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HomeMy WebLinkAboutResolution - 2007-R0236 - Contract - City Transit Management Company Inc. - Campus Bus Service - 06_14_2007Resolution No. 2007—RO236 June 14. 2007 Item No. 5.19 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 directed to execute for and on behalf of the City of Lubbock, a Contract for campus bus service, by and between the City of Lubbock, City Transit Management Company, Inc., and Texas Tech University (TTU), 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. assed by the City Council this 14th day of June '2007. ATTEST: DAVID A. MILLER, MAYOR Rebecca Garza, City Secretary AS TO CONTENT: Z41, , City Manager/Transportation and Public Works APPROVED AS TO FORM: City Attorney gs/ccdocs/res-Contract-TTU-campus bus serv.07 May 1, 2007 MU9182/2 Resolution No. 2007—R0236 AGREEMENT This Agreement, effective as of September 1, 2007, (the "Effective Date"), is by and between CITY TRANSIT MANAGEMENT COMPANY, INC. (hereinafter referred to as the "Company"), TEXAS TECH UNIVERSITY at Lubbock, Texas (hereinafter referred to as the "University"), and the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation (hereinafter referred to as the "City"). WITNESSETH: WHEREAS, the parties hereto are aware of the traffic and parking challenges on the campus of the University as it relates to the expanding campus, enrollment growth, and the increasing number of commuting students, staff, and faculty of the University; and WHEREAS, the above named parties are desirous of relieving some of the traffic congestion and expediting transit between areas in and immediately adjacent to said University campus; and WHEREAS, City executed a management contract with McDonald Transit Associates, hic., dated September 4, 2003, in which the City is obligated to provide capital assets reasonably required for the operation of the public transportation system of the City, and McDonald Transit Associates, Inc. agreed to provide management and advisory services for the system and to maintain the Company to employ the individuals necessary to operate the system; and WHEREAS, the Agreement embodies the intention and resolution of the above named parties: NOW, THEREFORE WITNESSETH THIS AGREEMENT: 1. Term It is agreed and understood by and between the parties hereto that a University bus service utilizing up to thirty (30) buses will be provided by the Company during the period beginning September 1, 2007, and terminating on August 31, 2008, provided; however, that either the Company or the University may tenninate said bus service upon thirty (30) days' written notice delivered to the other party by registered mail. 11. Bus Operations With respect to bus operations, Company and University agree that the following conditions shall apply: A. Company will furnish buses having a seating capacity (manufacturer's rating) of not less than 33 with driver -operated front and side doors. The Company will provide the necessary personnel to service the route or routes designated by the University during the period specified in the preceding Paragraph I of This Agreement. The number of buses and the operating periods will be subject to continuous review, and the University will advise Company with regard to its needs and with respect to any changes in the number of buses and/or operating periods; subject to equipment availability, said changes will be instituted by Company within five (5) days after receipt of written notice from University. Initial service, commencing on September 1, 2007, shall be on a schedule provided by the University prior to that date. B. In the event that it develops during any portion of the period first specified in Paragraph 1 hereinabove, that a change in or extension of route, removal of a route, or addition of a new route is necessary or desirable, Company shall make such changes or extensions of a route or routes, shall remove a route, or shall add a new route upon University's request. The changes to be made by Company, therefore, shall be upon the basis, and shall be subject to the conditions and limitations, as are set forth in Subparagraph E of this Paragraph hereinbelow. Also, in the event it develops during said period that an additional bus or buses are required in order to meet the demand for said bus service during any operating period or periods, Company, if it is able to provide same, at the University's written request, shall provide such additional bus or buses for said service during said operating period or periods upon the same basis, as is set forth hereinabove. University shall have the right to terminate any such changes, extensions, or new routes upon five (5) days' written notice to the Company. Page 1 of 6 C. Buses shall stop to receive or discharge the passengers entitled to use, and using, bus service at such points as shall be agreed upon from time to time during said periods, between Company and University, and University will identify the points at which stops will be made by said buses. The Company will provide acceptable markers. D. Company will exercise due diligence to adhere to the time schedules hereinabove referred to, but minor deviations therefrom due to variations in traffic, weather, or load conditions shall not be deemed to be a default hereunder. E. University has exclusive rights to on -campus busing. Only routes designed and paid for by the University will be permitted on the campus. Routes paid for by independent companies or housing facilities will be permitted to use the University park and ride lot. They will not be permitted on campus. Service orders placed by companies or individuals will be permitted on campus for touring purposes only. F. All revenues received by the Company pursuant to the Agreement shall be and remain from the time of the Company's receipt thereof the property of the City, and the treatment of such revenues, including the banking thereof, and the accounting therefore, shall be as directed by a representative chosen by the City Manager of the City. Company shall not collect fares from its passengers, but shall charge University for providing said on -campus bus service as follows: During the period from September 1, 2007, and August 31, 2008: A minimum for 42,288.22 hours of service at a base rate of $44.65 per hour, for a total for $1,888,169.02. Hours are calculated based on the published 2007-08 school calendar. Such charges shall be adjusted each month to reflect any change above or below the monthly average of the actual price paid per gallon of fuel in that month by Company on a base figure of $2.40 per gallon. The adjustments shall be based on fuel consumption of 2.5 gallons per hour of operations per vehicle and shall be accomplished according to the following formula: Adjusted Hourly Rate per Vehicle = Base Rate + (2.5 x Fuel Cost Above $2.40 per Gallon) OR Adjusted Hourly Rate per Vehicle — Base Rate - (2.5 x Fuel Cost Below $2.40 per Gallon) G. All revenues received by the Company pursuant to the Agreement shall be and remain from the time of the Company's receipt thereof the property of the City, and the treatment of such revenues, including the banking thereof, and the accounting therefore, shall be as directed by a representative chosen by the City Manager of the City. Company shall not collect fares from its passengers, but shall charge University for providing said off -campus bus service as follows: During the period from September 1, 2007, and August 31, 2008: A minimum for 8,936.22 hours of service at a base rate of $44.65 per hour, for a total for $399,002. Hours are calculated based on the published 2007-09 school calendar. Such charges shall be adjusted each month to reflect any change above or below the monthly average of the actual price paid per gallon of fuel in that month by Company on a base figure of $2.40 per gallon. The adjustments shall be based on fuel consumption of 2.5 gallons per hour of operations per vehicle and shall be accomplished according to the following formula: Adjusted Hourly Rate per Vehicle = Base Rate + (2.5 x Fuel Cost Above $2.40 per Gallon) OR Page 2 of 6 Adjusted Hourly Rate per Vehicle = Base Rate - (2.5 x Fuel Cost Below $2.40 per Gallon) Company shall submit an invoice at the end of each month showing the amount due for service provided. Contemporaneously therewith, Company will present University with a billing at the close of operations on the last day of each month. Such bill is to be paid as promptly as possible in usual course of University business and in accordance with State law. The Company will provide an income and expense statement at the end of the contract period. $2,287,171 } $7,703 = $2,294,874 Service Cost Estimated Estimated Fuel Cost Total Cost Adjustment H. Company shall allow Texas Tech University students to ride any fixed route at no charge when they show a current Texas Tech Student Identification Card. 111. Service Orders Company shall furnish service orders, if equipment is available, for the transportation within fifty (50) miles of the City limits of such special groups as may be designated by University. Company will charge University for providing said service orders the sum of $100.00 per hour- for the first three hours of service for each bus used in said service. Any service orders exceeding three hours will be billed $50.00 per hour after the first three hours. This is in accordance with Federal Regulation 49 CFR Part 604 that states transit agencies must recover the fully allocated costs of the service provided. The above mentioned rates are the same rates that are charged to the general public. There will be a one hour minimum required on all service orders. Billing periods and reports of operation shall be submitted in accordance with the provisions of Subparagraph F of Paragraph 11 hereinabove. IV. Publicity The University will undertake and conduct a program designed to publicize the existence of said bus service and to acquaint its staff members and students with the availability of the same during the period in which it is provided in accordance with and under the Agreement. The Company will provide appropriate timetables for the convenience of students. The Company will also provide students with pocket -sized campus reaps and place an advertisement in 77rc Daily Toreador at the beginning of the Fall Semester. The Company will obtain the Student Government Association's approval of any advertisements before placing them in the buses used on campus. The Cofnpany will provide lease space for two vinyl wrap bus advertisements to the University at no charge. The vinyl wraps will be designed by the University with final approval by the Company. The Company will be responsible for having the vinyl produced and installed. The University Nvill be responsible for the production and installation cost of the vinyl. The Company will provide space for in -bus signage for student organizations that are advertising a non - revenue generating event at no fee to the University. The organization is responsible for the artwork and production of the signage. All artwork must be approved by the Student Government Association and Cidbus. The Company will place two (2) advertisements per bus. Signage must be laminated to 1 I" x 17" in a horizontal format. In order to place two (2) advertisements per bus the organization will need to provide ninety (90) posters to the Company. The Company does not allow political or sexually -explicit advertisements. V. Service Provided Company will provide and use at all times, buses that are in good and safe mechanical condition, and are also in reasonably clean condition. and will also proNride competent and duly licensed drivers by whom said buses shall be driven, and Company will assume full and complete responsibility for the condition of said buses and Page 3 of 6 the qualifications and competence of its drivers at all times, and University assumes no obligations whatsoever for either of the same. VI. Independent Contractor Relationship In providing and furnishing said bus service during the term hereof, Company shall act solely in the capacity of and as an independent contractor, and not as an agent or employee of the University, and University shall have no control over Company's operations in connection with providing said service except as hereinabove provided and University shall have no control or supervision whatsoever over the drivers of the buses used in said service who shall be employed by Company. Said drivers shall not constitute agents or employees of University, and shall be subject solely to Company's supervision and control. VIL Insurance and Risk A. It is recognized by the parties hereto that Company and the City of Lubbock, Texas, have entered into an Agreement for the purpose of Company providing transportation services in and around the City of Lubbock, Texas, including the University. That under said Agreement, the Company carries and keeps in force an insurance policy insuring both City and Company against liability for personal injury or property damages arising out of the operation of said bus services and that the services provided herein are also conducted pursuant to the Agreement between the City of Lubbock and Company. At all times during which Company shall provide the bus services mentioned herein and upon the above and foregoing terms and conditions, University shall be protected under Company's insurance coverage against liability and personal injuries or personal damages arising out of the operation of said bus service to the extent of at least $300,000 for personal injury to any one person, $500,000 for each occurrence, and $300,000 for property damages sustained in any accident or occurrence arising out of the operation of said bus service and the University shall be finished a certificate of Company's insurer showing coverage to be at least in the sums just stated. Said insurance policy shall name and include "The Board of Regents of Texas Tech University" and "Texas Tech University" as named insured. Said policy or policies shall, upon request, be subject to the examination and approval of the University. B. Company, as named insured, assumes, to the extent of the insurance coverage maintained, the risk of service operation and University shall not be liable for damage to any and all buses or other Company property used in the bus service operation regardless of the cause thereof. To the extent of the proceeds of such insurance, the University shall be reimbursed for any damage or injury to University property arising out of or resulting from the said bus service operation except that no such reimbursement shall be made for (1) damage to pavement by normal operation of buses, or (2) any damage or injury caused by acts or omissions over which Company, its employees, or agents bad no control. Vin Maintenance Company agrees to maintain and operate said bus service and the buses used in providing the same in a safe, efficient and lawful manner, and in so doing, shall comply with all applicable statutes, municipal ordinances, and traffic rules and regulations promulgated by the University. IX. Miscellaneous A. It is further agreed that this Agreement is made solely for the benefit of the University, the Company, and the City, and no one else, whether a staff member or student of University, or otherwise, and that no action or defense may be founded upon this Agreement except by the parties signatory hereto. B. In no event shall the Company be deemed to be in default of any provision of this Agreement for failure to perform where such failure is due solely to strikes, walkouts, civil insurrections or disorders, acts of God, or for any other cause or causes wholly beyond the control of the Company. In such eventuality, the University may, upon twelve (12) hours' notice to the Company, request the temporary suspension of bus Page 4 of 6 service until the resumption of normal class schedules, in which event the Company will not fumish buses or be paid for services until the resumption of services. The University shall, in such cases, notify the Company twelve (12) hours in advance of the time service is to be resumed. X. Dispute Resolution A. The dispute resolution process provided for in the Texas Government Code, Chapter 2260 shall be used by the University and the Company in an attempt to resolve any unresolved claim for breach of contract arising under this Agreement and made by the Company. Page 5 of 6 EXECUTED, as of the Effective Date hereof. TEXAS TECH UNIVERSITY Kent Hance, C/hance. for Date:�� Dr. Michael Sh6nrock, V` ite President for Student AffaiVZJ/6,7 Date: � �1111' Chief Fisc 10 cer Date: REVIEWED FOR FORM TEXAS T CH UNIVERSITY Y Gener Counsel Date: 112- �7 CITY TRANSIT MANAGEMENT CO., INC. John L. Wilson, Vice President ACKNOWLEDGED AND AGREED TO CITY OF LUBBOCYn Ioe T` David A. Miller, IX4ayor ATTEST: c:" If —If " ' ��� Re a ca Garza, City Secretary r[iVED AS TO CONTENT: II 141, Loomis tnt City Manager Transportation & Public orks , �I: ✓._ /. Revised 5/29/07 Page 6 of 6 Resolution No. 2007—RO236 CONTRACT CLAIMS RESOLUTION MU9l 82/2 The dispute resolution process provided for in the Texas Government Code, Chapter 2260 shall be used, as further described herein, by the University and the Contractor in an attempt to resolve any unresolved claim for breach of contract arising under the Agreement and made by the Contractor. (a) A Contractor's claim for breach of this contract that the Parties cannot resolve in the ordinary course of business shall be submitted to the negotiation process provided in Government Code, Chapter 2260, Subchapter B. To initiate the process, the Contractor shall submit written notice, as required by Subchapter B, to the Director of Contracting. Said notice specifically states that the provisions of Chapter 2260, Subchapter B, are being invoked. A copy of the notice shall also be given to all other representatives of the University and the Contractors that are otherwise entitled to notice under this Agreement. Compliance by the Contractor with Subchapter B is a condition precedent to the filing of a contested case proceeding under Government Code, Chapter 2260, Subchapter C. (b) The contested case process provided in Government Code Chapter 2260, Subchapter C, shall be the Contractor's sole and exclusive process for seeking a remedy for an alleged breach of contract by the University if the Parties are unable to resolve their disputes in the ordinary course of business or under Chapter 2260, Subchapter B, UNLESS, after considering the recommendation of the Administrative Law Judge, the Legislature grants the Contractor consent to sue under Chapter 107 of the civil Practices and Remedies Code. (c) NEITHER THE EXECUTION OF THIS CONTRACT BY THE UNIVERSITY NOR ANY OTHER CONDUCT OF ANY REPRESENTATIVE OF THE UNIVERSITY RELATING TO THE CONTRACT SHALL BE CONSIDERED A WAIVER OF THE UNIVERSITY'S SOVEREIGN IMMUNITY TO SUIT. (d) The dispute resolution process provided for in Government Code Chapter 2260 will not, any time, affect the University's right of ability to bring suit against the Contractor for disputes arising under this Agreement, nor will it affect the University's ability to assert all claims and defenses in a lawsuit. (e) Pursuant to Chapter 2260, the submission, processing and resolution of the Contractor's claim is governed by the published rules adopted by the Texas Attorney General's Office, as currently effective, hereafter enacted or subsequently amended. (f) An event or claim for breach of contract is not grounds for the Contractor to suspend performance under this agreement.