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40 Coordination: Service provider to coordinate all re- quired work with utility companies and all relevant government agencies. Ancillary programs: Specify if relevant. Insurance and bonding: Duty to obtain liability, workerâs comp, auto insurance; appropriate levels of insurance, type of insurance company; public enti- ties/individuals that must be covered by liability insur- ance; requirement that any subcontracts contain equivalent liability insurance provision in favor of tran- sit agency; performance and prompt payment bonds. Indemnification: Specify indemnification language, providing maximum indemnification allowed under state law (but no more); specify obligation to defend; require that any subcontracts contain equivalent provi- sion in favor of transit agency. In addition, transit agencies could review the issues set forth in Section A to determine which of the service- specific issues are relevant to their agreement for provi- sion of services. It may also be advisable to specifically require maintenance providers (whether providing ser- vice under a franchise or maintenance agreement) to comply with ADA requirements, including maintaining accessible space surrounding the bus shelter, and to notify the transit agency of any accessibility issues that arise. C. Major Issues to Cover in Agreements with Enclosed Private Property Owners To best ensure transit access, it is important to enter into a written agreement with the party with the widest authority available. For example, an agreement with a mall manager may not survive a turnover in mall man- agement, whereas an agreement with the property owner may be of greater duration. Thus, to the extent feasible, agreements should be with the property owner, to ensure stability of access.453 Agreements with devel- opers, particularly if they can be written to run with the land, are perhaps the most advantageous. The following issues should be addressed: 454 ⢠Specific site location. ⢠Time frame and minimum periods for notice of termi- nation. ⢠Specific improvements to be made at the bus stop (lighting, signage, markings, etc.). ⢠Responsibility for installation of each amenity. ⢠Vehicle and pedestrian access. ⢠Number of trips allowed per day. ⢠Permissible hours of operation. ⢠Maintenance of the bus stop. ⢠Liability for injuries and damages. ⢠Payments. ⢠Security. 453 HINEBAUGH ET AL., supra note 154, at 41. 454 WAMBALABA ET AL., supra note 415, at 20; HINEBAUGH ET AL., supra note 154, at 38. Maintenance may be included in the overall access agreement or covered in a separate maintenance agreement. In either case, maintenance issues that should be covered include:455 ⢠How frequently the bus stop will be cleaned/maintained. ⢠The physical area subject to the agreement. ⢠Responsibility for amenities, including standards for replacement. ⢠The structural and maintenance requirements for concrete pads. VIII. CONCLUSIONS A transit agency is responsible for bus stops on prop- erty it owns or controls. However, absent state or local law giving the transit agency control over bus stops or an agreement to that effect between the transit agency and the local jurisdiction, the transit agency should not be responsible for bus stop conditions on municipal property, such as a public right-of-way. The exception to that rule is when the actions of the transit agency cre- ate a dangerous condition (for example by damaging the area around the bus stop), or when a bus driver stops in such a way as to breach the transit agencyâs duty to passengers of a reasonably safe path to board or alight. Even where the transit agency controls the bus stop area, in order to be liable for a dangerous condition it did not create, the agency must have actual or construc- tive notice of the dangerous condition and a reasonable opportunity to correct it. Thus, for many transit agencies, liability for injuries related to bus stops is most likely to be sustained for injuries caused by conditions created by the transit agency. Appropriate protocols for approaches to bus stops, and training on those protocols, are advised to minimize potential liability, as are maintenance proce- dures that require prompt repair to areas around bus stops under the transit agencyâs ownership, control, or contractual obligation. Where the municipality is re- sponsible for bus stops, the transit agency should notify the responsible municipality when any damage to a bus stop area occurs. In addition to tort liability, transit agencies should consider the following legal issues: Transit access to enclosed private property, accessibility of bus stops and bus shelters to disabled passengers, civil rights, adver- tising, environment, and enabling legislation. Unless the local jurisdiction already mandates transit access, the transit agency may need to work with the jurisdic- tion to incorporate access requirements/incentives into the community development planning process. In addi- tion, the transit agency may need to negotiate agree- ments with developers/owners/managers of existing properties. This latter approach is likely to require of- fering incentives to those private parties, and possibly educating them about the need for, benefits of, and po- 455 HINEBAUGH ET AL., supra note 154, at 40.
41 tential liabilities for refusing transit access to their property. There are numerous governmental processes associ- ated with bus stops/bus shelters, including processes dealing with placement, design, building/electrical per- mits, and sign codes. The processes for placing and relo- cating bus stops/bus shelters are likely to involve mul- tiple parties in addition to the transit agency, including municipal traffic departments, elected officials, agencies dealing with transit-dependent populations, and com- munity stakeholders such as neighborhood associations. Whether or not a transit agency is legally responsible for bus stop conditions in its service area, the agency has a strong interest in having safe, accessible, well- maintained bus stops. Thus, where a transit agency is not responsible, it should get involved in planning and other governmental processes to have input into bus stop design and placement to help prevent common problems. Critical design safety factors include lighting and the bus stopâs environment. Safety is also a key factor in bus stop placement. Transit agencies that do have responsibility for bus stops or bus shelters have options for managing them, notably franchising the bus shelters. Often an attrac- tive option, franchising is most cost-effective if sup- ported by advertising, which is not an option in all ju- risdictions because of legal restrictions on advertising in the public right-of-way. Where advertising is al- lowed, it must comply with state and local legal re- quirements, as well as with constitutional parameters for regulating speech. Where the transit agency is responsible for bus stops and franchises or contracts out any services regarding the bus stops, it is critical that the agencyâs agreements describe in detail the responsibilities of the franchisee or contractors to minimize any possibility that the tran- sit agency will be found liable for breaches of duty to passengers in furnishing such services. In addition, well-drafted indemnification and insurance clauses, including duty to defend provisions, in any agreement related to bus stops and bus shelters are critical to mitigating the risk and expense of litigation. Such clauses must be specific to be enforceable, and should comply with any limitations on indemnification for the indemniteeâs own negligence.
