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Legal Issues in Public Transit Emergency Planning and Operation (2013)

Chapter: Appendix B: APTA Sample Public Transit Mutual Aid Assistance Agreement

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Suggested Citation:"Appendix B: APTA Sample Public Transit Mutual Aid Assistance Agreement." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"Appendix B: APTA Sample Public Transit Mutual Aid Assistance Agreement." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Suggested Citation:"Appendix B: APTA Sample Public Transit Mutual Aid Assistance Agreement." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Page 59
Suggested Citation:"Appendix B: APTA Sample Public Transit Mutual Aid Assistance Agreement." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Issues in Public Transit Emergency Planning and Operation. Washington, DC: The National Academies Press. doi: 10.17226/22447.
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Page 59

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56 Appendix B: APTA Sample Public Transit Mutual Aid Assistance Agreement Public transit systems support processes whereby public transit systems and their geo- graphic operating regions may receive and provide assistance in the form of personnel and equipment, to aid in restoring and/or maintaining public transit or evacuation service when such service may be required due to acts of the elements, equipment malfunctions, accidents, sabotage, or any other occurrence for which emergency assistance is deemed to be necessary or advisable (“Emergency Assistance”). This Mutual Aid Assistance Agreement sets forth the terms and conditions to which the undersigned transit agency (“Participating Agency”) agrees to provide assistance, based on the governing principles, on all occasions that it re- quests and receives (“Requesting Entity”) or provides (“Responding Entity”) Emergency As- sistance from or to another Participating Agency who has also signed the Mutual Aid Assis- tance Agreement provided; however, that if a Requesting Entity and one or more Responding Entities are parties to another mutual aid assistance agreement at the time of the Emer- gency Assistance is requested, such other mutual assistance agreement shall govern the Emergency Assistance among those Participating Entities. In consideration of the foregoing, the Participating Agency hereby agrees as follows: (1) When providing Emergency Assistance to or receiving Emergency Assistance from an- other Participating Agency, the Participating Agency will adhere to the written principles accompanying this Agreement to govern Emergency Assistance arrangements. (2) With respect to each Emergency Assistance event, Requesting Entities agree that they will provide appropriate reimbursement for Responding Entities regarding all costs and ex- penses incurred by Responding Entities in providing Emergency Assistance as provided un- der the Principles, unless otherwise agreed to in writing by each Participating Entity pro- vided, however, that Responding Entities must maintain auditable records in a manner consistent with the Principles. (3) During each Emergency Assistance event, the conduct of the Requesting Entities and the Responding Entities shall be subject to the liability and indemnification provisions set forth in the Principles. (4) A Participating Agency may request a copy of the signed Mutual Aid Assistance Agreement of another Participating Entity prior to providing or receiving Emergency Assis- tance. [Name of Organization] Name: __________________________________________________________________ Signature: __________________________________________________________________ Name: __________________________________________________________________ Title: __________________________________________________________________ Date: __________________________________________________________________ Appendix B: Suggested governing principles covering emergency assistance ar- rangements between emergency response program participants Transit agencies or other entities may have occasion to call upon other transit agencies or entities for emergency assistance in the form of personnel or equipment to aid in evacuation or maintaining continuity of service, when such service has been disrupted by acts of the elements, equipment malfunctions, accidents, sabotage, or any other occurrences where the

57 parties deem emergency assistance to be necessary or advisable. While it is acknowledged that a transit entity is not under any obligation to furnish such emergency assistance, ex- perience indicates that companies are willing to furnish such assistance when personnel or equipment is available. In the absence of a continuing formal contract between a transit agency or other entity re- questing emergency assistance (“Requesting Entity”) and a transit agency willing to furnish such assistance (“Responding Entity”), the following principles are suggested as the basis for a contract governing emergency assistance to be established at the time such assistance is requested: (1) The emergency assistance period shall commence when personnel and/or equipment expenses are initially incurred by the Responding Entity in response to the official request of the Requesting Entity. (This would include any request for the Responding Entity to prepare its employees and/or equipment for transport to the Requesting Entity’s location but to await further instructions before departing.) The emergency assistance period shall terminate when such employees and/or equipment have returned to the Responding Entity, and shall include any mandated DOT rest time resulting from the assistance provided and reasonable time required to prepare the equipment for return to normal activities (e.g. cleaning off/repair of vehicles, restocking parts, etc.). (2) To the extent possible, the Requesting Entities and Responding Entities should reach a mutual understanding and agreement in advance on the anticipated length, in general, of the emergency assistance period. For extended assistance periods, there should be agree- ment on the process for replacing or providing extra rest for the Responding Entity’s employ- ees. It is understood and agreed that if in the Responding Entity’s judgment such action be- comes necessary, the decision to terminate the assistance and recall employees, contractors, and equipment lies solely with the Responding Entity. The Requesting Entity will take the necessary action to return such employees, contractors, and equipment promptly. (3) Employees of the Responding Entity shall at all times during the emergency assistance period continue to be employees of the Responding Entity and shall not be deemed employ- ees of the Requesting Entity for any purpose. The Responding Entity shall be an independ- ent contractor of the Requesting Entity; and wages, hours, and other terms and conditions of employment of the Responding Entity shall remain applicable to its employees during the emergency assistance period. (4) The Responding Entity shall make available at least (__) supervisor(s) in addition to operators and maintenance personnel. All instructions for work to be done by Responding Entity’s personnel shall be given by Requesting Entity to Responding Entity supervisor(s); or when Responding Entity personnel are to work in widely separate areas, to such of Respond- ing Entity’s supervisors as may be designated for the purpose by Responding Entity’s man- agement. (5) Unless otherwise agreed, the Requesting Entity shall be responsible for supplying and/or coordinating support functions such as lodging, meals, materials, etc. when it is rea- sonably able to do so. As an exception to this, the Responding Entity shall normally be re- sponsible for arranging lodging and meals en route to the Requesting Entity and for the re- turn trip home. The Requesting Entity agrees to seek appropriate reimbursement for expenses incurred by the Requesting Entity. (6) The Responding Entity’s safety rules shall apply to all work done by their employees, unless as mutually agreed otherwise. Any questions or concerns arising about any safety rules and/or procedures should be brought to the proper level of management for prompt resolution between management of the Requesting Entities and Responding Entities.

58 (7) All timesheets and work records pertaining to the Responding Entity’s employees fur- nishing emergency assistance shall be kept by the Responding Entity. (8) The Requesting Entity shall indicate to the Responding Entity the types of vehicles and other equipment desired as well as the number of job function employees requested, but the extent to which the Responding Entity makes available such equipment and employees shall be at the Responding Entity’s sole discretion. (9) The Requesting Entity shall reimburse the Responding Entity for all costs and ex- penses incurred by the Responding Entity as a result of furnishing emergency assistance. The Responding Entity shall furnish documentation of expenses to the Requesting Entity. Such costs and expenses shall include, but not be limited to the following: • Employees’ wages and salaries for paid time spent in Requesting Entity’s service area and paid time during travel to and from such service area, plus the Responding Entity’s standard payable additives to cover all employee benefits and allowances for vacation, sick leave and holiday, pay, social and retirement benefits, all payroll taxes, workmen’s compen- sation, employer’s liability insurance, and other contingencies and benefits imposed by appli- cable law or regulation. • Employee travel and living expenses (meals, lodging, and reasonable incidentals). • Replacement cost of materials and supplies expended or furnished. • Repair or replacement cost of equipment damaged or lost. • Charges, at rates internally used by the Responding Entity, for the use of vehicles and other equipment requested. • Administrative and general costs which are properly allocated to emergency assistance, to the extent such costs are not chargeable pursuant to the foregoing subsections. (10) The Requesting Entity shall pay all costs and expenses of the Responding Entity within 60 days after receiving an invoice. (11) The Requesting Entity shall indemnify, hold harmless, and defend the Responding Entity from and against any and all liability for loss, damage, cost, or expense which the Re- sponding Entity may incur by reason of bodily injury, including death, to any person or per- sons, or by reason of damage to or destruction of any property, including the loss of use thereof, which result from furnishing emergency assistance and whether or not due in whole or in part to any act, omission, or negligence of the Responding Entity, except to the extent that such death or injury to person, or damage to property, is caused by the willful or wanton misconduct and/or gross negligence of the Responding Entity, its employees, officers, con- tractors, or agents. Where payments are made by the Responding Entity under a workmen’s compensation or disability benefits law or any similar law for bodily injury or death result- ing from furnishing emergency assistance, the Requesting Entity shall reimburse the Re- sponding Entity for such payments, except to the extent that such bodily injury or death is caused by the willful or wanton misconduct and/or gross negligence of the Responding En- tity, its employees, officers, contractors, or agents. (12) In the event any claim or demand is made, or suit or action is filed against the Re- sponding Entity alleging liability for which the Requesting Entity shall indemnify and hold harmless the Responding Entity under paragraph (11) above, the Responding Entity shall promptly notify the Requesting Entity thereof; and the Requesting Entity, at its sole cost and expense, shall settle, compromise, or defend the same in such manner as it deems neces- sary or prudent. The Requesting Entity shall consult the Responding Entity on all such liti- gation and will not compromise any issue or claim without the concurrence of the Respond- ing Entity, which will not be unreasonably withheld. The Responding Entity shall cooperate

59 with the Requesting Entity’s reasonable efforts to investigate, defend, and settle the claim or lawsuit. © 2009 American Public Transportation Association

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TRB’s Transit Cooperative Research Program (TCRP) Legal Research Digest 44: Legal Issues in Public Transit Emergency Planning and Operation synthesizes and assesses laws, regulations, and guidance from the transit and homeland security industries as a means to help transit agencies better understand their legal responsibilities with respect to emergency planning and operational issues. One of the goals of the report is to help transit systems remain in compliance with emergency planning and operations requirements and guidance.

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