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HomeMy WebLinkAbout09300RESOLUTION NO. 9300 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO TRANSIT, A COLORADO NON - PROFIT CORPORATION, FOR THE OPERATION OF THE CITY'S PUBLICLY -OWNED MASS TRANSPORTATION SYSTEM WHEREAS, the City of Pueblo is grantee for funding from the Federal Transportation Administration for the operation of a mass transportation system, and WHEREAS, Pueblo Transit, a Colorado Non - Profit Corporation, is under contract to furnish all labor and to operate the City's publicly -owned mass transportation system, and WHEREAS, to ensure appropriate monitoring and control by the City, the roles and responsibilities of each party should be more clearly defined. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Agreement dated May 1, 2001 between Pueblo, a Municipal corporation and Pueblo Transit, a Colorado Non - Profit Corporation, a copy of which is attached hereto, having been approved as to form by the City Attorney is hereby approved. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED: May 29, 2001 By: Dr. Bill Soya APPROVED t qqf the City Council ATTESTED B City Clerk y Background Paper for Proposed RESOLUTION AGENDA ITEM # I DATE: MAY 29, 2001 DEPARTMENT: CITY MANAGER'S OFFICE TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO TRANSIT, A COLORADO NON- PROFIT CORPORATION, FOR THE OPERATION OF THE CITY'S PUBLICLY - OWNED MASS TRANSPORTATION SYSTEM. ISSUE Based on the findings from the Financial Management Oversight report conducted by the Federal Transit Administration, recommendations were made that the City and Pueblo Transit revise our operating agreement. This new agreement should more clearly define the roles and responsibilities of each party so that appropriate monitoring and control by the City of Pueblo as grantee over Pueblo Transit and its general manager may be exercised. This new agreement has been submitted to the FTA and has been approved. RECOMMENDATION Approval FINANCIAL IMPACT None AGREEMENT THIS AGREEMENT made and entered as of May 1, 2001, by and between PUEBLO, a MUNICIPAL CORPORATION, 1 City Hall Place, Pueblo, Colorado, 81003, herein referred to as the "City," and PUEBLO TRANSIT, a Colorado Non - Profit Corporation, 350 S. Grand, Pueblo, Colorado, 81003, herein referred to as "Contractor." WITNESSETH: In consideration of the sum to be paid by the City to the Contractor at the time and in the manner hereinafter provided, Contractor shall furnish all labor to operate and shall operate the City's publicly -owned mass transportation system complete in every detail, all in accordance with this Agreement and the specifications and conditions contained in the Contract Document attached hereto and made a part hereof (collectively the "Agreement ") all to the satisfaction of City. City agrees to maintain a separate fund for the operation of the public transportation system. All revenues derived from the operation of the public transportation system, operating expenses, grants, City's appropriations and other monetary transactions with respect to this Agreement shall be accounted for in such fund. Payroll for Contractor's Employees shall be paid on checks drawn on a separate payroll account, which checks will identify that such employees are employees of Contractor. The City will pay all contractual obligations of the system lawfully incurred including payroll costs, operating expenses, capital expenses, and miscellaneous expenses, provided, however, such obligations shall not exceed the amount budgeted and appropriated therefore by the City Council of City. "Contractual obligations lawfully incurred" shall not include any tort claims, or claim or damages or liability for personal injury, death or property damage caused by or resulting, directly or indirectly, from the acts or omissions of Contractor or any of its employees, agents or contractors, nor any claim or damages or liability asserted by any employee of Contractor against Contractor or against any other employee, agent, or contractor of Contractor. TERM The term of the Agreement shall begin on the date hereof and end December 31, 2001. The term of this Agreement shall automatically extend for successive calendar years commencing January 1, 2002, unless either party gives written notice to the other party on or before November 1 of any calendar year that the term of the Agreement shall not be extended for the next calendar year. This agreement may be terminated as provided in Section 26 of the Contract Document. IN WITNESS THEREOF, the parties hereto have caused this instrument to be executed as of the day and year first above written. ATTEST:`�� C � cu� ecretary ATTE City lerk APPROVED AS TO FORM: '7Z �,� /zz 1� City Attorney v -2- CONTRACT DOCUMENT 1. DEFINITIONS a) "City" - Pueblo, a Municipal Corporation; also all land lying within the geographic limits of the City, as the same may be hereafter modified or extended by annexation or otherwise. b) "City Council" - The City Council of Pueblo, a Municipal Corporation. C) "Contractor" - Pueblo Transit. Where the context so required, the word "Contractor" shall also include the officers, agents or employees of Contractor. d) "Streets" - All of the public highways, streets, thoroughfares, traffic ways, express ways, freeways, tunnels, viaducts, subways, boulevards, parkways, alleys, bridges, public traffic areas and all other public ways or places in, upon, above or below the same in the City of Pueblo and adjacent territory, however, the same may be designated. e) "Headway" - The interval of time elapsing after the passage of any given point on any route by a motor bus of the System, and the passage at the same point by the next motor bus of the System serving the same route and traveling in the same direction. f) "Payroll Costs" - Wages, salaries, employee benefits, Contractor's contributions to pension funds or other employee benefit funds for the benefit of Contractor's Employees, taxes and withholding required by law, such as FUTA and FICA taxes, and workers' compensation insurance. g) "Operating Expenses" - All of the usual expenses, except Payroll Costs, incurred in the operation of the System. Operating Expenses shall include actual costs of operation, necessary leases, rentals, and maintenance. h) "Revenues" - All of the receipts of the Contractor for cash fares of any kind, tokens, tickets, charter or special buses or advertising, and any other revenues of any kind which may be payable to or received by the Contractor. i) "Motor Buses" - All vehicles used for transportation of persons or property which are propelled by power generated within or without themselves by gasoline, diesel oil, electric power or otherwise. j) "Initial Routes" - The existing routes over which the Contractor shall operate the System. -3- k) "Route" - That portion of the entire System over which one motor bus shall make a complete round trip in a stated interval of time. 1) "Segment" - Any portion of a given route. m) "General Manager" - The person appointed by Contractor to operate and manage the System under the general supervision and direction of the Board of Directors of the Contractor and the provisions of this Agreement. n) "System" - The public mass transportation system owned by City and to be operated by Contractor in full compliance with the terms thereof. o) "Notice" - Where, in any section of the Contract Document, there is a provision in respect to the giving of notice, such notice shall be deemed to have been given (as to the City) when written notice shall have been delivered to the City Manager or mailed by certified mail, postage prepaid, addressed to the City Manager, 1 City Hall Place, Pueblo, Colorado 81003. As to the Contractor, such notice shall be deemed to have been given when a written notice shall have been delivered to the General Manager of the Contractor or mailed by certified mail, postage prepaid, addressed to General Manager, Pueblo Transit, 350 South Grand Avenue, Pueblo, Colorado 81003. P) "City Manager" - The City Manager of City or his designated representative. q) "Board of Directors" - The Board of Directors of Contractor. r) "President" - The President of Contractor. 2. SCOPE OF WORK Contractor shall provide a complete System, with City -owned or leased equipment, within and for the City of Pueblo, including the operation, maintenance and management of the System, and supplying all necessary labor and supervision therefor. ROUTES. SCHEDULES, AND HEADWAY a. ROUTES: The Contractor shall continue the current and existing established regular motor bus transportation service, as well as ADA paratransit service, utilizing City -owned and leased equipment over and upon all Initial Routes, and upon the days and hours now in effect. In the event of interference with or obstruction to the said transportation service by reason of physical condition of, or obstructions existing in streets, alleys and thoroughfares, the nearest -4- available and conveniently operative, temporary alternate Route shall be used until such interference or obstruction shall have been removed or eliminated. Routes may be altered or changed in the manner hereinafter provided. Additional Routes may be established as circumstances and traffic conditions appear to warrant, and said Initial Routes, as well as any additional Routes so established, may be altered, modified as abandoned by the City from time to time in the manner as hereinafter provided. b. SCHEDULES: The Contractor shall maintain a reasonable, proper and adequate schedule for the accommodation of passengers on all Routes. Existing Headways on each Route shall be continued. In no event shall Headway intervals be lengthened without the written directive of the City Manager. C. EXPRESS OR CHARTER SERVICE: The Contractor shall furnish and provide additional limited service known as "Charter Service," at such times and over such Routes as the City Manager deems necessary to furnish reasonable and proper service during peak hours and to certain areas. d. RATES: Contractor shall charge and collect rates for System services in accordance with the current rate schedule until such rates are modified by Resolution adopted by City Council of Pueblo. 4. CHANGE IN ROUTES OR RATES Changes in extensions, or discontinuation, or additions to Initial Routes may be made only with the written approval of the City Manager. The City Council, upon the recommendation of the City Manager shall have the right at any time, by Resolution duly adopted, to revise the operating schedules and Routes of the System and rates charged by the Contractor, and may direct the Contractor to operate the System over any additional streets in the City or to extend, alter or discontinue, in whole or in part, any Initial or then - existing Route. 5. CHANGES IN SCHEDULES AND HEADWAY The City Manager shall approve changes in schedules and Headway as traffic requirements dictate. In the event of any change of schedule, a minimum thirty calendar days prior notice of such change shall be given to the riding public, either through a publishing of notice in a newspaper of general circulation in the City or printed notices conspicuously displayed in all buses on the Routes affected by such change. 6. REVENUES -5- All Revenues from the operation of the System shall be held in trust by Contractor and be deposited with the City's Finance Department or at such other institution, and at such time or times, as designated in writing by the City's Director of Finance. 7. PROCUREMENTS All purchases of supplies, materials, equipment and contractual services ( "Procurements ") required by the Contractor within the limits of the amounts budgeted and appropriated therefor by the City Council of City shall be made and contracted for through the Purchasing Agent of City. The Purchasing Agent shall use the City's Procurement procedures which reflect applicable Charter and Ordinance provisions, rules and regulations; provided, that the Procurement conforms to applicable Federal law and standards identified in 49 CFR § 18.36. Contractor's General Manager shall submit complete request for each Procurement to the Purchasing Agent upon forms to be prepared by the Purchasing Agent which shall at a minimum describe in detail (a) the subject of the Procurement, (b) the reasons and justifications for the Procurement and, (c) the source and availability of the Funds to be expended for the Procurement. No Procurement shall be made for or on behalf of Contractor except in full compliance with the provisions of this Section 7 and then only after the City's Director of Finance certifies that sufficient funds therefor have been budgeted and appropriated and are available for such Procurement. City's Director of Finance and Purchasing Agent shall monitor Contractor's compliance with this Section 7. 8. EMPLOYEES The employees of Contractor consist of two distinct and separate groups. One group includes all employees in the bargaining group covered by the collective bargaining agreement between the Contractor and Amalgamated Transit Union, Division 662 for the Term 1/1/2001 to 12/31/2001, herein referred to as "Bargaining Employees." The other group includes all employees of Contractor other than Bargaining Employees and are herein referred to as "Non- Bargaining Employees." Collectively, "Bargaining Employees" and Non - Bargaining Employees" are referred to as "Contractor's Employees." (a) Contractor's General Manager shall immediately develop and implement comprehensive human resource procedures for classification, compensation, performance evaluation, discipline, grievance and safety activities for Non - Bargaining Employees. Similar human resource procedures for Bargaining Employees shall be developed, and those procedures subject to collective bargaining shall be incorporated in the collective bargaining agreement between Contractor and Amalgamated Transit Union Division 662 through the collective bargaining process. (b) All human resource procedures for Contractor's Employees shall be reviewed and approved by the City's Director of Personnel and adopted by the Board of Directors before implementation. -6- (c) All collective bargaining agreements between Contractor and Amalgamated Transit Union Division 662 and all modifications and amendments thereto shall be reviewed by the City's Director of Personnel and approved and signed by the President of Pueblo Transit. (d) Contractor shall not engage, hire, employ, discipline, or discharge any of Contractor's Employees without first complying with Contractor's human resource procedures and then only after review by City's Director of Personnel and written approval by the President of Pueblo Transit. No person shall be employed for any position by Contractor until after the Director of Personnel and President of Pueblo Transit determines that such person is experienced, competent and qualified to perform assigned responsibilities, duties and functions. (e) Contractor's General Manager shall continuously monitor and evaluate the performance of Contractor's Employees and compliance with Contractor's human resource procedures, and shall submit quarterly reports of such activities to the City's Director of Personnel for review and comment. 9. RECORDS (a) Contractor shall at a minimum keep intact and readily available data, books, records and documents which accurately show all Contractor's Employees' time and payroll, and all daily, weekly and monthly operating statistical and revenue information for each Route of the System and cumulative for the entire System, and such other records and information as the City's Director of Finance may in writing direct. (b) Contractor's General Manager shall immediately develop a record retention program that is consistent with both the City and Federal standards identified in 49 CFR § 18.42 and submit same to City's Director of Finance for approval before implementation. Contractor's General Manager shall communicate and implement the approved record retention program and continuously monitor and evaluate compliance therewith and submit periodic written reports thereof not less than quarterly to City's Director of Finance for review and comment. Any questionable non - compliance or actual non - compliance with the record retention program shall be included in such periodic reports together with the Contractor's General Manager's proposed corrective action therefor. (c) City shall have the right to inspect, review and audit any and all records of Contractor at any time, with or without notice to Contractor. Contractor's General Manager shall make such records available to the City's Director of Finance upon request. The provisions of this subsection (c) shall be included in Contractor's records retention program. -7- 10. REPORTS In addition to all reports required to be compiled and made by this Agreement, Contractor's General Manager shall: (a) timely prepare all quarterly Financial Status Reports and submit same to City's Director of Finance for review and approval. (b) immediately establish a budget variance analysis program that includes monthly reports to City of deviations between amounts budgeted and expended on a percentage -of- comparison basis, and proposed corrective action, if any. Such monthly reports shall be submitted to City's Director of Finance for review and approval. 11. FINANCIAL INFORMATION AND RESPONSIBILITY (a) Contractor's General Manager shall prepare and submit to the City Manager a proposed budget for the operation of the System for each calendar year prior to July 30 of the preceding calendar for his review and approval. Such budget shall be in such form and contain such information as the City's Director of Finance shall determine. (b) All applications and grants for funding from either the State or Federal Transit Administration shall be timely and completely prepared by Contractor's General Manager and submitted for review and approval to the City Manager and City's Director of Finance before filing or submitting to the City Council, State or Federal Transit Administration, as applicable. Copies of all such applications and grants after filing and all correspondence relating thereto shall be filed in the office of the City's Director of Finance. (c) Contractor's General Manager shall timely submit to the City's Director of Finance all related payroll data and documentation, including, but not limited to, deduction forms and changes signed by each of the Contractor's Employees; personnel action forms for salary and salary changes for each of Contractor's Employees signed by Contractor's General Manager; reports of sick leave and vacation time used and earned by each of Contractor's Employees including available balances signed by Contractor's General Manager, and reports of hours worked by each of Contractor's Employees signed by Contractor's General Manager on forms approved by City's Director of Finance. (d) Contractor shall comply with all budgetary and accounting procedures, either written or oral, as established by the City's Director of Finance, including, but not limited to proper expense classification, requests for budget transfers, and capital outlay -8- policies. Contractor's General Manager shall continuously monitor and evaluate Contractor's compliance with such budgetary and accounting procedures, and shall submit monthly reports of such monitoring to the City's Director of Finance for review and comment. 12. OFFICE. SPACE AND CLERICAL ASSISTANCE The City shall provide the Contractor with reasonable and necessary office space and equipment as the City in its sole discretion shall determine, and such accounting service as may be reasonably necessary for Contractor's performance of this Agreement. 13. EXCUSES FOR NON - PERFORMANCE Neither party to this Agreement shall be held responsible for failure to perform hereunder when such failure is due to fires, lawful strikes, lawful walkouts, acts of God, or legal acts of public authorities including those of the City. 14. ASSIGNMENT The Contractor shall not at any time sell or assign its interest and privileges under this Agreement to any other person, firm or corporation. 15. EQUIPMENT The City will provide transit -type motor buses and such other vehicles and equipment to be used in the operation of the System in such number, category and amount as the City shall, in its sole discretion, determine is reasonably required and necessary to operate and maintain the System and adequately provide the services as defined herein. All equipment shall be properly inventoried and maintained by the Contractor in accordance with City's inventory record policies, and shall be kept in a safe, dependable, clean, and sanitary condition at all times and climate controlled during the proper seasons. Equipment will be garaged, stored and worked upon at such locations as shall be provided by the City. 16. VEHICLE MAINTENANCE Contractor's General Manager shall immediately develop and implement (a) planned preventive maintenance schedules for buses, vans, and non - revenue vehicles, (b) a complete and current maintenance and inspection operating manual that specifically addresses the unique needs of mass transit vehicles for use in maintaining its vehicles, and (c) a spare parts inventory and control system. The preventive maintenance schedule, spare parts inventory and control system, and operating manual shall be reviewed and approved by the Assistant City Manager of City in charge of fleet maintenance before implementation. Contractor's General Manager shall continuously monitor and evaluate compliance with the approved -9- preventive maintenance schedule, spare parts inventory and control system, and operating manual, and submit periodic written reports thereof not less than quarterly to the Assistant City Manager of City in charge of fleet maintenance for review and comment. Any questionable non - compliance or actual non - compliance with the foregoing shall be included in such periodic reports with the General Manager's proposed corrective action therefor. 17. CONTRACTOR'S RULES Contractor's Board of Directors may make such reasonable rules and regulations as to the uniforms of its drivers, the conduct of its employees, and such other matters as will provide for the people of the City of Pueblo an efficient System under the terms of this Agreement. 18. LIABILITY INSURANCE City will procure such liability insurance as City in its sole discretion shall determine will be adequate to insure motor buses and other activities of Contractor in operating the System against liability to the public. 19. WORKERS' COMPENSATION INSURANCE a. Workers' Compensation Insurance: Unemployment Compensation, Social Security Contractor shall provide Workers' Compensation Insurance, including Occupational Disease Provisions, covering the Contractor's Employees and obligations of the Contractor in accordance with the provisions of the Colorado Workers' Compensation Act, as amended, and shall provide such unemployment compensation coverage and Social Security coverage as shall be required by law. b. Certificate of Insurance Certificates of Insurance for Workers' Compensation shall be filed with the City prior to the execution of the Agreement. Said insurance shall not thereafter be canceled, permitted to expire, or be changed without thirty (30) days notice in advance to the City and consented to by the City. 20. VERBAL AGREEMENTS No verbal agreements or conversations with any agent or employee of the City, either before or after execution of the Agreement, shall affect or modify any of the terms, or obligations contained in this Agreement. 21. RELATIONSHIP It is the parties' intent that Contractor shall be and shall act as independent contractor and as an agency and instrumentality of City in performing services and providing labor under this -10- Agreement for the management and operation of a public mass transportation system, and that Contractor as such independent Contractor and agency and instrumentality of the City is a "public entity" as defined in the Colorado Governmental Immunity Act §24 -10 -101 et seq., C.R.S., as amended. Therefore, Contractor shall be entitled to all benefits, immunities, privileges and limitations of the Colorado Governmental Immunity Act. Notwithstanding the foregoing, Contractor's Employees shall not be or be deemed to be employees of the City. 22. COMPLIANCE WITH SECTION 13(c) OF THE FEDERAL TRANSIT ACT (a) It is understood by the parties to this Agreement that the City has previously acquired the necessary equipment to carry out this Agreement under and by means of Federal Funds under the Federal Transit Act (the "Act ") and continues to receive funds under the Act for the System; therefore, this Agreement shall be carried out in such a manner and upon such terms and conditions as will be fair and equitable to affected Bargaining Employees of the Contractor within the meaning of Section 13(c) of said Act. (b) All rights, privileges and benefits (including pension rights and benefits) of Bargaining Employees of the Contractor and /or Bargaining Employees who have already retired under existing collective bargaining agreements shall be preserved and continued during the life of this Agreement. (c) The collective bargaining rights of Bargaining Employees of the Contractor, including the right to arbitrate any labor dispute if such right to arbitration be included in the collective bargaining agreement between the Contractor and its Bargaining Employees' representative, shall be preserved and continued for the life of this Agreement and the Contractor agrees that it will bargain collectively with its Bargaining Employees or any organization representing such employees and will enter into agreements with them relative to such matters as shall be the proper subject of collective bargaining. (d) The Contractor agrees in the case of any labor dispute that may arise between the Contractor and its Bargaining Employees during the life of this Agreement, and should there be any such dispute that cannot be amicably adjusted by conferences between the Contractor and properly accredited committees or officers of such Bargaining Employees or their representatives, the same shall be submitted at the written request of either party to such means of grievance- settlement as shall be provided by the collective bargaining agreement existing between the Contractor and the representative of its Bargaining Employees on the date this Agreement is executed. (e) The benefits contained in the provisions of Section 13(e) of the Act will apply to any -11- Bargaining Employee of the Contractor whose position with respect to his employment is worsened as a result of this Agreement. (f) The Contractor will employ all persons who are Bargaining Employees of Contractor on the date of this Agreement, and the seniority rights of all such employees shall be in accordance with the seniority roster of Contractor. (g) Bargaining Employees of Contractor who are terminated or laid off as a result of this Agreement shall be granted priority of employment or re- employment to fill any vacant position in the Contractor's employ for which they are, or by training or retraining can become, qualified. In the event training or retraining is required by such employment or re- employment, the Contractor shall provide, or provide for, such training or retraining at no cost to the employee, and such employee shall be paid while training or retraining the salary or hourly wage as the Contractor and its employee (or their representatives) shall determine by collective bargaining or otherwise. (h) Contractor's General Manager shall continuously monitor and evaluate Contractor's compliance with the provisions of this Section 22, and submit periodic written reports thereof not less frequently than quarterly to City's Director of Personnel for review and comment. Any questionable non - compliance or actual non - compliance therewith shall be included in such periodic reports together with the General Manager's proposed corrective action therefor. The provisions of this Section 22 shall be enforced by the City by appropriate action, including but not limited to action for specific performance or by termination of this Agreement, or by such other means as shall be fair and equitable. 23. FEDERAL TRANSIT ADMINISTRATION ( "FTA ") AND OTHER REQUIREMENTS Contractor shall meet, conform to, and comply with all State, Local and Federal statutes, regulations, executive orders, administrative guidance, and contracts and agreements applicable to the management and operation of the System, including without limitation, all FTA certifications and assurances made by the City as an applicant and grantee of FTA Assistance and grants, the FTA Master Agreement for fiscal year 2001 and subsequent fiscal years, as well as the other contracts and agreements identified in Section 24. Contractor's General Manager shall continuously monitor and evaluate such compliance and submit periodic written reports not less than quarterly to the City Manager for review and comment. Any questionable non - compliance or actual non - compliance with the foregoing shall be included in such periodic reports together with the General Manager's proposed corrective action therefor. 24. EXISTING CONTRACTS I ia Contractor represents and acknowledges that it has received copies of and is familiar with the following described contracts and agreements. Contractor agrees and stipulates that it is bound by such contracts and agreements and will honor, perform and comply with the terms, provisions and conditions of said contracts and agreements in the operation of the System and in the performance of this Agreement: (a) Agreement between Pueblo Transit and Amalgamated Transit Union, Division 662 for the Term 1/1/2001 - 12/31/2001. (b) Agreement pursuant to Section 13(c) of the Federal Transit Act, as amended, dated December 1, 1976 between Pueblo Transportation Co. and Local Union 662, Amalgamated Transit Union AFL -CIO as supplemented by the July 15, 1980 paratransit side letter. (c) FTA Fiscal Year 2001 Master Agreement and Fiscal Year 2001 FTA Certifications and Assurances. (d) Contract dated January 1, 1999 between Pueblo Transit and Senior Resource Development Agency, Inc. relating to Citi -Lift special transportation services. 25. AUTHORITY OF CITY MANAGER a. The Board of Directors of Contractor shall have general supervision of all services to be performed by Contractor under this Agreement. However, the City Manager shall decide all questions which may arise as to the fulfillment and performance of this Agreement on the part of the Contractor and his decision thereon shall be final and conclusive. Policy matters relating to the operation of the System may be referred to the City Council by the City Manager. It is understood that the word "policy" as used in the foregoing sentence is not subject to precise definitions; however, it is the intent of the City Council in approving this Agreement that the City Council should not be required to concern itself with day -to -day routine or administrative matters relating to the operation of the System, but that it should be concerned with the establishment and determination of policies relating to the System. Therefore, the City Manager shall in each case determine whether matters relating to this Agreement are policy matters referable to the City Council and his determination shall be final and conclusive on all parties. b. If, in the opinion of the City Manager, the services being performed by the Contractor are insufficient or in violation in any way with the terms of this Agreement, he shall forthwith cause the Contractor to cease said violation. 26. TERMINATION AND DEFAULT -13- a. Either party may terminate this Agreement upon sixty (60) days prior written notice given to the other party specifying the date of termination. b. If either party defaults in the performance of any covenant or provision of this Agreement, and such default is not cured within ten (10) calendar days after the non - defaulting party gives written notice to the defaulting party specifying the default, the non - defaulting party may terminate the Agreement upon five (5) days prior written notice given to the defaulting party. 27. LIMITED FINANCIAL OBLIGATION All financial obligations on City under this Agreement are subject to and contingent upon City Council of City budgeting and appropriating funds for such purpose. City is not obligated by this Agreement to make any payment or expend any funds in any fiscal year beyond the fiscal year for which funds are budgeted and appropriated for such payment or expenditure. All financial obligations and payments of the City under this Agreement are from year to year and do not constitute any multiple - fiscal year direct or indirect debt or other financial obligation of the City whatsoever. 28. EVENT OF NONAPPROPRIATION If City shall not budget and appropriate, specifically with respect to this Agreement, on or before December 1 of each calendar year, monies sufficient to pay all City's financial obligations under this Agreement coming due for the next ensuing fiscal year, an Event of Nonappropriation shall be deemed to have occurred. If an Event of Nonappropriation occurs, City shall not be obligated to make or pay any financial obligation imposed on City under this Agreement which occurs after the last day of the fiscal year during which such Event of Nonappropriation occurs and Contractor may at its option terminate this Agreement upon thirty (30) days prior written notice given to the City. 29. GOVERNMENTAL IMMUNITY Neither this Agreement nor any provision hereof shall be or be construed to be or constitute a waiver of any benefit, immunity, privilege or limitation available to City or Contractor under the Colorado Governmental Immunity Act or any other law or statute. 30. MISCELLANEOUS (a) This Agreement shall inure to the benefit of and shall be binding upon City and Contractor and their respective successors and assigns, subject, however, to the limitations contained in Section 14 of this Agreement. (b) The provisions of this Agreement may only be amended, in whole or in part, by -14- written instrument signed by both parties. (c) No waiver of any default by any party shall be effective unless in writing signed by the party against whom such waiver is asserted. (d) This Agreement including the Contract Document contains the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior dealings, understandings and agreements between the parties. The Agreement dated July 1, 1997 between the parties is superseded by this Agreement and terminated effective April 1, 2001, provided however, neither party shall be released from any obligation incurred or which occurred prior to April 1, 2001. (e) The provisions of this Agreement are for the exclusive benefit of the City and Contractor and not for the benefit of any third party, nor shall this Agreement be deemed to have conferred any rights, express or implied, upon any third person. No person other than City and Contractor shall have the right to enforce any of the provisions of this Agreement. -15-