HomeMy WebLinkAboutResolution - 2008-R0333 - Contract For Transportation Management Services - Mcdonald Transit Associates - 08_29_2008Resolution No. 2008-RO333
August 28, 2008
Item No. 6.11
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
directed to execute for and on behalf of the City of Lubbock, a Contract for transportation
management services, by and between the City of Lubbock and McDonald Transit
Associates, Inc., and related documents. Said Contract 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 28th
ATTEST:
C- Q A="ac 'a - DM7
Rebec Garza, City Secretary
APPROVED AS TO CONTENT:
Loomis, Assistant Manager/
,ortation and Public Works
APPROVED AS
, Assistant City Attorney
Res-McDonaldTransit
August 22, 2008
day of August '2008.
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TOM MARTIN, MAYOR
Resolution No. 2008—RO333
TRANSIT SYSTEM MANAGEMENT CONTRACT
STATE OF TEXAS §
COUNTY OF LUBBOCK §
THIS CONTRACT AND AGREEMENT (the "Agreement" or "Contract"), made and entered
into on this, the 28th day of August, 2008, by and between the City of Lubbock, a Home Rule
Municipal Corporation, hereinafter called "City" and McDonald Transit Associates, Inc., a Texas
corporation, herein called "McDonald" or "Contractor".
WITNESSETH:
WHEREAS, the City has determined that it requires the services of a professional
management company to manage and operate the transportation system owned by the City, and
WHEREAS, the City is authorized to enter into a contract for management and advisory
services relating to said transportation system, and
WHEREAS, McDonald is desirous of providing such management and advisory services,
and is qualified to do so, and
WHEREAS, the City has selected McDonald to provide such services,
NOW, THEREFORE, the parties hereto do covenant and agree as follows:
1. EMPLOYMENT AND ACCEPTANCE
The City hereby engages McDonald as an independent contractor to manage the
operation of the public transit system in the City's service area, including additions to and
extensions thereof, (the "Transit System"), as provided herein. McDonald agrees to provide
management and advisory services for the public transportation on the terms and conditions
hereinafter set forth.
2. CITY TRANSIT MANAGEMENT COMPANY
McDonald covenants and agrees to cause to be established, and to maintain at its sole
cost and expense, a Texas corporation named City Transit Management Company, Inc., d/b/a
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 1
CITIBUS, hereinafter referred to as "CTM", which shall employee all personnel necessary for
the operation of the transit system.
Any contractual obligations entered into or assumed by CTM and approved by the City in
connection with the operation of the transit system shall be binding upon McDonald only for the
term of this Agreement, as same may be extended, and in the event this Agreement is terminated
or expires, the City shall thenceforth assume all future obligations under said contracts either on
behalf of itself or any successors to CTM.
3. SCOPE OF SERVICES
McDonald shall furnish management services as reasonably required by the City and
necessary for the efficient operation of the Transit System under policies, standards, and
procedures established by McDonald, and within the scope of McDonald's proposal submitted on
June 17, 2008, in response to City's RFP 08-036-MA, the terms and conditions of which RFP are
hereby incorporated fully by reference as through restated herein, and further shall control in the
event of a material conflict with any term or condition of this Agreement. The management to be
furnished includes, but shall not be limited to, assisting the City in carrying out the functions of
transit planning, marketing, equipment and building utilization and maintenance, security, routes,
scheduling, fares, service standards, accounting, budgeting, safety, insurance and claims,
employee selection and training, public relations, equipment selection, grant applications, and all
other normal managerial functions reasonably required in the day-to-day operation of the Transit
System.
Specific responsibilities of McDonald and the General Manager shall include the
following:
Public transportation consultation and recommendations to the City, through the
Lubbock Public Transit Advisory Board.
Compliance with all environmental laws applicable to operation of the
transportation system/facilities.
Overall management and policy recommendations.
Management continuity.
Management personnel development and training, and recruitment as necessary.
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 2
Monitoring and evaluation of operations, systems and procedures.
Operations.
Finance, accounting, and budgeting.
Safety, loss prevention, and insurance.
Preparation of an annual budget for CTM.
Schedules, transportation, and routing.
Maintenance of equipment.
Customer relations and promotion.
Preparation of state and federal grant applications and administration of those
grants.
Administration of service contracts.
Employee relations.
Selection and training of CTM employees.
Preparing agenda folders and back-up information of CTM related items for
Transit Advisory Board meetings.
Preparing agenda items and back-up information of CTM related items for City
Council meetings.
McDonald shall provide each month to the Lubbock Public Transit Advisory Board and
to the Assistant City Manager of Transportation an extensive detailed report that includes
monthly totals for passenger revenue, number of passengers, operating cost, operating hours,
vehicle miles traveled, fleet report, fixed route comparisons, reports described in Section.11, and
other related transit information.
The City may, from time to time, request McDonald perform specific transportation
related studies or projections beyond the responsibilities set forth above.
All such services rendered by McDonald shall be subject to all applicable federal, state,
and local laws, rules, and regulations.
4. COMMENCEMENT AND TERM
The Effective Date of this Agreement is the first day of October 2008, regardless of the
date of prior execution, and the Agreement shall continue from the Effective Date for a term of
five years from the Effective Date, with an option by City to renew for up to two additional five -
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 3
year terms, unless either party gives the other party sixty (60) days written notice before
expiration of the original or subsequent terms, of such party's desire to terminate the contract as
defined in Section 23.
5. MCDONALD PERSONNEL
McDonald agrees to furnish a qualified, diligent, expert and efficient executive who shall
be assigned to, and perform the functions of, the position of General Manager, and will serve as
operating officer responsible for the day-to-day operation of all departments of the system. The
General Manager shall reside in the City's service area. Management of the Transit System shall
be the exclusive full-time job of the General Manager.
The selection and appointment of such General Manager, and any such subsequent
appointees, shall be the responsibility of McDonald, but shall not be made without first obtaining
the advice and consent of the City Manager.
6. ADVISORY AND TECHNICAL ASSISTANCE
McDonald agrees to furnish advisory and technical assistance, at the Transit System or
elsewhere, as may be reasonably required to assist the General Manager in the management of
the Transit System at no additional cost. Such advisory and technical assistance shall include, but
will not be limited to, those relating to the managerial functions identified in Section 3.
7. COMPENSATION
McDonald's management fee for the services to be rendered pursuant to this Agreement
for each year of the contract shall be as follows:
For the initial five-year term:
FY 2009 $15,100 per month or $181,200 annually
FY 2010 $15,625 per month or $187,500 annually
FY 2011 $16,170 per month or $194,040 annually
FY 2012 $16,815 per month or $201,780 annually
FY 2013 $17,485 per month or $209,820 annually
For the first five-year option:
FY 2014 $18,100 per month or $217,200 annually
FY 2015 $18,730 per month or $224,760 annually
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 4
FY 2016 $19,385 per month or $232,620 annually
FY 2017 $20,060 per month or $240,720 annually
FY 2018 $20,760 per month or $249,120 annually
For the second five-year option:
FY 2019 $20,760 per month or $249,120 annually
FY 2020 $20,760 per month or $249,120 annually
FY 2021 $21,175 per month or $254,100 annually
FY 2022 $21,600 per month or $259,200 annually
FY 2023 $22,030 per month or $264,360 annually
Payment shall be made by the City to McDonald on or before the 15th day of each month
for that month's management fee on a pro rata basis of the annual fee. In the event this
Agreement becomes effective or terminates during a calendar month, the fee due McDonald shall
be prorated on a daily basis.
8. WORK FUNDS
The City shall provide the Transit System with adequate working funds which shall be
deposited in a "Regular Operating Checking Account," "Other Special Accounts as Needed," and
a "Payroll Account" and which shall be used to pay all payroll, fringe and pension benefit
expenses and all other "operating expenses" of the Transit System under procedures and controls
adopted by the City. The ownership of said funds will remain with the City.
As used herein, the term "operating expenses" of the Transit System shall mean and
include, but not be limited to, all wages, fringe benefits, and pension benefits of all personnel
(excluding the McDonald Management Team for the Transit System), all applicable payroll and
social security taxes in connection with the operation of the Transit System, all rentals, utilities,
insurance premiums and deductibles, cost of fuel, supplies and parts, repairs pertaining to the
operation of the Transit System. All operating expenses shall be an obligation of, and paid by,
the City.
9. EQUIPMENT, FACILITIES AND SERVICES
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 5
The City shall furnish necessary office space, utilities, furniture, equipment, supplies,
materials, communication services, legal services, and postage as may be reasonably necessary
for the management of the Transit System.
To the extent funds have been allocated for such purposes in the City's Annual Budget,
the City further agrees to reimburse CTM for all expenses so eligible under this Agreement.
10. EMPLOYER STATUS
CTM shall be the employer and assume the employment of all employees and all labor
and other contractual obligations necessary for the operation of the Transit System. No
employees of CTM or McDonald shall be considered employees of City for any purpose.
11. FINANCIAL ACCOUNTING AND REPORTING
Revenues derived from the operation of the Transit System, whether from passengers or
from other sources, shall be and remain from the initial receipt thereof, the absolute property of
the City. McDonald on behalf of the City, shall receive, collect, and deposit all the aforesaid
revenue collected in its operations in the manner directed by the City. The handling and
treatment of such revenue, including the banking thereof, and the accounting therefore, shall be
as directed by the City. Deposits shall be held in institutions with federal depository insurance
with a minimum collateral level of 102%. Investments shall be in accordance with the City's
Investment Policy.
McDonald shall keep and maintain the books and records of the operation of the Transit
System in accordance with generally accepted accounting principles. The City shall provide to
McDonald specific requirements necessary to manage and analyze the operations of CTM.
McDonald shall render and certify to the City such full and complete monthly, annual, or other
operating reports and financial statements as the City shall reasonably require. Said operating
reports and financial statements shall include Project Budget Current Month, Project Budget
Year -to -Date, Statement of Revenues and Expenses, Statement of Operating Expenses, Trial
Balance, Balance Sheet, and other related information as the City may reasonably require.
McDonald shall provide to the City special reports for grants and capital projects.
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 6
McDonald shall comply with all cost principles of the Office of Management and Budget
Circular A-87, "Cost Principles for State, Local, and Indian Tribal Governments" and the
compliance requirements of the Office of Management and Budget Circular A-133, "Audits of
States, Local Governments, and Non -Profit Organizations". Some of these requirements include
but are not limited to allowable costs/cost principles, cash management, Davis -Bacon Act,
equipment and real property management, period of availability of federal funds and subrecipient
monitoring.
12. 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 by the City and
shall remain the property of the City. All property of any type either real, personal, or mixed
hereinafter acquired and reasonably necessary for performance of the Transit System operations
shall, upon prior written approval of the City, be acquired at the City's expense and shall become
the sole property of the City.
McDonald agrees to exercise due diligence in maintaining all facilities, structures, fuel
line and tanks provided for use in the daily operation of the transit system. McDonald agrees to
compile and submit all regulatory filings and reports required by the local, state or federal
government for the operation of said facilities.
13. PURCHASING
McDonald shall advise the City in writing of all capital equipment, goods, and services
needed for use in the operation of the Transit System, the cost of which would require an
expenditure of more than $25,000. McDonald shall make recommendations as to type and
quantity of equipment, goods, and services to be obtained, and procurement, if any, for the
purchase of said goods or services shall be made under the supervision of the City Purchasing
Department, and pursuant to the City's purchasing policy.
14. AUDIT AND INSPECTION OF RECORDS
McDonald shall permit the authorized representatives of the City to inspect and audit all
data and records of McDonald and CTM. 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
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 7
Department of Transportation, the Comptroller General of the United States, and applicable state
offices, if any.
15. BUDGETS AND PROJECTIONS: FARES AND SCHEDULES
McDonald agrees to prepare or assist in the preparation of the necessary annual budgets
and projections as may be required by the City, and agrees to furnish periodic reports and
recommendations to the City relating to service extensions, route planning, and service policies.
16. COMPENSATION OF GENERAL MANAGER
McDonald shall be solely responsible for the compensation of the General Manager.
17. THIRD PARTY LIABILITY
MCDONALD SHALL INDEMNIFY, PROTECT, DEFEND, AND HOLD
HARMLESS THE CITY, ITS OFFICERS, ELECTED OFFICIALS, DIRECTORS,
AGENTS, AND EMPLOYEES (COLLECTIVELY, "CITY") FROM AND AGAINST
ANY AND ALL LOSS, LIABILITY, CLAIMS, DAMAGE OR EXPENSES (INCLUDING,
BUT NOT LIMITED TO, ATTORNEYS' FEES) ARISING OUT OF, OR RELATED TO,
THE MANAGEMENT OR OPERATION OF THE TRANSIT SYSTEM AND OTHER
CITY OPERATIONS IN ANY WAY ASSOCIATED WITH THIS CONTRACT,
WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF
MCDONALD, OR ITS AGENTS OR EMPLOYEES, PROVIDED, HOWEVER, THAT
MCDONALD WILL HAVE NO OBLIGATION TO INDEMNIFY THE CITY FOR
CRIMINAL PENALTIES OR FRAUD SOLELY COMMITTED BY CITY OFFICERS,
DIRECTORS, AGENTS, OR EMPLOYEES. THIS PROVISION SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
18. INSURANCE AND FIDELITY BOND
A. McDonald shall procure and carry throughout the life of this contract insurance
protection hereinafter specified, in form and substance satisfactory to the City, covering all
operations in connection with this contract, whether performed by McDonald, subcontractor,
agents, or third parties. A Certificate of Insurance specifying each and all coverage shall be
submitted to City prior to the execution of this contract. Certificates of insurance shall be
prepared and executed by the company or its authorized agent and shall contain provisions
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 8
representing and warranting that the insurance forms have been approved by the Texas State
Board of Insurance. Proof of coverage shall be furnished to the City and written notice of
cancellation or any material change shall be provided thirty (30) days in advance of cancellation
or change.
(a) Professional Liability Insurance. McDonald shall have professional liability
insurance with a minimum of one million dollars ($1,000,000.00) combined single limit
in the aggregate and per occurrence. The policy shall contain cross liability and
severability clauses. The City shall be named as a certificate holder in such policy.
(b) Worker's Compensation and Employer's Liability Insurance. McDonald shall
elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas
Labor Code. Further, McDonald shall maintain said coverage throughout the term of the
Contract and shall comply with all provisions of Title 5 of the Texas Labor Code to
ensure that McDonald maintains said coverage. Any -termination of worker's
compensation insurance coverage by McDonald or any cancellation or non -renewal of
worker's compensation insurance coverage for McDonald shall be a material breach of
this Contract.
McDonald shall require each subcontractor with whom it contracts to provide activities as
contemplated by this Contract, to obtain proof of insurance coverage as set forth herein, and to
provide to McDonald, prior to such person performing any such activities, a Certificate of
Insurance establishing such coverage.
McDonald, at its sole cost and expense, shall furnish to the City all necessary fidelity and
surety bonds to protect, save whole and harmless, and indemnify the City from and against
dishonesty, fraud or theft occasioned by any officer or employee of McDonald. Coverage of each
such employee shall be in the amount of no less than Fifty Thousand Dollars ($50,000.00).
B. MCDONALD SHALL INDEMNIFY, PROTECT, DEFEND, AND HOLD
THE CITY, ITS AGENTS, ELECTED OFFICIALS, AND EMPLOYEES HARMLESS
FROM AND AGAINST ANY AND ALL LOSS, LIABILITY, CLAIMS, DAMAGES, AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES),
RESULTING FROM OR ARISING OUT OF MCDONALD'S FAILURE TO FURNISH
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 9
AND MAINTAIN THE INSURANCE POLICIES REQUIRED BY THIS AGREEMENT.
IN THE EVENT OF ANY SUCH FAILURE, THE CITY MAY, AT ITS SOLE OPTION,
FURNISH SUCH POLICY OR POLICIES WITHOUT PREJUDICE TO ANY OTHER
REMEDY THE CITY MAY HAVE. THE COST AND EXPENSE OF FURNISHING AND
MAINTAINING SUCH POLICY OR POLICIES SHALL BE DEEMED AN OPERATING
EXPENSE OF THE TRANSIT SYSTEM PAYABLE IN ACCORDANCE WITH THE
PROVISIONS OF SECTION $. THE FOREGOING SHALL NOT, HOWEVER, APPLY
TO CRIMINAL PENALTIES OR FRAUD COMMITTED BY THE CITY'S AGENTS OR
EMPLOYEES. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
C. CTM shall procure and carry throughout the life of this contract insurance
protection hereinafter specified, in form and substance satisfactory to the City, covering all
operations in connection with this contract, whether performed by CTM, subcontractor, agents,
or third parties. The cost of carrying such insurance shall be an operating expense payable by the
City to CTM. Proof of coverage shall be furnished to the City and written notice of cancellation
or any material change shall be provided at least thirty (30) days in advance of cancellation or
change. All policies shall contain an agreement on the part of the insurer waiving the right of
subrogation against the City.
(a) Commercial General Liability Insurance. CTM shall have commercial
liability insurance with a minimum of one million dollars ($1,000,000.00) combined
single limit in the aggregate and per occurrence. The policy shall contain cross liability
and severability clauses. The City shall be named as the additional insured in such policy.
(b) Comprehensive Automobile Liability Insurance. CTM shall obtain
comprehensive automobile liability insurance, with limits of not less than bodily/property
damage of one million dollars ($1,000,000.00) combined single limit to include all
owned, non -owned, hired, or scheduled vehicles. The City shall be named as the
additional insured in such policy.
(c) Property Damage Liability Insurance. CTM shall obtain a property
damage liability insurance policy naming the City as insured, in the amount of, for bodily
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 10
injuries, including accidental death and/or property damage, five hundred thousand
dollars ($500,000.00) combined single limit.
(d) Excess Liability Insurance. CTM shall obtain excess liability insurance
(Umbrella Form) naming the City as an additional insured, in the amount of one million
dollars ($1,000,000.00) per occurrence.
(e) Worker's Compensation and Employer's Liability Insurance. CTM shall
elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas
Labor Code. Further, CTM shall maintain said coverage throughout the term of the
Contract and shall comply with all provisions of Title 5 of the Texas Labor Code to
ensure that CTM maintains said coverage. Any termination of worker's compensation
insurance coverage by CTM or any cancellation or non -renewal of worker's
compensation insurance coverage for CTM shall be a material breach of this Contract.
CTM shall require each subcontractor with whom it contracts to provide activities as
contemplated by this Contract, to obtain proof of insurance coverage as set forth herein, and to
provide to CTM, prior to such person performing any such activities, a Certificate of Insurance
establishing such coverage.
CTM employees shall be covered by a blanket fidelity bond, the premium for which shall
be considered as an operating expense.
The above -mentioned coverages may be modified at the request of the City of Lubbock
on 30 days notice.
CTM, at its sole cost and expense, shall furnish to the City all necessary fidelity and
surety bonds to protect, save whole and harmless, and indemnify the City from and against
dishonesty, fraud or theft occasioned by any officer or employee of CTM. Coverage of each such
employee shall be in the amount of no less than Fifty Thousand Dollars ($50,000.00).
D. CTM SHALL INDEMNIFY, PROTECT, DEFEND, AND HOLD THE
CITY, ITS AGENTS, ELECTED OFFICIALS, AND EMPLOYEES HARMLESS FROM
AND AGAINST ANY AND ALL LOSS, LIABILITY, CLAIMS, DAMAGE, AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES),
RESULTING FROM OR ARISING OUT OF THE CTM'S FAILURE TO FURNISH AND
MAINTAIN THE INSURANCE POLICIES REQUIRED BY THIS AGREEMENT. IN
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 11
THE EVENT OF ANY SUCH FAILURE, THE CITY MAY, AT ITS SOLE OPTION,
FURNISH SUCH POLICY OR POLICIES WITHOUT PREJUDICE TO ANY OTHER
REMEDY THE CITY MAY HAVE. THE COST AND EXPENSE OF FURNISHING AND
MAINTAINING SUCH POLICY OR POLICIES SHALL BE DEEMED AN OPERATING
EXPENSE OF THE TRANSIT SYSTEM PAYABLE IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 8. THE FOREGOING SHALL NOT, HOWEVER, APPLY
TO CRIMINAL PENALTIES OR FRAUD COMMITTED BY THE CITY'S AGENTS OR
EMPLOYEES. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
19. WAIVER OF SUBROGATION
McDonald hereby releases and agrees to indemnify, protect, defend, and hold harmless
the City, its agents, representatives, elected officials, and employees from and against any and all
liability for loss of, or damage to, properties of McDonald. McDonald hereby waives on behalf
of itself and its insurer(s), any and all rights or subrogation against the City, as defined above.
This provision shall survive the termination of this Agreement.
20. FORCE MAJEURE
City shall not be liable to McDonald, for any failure, delay or interruption of service or
for any failure or delay in the performance of any obligation under this Agreement due to strikes,
walkouts, acts of God, governmental restrictions, enemy action, civil commotion, unavoidable
casualty, availability of fuel or parts, or other similar acts beyond the reasonable control of
McDonald.
21. NO PERSONAL LIABILITY
No officer, director, elected official, or employee of the City shall be personally liable for
the fulfillment of the conditions of this Agreement.
22. DEFAULT
In case of a breach of any material provision hereunder, the nonbreaching party shall give
the other party prompt written notice of such breach, setting forth the facts in reasonable detail.
In the event that the breaching party has not cured such breach within thirty (30) days (or in case
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 12
of breaches which require a longer period to cure, has failed to commence upon such cure within
said period and thereafter to diligently proceed with the same to completion), the nonbreaching
party shall have the right to terminate this Agreement without further notice. This Agreement
shall also be terminable for cause at the option of the other party if any party is adjudicated
bankrupt; is subjected to the appointment of a receiver and fails to have such a receiver removed
within ninety (90) days; has any of its property attached and fails to remove such attachment
within ninety (90) days; becomes insolvent; or, for a period of ninety (90) days, is unable to pay
its debts as the same become due, upon ninety (90) days' notice.
23. SECTION 13(c) AGREEMENT
McDonald agrees to abide by the terms and conditions of any agreement entered into by
the City or its agents or contractors pursuant to Section 13(c) of the Urban Mass Transportation
Act of 1964, as amended, in the performance of its obligations hereunder.
24. INTEREST OF PUBLIC OFFICIALS
No member, officer, or employee of the City, or of a local public body, during his or her
tenure or for one year thereafter, shall have any personal pecuniary interest, direct or indirect, in
this Agreement or the benefits thereof.
25. 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 Agreement or to any benefit arising therefrom.
26. NON-DISCRIMINATION
In connection with the carrying out of this Agreement, neither CTM nor McDonald shall
discriminate against any employee or applicant for employment because of race, creed, color,
sex, age, sexual preference, disability or national origin. CTM and McDonald will take
affirmative action to promote employment and treatment during employment, without regard to
race, creed, color, sex, age, sexual preference, disability, or national origin. Such action shall
include, but not be limited to the following: employment and promotion; demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay, other forms of
compensation; and selection for training including apprenticeship. The applicable provisions of
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 13
the Presidential Executive Order 11246, as amended, relating to Equal Employment Opportunity
are incorporated by reference herein.
27. 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.
Except as is expressly provided herein, this Agreement is not intended to be a third party
beneficiary Agreement and confers no rights on anyone other than the City and McDonald.
28. ASSIGNMENT
This Agreement shall not be assigned, transferred, hypothecated or pledged by either
party without the prior written consent of the other party. However, this Agreement shall be
binding upon the successors or assigns of the respective parties.
29. NOTICE
Notice to McDonald means notice in writing addressed to McDonald's local General
Manager at the local address of the Transit System, and to the President and Chief Executive
Officer for McDonald and delivered to the office of McDonald at 4500 Mercantile Plaza Drive,
Suite 307, Fort Worth, Texas 76137. Notice to the City means notice in writing addressed to
Assistant City Manager of Transportation, City of Lubbock, 1625 13`h Street, Lubbock, Texas
79401, with copy to the City Attorney at the same address.
30. APPLICABLE LAW; VENUE
Subject to all applicable federal law, rules, and regulations, this Agreement shall be
governed by the laws of the State of Texas. McDonald agrees to include all provisions required
to be included by state or federal law, rule, or regulation, in any agreement or contract into which
it enters under the authority granted in this Agreement, or otherwise on behalf of, or in
connection with services rendered to, the City of Lubbock, including but not limited to all
contracts with subcontractors. McDonald acknowledges and agrees that it shall be solely and
exclusively responsible for inclusion of said provisions, and that those provisions accurately
reflect current law.
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 14
McDonald hereby acknowledges and agrees that it shall comply with all terms and .
conditions of Federal Transit Administration grant contracts between the United States and the
City of Lubbock, the City of Lubbock's applications, assurances, and all other applicable federal,
state, or local laws, regulations and ordinances which may apply in carrying out its obligations
under this Agreement, including, but not limited to, all certifications required through the Federal
Transit Administration standard assurances contract provisions, which are hereby incorporated
by reference as though fully set forth herein.
Venue for any action arising from, out of, or in relation to this Agreement, or otherwise
in connection with the obligations of the parties hereto, shall lie exclusively in Lubbock County,
Texas.
31. CLEAN AIR AND WATER ACTS
McDonald shall comply with all applicable standards, orders, or requirements issued
under Section 306 of the Clean Air Act (42 USC 1857(h)), Section 50B of the Clean Water Act
(33 USC 1368), Executive Order 11738, and Environmental Protection Agency regulations (40
CFR, Part 15), which prohibit the use under non-exempt federal contracts, grants, or loans of
facilities included on the EPA List of Violating Facilities. McDonald shall report all violations to
Urban Mass Transportation Administration (UMTA) and to the United States Environmental
Protection Agency (USEPA) Assistant Administrator for Enforcement (EN-329).
32. CONSERVATION
McDonald shall recognize and comply with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in compliance
with the Energy Policy and Conservation Act (42 USC Section 6321 et seq,.).
33. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties, with respect to the
subject matter, and supersedes any previous understandings, representations, commitments or
agreements, oral or written. No provision of this Agreement may be waived except by a writing
signed by the party to be charged, nor may this Agreement be amended except by a writing
executed by both parties. If any provisions, or portion thereof, of this Agreement is or becomes
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 15
invalid under any applicable statute or rule of law, it is to be deemed stricken and the rest of this
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers.
CITY OF LUBBOCK
�� Aq�t
TOM MARTIN, MAYOR
ATTEST:
Reb cca Garza, City ecret
APPROVED AS TO CONTENT:
. Loomis
tation and Public Works
Assistant City Manager
• "' •AS TOFORM:
`. � r�.. , - • it ... .�
MCDONALD TRANSIT
ASSOCIATES, INC.
r
Robert T. Babbitt-, President
ATTEST:
�4en L. Heil, Se et
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 16
Resolution No. 2008—RO333
CERTIFICATION REGARDING LOBBYING PURSUANT TO 49 CFR
PART 20
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
an agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract,
grant, loan, or cooperative agreement.
2) If any funds other than Federal appropriated funds have been paid or will be paid to any
person for making lobbying contacts to an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned
shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions [as amended by "Government wide Guidance for New
Restrictions on Lobbying," 61 Fed. Reg. 1413 (1 /19/96). Note: Language in paragraph (2) herein
has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L.
104-65, to be codified at 2 USC 1601, et seq.)]
3) The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose
accordingly. This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by 3 1, USC § 13 5 2 (as amended by the
Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such
failure. [Note: Pursuant to 31 USC § 1352(c)(t)-(2)(A), any person who makes a prohibited
expenditure or fails to file or amend a required certification or disclosure form shall be subject to
a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or
failure.]
The Contractor, McDonald, certifies or affirms the truthfulness and accuracy of each statement
of its certific 'on and disclosure, if any. In addition, the Contractor understands and agrees that
the provis' 0 3 80 1, et seq., apply to this certification and disclosure, if any.
Date 8/22/08
Signature of Contractor's Authorized Official Robert Babbitt, President
Name and Title of Contractor's Authorized Official
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 17
CERTIFICATION OF PRIMARY PARTICIPANT REGARDING DEBARMENT,
SUSPENSION, AND OTHER RESPONSIBILITY MATTERS
The Primary Participant (applicant for an FTA grant or cooperative agreement, or Potential
Contractor for a major third party contract), certifies to the best of its knowledge and belief, that it
and its principals:
1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from covered transactions by any Federal department or agency;
2. Have not within a three-year period preceding this proposal been convicted of or had a civil
judgment rendered against them for commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or
contract under a public transaction, -violation of Federal or state antitrust statutes or commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity
(Federal, State, or local) with commission of any of the offenses enumerated in paragraph (2) of
this certification; and
4. Have not within a three-year period preceding this application/proposal had one or more public
transactions (Federal, State or local) terminated for cause or default. (If the primary participant
(applicant for an FTA grant, or cooperative agreement, or potential third party contractor) is unable
to certify to any of the statements in this certification, the participant shall attach an explanation to
this certification.)
THE PRIMARY PARTICIPANT (APPLICATION FOR AN FTA GRANT OR COOPERATIVE
AGREEMENT, OR POTENTIAL CONTRACTOR FOR A MAJOR THIRD PARTY
CONTRACT), THE CONTRACTOR, CERTIFIES OR AFFIRMS THE TRUTHFULNESS AND
ACCURACY OF THE CONTENTS OF THE STATEMENTS SUBMITTED ON OR WITH THIS
CERTIFICATION AND UNDERSTANDS THAT THE PROVISION OF 31 USC SECTIONS
3801 ET. . A ABLE THERETO.
Robert Babbitt, President
Signature of Contractor's Authorized Official Name and Title of Contractor's Authorized Official
84248
Date
The undersigned chief counsel for McDonald Transit Associates, Inc. hereby certifies that the _
has authority under State and local law to comply with the subject assurances and
that the cert' a' has been legally made.
Date
Signature of Applicant's Attorney
Typed Name of Applicant's Attorney
Transit System Management Contract
City of Lubbock & McDonald Transit Associates, Inc.
Page 18
08/21/08 09:54 FAg 512 491 2404 TML-IRF UNDERWRITING
0 003
Lubbodt-ClMnS
hft Julie Rowden
Human Resouroes Direebor
PO Hex 20W
Lubbock,Tefeas 79467-0001
Certificate Holder:
Clty of Lubbock
PO Box 2000
Lubbock, TX 794U
Certificate of Coverage
Texas Municipal League Into 90v9mrnental Risk Pool
Po Sax 149194
Austin, TX 787i4-W g4
(512) 01-2900 or (900) 537-SMS
Fax: (512) W 4404
c is to osrtify that the coverages fisted below have been provided to the men+ber and are in effect at this time. Notwithstanding arry requirgmer
it. or eondittans ofany, Mbar contract or agreement with respect to which this ceTtHlca% may be issued or may pertain, the coverage afforded
Toccata Municipal League frttarpovernmenbl Risk Poo! ffMLaRP) described heroin irc subject only to the terms, ereolugions and Additions of TA
J
General Liability
Efieclive Date:
10/112ODT
Real & Fersmal Property
EffacHve Date:
iAnnivomry
Date:
1011&CDB
Ari"reary Data: ,
Units of LIWIty "ch Occurrence):
$1,000,000
Urnils of Coverage:
1
Sudden Events hn uKft Pollution
i
(EachOccurmncak
;i,t)00,000
Dedrrcfte perOccurrence-
Annual Aggmgsle:
52,000,000
AAablle Equipment
Elfeciiva Dma:
Deducts e per Om. rencs:
50
Amn)vmwy Data-,
Limits of Coverage:
Larw Enforcement Liability Effecilve VabD:
Annlve=ty Dabs:
Daducftle per Otxurrencw
Boiler Ile MacWnery - Bread Form
E%cfivo Date:
Urr& of Uablilty (Each accuMmovx
MW Aggrega*
Anniversary Date:,
Deductible MOceurrenow
Per Aculdent Urdt
_
Errors and Omissions Liability
0*0tve Date:
10/1=T
Deductible perOccurns ce.,
j
Anniversary Date:
101112M
you
'
Limits of LinUllyr(Each Wrongful Acts
51.000,0D0
i utgagee
Annual Aggregate:
Cleductible per Ocxunarlce:
t$2,000,000
�— ��-
Loss Payee
Lean Number_
Anniversary Data
of UabiTaty (Each occurrence):
Anniversay Data
of Ua6iity:
m Deductible:
0
respects to the City of Lubbock - ClttbtW Charier Bus Operatlom Workers' Compensation, General UWAlty and Aukxn*Ue Liability Included a Wahw of
xogntfoe In favor of 1fia Certificate Voider: With roped to Cmr M Li"ly area AutDu o IIa Liabfihy the CarMcate Folder le listed as an Additional
vered Party- Other Governmental Entity (EL 263)
Cannablidrl should nrry of the above described coverages be carKeled before the ariniversary date Marra, TK4RP will endeavor to mail
30 days writt" notice to llhe above named cettlfiaM holder. but (allure to mall Such notice shell Impose no obilw1lon or YabHriy of any km
upon TAAL4RP,
Authorised Reprssentative Data Issued
X=
02.Itt3r06
i
1
08/21/08 09:34 FAX 312 491 2404
TML-IRP UNDERWRITING
RD 004
Certificate of Coverage
TMI.4AP Con6ict Number. 14W
MemberCompany
AfforcEng Coverage:
Lubbock-Mb-bus
Texas Murlicipet LeMe InWgOVammental Risk Pod
Ms AMA Rowden
PLO Sox 149104
Auslin, TX 797140194
Hume Resou=s DTecWr
PO Box 2000
(512) 491.2300 or (MO) 537-6655
F�c (51a) 401-240b
L.ubbodr,Taxas 70467.0001
Certificate Holder.
City of Lubbock
PO Sox 2000
Lubbock, TX 79457
Th16 15 to orfify that the comagee listed below have been provided to the member and are In etier:i at this time. Notwithstanding any
requirements, terms, or conditlono of arty ather aorkbaot oe soreament with ramped to which this certifipfr may be issued or may pertain, the
coverage afforded by the Texas MunWpal League IntargovernmarAw Risk Pool (TMLdRP) deaptbad herein Is subject Only to the tetras.
exclusions and additions of TMURP's oovem us contras% between TML-W and Its member(s). Coverage Is continuous until oanceled.
Woftm' Compensation
Eftadva DstioL 1011=7 Annivemvy Date: 10/1r2WB
LIMU of tleblwty Statutoor
DESCRIP710N'
As respects t0 tt* My of Lubbock - Cltbus' Charter Bus Operations, Workers' Compensation, General Usbilty end Automobile Lkbiflty Included a
Waiver. of $ubrogstion in favor afthe CaMcate Holder. With reapectlo General Llabtilly and Automobile 1-12btlity the Certificate Holder 4 fated as an
Addiknal Coved Party - Olher Govemnmtal Fruity (EL2b3)
Cane Aftnr Should any uuf the above desotibW coverages be canceled befN* the m6versary date thereof, TML.iFiP Will endaavorto nail
30 days wrlttan notice to the above na and ca Mlm to holder, but failure to mall such not3W shell h;me no obligation or Ilablllty of any kind
upon TMURP.
Author bod RepreseOMINe
1Q.,
Data lstued
X119
12/21/02
08/21/08 09:55 PAX 512 491 2404 TML-IRP OM13R VRITING lih 003
F�L Certlflcate of Coverage
A
TmL4RP Contact Number 14W
Member: Company Attbrditlg Coverage:
bo*-CftftM Texas MuNcipW Leapua Ink*govefnmental Risk Pod
Me Jute Rowden PO 8=149194
Hutran Resource s Dltecicr Austin, TX 78714-9194
(312) 401-2300 or (800) a37-8655
PO Box 2000 Fax: (512) 491-2404
LvbbmkTsxaa 7946MD07
Certifit;2tte Holder:
City of Lubbock
PO Box 2000
Lubbock, TX 79457
Thlr is to certify that the coverages fisted below have been provided to the member and am in effect at this time. Notwithmlanding any
raqulraments, terms, or oorAtInrm of grey other contrM or agreement with respect to which this certificate stay be issued or may pertain, the
coverage pfferded by the Texas M wdchml League Intergoverrmwiftl Risk Pool (TMURI) described herein Is 40bject only to the terms,
exolusions and additions of THlt dt4P's Coverage conttA M bofwem TMI.4RP and its momber(s). Coverage is continuous undi canceled.
Public Employee Diabonesty Forpory&Alteration
effective Date: 10/112007 tOecdvs Date:
Anniversary Date: 10MI2001i Afi dvamary dais:
Limbs of Coverage: Per Oecurrenos Limits of Cover4e:
$250,000 Per Employee Deductible: —
Deductift Per Occurrence
$0 Per Employ"
Theft, Dlsappearanee, S Desbuction Gnmputer Proud
Effet ve Data: EtfecBve Date:
Anniversary Dale: AnnlvwwW Dale:
Urnita of Covewwl Lola inside UMJt13 of Coverage:
Lose Oubide Deductible:
Deductible: Lose Inside
Lose OuWde
DESCR FnON:
Evidence of cove ms
Cnnmaaflonr Should any of the above des~ coverages be canceled boWs me anniversary date . TMLARP wlli endeavor to mail
30 days writon notice to the above caMente doldwr but fafluM to mail such w6w shall Ur pose no obIlgWon or Ilabluty of any land
upon TML-1Rf?
Aut}todud Representailve Date Issued
X1T7
82m/2008 0921/02