AMENDMENT NUMBER SIX TO THE
GENERAL CONDITIONS OF THE
CONTRACT FOR THE ESTABLISHMENT AND OPERATION
OF MOTOR VEHICLE INSPECTION/MAINTENANCE
PROGRAM FOR THE STATE OF MINNESOTA
POLLUTION CONTROL AGENCY
This Amendment Number Six is made to the Contract entered into between
the State of Minnesota, acting through its Pollution Control Agency,
hereafter referred to as the "State," and Envirotest Technologies, Inc.,
doing business in Minnesota as Envirotest Technologies, Inc., hereafter
referred to as the "Contractor." Additions are underlined; deletions are
shown in over-strike type.
WHEREAS, the State and Contractor entered into the Contract on July 18,
1990, for the design, construction, equipment, establishment, maintenance and
operation of public inspection stations for the motor vehicle inspection and
maintenance program for the Twin Cities Metropolitan Area, hereafter referred
to as the "I/M Program;"
WHEREAS, the Contract required the Contractor to construct and operate
vehicle emission testing stations at locations throughout the Twin Cities
Metropolitan Area;
WHEREAS, the Contract has been amended five times, on June 17, 1991,
May 15, 1992, September 30, 1993, September 6, 1995, and October 31, 1995,
and as amended is in effect today;
WHEREAS, the statute governing the I/M Program, Minn Stat.
Sections 116.60 - 65, was amended by the 1995 Minnesota Legislature in 1995
Minn. Laws ch. 204, hereafter referred to as the "1995 Legislation."
WHEREAS, the 1995 Legislation instructed the commissioner of the
Pollution Control Agency to "take all reasonable steps to enable the state,
by July 1, 1998, to comply with the federal Clean Air Act without having to
continue the motor vehicle emission inspection program;"
WHEREAS, the Pollution Control Agency has submitted to the U.S.
Environmental Protection Agency (EPA) a request to redesignate the Twin
Cities Metropolitan Area to attainment of the national ambient air quality
standard for carbon monoxide;
WHEREAS, the State's redesignation request seeks U.S. EPA approval of a
maintenance plan that would not require, for purposes of the federal Clean
Air Act, continuation of the motor vehicle emission inspection program;
WHEREAS, at the time of entering into this Amendment Six, the Pollution
Control Agency believes that the I/M Program is needed for another year,
until July 30, 1999, in order to comply with the federal Clean Air Act while
the U.S. EPA considers the State's redesignation request.
WHEREAS, Minn. Stat. Section 116.62, subd. 3(b) provides that this
contract may exceed a five year term; and
WHEREAS, the Contractor wishes to continue to perform vehicle testing
for the I/M Program.
NOW THEREFORE, the State and Contractor agree to amend the July 18,
1990, Contract as follows:
1. Section IX.B., Term, of the General Conditions of the Contract is
amended to read as follows:
This contract shall remain in effect from its effective date until July
30, 1999. If the State extends the network startup date under Section
IV.E, the State shall also extend the term of the contract until seven
(7) years from the new startup date of the vehicle inspection network.
In the event that this contract is terminated prior to July 30, 1999 or
expires on July 30, 1999, the requirements of Sections IV.H., VI.E.4.,
VII.A., VII.B., VII.E., VIII, IX.D., IX.E., IX.F, and IX.G shall remain
in effect. Sections V.B and V.C shall remain in effect for six (6) years
after expiration or termination of this contract, or until any judicial
or administrative action involving the work performed by the Contractor
under this contract commenced prior to expiration of the six (6) year
period is resolved, including all appeals, whichever occurs last.
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2. Section II.A., Consideration, of the General Conditions of the
Contract is amended to read as follows:
The State shall pay the contractor, until November 1, 1995, for
all activities conducted pursuant to this contract, $7.07 for each fee
bearing inspection, each fee bearing reinspection and each fee bearing
elective inspection performed on or after the Extension/Exemption
Startup Date and for which the State has been paid by the citizen who
obtained the inspection. On and after November 1, 1995, and until June
30, 1996, the State shall pay the Contractor, for all activities
conducted pursuant to this contract, $8.00 for each fee bearing
inspection, each fee bearing reinspection and each fee bearing elective
inspection performed by the Contractor and for which the State has been
paid by the citizen who obtained the inspection. After June 30, 1996,
and until June 30, 1997, the State shall pay the Contractor, for all
activities conducted pursuant to this contract, $7.28 for each fee
bearing inspection, each fee bearing reinspection and each fee bearing
elective inspection performed by the Contractor and for which the State
has been paid by the citizen who obtained the inspection. After June 30,
1997 and until June 30, 1999, the State shall pay the Contractor, for
all activities conducted pursuant to this contract, a To-Be-Determined
Amount ("TBDA") for each fee bearing inspection, each fee bearing
reinspection and each fee bearing elective inspection performed by the
Contractor and for which the State has been paid by the citizen who
obtained the inspection. The State, on the effective date of Amendment
Five, estimates that the TBDA will be approximately $7.00 for the year
between July 1, 1997 and June 30, 1998, but the exact amount of the TBDA
shall be determined as provided by the following sentence. The TBDA
shall not exceed $8.00 and shall be determined each year by the State
after review of testing revenues and the vehicle emission inspection
account balance through the end of the State's Fiscal Year (i.e. June
30, 1997 for the first year and June 30, 1998 for the second year the
TBDA is determined), and
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projected revenues and MPCA and Department administrative costs through
the end of all State and Contractor activities under the I/M Program, so
that the amount of revenues allocated for the year beginning July 1,
1997 and the year beginning July 1, 1998 to the Contractor through the
TBDA will assure that all MPCA and Department administrative costs plus
a contingency of $15,000 are allowed for in the vehicle emission
inspection account. The annual TBDA shall be determined by the State by
August 15, 1997 and by August 15, 1998. These fees are, in the event of
termination of the I/M Program by legislation prior to June 30, 1998,
subject to adjustment as provided in the next paragraph, and are the
Contractor's sole compensation for all activities conducted pursuant to
this contract, except as may be provided in Section IX.C.
If the legislature terminates the I/M Program prior to June 30,
1998, and the Contractor has received more than an average of $7.35,
between July 1, 1995, and the date testing ends, per fee bearing
inspection, fee bearing reinspection and fee bearing elective inspection
performed by the Contractor, and for which the State has been paid the
citizen who obtained the inspection, then the amounts specified in the
preceding paragraph due the Contractor will be reduced by the State, and
as necessary reimbursed to the State by the Contractor (except as may be
provided in Section IX.C.) within sixty (60) days of the State's written
request, so that by the end of testing the Contractor will have been
provided with an average of $7.35 per fee bearing inspection, fee
bearing reinspection and fee bearing elective inspection performed by
the Contractor, and for which the State has been paid by the citizen who
obtained inspection, between July 1, 1995 and the date testing ends.
A fee-bearing inspection is the initial inspection and, if the
vehicle fails the initial inspection, the number of reinspections of a
subject vehicle during one annual registration period covered by the
initial fee assessed pursuant to Minn. Rules 7023.1105, subp. 2(A). A
fee bearing reinspection is each subsequent reinspection of a subject
vehicle during one annual registration period for which an
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additional fee is assessed under the Minn. Rules pt. 7023.1105, subp.
2(A). A fee bearing elective inspection is any single inspection of a
subject or nonsubject vehicle approved in advance by the State and
conducted pursuant to Minn. Rules 7023.1105, subp. 2(B). The State
agrees that, pursuant to Minn. Rules pt. 7023.1105, it will set the
inspection fee at an amount not less than the amounts specified in the
first paragraph, and that if its administrative costs exceed the
difference between the inspection fee collected from citizens and the
amounts specified in the first paragraph due the Contractor, the excess
State administrative costs will not reduce the amount paid to the
Contractor under Section II.
The State shall not pay the Contractor for inspections conducted by
the Contractor for which the State has not been paid by the citizen who
obtained the inspection. The State shall not pay the Contractor for
inspections conducted before the network start-up date.
The total obligation of the State for all compensation and
reimbursements to Contractor shall not exceed the funds appropriated to
the I/M Program in the vehicle emission inspection account. Minn. Stat.
Section 116.65, subd. 1 establishes a vehicle emission inspection account
which consists of the revenues listed in Minn. Stat. Section 116.65,
subd. 2, including the proceeds of the vehicle inspection fee. Minn. Stat.
Section 116.65 provides that the vehicle emission inspection account is
appropriated to the Agency by the legislature, and may be used only to
pay the Contractor for vehicles inspected and MPCA and Department
administrative costs for the I/M Program. The Contractor understands and
agrees, however, that the vehicle emission inspection account will not
contain substantial funds until the commencement of vehicle inspection
and the collection of fees from motorists for vehicle inspection, and
that the vehicle emission inspection account will be regularly depleted
after that point to pay the Contractor for vehicles inspected and to pay
State administrative costs to conduct the I/M Program. Contractor also
understands and agrees that, in the unlikely event that the
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legislature ceases to appropriate funds for the I/M Program, the
legislature may not authorize sufficient funds to pay the Contractor's
costs.
3. Section 1.25, Rulemaking, of the General Conditions of the Contract,
which was added in Amendment Five, is deleted.
4. This Amendment Six is effective when it is signed by the Commissioner
of Administration.
5. All other terms and conditions of the Contract remain in full force
and effect, except as specifically amended above.
6. This Amendment Six may be executed in counterparts. All persons by
their signatures below affirm they have authority to execute this amendment
on behalf of the parties they represent.
ENVIROTEST TECHNOLOGIES, INC. MINNESOTA POLLUTION CONTROL AGENCY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Name (print): ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------- Manager, Administrative Services
Title: Chairman Division
-----------------------------
Date: 4/18/98 Date: 4/22/98
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By: AS TO FORM AND EXECUTION BY
-------------------------------- THE ATTORNEY GENERAL
Name (print):
----------------------
Title:
-----------------------------
Date: By: /s/ ▇▇▇ ▇. ▇▇▇▇
------------------------------ -------------------------------
▇▇▇ ▇. ▇▇▇▇
Assistant Attorney General
Date: 4/22/98
-----------------------------
AS TO ENCUMBRANCE BY THE
COMMISSIONER OF ADMINISTRATION MINNESOTA POLLUTION CONTROL AGENCY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name (print): ▇▇▇▇▇ ▇. ▇▇▇▇
Contract Administrator ---------------------
Title: Accts Payable Supv
----------------------------
Date: 4/22/98 Date: 4/22/98
----------------------------- -----------------------------
legislature ceases to appropriate funds for the I/M Program, the
legislature may not authorize sufficient funds to pay the Contractor's
costs.
3. Section 1.25, Rulemaking, of the General Conditions of the Contract,
which was added in Amendment Five, is deleted.
4. This Amendment Six is effective when it is signed by the Commissioner
of Administration.
5. All other terms and conditions of the Contract remain in full force
and effect, except as specifically amended above.
6. This Amendment Six may be executed in counterparts. All persons by
their signatures below affirm they have authority to execute this amendment
on behalf of the parties they represent.
ENVIROTEST TECHNOLOGIES, INC. MINNESOTA POLLUTION CONTROL AGENCY
By: By:
-------------------------------- --------------------------------
Name (print): ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------- Manager, Administrative Services
Title: Division
-----------------------------
Date: Date:
------------------------------ ------------------------------
By: /s/ F. R. ▇▇▇▇▇▇ AS TO FORM AND EXECUTION BY
-------------------------------- THE ATTORNEY GENERAL
Name (print): F. R. ▇▇▇▇▇▇
----------------------
Title: CEO
-----------------------------
Date: 4/18/98 By:
------------------------------ -------------------------------
▇▇▇ ▇. ▇▇▇▇
Assistant Attorney General
Date:
-----------------------------
AS TO ENCUMBRANCE BY THE
COMMISSIONER OF ADMINISTRATION MINNESOTA POLLUTION CONTROL AGENCY
By: By:
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name (print):
Contract Administrator ---------------------
Title:
----------------------------
Date: Date:
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