54956.8 Conference with Real Property Negotiator Property Generally Located at: 1. Government Code Section 54956.8—4th Street& Beaumont Avenue c. Pursuant to Government Code Section 54956.9(a) -Anticipated Litigation— Conference with Legal Counsel — Existing Litigation(Government Code 54956.9) 1. Outdoor Media Group, Inc. vs. City of Beaumont—Case No. ED CV 03- °1461 RT SGLx 2. Peters vs. City—Case No. RIC 467388 1 REGULAR SESSION Regular Session began at 6:04 p.m. Place: Civic Center, Room 5 Roll Call: Mayor Pro Tem DeForge, Council Member Berg, Council Member Killough, Council Member Dressel were present. Mayor Fox was excused. Invocation: Council Member Berg Pledge of Allegiance: Council Member Berg Presentation: 1) Beaumont Police Department presented Fire Chief Andrew Bennett with a card of appreciation for Exceeding the City's Expectations in assisting with the Police Department. 2) Introduction of Officer Sean Thuilliez Adjustments to Agenda: No Adjustments ORAL AND WRITTEN COMMUNICATIONS: Anyone wishing to address the City Council on any matter not on the agenda of this meeting may do so now. The oral communications portion of the agenda is to hear public comments. Anyone wishing to speak on an item on the agenda may do so at the time the Council considers that item. All person(s) wishing to speak must fill out a "Request to Speak Form" and give it to the City Clerk at the beginning of the meeting. The forms are available on the table at the back of the room. There is a three (3) minute limit on public comments. There will be no sharing or passing of time to another person. Nancy Hall—Thank the City for the Nice Reception for the Tracy Caldwell homecoming. Item 3.e—Consent Calendar—Acceptance of TUMF Public Improvements and Exoneration of Bond — Did Urban Logic perform any of the work that was done on the projects? Are they inspecting the own work? City Attorney clarified that there is no conflict of interest. Judy Bingham —Trespassing issues on her private property. Rev. Jeff Wilhelm — Invitation to St. Stephen's Christmas Dinner to raise funds for building a homeless shelter. Report on Oral and Written Communications (City Manager) ♦ A 1. COUNCIL REPORTS a) Mayor Fox b) Mayor Pro Tern DeForge c) Council Member Berg d) Council Member Dressel e) Council Member Killough 2. CITY MANAGER REPORTS a. Community Information Update 1) Wind Storm Update 2) Committee Assignments a) Down Town Plan Ad Hoc Members 1) Planning Commission Bennecke 2) Chamber President Walling 3) Business Member Mrs. St. Martin 4) Officer Sean Thuilliez c. Local Project Update 1) Tire/E Waste Recycling Update d. What's That and Rumor Control 3. CONSENT CALENDAR a. Approval of all Ordinances and Resolutions to be read by title only and publish by summary. b. Approval of the Minutes of the City Council Meeting October 16, 2007. c. Approval of the Warrant List for November 6, 2007. d. Tentative Tract Map No. 33851 (East of Orchard Heights and South of Norman Road), Request for One Year Time Extension Applicant: Raab Engineering e. Acceptance of TUMF Public Improvements and Exoneration of the Maintenance Bond for Portions of Oak Valley Parkway, Veile Avenue, First Street, Desert Lawn Drive, and Highland Springs Avenue. f. Approve Agreement with Union Pacific Railroad for the Potrero Blvd. Crossing South of Oak Valley Parkway. g. Approval of New Bikeway and Pedestrian Master Plan which could secure { State and/or Federal funding to implement new facilities. h. Approval of TUMF Credit Agreement Assignment for the Mannors/Tuscany IVillas for Construction of TUMF Facilities. Award the contract to McDonald Transit Associates subject to Banning's approval of the award "no later than November 30, 2007"; and Authorization for the City Attorney to make Non-Substantive Changes. j. Adoption of Resolution No. 2007-56—A Resolution Of The City Council Of The City of Beaumont Supporting the 24th Annual Redlands Bicycle Classic Sub-Race In Beaumont on April 4, 2008. Recommendation: Approval of the Consent Calendar as presented. Judy Bingham — Item 3.e —Would like clarification on the description of half- width. Alan Kapanicas, City Manager, gave a definition of half-width improvements and a staff report on Viele Ave. improvements as follows: 1. On Viele Avenue north of First Street, the road has been improved to an approximate pavement width of 31 feet to accommodate two full lanes of traffic. The standard lane width is 12 feet. Ultimately, Viele Avenue will be widened to accommodate four lanes of traffic. The ultimate four lane construction has been approved as part of the City's Adopted Circulation Element and the additional improvements necessary to provide the four lanes of traffic will be made as development continues in this area. 2. On Viele Avenue south of Fourth Street, the road has been widened to an approximate pavement width of 58 feet. This width allows four travel lanes, and current striping utilizes a left turn pocket to accommodate Motion by Council Member Berg, Seconded by Council Member Dressel to approve the Consent Calendar as presented. Vote: 4/0 4. ACTION ITEMS/PUBLIC HEARING/REQUESTS a. Ordinance No. 921 -An Ordinance of the City Council of the City of Beaumont, California Amending Chapter 8.12 of the Beaumont Municipal Code Entitled "Mandatory Solid Waste Collection and Disposal" Recommendation: Hold a Public Hearing and Approve the first reading of Ordinance No. 921 as presented. Staff report was given by Alan Kapanicas, City Manager. Open Public Hearing 6:40 p.m. No Speakers Closed Public Hearing 6:41 p.m. Motion by Council Member Killough, Seconded by Council Member Dressel to approve the first reading of Ordinance No. 921 as presented. Vote: 4/0 b. Street Vacation 07-SV-03 and 07-SV-04, Abandonment of a portion of Grace Avenue and the Alley between Grace Avenue and Fourth Street Recommendation: Hold a Public Hearing and approve Street Vacation 07-SV- 03 and 07-SV-04 as presented. Staff Report was given by Rebecca Posalski, Staff Planner. Open Public Hearing 6:42 p.m. Speakers: Judy Bingham - Opposed Jesse Estrada—Opposed Nancy Hall - Jim Miller— Neutral Leslie Rios—Opposed Closed Public Hearing 6:58 p.m. Motion by Council Member Berg, Seconded by Council Member Killough to approve Street Vacation Nos. 07-SV-03 and 07-SV-04 as presented. Vote: 4/0 c. Memorandum of Understanding Directing the Purchase and Sale of Property within Cooper's Creek Special Connectivity Reserve and Policy Area Recommendation: Hold a Public Hearing and Approve the Memorandum of Understanding and Authorize the Mayor to sign the Memorandum of understanding subject to the authority of the City Attorney to make non- substantive changes. Staff report was given by Alan Kapanicas, City Manager. Open Public Hearing 7:03 p.m. Speakers: Nancy Hall—Opposed Judy Bingham— Opposed Closed Public Hearing 7:06 p.m. Motion by Council Member Berg, Seconded by council Member Killough to approve the MOU, Authorize the Mayor to Execute the MOU, and Authorize the City Attorney to make non-substantive changes. Vote: 4/0 d. Resolution Directing the Purchase of Property within the Cooper's Creek Special Connectivity Reserve and Policy Area I Recommendation: Hold a Public Hearing and Adopt the Resolution No. 2007-57 and approve the Project Progress Report. Staff report was given by Alan Kapanicas, City Manager. Open Public Hearing 7:10 p.m. Speakers Nancy Hall —Opposed Judy Bingham— Opposed Closed Public Hearing 7:15 p.m. Motion by Council Member Killough, Seconded by Council Member Berg to Adopt Resolution No. 2007-57 as presented. Vote: 4/0 e. Amendment Number 2 to the Joint Exercise of Powers Agreement Creating the Western Riverside County RCA(Naming of a County Alternative) Recommendation: Hold a Public Hearing and Approve Amendment No. 2 to the Joint Exercise of Powers Agreement Creating the Western Riverside County RCA. Staff Report was given by Rebecca Posalski, Staff Planner. Open Public Hearing 7:17 p.m. No Speakers Closed Public Hearing 7:17 p.m. Motion by Council Member Berg, Seconded by Council Member Dressel to approve Amendment No. 2 to the Joint Exercise of Powers Agreement Creating the Western Riverside County RCA. Vote: 4/0 Adjournment of the City Council Meeting at 7:16 p.m. Res,ec y Submi , . ap.n' asp City Manag Any Person with a disability who requires accommodations in order to participate in this meeting should telephone Shelby Hanvey at 951-769-8520 ext. 323, at least 48 hours prior to the meeting in order to make a request for a disability-related modification or accommodation Col-acs(° 1 AGREEMENT 2 BETWEEN 3 CITY OF BEAUMONT 4 AND 5 MCDONALD TRANSIT ASSOCIATES, INC. 6 7 THIS AGREEMENT is made and entered into this !Y) day of December, 2007, by and 8 between the City of Beaumont, 550 East 6th Street, Beaumont, California 92223, (hereinafter 9 referred to as "CITY"), and McDonald Transit Associates, Inc. (hereinafter referred to as 10 "CONTRACTOR"). 11 12 WITNESSETH: 13 WHEREAS, CITY desires the services of CONTRACTOR to manage, maintain and operate 14 its Fixed Route and Americans with Disabilities Act(ADA)/Dial-A-Ride (DAR)and all related services 15 including call center services; and 16 WHEREAS, CONTRACTOR represents it has the experience and capability to manage, 17 maintain and operate the CITY's Fixed Route and ADA/DAR and all related services including call 18 center services. 19 NOW, THEREFORE, it is mutually understood and agreed by CITY and CONTRACTOR as 20 follows: 21 22 ARTICLE 1. CITY DESIGNEE 23 The City Manager of the CITY or his or her designee shall have the authority to act for and 24 exercise any of the rights of CITY as set forth in this Agreement. 25 1 1 ARTICLE 2. STATEMENT OF WORK 2 A. CONTRACTOR shall perform the work necessary to complete in a manner 3 satisfactory to CITY the services set forth in Exhibit A, entitled "Scope of Work" attached to and, by 4 this reference, incorporated in and made a part of this Agreement. 5 B. CONTRACTOR shall provide the personnel listed below to perform the above- 6 specified services,which persons are hereby designated as key personnel under this Agreement. 7 Name Functions 8 To Be Chosen by City General Manager 9 Kenneth Housden Start-Up Specialist 10 To Be Chosen by City Customer Service Coordinator 11 C. No person named in paragraph B of this Article, or his/her successor approved by 12 CITY, shall be removed or replaced by CONTRACTOR, nor shall his/her agreed-upon function or 13 level of commitment hereunder be changed,without the prior written consent of CITY. Should the 14 services of any key person become no longer available to CONTRACTOR, the resume and 15 qualifications of the proposed replacement shall be submitted to CITY for approval as soon as 16 possible, but in no event later than seven (7)calendar days prior to the departure of the incumbent 17 key person, unless CONTRACTOR is not provided with such notice by the departing employee. 18 CITY shall respond to CONTRACTOR within seven (7)calendar days following receipt of these 19 qualifications concerning acceptance of the candidate for replacement. 20 21 ARTICLE 3. TERM OF AGREEMENT 22 A. This Agreement shall commence upon execution by both parties, and shall continue 23 in full force and effect for two years thereafter, unless earlier terminated or extended as provided in 24 this Agreement. 25 2 1 B. CITY, at its sole discretion, may elect to extend the term of this Agreement twice, for an 2 additional twenty-four(24) months for each extension. The cost of service during each extension 3 period shall be negotiated at least 90 days before the end of the immediately-preceding term. If a 4 cost satisfactory to the CITY cannot be negotiated,this Agreement shall terminate. 5 6 ARTICLE 4. PAYMENT 7 A. For CONTRACTOR'S full and complete performance during the billing period of the 8 Services under this Agreement, CITY agrees to pay CONTRACTOR the fixed monthly fee as set 9 forth in Exhibit B, entitled "Cost of Services", which is attached to and by this reference made a part 10 of this Agreement. 11 B. On or before the 10th of each month, CONTRACTOR shall submit an invoice for 12 services to the CITY's Resources Director, itemizing CONTRACTOR's services within and on behalf 13 of the City. Contractor shall bill the City of Banning separately for CONTRACTOR's services within 14 and on behalf of that City. Each invoice shall cite this Agreement, the time period covered by the 15 invoice and the amount of payment requested; all relevant back-up documentation, including 16 monthly operations summaries, and productivity attained. CITY shall remit payment within thirty(30) 17 days of receipt and approval of each invoice. If any portion of the invoice is disputed by CITY, CITY 18 agrees to reimburse CONTRACTOR for all undisputed costs. Disputed costs shall be resolved in 30 19 days and be included in the subsequent month's payment to CONTRACTOR. 20 C. CONTRACTOR acknowledges and agrees that CITY shall only be responsible for 21 services rendered by CONTRACTOR to CITY, and that CITY is not responsible for any unpaid 22 invoices that are the responsibility of the City of Banning. 23 3 1 ARTICLE 5. FARE BOX REVENUE 2 All cash revenues collected by CONTRACTOR shall be delivered to and retained by CITY. 3 CONTRACTOR shall report in writing, all fares, transfers and passes received and an accurate 4 passenger count for each month by service type. 5 6 ARTICLE 6. INDEPENDENT CONTRACTOR 7 CONTRACTOR is and shall at all times remain a wholly independent CONTRACTOR and 8 not an officer, employee or agent of CITY. CONTRACTOR shall have no authority to bind CITY in 9 any manner, or to incur any obligation, debt or liability of any kind on behalf of or against CITY, 10 whether by contract or otherwise, unless such authority is expressly conferred under this Agreement 11 or is otherwise expressly conferred in writing by CITY. 12 The personnel performing the services under this Agreement on behalf of CONTRACTOR 13 shall at all times be under CONTRACTOR'S exclusive direction and control. Neither CITY, nor any 14 elected or appointed boards, officers, officials, employees or agents of CITY, shall have control over 15 the conduct of CONTRACTOR or any of CONTRACTOR's officers, employees, or agents except as 16 set forth in this Agreement. CONTRACTOR shall not at any time or in any manner represent that 17 CONTRACTOR or any of CONTRACTOR'S officers, employees, or agents are in any manner 18 officials, officers, employees or agents of City. 19 Neither CONTRACTOR, nor any of CONTRACTOR'S officers, employees or agents, shall 20 obtain any rights to retirement, health care or any other benefits which may otherwise accrue to 21 CITY's employees. CONTRACTOR expressly waives any claim CONTRACTOR may have to any 22 such rights. 23 4 1 ARTICLE 7. CITY-FURNISHED EQUIPMENT 2 CITY shall provide CONTRACTOR with the revenue vehicles necessary for CONTRACTOR 3 to perform its obligations under this Agreement. CONTRACTOR shall be liable to CITY for any 4 damage to or loss of CITY vehicles, fareboxes and other components of said vehicles when caused 5 by CONTRACTOR'S negligence, abuse or misuse of vehicle, but in no event shall such liability 6 exceed the replacement cost of the vehicle(s)or other property damaged or lost. 7 Unless otherwise provided in this Agreement, upon delivery to CONTRACTOR or 8 manufacture or acquisition by it of any materials, parts, tooling or other property to which CITY 9 possesses title, or which CITY has otherwise furnished to CONTRACTOR, CONTRACTOR assumes 10 the risk of, and shall be responsible for, any damages to or loss of such property. In any event, upon 11 the conclusion of this Agreement or upon demand by CITY, CONTRACTOR shall return such 12 property to CITY in the condition in which it was received, except for reasonable wear and tear, and 13 except for such property as has been reasonably consumed in the performance of the Services 14 under this Agreement. 15 16 ARTICLE 8. INSURANCE 17 A. CONTRACTOR shall procure and maintain insurance coverage during the entire 18 term of the Agreement. Coverage shall be full coverage and not subject to self-insurance provisions. 19 The CONTRACTOR shall provide the following insurance coverage: 20 1. Commercial General Liability, to include Premises/Operations, Contractual, 21 Operations, Independent Contractors, and Personal Injury Liability with at least$5,000,000 of 22 coverage; 23 2. Automobile Liability Insurance with the following limits: 24 a) Primary Bodily Injury with limits of$5,000,000 per person; and 25 b) Primary Bodily Injury with limits of$5,000,000 per accident; and 5 1 c) Primary Property Damage with limits of$5,000,000; 2 3. Workers' Compensation with limits as required by the State of California; 3 4. Employer's Liability with limits of$5,000,000; and 4 B. Proof of such coverage, in the form of an insurance company issued policy 5 endorsement and a broker-issued insurance certificate, must be received by CITY within ten (10) 6 calendar days from the date of execution of the Agreement; with the City of Beaumont, its officers, 7 directors, employees and agents designated as additional insureds. Furthermore, CITY reserves the 8 right to request certified copies of all related insurance policies. 9 C. CONTRACTOR shall furnish to CITY's Resources Director a broker-issued certificate 10 of insurance showing the required coverage for CONTRACTOR and further providing that: 11 1. CITY is named as additional insured(s)on the Comprehensive General 12 Liability and Comprehensive Automobile Liability insurance with respect to performance 13 hereunder; and 14 2. The coverage shall be primary and noncontributory as to any other insurance 15 with respect to performance hereunder; and 16 3. Thirty(30)days prior written notice of cancellation or material change in 17 insurance coverage to be given to CITY. 18 19 ARTICLE 9. CHANGES 20 By written notice or order, CITY may, from time to time, order suspension of work or make 21 changes in the general scope of this Agreement, including, but not limited to,the services furnished 22 to CITY by CONTRACTOR as described in the Scope of Work. If any such work suspension or 23 change causes an increase or decrease in the price of this Agreement or in the time required for its 24 performance, CONTRACTOR shall promptly notify CITY thereof, and an equitable adjustment shall 6 1 be negotiated. However, nothing in this clause shall excuse CONTRACTOR from proceeding 2 immediately with the agreement as changed. 3 4 ARTICLE 10. DISPUTES 5 A. Except as otherwise provided in this Agreement, any dispute arising under this 6 Agreement which is not disposed of by supplemental agreement shall be decided by CITY's 7 Resources Director, who shall reduce the decision to writing and mail or otherwise furnish a copy 8 thereof to CONTRACTOR. The decision of the Resources Director shall be final and conclusive 9 unless, within thirty(30)calendar days from the date of receipt of such copy, CONTRACTOR mails 10 or otherwise furnishes to the Resources Director, a written appeal addressed to CITY's City 11 Manager. The decision of the CITY's City Manager or duly authorized representative for the 12 determination of such appeals shall be final and conclusive. Pending the decision of a dispute 13 hereunder, CONTRACTOR shall proceed diligently with the performance of this Agreement. 14 15 ARTICLE 11. NOTICE OF LABOR DISPUTE 16 Whenever CONTRACTOR has knowledge that any actual or potential labor dispute may 17 delay performance of the Agreement, CONTRACTOR shall immediately notify and submit all 18 relevant information to CITY and assist CITY in developing a plan to continue service. 19 CONTRACTOR shall insert the substance of this entire clause in all subcontracts hereunder. 20 21 ARTICLE 12. TERMINATION 22 Termination for convenience 23 CITY may, by giving 120-day written notice in the second year of this Agreement, terminate 24 the Agreement in whole or in part in its sole and absolute discretion. Upon termination of this 7 1 Agreement, CITY shall only be liable for payment for services rendered or supplies furnished prior to 2 the effective date of termination. 3 Termination for default 4 CITY may, by written notice of default to the CONTRACTOR, terminate the contract in whole 5 or in part if the CONTRACTOR fails to: 6 1. Perform the services as identified and/or within the time specified in this Agreement 7 or any extension; 8 2. Progress successfully through services thereby endangering performance of this 9 Agreement; or 10 3. Perform any of the other provisions of this Agreement. 11 CITY's right to terminate this Agreement may be exercised if the CONTRACTOR does not cure, as 12 provided in Article 13, or make a good effort to cure, such failure within five (5)days after receipt of a 13 written notice from CITY. 14 15 ARTICLE 13. DEFAULT 16 In the event that CONTRACTOR is in default under the terms of this Agreement, the CITY 17 shall not have any obligation or duty to continue compensating CONTRACTOR for any work 18 performed after the date of default. Instead, the CITY may give notice to CONTRACTOR of the 19 default and the reasons for the default. The notice shall include the timeframe in which 20 CONTRACTOR may cure the default. This timeframe is presumptively thirty(30)days, but may be 21 extended, though not reduced, if circumstances warrant. During the period of time that 22 CONTRACTOR is in default, the CITY shall hold all invoices and shall, when the default is cured, 23 proceed with payment on the invoices. In the alternative, the CITY may, in its sole discretion, elect 24 to pay some or all of the outstanding invoices during the period of default. If CONTRACTOR does 25 not cure the default, the CITY may take necessary steps to terminate this Agreement under Article 8 1 14. Any failure on the part of the CITY to give notice of the CONTRACTOR's default shall not be 2 deemed to result in a waiver of the CITY's legal rights or any rights arising out of any provision of 3 this Agreement. 4 5 ARTICLE 14. INDEMNIFICATION 6 A. Indemnification for Professional Liability. Where the law establishes a professional 7 standard of care for CONTRACTOR's Services, to the fullest extent permitted by law, 8 CONTRACTOR shall indemnify, protect, defend and hold harmless CITY and any and all of its 9 officials, employees and agents ("Indemnified Parties")from and against any and all losses, 10 liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are 11 caused in whole or in part by any negligent or wrongful act, error or omission of CONTRACTOR, its 12 officers, agents, employees or sub-CONTRACTORs(or any entity or individual that CONTRACTOR 13 shall bear the legal liability thereof) in the performance of professional services under this 14 Agreement. 15 B. Indemnification for Other than Professional Liability. Other than in the performance 16 of professional services and to the full extent permitted by law, CONTRACTOR shall indemnify, 17 protect, defend and hold harmless City, and any and all of its employees, officials and agents from 18 and against any liability(including liability for claims, suits, actions, arbitration proceedings, 19 administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether 20 actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, 21 and expert witness fees), where the same arise out of, are a consequence of,or are in any way 22 attributable to, in whole or in part, the performance of this Agreement by CONTRACTOR or by any 23 individual or entity for which CONTRACTOR is legally liable, including but not limited to officers, 24 agents, employees or sub-contractors of CONTRACTOR. 9 1 C. General Indemnification Provisions. CONTRACTOR agrees to obtain executed 2 indemnity Agreements with provisions identical to those set forth here in this section from each and 3 every sub contractor or any other person or entity involved by, for,with or on behalf of 4 CONTRACTOR in the performance of this Agreement. In the event CONTRACTOR fails to obtain 5 such indemnity obligations from others as required here, CONTRACTOR agrees to be fully 6 responsible according to the terms of this section. Failure of CITY to monitor compliance with these 7 requirements imposes no additional obligations on CITY and will in no way act as a waiver of any 8 rights hereunder. This obligation to indemnify and defend CITY as set forth here is binding on the 9 successors, assigns or heirs of CONTRACTOR and shall survive the termination of this Agreement 10 or this section. 11 The provisions of this section do not apply to claims occurring as a result of CITY's sole 12 negligence or willful acts or omissions. 13 14 ARTICLE 15. WARRANTY • 15 The CONTRACTOR warrants and represents that it is fully experienced and properly 16 qualified to perform the class of services required for this Agreement and that it is properly licensed, 17 equipped, organized and financed to perform the Services. 18 The CONTRACTOR warrants and represents that all Services shall be in accordance with 19 this Agreement. In the event of a breach of this warranty, the CONTRACTOR shall take all 20 necessary and required actions to correct the breach and the consequences thereof, at the 21 CONTRACTOR's sole expense, in the most expeditious manner as permitted by existing 22 circumstances. If the CONTRACTOR does not promptly take steps to correct the breach upon 23 notification by CITY, the CITY, without waiving any other rights or remedies it may have at law or 24 otherwise, may do so or cause others to do so and the CONTRACTOR shall promptly reimburse the 25 CITY for all expenses and costs incurred in connection therewith. 10 1 ARTICLE 16. ASSIGNMENT AND SUBCONTRACTING 2 A. Neither this Agreement nor any interest herein nor claim hereunder may be assigned 3 by CONTRACTOR either voluntarily or by operation of law, nor may all or any part of this Agreement 4 be subcontracted by CONTRACTOR, without the prior written consent of CITY. Consent by CITY 5 shall not be deemed to relieve CONTRACTOR of its obligations to comply fully with all terms and 6 conditions of this Agreement. 7 8 ARTICLE 17. AUDIT AND INSPECTION OF RECORDS, EQUIPMENT, FACILITIES 9 CONTRACTOR shall provide CITY such access to CONTRACTOR's accounting books, 10 records, payroll documents, equipment, and facilities which relate to services provided under this 11 Agreement as is necessary for the purposes of examining and inspecting facilities and equipment 12 and auditing all accounting books, records, work data, documents and activities related hereto. 13 CONTRACTOR shall maintain such books, records, data and documents in accordance with 14 generally accepted accounting principles and shall clearly identify and make such items readily 15 accessible to such parties during CONTRACTOR's performance hereunder and for a period of four 16 (4)years from the date of final payment by CITY. CITY's right to inspect and to audit books and 17 records directly related to this Agreement shall also extend to all subcontractors identified in this 18 Agreement. CONTRACTOR shall permit CITY to reproduce by any means whatsoever or to copy 19 excerpts and transcriptions as reasonably necessary. 20 21 ARTICLE 18. COMPLIANCE WITH LAW 22 CONTRACTOR warrants that in the performance of this Agreement, it shall comply with all 23 applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and 24 regulations promulgated thereunder. 25 11 1 ARTICLE 19. OWNERSHIP OF REPORTS AND DOCUMENTS 2 Upon termination of this Agreement, the originals of all letters, documents, reports and other 3 products and data produced under this Agreement shall be delivered to, and become the property of 4 CITY. Copies may be made for CONTRACTOR's records but shall not be furnished to others 5 without written authorization from CITY. Such deliverables shall be deemed works made for hire 6 and all rights in copyright therein shall be retained by CITY. 7 8 ARTICLE 20. FINISHED AND PRELIMINARY DATA 9 A. All of CONTRACTOR's finished technical data, developed specifically for the CITY, 10 including but not limited to, technical documentation and user documentation, photoprints and other 11 graphic information required to be furnished under this Agreement, shall be CITY's property upon 12 payment and shall be furnished with unlimited rights and, as such, shall be free from proprietary 13 restriction except as elsewhere authorized in this Agreement. CONTRACTOR further agrees that it 14 shall have no interest or claim to such finished, CITY-owned, technical data; furthermore, said data 15 is subject to the provisions of the California Public Records Act. 16 B. It is expressly understood that any title to preliminary technical data is not passed to 17 CITY but is retained by CONTRACTOR. Preliminary data includes roughs, visualizations, software 18 design documents, layouts and comprehensives prepared by CONTRACTOR solely for the purpose 19 of demonstrating an idea or message for CITY's acceptance before approval is given for preparation 20 of finished artwork. Preliminary data title and right thereto shall be made available to CITY if 21 CONTRACTOR causes CITY to terminate this Agreement and a price shall be negotiated for all 22 preliminary data. 23 12 1 ARTICLE 21. NOTICES 2 All notices hereunder and communications regarding the interpretation of the terms of this 3 Agreement, or changes thereto, shall be effected by delivery of said notices in person or by 4 depositing said notices in the U.S. mail, registered or certified mail, return receipt requested, 5 postage prepaid and addressed as follows: 6 7 To CONTRACTOR: To CITY: 8 McDonald Transit Associates, Inc. City of Beaumont 9 4500 Mercantile Plaza Dr., Suite 307 550 East 6th Street 10 Fort Worth, TX 76137 Beaumont, CA 92223 11 12 ATTN: Robert T. Babbitt ATTENTION: Elizabeth Urtiaga 13 President and CEO Resources Director 14 (817)232-9551 (951) 769-8521 15 FAX: (817)232-9560 FAX: (951) 769-8525 16 17 ARTICLE 22. ENTIRE AGREEMENT 18 This Agreement, including the attached Exhibits "A" and "B", is the entire, complete, final and 19 exclusive expression of the parties with respect to the matters addressed therein and supersedes all 20 other Agreements or understandings, whether oral or written, or entered into between Contractor 21 and City prior to the execution of this Agreement. No statements, representations or other 22 Agreements, whether oral or written, made by any party which are not embodied herein shall be 23 valid and binding. No amendment to this Agreement shall be valid and binding unless in writing duly 24 executed by the parties or their authorized representatives. 25 13 1 ARTICLE 23. WAIVER 2 Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement 3 shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any 4 breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a 5 waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by 6 City of any work or services by Contractor shall not constitute a waiver of any of the provisions of 7 this Agreement. 8 9 ARTICLE 24. MODIFICATION OF AGREEMENT 10 No amendment to or modification of this Agreement shall be valid unless made in writing and 11 approved by the Contractor and by the City Council. The parties agree that this requirement for 12 written modifications cannot be waived and that any attempted waiver shall be void. 13 14 ARTICLE 25. AUTHORITY TO EXECUTE 15 The person or persons executing this Agreement on behalf of Contractor represents and 16 warrants that he/she/they has/have the authority to so execute this Agreement and to bind 17 Contractor to the performance of its obligations hereunder. 18 19 ARTICLE 26. LAW TO GOVERN VENUE 20 This Agreement shall be interpreted, construed and governed according to the laws of the 21 State of California. In the event of litigation between the parties, venue in state trial courts shall lie 22 exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, 23 venue shall lie exclusively in the Central District of California, in Los Angeles. 24 14 1 ARTICLE 27. SEVERABILITY 2 If any term, condition or covenant of this Agreement is declared or determined by any court 3 of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this 4 Agreement shall not be affected thereby and the Agreement shall be read and construed without the 5 invalid, void or unenforceable provision(s). 6 7 ARTICLE 28. FORCE MAJEURE 8 Either party shall be excused from performing its obligations under this Agreement during the 9 time and to the extent that it is prevented from performing by an unforeseeable cause beyond its 10 control including, but not limited to: labor strikes, any incidence of fire, flood, acts of God; 11 commandeering of material, products, plants or facilities by the federal, state or local government; 12 national fuel shortage; or a material act of omission by the other party; when satisfactory evidence of 13 such cause is presented to the other party, and provided further that such nonperformance is 14 unforeseeable, beyond the control and is not due to the fault or negligence of the party not 15 performing. 16 17 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to be effective 18 as of the date first above written. 19 20 MCDON • yr I �S; NC. CI OF :E • • T 21 By 22 RobeT. Babbitt Alan C. Kapani.4 23 President City Manager 24 25 15 1 EXHIBIT"A" 2 2 SCOPE OF SERVICES 3 4 I. Consultant will perform the following Services: 5 6 A. Provide necessary management and administrative personnel whose expertise will 7 ensure efficient operation of services including scheduling of personnel on routes 8 and other daily functions ; 9 10 B. Operate and manage existing ADA/Dial-A-Ride service at optimal levels; 11 12 C. Operate and manage existing Fixed Route service at optimal levels; 13 14 D. Collect all fares from passengers and submit cash revenue to the City's Finance 15 Department daily in a secure manner; 16 17 E. Provide call center services in accordance with current business operating hours; 18 19 F. Safety and training for all transit personnel; 20 21 G. Fleet maintenance operations including properly maintaining, ensuring full 22 operability, body-damage free, and clean vehicles; 23 24 H. Representation at all meetings involving RCTC in which City personnel's attendance 25 is required; 16 1 I. Interface with RCTC regarding grants or any other matters as they arise; 2 3 J. Provide immediate supervisory personnel response to all emergencies; 4 5 K. Maintain cleanliness and safety of all transit facilities including bus shelters; 6 7 L. TransTrack and data entry relating to routes, passengers and fares. 8 9 M. Management oversight of operating budgets and related procurement functions; 10 policies and procedures; and compliance with laws and regulations 11 12 II. As part of the Services, Consultant will prepare and deliver the following tangible work 13 products to the City: 14 15 A. Complete and comprehensive annual Short Range Transit Plan; 16 17 B. CHP annual terminal inspection, safety compliance report, and air quality reports with 18 satisfactory ratings in all categories; 19 20 C. Written and oral reports to City Council as may be necessary; 21 22 D. Written and oral reports to the TAC of Pass Transit Agency as may be necessary 23 17 1 III. During performance of the Services, Consultant will keep the City appraised of the status of 2 performance by delivering the following status reports: 3 4 A. Monthly Operating Report to include monthly operating data as follows: Vehicle 5 Revenue Hours, Vehicle Revenue Miles, Vehicle Productivity, Total Vehicle Hours, 6 Total Vehicle Miles, Deadhead Hours, Deadhead Hours from Gate to First Pick-Up, 7 Deadhead Hours from Last Drop-off to the Yard, Deadhead Miles, Scheduled Trips, 8 Total Trips, Total Passengers by Fare Type, No-Shows, and Cancelled Trips on 9 Service Day, Missed Trips, Average Ride Time, On Time Performance, All Trip 10 Denials, Cash Fare Receipts by Day(projected and actual),Wheelchair/ADA 11 Passengers, Odometer by Vehicle/Peak Vehicle Activity, and Vehicle Failures. 12 13 B. Monthly Operating Report data entry into RCTC's web-based TransTrack software 14 program; 15 16 C. Maintenance reports, driver manifests and/or maintenance record evaluations; 17 18 D. Completed accident and incident reports as well as customer comments/complaints; 19 20 E. Monthly billings reflecting a detailed accounting of cost broken down by FTE, the 21 tasks being performed, and the required hours. 22 18 1 IV. The tangible work products and status reports will be delivered to the City pursuant to the 2 following schedule: 3 4 A. Monthly Operating Reports are due on or before the third business day of the 5 following month; 6 7 B. TransTrack data must be entered on or before the third business day of the following 8 month; 9 10 C. Maintenance reports, driver manifests and/or maintenance record evaluations on or 11 before the third business day of the following month; 12 13 D. Completed accident and incident reports as well as customer comments/complaints 14 within 5 hours after such written report is taken; 15 16 V. Consultant will utilize the following personnel to accomplish the Services: 17 18 A. Project Manager 19 20 B. Assistant Project Manager 21 22 C. Customer Service Coordinator(Dispatcher) 23 24 19 1 VI. AMENDMENT 2 The Scope of Services, including services, work products, and personnel, are subject to 3 change by mutual Agreement. In the absence of mutual Agreement regarding the need to change 4 any aspects of performance, Consultant shall comply with the Scope of Services as indicated above. 20 1 2 City of Beaumont - Year 1 3 Task Annual Annual Article 2 - Statement of Work Annual Exhibit AI $227,800 Exhibit All 10,000 Exhibit AIII 10,000 Exhibit AIV 10,000 Total $257,800 Exhibit AV - Project Manager $120,600 Assistant Project Manager $79,200 Customer Service Coordinator $58,000 Total $257,800 4 5 Note: Insurance requirements are not included above and are assessed separately. 6 Article 8 - Insurance $300 per month per City- General Liability 7 $700 per month per Vehicle-Auto Liability and Physical Damage 8 9 Worker Compensation for McDonald Transit employees included in employee costs. 21 1 2 City of Beaumont - Year 2 3 Task Annual Annual Article 2 - Statement of Work Annual Exhibit AI $239,190 Exhibit All 10,500 Exhibit AIII 10,500 Exhibit AN 10,500 Total $270,690 Exhibit AV- Project Manager $126,630 Assistant Project Manager $83,160 Customer Service Coordinator $60,900 Total $270,690 4 5 Note: Insurance requirements are not included above and are assessed separately. 6 Article 8 - Insurance $300 per month per City- General Liability 7 $750 per month per Vehicle- Auto Liability and Physical Damage 8 9 Worker Compensation for McDonald Transit employees included in employee costs. 10 11 12 13 14 22