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HomeMy WebLinkAboutResolution - 2008-R0205 - Cooperative Endeavor Agreement - Mcdonald Transit Associates, Inc. - 06/13/2008Resolution No. 2008-RO205 June 13, 2008 Item No. 5.11 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock or his designee BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Cooperative Endeavor Agreement by and between the City of Lubbock and McDonald Transit Associates, Inc., and related documents, for the lease of certain vehicles. Said Agreement is attached hereto, and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 13th day of June , 2008. e-7'0�- '091ra� - TO MARTIN, MAYOR ATTEST: Rebekca Garza, City APPROVED AS TO CONTENT: J,dnes Voomis, Assistant City Manager/ NihlWand Public Works �Iif�i�7_�•YIIiWelm D.Nitcheiilatter ' e, -Assistant City Attorney gs/ccdocs/res-McDonaldtransit.LeaseAgrmnt.08 5/22/08 Resolution No. 2008-RO205 COOPERATIVE ENDEAVOR AGREEMENT BETWEEN THE CITY OF LUBBOCK AND MCDONALD TRANSIT ASSOCIATES, INC. THIS COOPERATIVE ENDEAVOR AGREEMENT is made effective as of this, the 13th day of June, 2008, by and between the City of Lubbock ("Lubbock"), a political subdivision of the St o_f Texas, appearing herein through Tom Martin, Mayor, by the authority of Resolution No. R$ ,adopted on .Tune 13 , 2008, and McDonald Transit Associates, Inc., ("McDonald Transit") a corporation in the State of Texas, appearing herein through Robert T. Babbitt, its President, by authority of Resolution No. , adopted on , and upon the following terms and conditions: WHEREAS, the City of Lubbock has vehicles in its fleet of transit buses that are in excess of the current service level; and WHEREAS, McDonald Transit Associates, Inc. is a transit entity which has a need for additional buses to be used in transit service; and WHEREAS, the vehicles will be placed in transit service that is open to the general public and operates on specific and published time schedules and routes; and WHEREAS, the vehicles comply with provisions of the Americans with Disability Act; and WHEREAS, Lubbock will enjoy a benefit from this agreement, and the activities hereunder, generating revenue for Lubbock, constitute a valid public purpose. NOW, THEREFORE, the parties hereby agree as follows: 1. LEASE. Contingent upon Lubbock's receipt of written authorization from FTA to Lubbock and McDonald Transit to undertake cooperatively the activities contemplated by this instrument, Lubbock hereby agrees to lease to McDonald Transit five (5) Transit Buses as listed in the Vehicle Profile, hereby referenced as the "Buses." All moving and/or shipping expenses and associated activities shall be the sole responsibility of McDonald Transit. Lubbock will transfer possession of these buses to McDonald Transit, at a place determined by Lubbock, immediately upon approval by the respective governing authorities and execution of this Agreement. It is understood by signing this Agreement that McDonald Transit will accept responsibility for the satisfactory maintenance, care, and control of the federally funded buses. The term of this lease shall be for four and half (4 1/2) months, from June 15, 2008 through October 30, 2008, unless Page 1 of 8 earlier terminated. Upon the expiration of the lease, the buses shall be surrendered to a designated agent of Lubbock, at the place further designated by Lubbock, in the same condition as they were at the start of the lease, normal wear and tear excepted. McDonald Transit shall perform all required repair and maintenance on the buses at its sole expense. In the event McDonald Transit cannot return any bus to Lubbock as provided herein, McDonald Transit shall in lieu of said bus, agree to bid an amount equal to the actual cash value of the unreturned bus, or $4,999, whichever is greater, in accordance with Federal Transit Administration's guidelines. 2. LEASE PRICE AND PAYMENT. Rent for the buses shall be $8,000.00 per bus, for a total of $40,000.00. McDonald Transit will, in a form acceptable to Lubbock, make a payment of $20,000 to Lubbock before June 15, 2008 and $20,000 to Lubbock on or before September 1, 2008. 3. Omitted. 4. MASTER AGREEMENT. All leased vehicles will remain subject to all applicable legal and program requirements in the FTA Master Agreement. The undersigned representative of McDonald Transit hereby represents and warrants to Lubbock that performance of this Agreement by the parties hereto shall not constitute a violation of any agreement, covenant, promise, or obligation that exists between the FTA and either or both of the parties. 5. DISCLAIMER OF WARRANTIES. McDonald Transit acknowledges that the lease is made without warranty of any kind or type, and further SPECIFICALLY WAIVES ALL IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE of the buses, as well as any warranty with respect to the design, condition, or operability of the buses, the quality or capacity of the buses with the requirement of any law, rule, specification or contract pertaining thereto, patent infringement, or latent defects. McDonald Transit further acknowledges that it accepts the buses in their present condition, "as is," "where is." 6. LUBBOCK REPRESENTATIVE. McDonald Transit's Parks Transportation subsidiary Maintenance Director is designated as the Lubbock Representative for purposes of facilitating delivery of buses to McDonald Transit, but for no other purpose inconsistent with previously delegated or appointed authority. 7. ASSIGNMENT: Neither party to this Agreement shall assign any right or obligation hereunder in whole or in part, without the prior written consent of the other party hereto. 8. APPROVAL: By executing this Agreement, McDonald Transit agrees to accept responsibility for the satisfactory maintenance and control of the federally funded buses and acknowledges that the transfer contemplated herein may not be completed unless and until there is express, written permission and consent of FTA. Page 2 of 8 9. INSURANCE: McDonald Transit shall secure and maintain at its sole expense such insurance that is acceptable to Lubbock, and from a company authorized to do business in the State of Texas, that will protect it, and Lubbock, from claims under the Workmen's Compensation Acts and from claims for bodily injury, death or property damage which may arise from the performance of services under this agreement. All certificates of insurance shall be furnished to Lubbock in advance, and shall provide that insurance shall not be canceled without thirty (30) days prior notice of cancellation given to Lubbock, in writing, on all of the required coverages provided to Lubbock. Lubbock shall examine the policies to insure compliance with the insurance provisions. A. ALL POLICIES AND CERTIFICATES OF INSURANCE SHALL CONTAIN THE FOLLOWING CLAUSES: 1. McDonald Transit's insurers will have no right of recovery or subrogation against Lubbock, it being the intention of the parties that the insurance policy so affected shall protect both parties and be the primary coverage for any and all losses covered by the below described insurance. 2. Lubbock and any party to whom McDonald Transit shall lease the buses that are the subject of this Agreement shall both be named as primary and non-contributory additional insureds as regards to automobile and general liability with respect to negligence. 3. The insurance companies issuing the policy or policies shall have no recourse against Lubbock for payment of any premiums or for assessments under any form of policy. 4. Any and all deductibles in the below described insurance policies shall be assumed by and be at the sole risk of McDonald Transit. B. Prior to the execution of this agreement, McDonald Transit shall provide at its own expense, proof of the following insurance coverage required by the contract to Lubbock by insurance companies authorized to do business in the State of Texas. Insurance is to be placed with insurers with an A.M. Best rating of no less than A: VI. Worker's Compensation Insurance: Employer's liability shall be at least $1,000,000 per occurrence when work is to be over water and involves maritime exposures, otherwise this limit shall be no less than $500,000 per occurrence. 2. Commercial General Liability Insurance with a Combined Single Limit of at least $1,000,000.00 per Occurrence for bodily injury and property damage. This insurance shall include coverage for bodily injury and property damage, and indicate on the certificate of insurance the following: a) Broad form contractual liability; b) Personal Injury; C) Broad form property damage; Page 3 of 8 3. A commercial automobile liability insurance policy, with a combined single limit of at least $1,000,000.00 per occurrence for bodily injury and property damage. This insurance shall not exclude coverage for operation -for -hire. 4. An umbrella policy or excess may be used to meet minimum requirements. All policies of insurance shall meet the requirements of Lubbock prior to the commencing of any activities under this Agreement. Lubbock has the right but not the duty to approve all insurance policies prior to commencing of any activities under this Agreement. If at any time any of the said policies shall be or becomes unsatisfactory to Lubbock as to form or substance; or if a company issuing any such policy shall be or become unsatisfactory to Lubbock, McDonald Transit shall promptly obtain a new policy, submit the same to the Lubbock administration for approval and submit a certificate thereof as provided above. Upon failure of McDonald Transit to furnish, to deliver and maintain such insurance as above provided, this contract, at the election of Lubbock, may be forthwith declared suspended, discontinued or terminated. Failure of McDonald Transit to take out and/or to maintain insurance shall not relieve McDonald Transit from any liability under the contract, nor shall the insurance requirements be construed to conflict with the obligation of McDonald Transit concerning indemnification. 9. INDEMNITY: MCDONALD TRANSIT SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW PROTECT, DEFEND, INDEMNIFY, AND SAVE LUBBOCK ITS AGENTS, ELECTED OFFICIALS, REPRESENTATIVES, EMPLOYEES, SERVANTS, INCLUDING VOLUNTEERS, OR ANY FIRM, COMPANY, ORGANIZATION, OR INDIVIDUAL, OR THEIR CONTRACTORS, OR SUBCONTRACTORS FOR WHOM LUBBOCK MAY BE CONTRACTED, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON NEGLIGENCE, STRICT LIABILITY, AND ABSOLUTE LIABILITY, INCLUDING BUT NOT LIMITED TO WORKERS COMPENSATION CLAIMS BY CITY OF LUBBOCK EMPLOYEES, WHICH MAY ARISE IN FAVOR OF ANY PERSON OR PERSONS ON ACCOUNT OF ILLNESS, DISEASE, SERVICES, WAGES, LOSS OF PROPERTY, LOSS OF LIFE, INJURY OR DAMAGES TO PERSONS OR PROPERTY, GROWING OUT OF, RESULTING FROM, OR BY ANY REASON OF ANY ACT BY MCDONALD TRANSIT, ITS AGENTS, REPRESENTATIVES, SERVANTS, OR EMPLOYEES WHILE ENGAGED UPON OR IN CONNECTION WITH THE SERVICES OR OBLIGATIONS REQUIRED OR PERFORMED BY MCDONALD TRANSIT HEREUNDER OR FROM OPERATIONS CONTEMPLATED BY THIS AGREEMENT, REGARDLESS WHETHER OTHERS MAY BE WHOLLY, CONCURRENTLY, PARTIALLY, OR SOLELY NEGLIGENT, OR STRICTLY LIABLE, OR ABSOLUTELY LIABLE OR OTHERWISE AT FAULT, AND REGARDLESS OF ANY DEFECT IN THE PREMISES, EQUIPMENT, OR Page 4 of 8 MATERIALS, IRRESPECTIVE OF WHETHER SAME PREEXISTED THIS AGREEMENT, EXCEPT DAMAGES ARISING OUT OF INJURIES OR PROPERTY CLAIMS TO THIRD PARTIES CAUSED BY THE NEGLIGENCE OF LUBBOCK , ITS EMPLOYEES OR AGENTS. FURTHER, MCDONALD TRANSIT HEREBY AGREES TO INDEMNIFY LUBBOCK FOR ALL REASONABLE EXPENSES AND ATTORNEYS' FEES INCURRED BY OR IMPOSED UPON LUBBOCK IN CONNECTION THEREWITH FOR ANY LOSS, DAMAGE, INJURY OR OTHER CASUALTY. MCDONALD TRANSIT FURTHER AGREES TO PAY ALL REASONABLE EXPENSES AND ATTORNEYS' FEES INCURRED BY LUBBOCK IN ESTABLISHING THE RIGHT TO INDEMNITY PURSUANT TO THE PROVISIONS OF THIS SECTION. 10. NOTICE. Any notice required to be given under this Agreement shall be deemed delivered three (3) days after deposit in the U.S. mails, or immediately upon hand -delivery or delivery by electronic transmission by facsimile to the following addresses, respectively, as applicable: To McDonald Transit Associates Inc. Attn: Mr. Robert T. Babbitt 4500 Mercantile Plaza Drive, Suite 307 Fort Worth, Texas 76137 817.232.9560 (fax) To Lubbock: Attn: City Manager P.O. Box 2000 Lubbock, Texas 79457 806.775.2051 (fax) With copy to: Attn: City Attorney P.O. Box 2000 Lubbock, Texas 79457 806.775.3307 (fax) 10. MISCELLANEOUS: (a) This Agreement (and all exhibits hereto) constitutes the entire understanding and agreement between the parties hereto with respect to the subject matter hereof. No Page 5 of 8 modification or amendment of this Agreement shall be valid and binding upon the parties unless in writing and executed by the parties to be bound thereby. (b) This Agreement shall be construed under and in accordance with the laws of the State of Texas. Any lawsuit filed in state court relating to this Agreement shall be filed in the County of Lubbock, State of Texas. (c) If any provision in this Agreement shall be deemed invalid or otherwise unenforceable, the Agreement shall be construed without said invalid or unenforceable provision, as though it had not been included in the Agreement, with the remaining provisions retaining full force and effect. (d) All remedies enumerated herein are cumulative, and the exercise of any one or more of them shall not preclude the subsequent exercise of any other. (e) McDonald Transit agrees that in no case shall the buses the subject of this Agreement be leased to, or used by, any entity that is not the United States government or a department or subdivision thereof. City reserves the unrestricted right to terminate this Agreement in the event the buses the subject of this Agreement are used for any purpose other than providing "public transportation," as that term is used and understood in all applicable federal rules, regulations, and law. IN WITNESS WHEREOF, the parties hereunto executed this Agreement as of the day and year first written above. CITY OF LUBBOCK Tom Martin, Mayor ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: Ja s Loomis, Assistant City Manager Page 6of8 APPROVED AS TO FORM: McDonald Transit As es, c. By: Its: pres &14 Approved by Counsel LIN State of Texas Lubbock County Before me personally appeared to me well known and known to me to be the person described in and who executed the foregoing instrument, and acknowledged to and before me that executed said instrument for the purposes therein expressed. Witness my hand an official seal, this day of , 2008 Notary Public State of Texas Page 7 of 8 Vehicle Profile All buses to be leased have the following characteristics. Year Make Model Engine Transmission 1996 Nova RTS Detroit Diesel Series 50 Allison Page 8 of 8