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HomeMy WebLinkAboutResolution - 2008-R0234 - Contract Agreement - Greyhound Lines, Inc. - 06_26_2008Resolution No. 2008-RO234 June 26, 2008 Item No. 5.14 RESOLUTION 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 .-cted to execute for and on behalf of the City of Lubbock an Agreement, by and ween the City of Lubbock and Greyhound Lines, Inc., of Dallas, Texas, for certain ilities to be furnished and services to be rendered by City, and related documents. Said reement is attached hereto and incorporated in this resolution as if fully set forth herein i shall be included in the minutes of the City Council assed by the City Council this 26th day of JuIIe , 2008. TOM MARTIN, MAYOR TTEST: City JVED AS TO CONTENT: Loomis, Assistant City Manager/ ortation and Public Works AS TO FORM: City Attorney 1ccdocs/Agrmnt-Greyhound Lines.res 11 /08 Resolution No. 2008—RO234 INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENT, entered into and made effective as of this 1st day of August, 2008, by and between GREYHOUND LINES, INC., P.O. Box 660362, Dallas, Texas 75266-0362, (the "Company") and THE CITY OF LUBBOCK, A POLITICAL SUBDIVISION OF THE STATE OF TEXAS ("Contractor'). WITNESSETH That for and in consideration of the facilities to be furnished and services to be rendered by Contractor and the compensation paid therefor by Company, as hereinafter set forth, the parties hereto covenant and agree as follows: I. COMPANY AGREES: A. To pay Contractor the following commissions: On transportation fees collected by Contractor from the sale of tickets, except as hereinafter provided: Ten Percent (10%) 2. On transportation fees collected by Contractor from the sale of commutation tickets or books or other multiple ride tickets: Ten Percent (10%) 3. On transportation fees for express shipments, whether prepaid, collect, or C.O.D., received from the consignor at the Facility: Thirteen Percent (13%) 4. On transportation fees for express shipments, whether prepaid, collect, or C.O.D., delivered to the consignee at the Facility: Twenty Percent (20%) 5. On fees collected by Contractor from the sale of Ameripass tickets: Ten Percent (10%) 6. On excess baggage fees collected by Contractor: Ten Percent (10%) 7. On PTO Tickets honored: Three Dollars ($3.00) 8. On GLI Phone Card Twenty Percent (20%) 9. On Student Advantage Cards Two Dollars ($2.00) (a) As used in this section, the term "fees" does not include any taxes collected in addition to the tariff charges or selling price. Independent Contractor Agreement Greyhound - City of Lubbock Page 1 of 8 (b) The commission, if any, payable to Contractor with respect to tickets sold for the movement of unusually large groups or under other unusual or extraordinary circumstances, shall be determined according to bulletins and letters issued by the Company. B. To permit Contractor to deduct commissions to which it is entitled under (A) of this section from the Company funds in its possession when making remittances as provided in paragraph (E) of Section II. C. Company agrees to pay to Contractor, on a periodic basis, forty percent (40%) of the commission stated in the Agreement on transportation charges collected by the Company arising from sales by internet ticketing and tickets by mail for schedules originating at Contractor's facility. The parties hereto agree that Greyhound's records will be used for determining compensation to the Contractor under this provision. To be eligible for this percentage commission, Contractor must be in good standing with respect to all funds due Company and be the contractor of record for the subject period. The percentage commission established by this provision shall not apply to sales or collections made prior to September 1, 2000. D. Company agrees to pay to Contractor, eighty percent (80%) of the commission stated in the Agreement on transportation charges collected by the Company arising from printing of "Will Call Tickets". "Will Call Tickets" is defined as sales by the Company on the internet or by its Telephone Information Centers for schedules originating from Contractor's facility with the tickets to be issued by Contractor. The parties hereto agree that Company's records will be used for determining compensation to the Contractor under this provision. The percentage commission established by this provision is in lieu of any commission for internet sales set forth in the Agreement, for 'Will Call Tickets", as heretofore amended, and shall not apply to any sales made prior to June 11, 2002. E. COMPANY SHALL INDEMNIFY AND HOLD CONTRACTOR, ITS ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, AND INDEPENDENT CONSULTANTS. (COLLECTIVELY, THE "INDEMNITEES") HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS, LIABILITIES AND EXPENSES, INCLUDING WITHOUT LIMITATION, CLAIMS, DEMANDS, DAMAGES, COSTS, LIABILITIES AND EXPENSES, CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE, OF ANY KIND, TYPE OR DEGREE, OF THE CONTRACTOR, AND INCLUDING REASONABLE ATTORNEY'S FEES, AS A RESULT OF, RELATED TO, ARISING FROM, OR RELATED TO ANY MATTER RELATED TO COMPANY'S ACTIVITIES, PERFORMANCES, OPERATIONS, OR OMISSIONS UNDER THIS AGREEMENT. F. Company agrees to maintain insurance as follows: (a) Business Automobile Liability: Company's insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for but not limited to the following: • Bodily injury and property damage • Any and all vehicles owned, used or hired (b) Workers' Compensation and Employers Liability Insurance: Independent Contractor Agreement Greyhound — City of Lubbock Page 2 of 8 Company shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Company shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Company maintains said coverage. Any termination of workers' compensation insurance coverage by Company, or any cancellation or non -renewal of workers' compensation insurance coverage for the Company shall be a material breach of this contract. Company may maintain Occupational Accident and Disability Insurance in lieu of Worker' Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. (c) Employer's Liability with limits of at least $500,000 each accident, $500,000 by disease policy limit, and $500,000 by disease each employee shall also be obtained and maintained throughout the term of this Agreement. (d) Other Insurance Requirements: Company shall provide a Certificate of Insurance to the City of Lubbock as evidence of the required insurance coverage. The Certificate will provide 30 days notice of cancellation. A copy of the required endorsements and waivers of subrogation shall be included in the certificate. Company's auto liability insurance policy through policy endorsement must include wording, which states that the policy shall be primary and non-contributory with respect to any insurance carried by City of Lubbock. The certificate of insurance described must reflect that the above wording is included in evidenced policies. All policies must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. 11. CONTRACTOR AGREES: A. To sell such tickets as Company may supply, for Company and its affiliated and connecting carriers, at lawfully published tariff rates, and to furnish the public any information contained in tariffs, bulletins, circulars and literature insofar as the same is applicable to transportation of passengers or handling of baggage, express or United States Mail by Company and its affiliated and connecting carriers. B. In the sole and exclusive judgment of the Contractor, to furnish at 801 Broadway, Lubbock, Texas, 79401 the transaction of Company business and the accommodation and comfort of its patrons, suitable waiting room or space, and adequate sanitary toilet facilities, together with convenient facilities for the sale of tickets and the handling of baggage or express; to maintain the said waiting room or space and facilities, together with all driveways, walks, approaches and premises appurtenant thereto, in a clean, sanitary and safe condition at all times; and to reimburse and hold harmless Company from any and all expenses incurred and/or claims arising directly or indirectly from any neglect or failure to so maintain the said waiting room, space, facilities or appurtenant premises. C. To reasonably protect baggage, express and United States Mail under Contractor's care or supervision. D. The title to all tickets and busbills and proceeds thereof and of all other monies collected for the Company shall be at all times in the Company, it being the intention of this Independent Contractor Agreement Greyhound — City of Lubbock Page 3 of 8 Agreement that the Contractor shall at all times be in the position of trustee and fiduciary of the same for the Company. E. To render reports of Company business on the last day of each month, and to remit to Company or deposit to account of Company on the last day of each month, or at such other times and in the manner as may hereafter be mutually agreed to by the parties hereto, all monies belonging to the Company or collected for the account of Company. F. That Contractor will without charge: (1) Handle newspapers and express shipments made under regular contracts; (2) Issue tickets in exchange for tickets or ticket orders issued by another contractor, connecting carriers contractor, or the Company; (3) Make collections in connection with returned express shipments; (4) Sell express script books; (5) Sell tickets under employee reduced rate orders; (6) Handle U.S. Mail. Shall provide or arrange package pickup and delivery services at rates prevailing in the Contractor's local market. Contractor hereby warrants that any owned vehicles or sub- contracted delivery service used for this purpose maintain, at the time of pickup or delivery, the minimum required limits of automobile liability insurance of the state of domicile of the Contractor. Contractor will receive a fee of $6.00 standard and $12.00 priority per shipment. G. To permit authorized representatives of Company during reasonable hours to inspect and check all property of Company, and inspect and audit, at Company's sole expense, all records and accounts pertaining to the business of Company, kept or supervised by Contractor and to permit such authorized representatives, at their discretion, to collect all monies belonging to Company in the possession of the Contractor. H. To properly file and maintain all tariffs, time schedules, circulars and bulletins furnished by Company, and to furnish to the public complete and accurate information in accordance therewith. I. To permit Company to conduct periodic audits, at Company's sole expense, of its activities and records with respect to performance under this Agreement. J. To keep and maintain on site records of its activities pursuant to this Agreement, including all Company reports, payment and deposit records, and all other records necessary and appropriate to permit Company to conduct audits of Contractor in accordance with Generally Accepted Auditing Standards. K. To place and maintain a suitable sign or signs designating the aforesaid premises as a ticket agency for the Company and affiliated carriers, subject to final approval by Contractor. L. That the title to all station equipment and, signs furnished to the Contractor shall remain the property of the Company at all times, and Contractor will return said property upon the termination of this Agreement. Upon the termination of this Agreement, the Contractor will permit a representative of the Company to remove all signs, decalcomanias and any and all other evidence of the sale of tickets and any other services which might lead the public to believe that Contractor is still the contractor for the Company. M. At Company's expense, to permit Company upon request, to install its own telephone number(s) and to have its own listing in all telephone directories; it being always Independent Contractor Agreement Greyhound — City of Lubbock Page 4 of 8 clearly understood and agreed by Contractor that said telephone number(s) shall be the Company's and the Company shall have the exclusive right, privilege, possession and use thereof. Upon termination of this Agreement, for any reason, Company shall have the absolute right to transfer said telephone number(s) to any other facility. Company is responsible for payment of the base charges and charges directly incurred to conduct Company business. Any and all unauthorized charges shall be Contractor's obligation; all such charges shall be due and payable upon receipt of invoice from Company; this payment obligation shall survive the transfer, assignment, termination and/or expiration of this Agreement. N. To remove from the telephone directory or any other advertising medium any listing or reference to the fact that it is Contractor for the Company as soon as possible upon notice of termination of this Agreement. O. Omitted. P. Contractor specifically authorizes Company to deduct from any money that may be due Contractor hereunder the compensation previously allowed Contractor on tickets or transportation charges subsequently refunded to patrons and also the full amount of any payment or payments made or expense incurred by Company by reason of loss of or damage to baggage and/or express chargeable to Contractor; and Contractor hereby agrees to pay to Company on demand any deficiency that may accrue with respect to such adjustments, refunds, losses or damages. Q. When applicable, to pay its covered employees in compliance with all applicable laws, and further to maintain adequate and accurate records of their hours, rates of pay and other conditions of employment as required by law. R. Not to use the word "Greyhound" as part of Contractor's business name for any purpose. Contractor acknowledges that the word "Greyhound", together with the various symbols, slogans, logos, and the like ("Marks") owned or licensed by Company are valuable, special and unique assets of Company. The use of Marks under this Agreement is for the purpose of distinguishing the services of Greyhound Lines, Inc. and its subsidiaries only. Contractor may use Marks only as an aid in informing the public where Greyhound Lines, Inc.'s services may be purchased and that Contractor is authorized to sell Greyhound Lines, Inc.'s services. Contractor shall not use Marks to identify Contractor's services or in any way except as specifically authorized herein. Contractor's internet (worldwide web) sites are strictly prohibited from using the name "Greyhound", the image of the running dog and any other trademarks or service marks associated with Company's transportation business. S. That the Contractor is responsible for safeguarding and accounting for all tickets and busbills assigned and entrusted to it for sale to customers. In the event that any tickets and busbills cannot be accounted for at the time that Contractor is required to make one of its regularly scheduled reports to Company, Company, if duly informed of any such missing tickets or busbills, agrees to cooperate with Contractor with a view to ascertaining whether or not such missing tickets or busbills were in fact sold; PROVIDED, HOWEVER, that such cooperation shall not embrace any out-of-pocket expenses to, and/or the expenditure of undue time and effort by Company. In the event that any such missing tickets and/or busbills assigned and entrusted to Contractor cannot be successfully located and discovered as having been sold, then it is agreed that the account shall be settled by Contractor's paying to Company an amount Independent Contractor Agreement Greyhound - City of Lubbock Page 5 of 8 for each missing ticket or busbill equal to the average sales price for that ticket form or busbill actually sold by Contractor during the month the missing ticket or busbill would have been sold. In the case of forms of tickets infrequently sold by the Contractor, the average sales price will be determined by using the last two months sales of that particular form. T. To act as Contractor for Company upon such terms and conditions as Contractor and Company shall agree. U. Contractor represents and warrants that its facilities are and will be operated in compliance with all laws applicable to it. Contractor agrees to assist Company personnel with boarding or deboarding of customers with disabilities at Contractor's facility and will provide such other assistance or accommodations to Company's customers to the extent required under the ADA. III. IT IS MUTUALLY AGREED: A. That payment as aforesaid shall constitute full and complete compensation to Contractor for all facilities furnished and services rendered by Contractor. B. That Contractor is an "Independent Contractor" and the Company reserves no control over the Contractor or any of its employees, subordinates, or associates, as to how the facilities involved in this Agreement should be furnished or the services here involved should be performed. Contractor shall limit its activities for the Company to the consummation of the results herein specified. Contractor shall have no power to bind the Company by contract or otherwise except as herein provided as to the sale of transportation for property. The Company reserves no control whatsoever over the employment, discharge, compensation of or services rendered by an employee, subordinate or associate of Contractor. It is further expressly understood that nothing contained herein shall be deemed to require the Contractor to perform in person any of the services hereby contracted for and that if the Contractor so elects, all of its obligations hereunder may be performed by persons in its employ or otherwise under its control. The Company shall not be responsible for the acts or omissions of said employees, subordinates or associates. C. The term of this Agreement shall be from the date hereof to December 31, 2008 continue thereafter until terminated by at least thirty (30) days prior written notice from either party to the other party, at either party's sole discretion for any reason whatsoever, or as otherwise provided herein. Provided, however, that any default of any monetary provisions, including the payment of accounts or remittances of Contractor under this Agreement or any other existing or future agreement between Company and/or its affiliates and Contractor and/or its affiliates, which shall not be cured within ten (10) days after notice thereof, shall be sufficient cause for the Company to immediately terminate this Agreement without any notice whatsoever and Contractor hereby authorizes Company to do so in such event; and provided further, that any violations, breach or default of any other provision of this Agreement, which is not remedied within ten (10) days after notice thereof or any default under any other existing or future agreement between Company and/or its affiliated and Contractor and/or its affiliates which is not remedied as required thereby, shall also be sufficient cause to immediately terminate this Agreement without further notice. All notices may be either written or given orally by or to an officer or supervisory employee of the Company (Greyhound to provide names and contact information for Area Sales Manager and District Manager). Independent Contractor Agreement Greyhound — City of Lubbock Page 6 of 8 D. It is a condition of this Agreement that the Company shall have the right to load and unload passengers and their baggage in its usual bus operations at the Contractor's location, and in the event that at any time during the term of this Agreement the Company's privilege in this respect, including the privilege to park vehicles used in common carrier service to the extent necessary to conduct operations to or from said location, is restricted, denied, or prevented, whether by municipal, state or federal law, ordinance, or decree, or otherwise, the Company shall have the right to forthwith terminate this agreement. Company also reserves the sole right to determine the volume of service to be operated by it to or from the city in which Contractor's facility described in Paragraph B of Section II is located or to otherwise terminate service forthwith. Accordingly, it is understood and agreed that nothing in this Agreement shall constitute a representation, or an agreement of the Company with the Contractor that it will schedule or designate any specific number of buses or any buses to make a stop in said city for the purpose of taking on or discharging passengers, baggage and express, but the Company does agree that those buses which it may from time to time designate to make a stop at said City for the purposes of taking on or discharging passengers thereat will, during the term or any extension hereof, utilize the station of the Contractor for said purpose. E. This Agreement cancels any and all previous contracts and agreements pertaining to the subject of commission agency between Contractor and Company and/or its predecessors in interest, except as to unfulfilled obligations heretofore incurred, and this Agreement constitutes the entire Independent Contractor Agreement between the parties. F. This Agreement may not be assigned by one party without the prior written consent of the other. G. If the Company shall, after default made by the Contractor in any payment to be made by it, or in the performance of any covenant or agreement to be by it performed under this agreement, accept from the Contractor and payment to be made by it, or the performance or any covenant or agreement to be by the Contractor performed under this agreement, or if the Company after such default shall do any act or exercise any right, remedy, option or election permitted by this Agreement, neither the acceptance of such payment nor the acceptance of such performance, nor the doing of such act, nor the exercise of any such right, remedy, option or election, shall be construed or deemed a waiver of such prior default, except only to the extent that such prior default shall be extinguished by the payment or performance so accepted by the Company. H. Omitted. I. THIS AGREEMENT IS TO BE CONSTRUED UNDER TEXAS LAW WITHOUT REGARD TO CONFLICT OF LAW RULES THAT WOULD DIRECT APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. THE OBLIGATIONS OF THE PARTIES CREATED BY THIS AGREEMENT ARE PERFORMABLE, AT LEAST IN PART, IN LUBBOCK COUNTY, TEXAS. VENUE FOR ANY ACTION BROUGHT PURSUANT TO THIS AGREEMENT, OR ACTIVITY CONTEMPLATED HEREBY, SHALL EXCLUSIVELY BE IN LUBBOCK COUNTY, TEXAS. J. If any provision of this Agreement shall be held to be invalid or unenforceable, such provision shall be construed and enforced to the extent possible as if it had been more Independent Contractor Agreement Greyhound — City of Lubbock Page 7 of 8 narrowly drawn so as not to be invalid or unenforceable, and such invalidity or unenforceability shall not affect or render invalid or unenforceable any other provision of this Agreement. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed in duplicate the day and year first herein above written. CITY OF LUBBOCK: TOM MARTIN, MAYOR ATTEST: lARebecca Garza, City 8 e e APPROVED AS TO CONTENT: Oams Loomis, Assistant City Manager/ Tra sportation and Public Works ®r MEN . . a - GREYHOUND LINES, INC. By: -:_- Title: A r,'C f Independent Contractor Agreement Greyhound — City of Lubbock Page 8 of 8