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HomeMy WebLinkAboutResolution - 247 - Contract - ATE Management & Service Co - Transit System Management - 08/23/1979RESOLUTION #247 - 8/23/79 A LDGV:cl RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and G directed to execute for and on behalf of the City of Lubbock a Management Contract between the City of Lubbock and ATE Management and Service Company, $,13 Inc., for the management of the Lubbock transit system, attached herewith which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 23rd day of August 1979. aST, YOR -ATTEST _ -- - Evdlyn Gaf ga,.-City S cr4Vt -Treasurer APPROVED AS TO FORM: W Denzel Pe �.� 1 .ver, First Asst. City `Attorney Full, Diri( for of Public Services TIED TO RESOLUTION #247 - 8/23/79 MANAGEMENT CONTRACT THE STATE OF TERAS § COUNTY OF LUBBOCK I KNOW ALL MEN BY THESE PRESENTS: THIS AGREEMENT, made and entered into this 23rd day of August f 1979, by and between the CITY OF LUBBOCK, a Home Rule Municipal Corporation of the State of Texas, hereinafter referred to as CITY, and ATE MANAGEMENT AND SERVICE COMPANY, INC., a Delaware Corporation, hereinafter referred to as ATE. SECTION 1. EMPLOYMENT AND ACCEPTANCE. CITY hereby engages ATE as an independent contractor to manage the transit system now or hereafter owned by the CITY. ATE agrees to supply such services. SECTION II. DESIRED RESULT. The desired result -to be achieved by ATE is management of the transit system under CITY policies and in such a way as will provide the quality and quantity of service as is from time to time determined by the CITY. It is understood that ATE will perform all obligations herein set forth under the compensation and funding provided in this agreement. However, ATE will not be required to perform beyond the presently contemplated scope of this contract including any additional federal requirements without compensation or funding for such additional services. SECTION III. SCOPE OF SERVICES OF ATE. For and in consideration of the compensation hereinafter specified, ATE agrees to furnish all the management and supervision services reasonably re- quired by CITY and necessary for the efficient and economical operation of the public transportation system and facilities, under policies, standards and procedures established by the CITY. The management to be furnished includes, but shall not be limited to, those related to transit planning, marketing, real estate management, equipment and building utilization and maintenance, security, routes, schedules, fares, service standards, purchasing, accounting, budgeting, safety,'insurance and claims, employee selection and training, employee relations, labor negotiations, public relations, equipment selection, grant applications, and all other managerial functions required in the operation of a transit system. SECTION IV.. . COMMENCEMENT AND TERM. This contract will become effective on September 16,1979, and continue for a term of three (3) years from the effective date. SECTION V. . ATE PERSONNEL. ATE will furnish a full-time General Manager atthe expense of ATE. The initial and subsequent appointment or removal of a General Manager will be the responsibility of ATE, but will be with the approval of the CITY. The CITY shall have the right to require ATE to remove a General Manager at the CITY'S discretion. However, the CITY may prohibit ATE from transferring or removing a General Manager only forgood. cause. The General Manager shall provide the active management and direction of the transit system for and on behalf of the CITY. The General Manager shall reside in Lubbock. Management of the Lubbock Transit System shall be his full time job. SECTION VI_ CONSULTING AND TECHNICAL ASSISTANCE. ATE will further furnish consulting and technical assistance as may be reasonably required upon its own initiative, and further as deemed additionally necessary by the,CITY to assist the General Manager in the operation of the transit system. Such consulting and technical assistance shall include, but will not be limited to the following areas: a) General Operations b) Safety -Employment -Training c) Scheduling d) Route Planning e) Fare Structure, Zone Fares f) Accounting and Office Management g) Insurance and Claims h) Equipment Maintenance i) Garage and Shop Layout J) Fare Box and Security k) Sales Promotion, including Charter Sales 1) Stores and Purchasing m) Public Relations, Employee Relations, Labor Negotiations, Govern- ment Relations, including assistance in Federal grant applications n) Planning consistent with UMTA and Texas DOT procedures o) Selection of New Equipment p) Marketing SECTION VII. COMPENSATION AND EXPENSES a) Management Fee: Period Amount 1st through 12th month $5,734 per month 13th through 24th month $6,134 per month 25th through 36th month $6,562 per month b) Payment will be made by CITY to ATE on or before the 15th day of each month for that month's management fee. In the event this section of the agreement becomes effective during a calendar month, the compensation due ATE will be prorated on a daily basis for the balance of the month. c) Expenses .of ATE Non-resident Personnel:. CITY will pay travel and living expenses of non-resident ATE person- nel while providing executive counseling or technical assistance services away from their headquarters, as provided in Section VI, above, as follows: Travel 1) Actual coach (or first class, if coach in unavailable) air fare. 2) Automobile allowance at 17 cents per mile. 3) Airport parking fees. 4) Related ground transportation costs. Living A per diem allowance in lieu of subsistence of $35.00 per day to cover lodging, meals and other personal expenses while away from headquarters. Non-resident ATE personnel will maintain records of their time and expenses while providing executive counseling or technical assistance for CITY, which records shall be presented at the time reimburse- ment by CITY is requested. SECTION VIII. EMPLOYEE DISHONESTY BOND. ATE shall supply to CITY a corporate surety bond issued by an insurance company licensed to do business in Texas to protect CITY against dishonesty or fraudulent acts of employees of ATE in the amount of One Million ($1,000,000) Dollars. SECTION IX. SERVICES SUPPLIED BY CITY. CITY agrees that the expense of all necessary office space, furniture, equipment, supplies, materials and any other reasonable business expenses for the conduct of its system will be considered part of the normal operational expenses of the system which shall be paid by the CITY. SECTION X. EMPLOYER STATUS. ATE, subject to the laws of the State of Texas, will cause to be formed a separate corporation to be named TRANSIT MANAGEMENT COMPANY OF LUBBOCK, herein referred to as TMCL, which by assignment shall assume and perform all services, obligations and accept all rights and duties which have been extended or incurred by or to ATE under the terms and conditions of this agreement. The costs of forming TMCL, as well as ongoing expenses of that corporation, including, but not limited to filing fees, corporate taxes and attorney's fees, shall be considered part of the normal operating costs of the transit system. TMCL shall be the employer of all employees necessary for the operation of the transit system. TMCL shall assume all existing contractual obligations incidental to the transit operation to the extent that CITY has agreed to be obligated. SECTION RI. WORKING FUNDS. ATE agrees to provide sufficient working funds to pay normal payroll and operating expenses of the transit system prior to reimbursement from the CITY each month. CITY agrees to carry at its expense sufficient parts inventory for the buses leased for the Texas Tech University subsystem. CITY agrees to pay ATE interest on amount utilized for the working fund. That interest percentage shall be computed quarterly beginning on the first day of October, 1979, and shall be the prime rate charged by the Texas Commerce Bank of Lubbock, Texas, less 2%. CITY further agrees that in the event of termination of this agreement for whatever reason, it will repay ATE within thirty (30) days the full amount of working funds advanced by ATE, plus the accrued interest from date of last interest payment through date of final repayment. SECTION XII. REVENUE. Revenue derived from the operation of any or all of the transit system or systems managed by ATE, whether from passengers or from other sources shall be and remain from the initial receipt thereof, the absolute property of the CITY and the treatment of such revenue, including the banking thereof, and the accounting therefor, shall,be as directed by the CITY. ATE on behalf of the CITY shall receive, collect and deposit all of the aforesaid revenue collected in its operations in the manner directed by the CITY, and ATE shall keep and maintain the books and records reflecting the operation of any or all of the transit systems in conformity with the require- ments of the CITY and at the direction of the CITY shall render to the CITY such full and complete monthly or other operating reports and financial state- ments as shall be required by the CITY. SECTION XIII. TITLE TO PROPERTY. All real estate, buildings, equipment, buses, motor vehicles and all materials and supplies reasonably necessary for the operation of the transit system shall be furnished or leased by or on behalf -of the CITY and shall remain the property of the CITY. All property of any type, either real, personal or mixed, hereinafter acquired reasonably necessary for performance of the transit system operations shall be acquired or leased at CITY expense and shall become the property of the CITY.. SECTION XIV. PURCHASE OF EQUIPMENT AND SUPPLIES ATE shall notify the CITY from time to time regarding the types and amounts of materials, supplies and equipment, including buses, needed for use in the operation or maintenance of any of the transportation systems managed by it for the CITY. ATE shall make recommendations as to type, quantity and amount of materials, supplies and equipment needed and such purchases shall be made pursuant to CITY policy. SECTION XV. AUDIT AND INSPECTION OF RECORDS. ATE shall permit the authorized representatives of the CITY to inspect and audit all data records of ATE relating to its performance under this agreement. To the -extent that Federal or State funds are involved, the right to inspection and audit shall extend to authorized representatives of the United States Department of Transportation, the Comptroller General of the United States and the State of Texas. SECTION XVI. BUDGETS AND PROJECTIONS: FARES AND SCHEDULES. ATE agrees to prepare the necessary annual budgets and projections re- quired by the CITY and agrees to furnish periodic reports and recommendations to the CITY relating to service extensions, route planning and service policies and either prepare or assist the CITY in preparation of its annual report of operations. ATE agrees to assist in the setting up and management of the' "Operating Fund" as may be reasonably required and requested. CITY has auth- ority to establish and determine routes and the scheduling of service for the public transportation system and the authority to fix and alter fares and other charges to be collected in connection with the operation of the transit system and ATE agrees to make periodic recommendations as to the rates of fares required and any deletions, additions, or changes in the service and routing of the transportation system. SECTION XVII. INDEPENDENT CONTRACTOR. ATE is an independent contractor and retains the right to exercise full control and supervision over its employees, their compensation and discharge, and agrees to be solely responsible for all matters relating to payment of its employees, including compliance with all applicable governmental rules and regulations governing such matters. ATE agrees to be responsible for its own actions and those of its employees during the life of this agreement. SECTION XVIII. INSURANCE COVERAGE. CITY shall obtain insurance coverage which will provide insurance pro- tection against liability to third persons arising out of the performance of this agreement including protection against liability to minors who file suit after obtaining legal age, naming TMCL as the insured and ATE, its agents, servants and employees, the Board of Regents of Texas Tech University, and the CITY as additional insureds. The minimum coverage shall be $100,000/300,000 with excess coverage in the sum of $5,000,000. Such insurance coverage shall in- clude bodily injury, public liability, property damage, fire and windstorm, vandalism and theft, excess coverage and legal liability insurance. CITY shall obtain Worker's Compensation Insurance in an amount no less than required by applicable Texas law covering the employees of TMCL, on.which insurance ATE, the Board of Regents of Texas Tech University and the CITY shall be additional insureds. CITY shall obtain insurance against claims based upon discrimination and/or violation of civil rights by TMCL naming ATE, the Board of Regents of Texas Tech University and the CITY as additional insureds. The minimum cover- age shall be $500,000, with excess coverage in the sum of $5,000,000. The cost of repairing damage to vehicles not reimbursable by insurance . shall be charged as a part of the operating expense. ATE shall be provided with suitable information regarding the issuance of any policy of insurance issued hereunder and if any such policy is cancelled during the term of this agreement ATE shall be given ten (10) days written notice of such cancellation -prior to the effective date of such cancellation. The cost of all insurance described herein shall be an operating expense pay- able by the CITY. SECTION XIX. WAIVER OF SUBROGATION. The CITY warrants that it shall require an endorsement on any existing or after acquired public liability, fire and/or casualty policy of insurance providing a waiver of subrogation by the insurer as to ATE and TMCL. CITY shall furnish a copy of such endorsements to ATE. SECTION_XX. ASSUMPTION OF DUTIES. Upon expiration or termination of this agreement for any reason whatsoever the CITY or its designate shall, immediately and automatically, become the employer of all persons who were employees of the transit system immediately prior to such expiration or termination; the CITY or its designate also shall immediately and automatically assume responsibility for the payment and performance of all outstanding obligations arising out of the employment relationship, including, but not limited to wages, benefits, pension and profit sharing plans, labor contracts and other contractual obligations, including contractual obligations arising out of the operation of the system and hold ATE and TMCL harmless from any and all liability, responsibility or cost arising out of such obligations. Provided, however, that for purposes of this section, the general manager shall not be considered an employee of the transit system. SECTION XXI. PERSONAL LIABILITY. No officer or director of the CITY or of ATE shall be personally liable for the fulfillment of the conditions of this agreement. SECTION XXII. DEFAULT. In case of any default hereunder claimed to exist by either party, such party shall give the other party prompt written notice of such default, setting for the facts in reasonable detail, and in the event that the alledged defaulting party has not remedied such default within thirty (30) days of notification (or in case of defaults which require a longer period to remedy, has failed to com- mence upon such remedy within said period and thereafter to diligently proceed toward completion), the non -defaulting party shall have the right to terminate this agreement for cause. This agreement also shall be terminable for cause at the option of the other party if any party hereto is adjudicated a bankrupt, is subjected to appointment of a receiver and fails to have such receiver removed within sixty (60) days, has any of its property attached and fails to remove such attachment within sixty (60) days, becomes insolvent or for a period of sixty (60) days is unable to pay its debts as the same become due, upon sixty (60) days notice. SECTION XXIII. SECTION 13(c) AGREEMENT. ATE does hereby agree to abide by any arrangements adopted by the CITY pursuant to Section 13(c) of the Urban Mass Transportation Act of 1964, as amended, in the performance of its obligations hereunder. SECTION XXIV. INTEREST OF MEMBERS OF CONGRESS. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this contract or to any benefit arising therefrom. I SECTION XXV. INTEREST OF PUBLIC OFFICIALS. No member, officer or employee of any public body, during his tenure, or for one year thereafter, shall have any interest, direct or indirect, in this contract or the benefits thereof. SECTION XXVI. NON-DISCRIMINATION. In connection with the carrying out of this agreement, ATE and TMCL shall not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin. ATE and TMCL will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment advertising, layoff or termination; rates of pay and other forms of compensation; and selecting or training, including apprenticeships. The applicable provisions of Presidential Executive Order 11375 relating to Equal Employment Opportunity are incorporated by reference herein. The parties hereto -recognize that this is an independent contractor relationship and that the CITY shall not have the right to impose its personnel policies on ATE or TMCL. SECTION XXVII. SEVERABILITY AND INTENT. Should any part of this agreement be declared to be unconstitutional, invalid or beyond the authority of either party to enter into or carry out, such decision will not affect the validity of the remainder of this agreement, which will continue in full force and effect. This agreement.is not intended to be a third party beneficiary contract and confers no rights.on anyone other than the CITY and ATE. SECTION XXVIII. ASSIGNMENT. This agreement shall not be assigned, transferred, hypothecated or pledged by ATE without prior written consent by the CITY. SECTION XXIX. NOTICE. Notice to ATE means notice in writing addressed to the President of ATE and delivered to the office of ATE at Cincinnati, Ohio. Notice to the CITY means notice in writing addressed to the Mayor of the City of Lubbock and delivered to City Hall, Lubbock, Texas 79457. SECTION XXX. GRANT CONTRACT COMPLIANCE. ATE hereby acknowledges and agrees that it shall comply with all terms and conditions of Urban Mass Transportation Administration grant contracts between the United States and the City of Lubbock, the City of Lubbock's applications, assurances, and all other applicable laws and regulations which may apply in carrying out the accomplishment of the programs. ATE MANAGEMENT AND SERVICE COMPANY, INC.: CITY OF LUBBOCK: ) q=, ) -- PRESIDENT - T� DT ST, MAYOR ATTEST: %> C' - Secretary � .1 Tr 7 - ATTEST: Evelyn Gaffga, City Secy -Treasurer' APPROVED AS TO CONTENT: J L. Wilson, Transit Coordinator APPROVED AS TO FORM: Donald G. Vandiver First Asst. City Attorney