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HomeMy WebLinkAboutContract 14052 CITY SECRETARY CONTRACT, No 11,1051 STATE OF TEXAS COUNTY OF TARRANT WHEREAS, the Fort Worth Transportation Authority ("Authority" ), a regional transportation authority created and existing pursuant to Article 1118y of the Texas Revised Civil Statutes, has been by public election confirmed and ratified as the agency to provide public transportation and general transportation services (collec- tively "transportation services") in the Authority service area and has the authority to provide such services; and WHEREAS, the City of Fort Worth ("City"), a Texas home rule municipal corporation, owns and operates public transportation ser- vices known as CITRAN, MITS and TSIC, which are capable of providing transportation services within the Authority service area; and WHEREAS, the City and the Authority are political subdivisions of the State of Texas authorized to contract with one another under the Interlocal Cooperation Act, Article 4413(32c), Texas Revised Civil Statutes; NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of the mutual covenants, promises and agreements contained herein, the City of Fort Worth, acting by and through Robert L. Herchert, its duly authorized City Manager, and the Fort Worth Transportation Authority, acting by and through Hershel R. Payne, its duly authorized Chairman of the Executive Committee, do hereby covenant and agree as follows: ARTICLE 1. REBPONSIBILITTES OF CITY 1.1 The City will provide all transportation services, to the extent requested by the Authority, in accordance with policies, standards and specifications established by the Authority. 1.2 Such services shall include regularly-scheduled, fixed- route bus service which may be provided by City using its own Off= RECORD MY MUM FT. WORTH, TDL facilities, equipment and employees; subcontractors; rented or leased facilities or equipment; or any combination thereof. 1.3 The City may operate other regularly-scheduled, fixed- route bus service in addition to that provided in the performance of this contract if the City's ability to perform this contract is not diminished by that additional service and if the services are per- formed with equipment which is not identified with services provided under this agreement. In the event City elects to provide such ser- vice, City shall first provide the Authority an opportunity to include such service in its service plan. 1.4 In addition to such regularly-scheduled fixed-route ser- vices, the City may provide special transportation services, including but not limited to services for the elderly and handi- capped, special events services, rideshare, carpool and vanpool programs, charter service and other special transportation it deems appropriate, using its own facilities, equipment and employees; subcontractors; rented or leased facilities or equipment; or any combination thereof. 1.5 The City will provide such administrative and support ser- vices necessary for the operation of the Authority as determined by the Authority's Executive Committee, excluding the services of a general counsel and auditor. These services will include, but not be limited to, program administration, intergovernmental relations, accounting, purchasing, marketing, grant application and administra- tion, the services of a General Manager, budgeting, financial advisory services, bond counsel and other services necessary in capital financing, financial planning and funds management. 1.6 Each day, or as directed by the Authority, the City will deliver to the Authority's designated depository an amount equal to all fares, charges and otber receipts of the City in connection with the transportation services provided under this contract and attrib- utable to the term of the contract except bond proceeds, federal, state, and city shares of asset sales, and payments from the -2- Authority. "Receipts" shall include, but not be limited to, receipts from advertising on buses, bus passenger shelters, bus benches, charter profit and printed materials, and other property used in connection with the transportation service; payments received in connection with sale-leasebacks of property attributable to the portion of the purchase price provided by the Authority; rentals from property used in connection with the transportation services; and interest on any deposits or investments by the City of funds paid by the Authority to the City as Advances. ARTICLE 2. RESPONSIBILITIES OF FORT WORTH TRANSPORTATION AUTHORITY 2.1 The Authority will establish policies, standards and specifications for transportation services to be provided by the City. The City may make minor adjustments to improve operational efficiency in routes or schedules for which a public hearing is not required by law and which do not materially change the level of ser- vice specified by the Authority, without prior Authority approval. Any such adjustments shall be presented to the Executive Committee for approval at its next regular meeting. 2.2 The Authority will establish fares and charges to be collected by the City for services performed under this contract, consistent with the approved Service Plan. 2.3 The Authority will reimburse City for providing all ser- vices as defined in this contract. The payment amount will be the actual cost of providing these services as defined in this contract and as approved in the adopted budget. 2.4 The Authority will reimburse the City for its share of the net operating cost of providing public transportation service in Fort Worth for the period November 10, 1983 through September 30, 1984. The Authority will transmit to the City each month its gross receipts from the sales tax revenue until the total operating subsi- dy paid by the City for the period beginning November 10, 1463, has been fully reimbursed by the Authority to the City.-Olf upon receipt -3- of the September sales tax collections the budget projection indi- cates that the Authority would require a subsidy from the City for operating purposes prior to the receipt of the October sales tax, the Authority shall withhold from the September sales tax receipts transfer the amount necessary to pay operating expenses required until the next sales tax proceeds are received. The Authority will pay the City interest, calculated at the rate the City earns on its investments* on the net balance owed beginning November 10, 1983. ARTICLE 3. TERM 3.1 The provisions of this contract will become effective October 1, 1984 and be renewed annually on each September 30, unless terminated earlier in the manner expressly stated in this contract. ARTICLE 4. COMPENSATION, PAYMENT SCHEDULE AND BUDGET 4.1 The Authority will pay the City the actual total direct and indirect cost of all services provided by the City in performing this contract to the extent such costs are included in operating budgets approved or amended in accordance with this contract and will pay the City an agreed amount to compensate the City for the City's assets used in the performance of this contract. 4.2 "Direct cost" means all expenses incurred by the City arising out of the performance of this contract and attributable to the term of the contract. "Expenses" mean all costs of labor, wages and benefits, services, materials, expendable equipment, insurance, the cost of all claims, settlements and judgments paid by the City for damages or injuries, including death and deprivation of any right conferred by law, claims arising out of employment conditions resulting from the performance of this contract, and all costs and expenses of investigation and defense of those claims, and includes the City's fixed Costs attributable to services required by this contract during interruptions of service because of fire, accident, strike, work stoppage or slowdown, calamity, riot or civil distur- -4- bance, war, and any cause beyond the control of the City. "Expenses" will not include depreciation of assets used by the City in the per- formance of this contract. 4.3 "Indirect costs" means overhead charges attributable to providing the services required by this contract as determined by the City's Cost Allocation Plan approved by the cognizant federal agency for the purpose of administering federal transportation grants. 4.4 In addition to the costs described in 4.2 and 4.3, the Authority will make an annual payment to a dedicated fund for street improvements on January 15th of each year to finance improvements to be made in the calendar year. The payment for the year beginning January 1, 1985, shall be $180,000. During the month of December each year, the Director of Transportation and Public Works of the City of Fort Worth will present a program of street improvements on bus routes for planned accomplishment in the next calendar year. Progress will be reported to the Executive Committee during the year. The annual payment after 1985 will be adjusted to reflect the change in the Construction Price Index (reported in Engineering News Record) . The percentage increase or decrease will be reported to the Executive Committee in June to facilitate the budgeting process of the Authority. 4.5 This contract shall not be effective unless and until the Authority has entered into an agreement with the City to purchase the City's ownership share of the assets used in the performance of this contract. 4.6 The Authority will not directly or indirectly pay any item of expense more than once. 4.7 On or before May I of each year the Authority will submit to the City a statement of proposed service requirements for the period beginning October I of that year and ending September 30 of the following year. If such proposed service requirements represent -5- more than a five percent (5%) change for street usage, the two parties shall negotiate an appropriate change in the annual payment described in 4.4, above. 4.8 On or before July 1 of each year the City will submit to the Authority in the form required by the Authority an operating and capital budget for all services to be provided for the Authority by the City between October 1 of that year and ending September 30 of the following year. 4.9 On or before October 1 of each year the Authority will approve an operating and capital budget for all services to be provided for the Authority by the City between October 1 of that year and September 30 of the following year. As required by Article 1118y, as amended, Texas Revised Civil Statutes the budget will be made available to the City Council at least 30 days prior to its adoption by the Authority. 4.10 After the the Authority operating budget has been approv- ed, the Authority will advance to the City each month one-twelfth (1/12th) of the budgeted cost of services to be provided under this contract. 'These monies will be advanced to the City on or before the 15th of each month. The City will submit a monthly bill to the Authority on the 15th of the month following service provision covering the costs described in 4.2 and 4.3 above. The bill will be paid from the monthly advances made by the Authority to the City. The bill submitted immediately following the completion of each year's external audit will reflect any necessary adjustments between actual expenses (only as approved in the adopted budget) and cash advances for the previous fiscal year. ARTICLE 5. LIABILITY CLAIMS 51ST T 5.1 The City will maintain or require its contractors to main- tain a policy or policies of insurance, including worker's compensa- tion insurance, insuring against claims and suits arising out of the performance of this contract, naming the City and the Authority, their officers, directors and employees, as insureds with coverages, - - limits and provisions, and issued by companies, approved by the Authority or, with the Authority's approval, provided by self- insurance. The coverages, limits and provisions of such insurance will be not less than those presently carried. 5.2 Claims against the City or the Authority or against offi- cers, directors or employees of the City or the Authority arising out of the performance of this contract, will be investigated, processed and defended by the City. 5.3 Claims and suits may be compromised and settled by the City for less than Five Thousand Dollars ($5,000) without specific prior authorization by the Authority, but such claim settlement shall be presented to the Executive Committee at its next regular meeting. Claims and suits can be compromised and settled for Five Thousand Dollars ($5,000) or more only with the Authority's ap- proval. ARTICLE 6. INDEPENDENT CONTRACTOR 6.1 The City shall operate hereunder as an independent con- tractor and not as an officer, agent, servant or employee of the Authority. City shall have exclusive control of, and the exclusive right to control, the details of the work and services performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, members, agents, servants, employees, subcontractors, program participants, licensees or invitees. The doctrine of respondeat superior shall not apply as between the Authority and City, its officers, members, agents, servants, employees, subcontractors, licensees or invitees, and nothing herein shall be construed as creating a partnership or joint enterprise between the Authority and City- it is expressly understood and agreed that no officer, member, agent, employee, subcontractor, licensee or invitee of the City is in the paid ser- vice of the Authority and that the Authority does not have the legal right to control the details of the tasks performed hereunder by -7- City, its officers, members, agents, employees, subcontractors, licensees or invitees. 6.2 No person employed by the City or its contractors will be subject to the supervision, direction or management control of the Authority, and the City and its contractors will have the sole power to hire, train, reasonably compensate, provide reasonable benefits for, supervise, manage and discharge employees and to direct all aspects of employee relations in order to carry out this contract. ARTICLE 7. CAPITAL PROGRAM AND GRANT ADMINISTRATION 7.1 The City will continue its administration of state and federal grant programs existing prior to April 1, 1984 which affect transportation services provided for the Authority by the City. 7.2 The Authority will apply for all future grants and other forms of assistance from state and federal agencies when determined to be necessary by the Authority. The Authority will be responsible for the local share of these grant projects- 7.3 As determined by the Authority the City will provide all grant application and administration services necessary for the Authority to qualify for and operate under state and federal re- quirements. This will include financial management of the Authority funds for eventual payment of local share expenses. ARTICLE S. PROPERTY MANAGEMENT 8.1 The City will furnish existing real property and improve- ments, leases, vehicles, and equipment and other property necessary for the performance of this contract unless that property is provid- ed by the Authority and leased to the City- 8.2 The Authority will retain full control over real or per sonal property purchased entirely or partly with funds provided by the Authority. the Authority property necessary for the provision of service by the city will be leased to the City at a charge of One Dollar ($1.00) per year. The City maY not use this property for any other purpose, without the written approval of the Authority. -8- ARTICLE 9. SOURCES of FUNDS, SUPERIOR RIGHTS 9.1 All obligations of and mounts payable by the Authority under this contract are solely payable from, and conditioned upon the receipt of, one or a combination of (a) current revenues deriv- ed by the Authority from the services provided by the City under this contract, (b) current operating revenues derived by the Authority from the operation of its public transportation system, (c) the current proceeds of sales and use taxes levied by the Authority under Article 1118y, Texas Revised Civil Statutes, and (d) the proceeds derived from the sale or issuance of obligations by the Authority for the purpose of funding its obligations under this contract, or the part of those proceeds that may be lawfully used for that purpose. 9.2 The Authority's obligations to make payments after execu- tion of this contract from the sources specified in Subsections (a), (b) and (c) of Section 9.1 are subordinate to any pledge or lien on those revenues, and the Authority reserves the right to issue obli- gations or to incur indebtedness in any manner authorized by law and to grant liens or pledges superior to any claim or right of the City to seek payment under this contract. 9.3 At least 10 days before the date of sale or award of any obligations of the Authority payable from or secured by a lien or pledge on its revenues superior to the payments due to the City in accordance with this contract, the Authority will give the City Manager notice of the Authority's intention to do so, which notice will contain a general description of the obligations proposed to be issued including the proposed principal amount thereof and the proposed maturity schedule. This notice is not a precondition to the issuance of obligations by the Authority. ARTICLE 10. SERVICE DS 13.1 The City will conform with service standards established by the Authority. The Executive Comnittee will determine the extent -9- of conformity by the City. The Executive Committee will also deter- mine the extent to which the administrative and support services described in 1.5 (including the services of a General Manager) are acceptable. By a two-thirds vote of the full Executive Committee the Chairman shall be authorized to notify the City Manager if any such services are not being performed in an acceptable manner. The City Manager shall report to the Executive Committee within thirty days of actions taken to correct the deficiencies noted. ARTICLE 11. COMPLIANCE WITH LJWS 11.1 The parties, their consultants, agents, employees and sub- contractors must comply with all applicable federal and state laws, the charter and ordinances of the City of Fort Werth, as amended, and with all applicable rules and regulations promulgated by all local, state and federal agencies. ARTICLE 12. NONDISCRIMINATION 12.1 Each party will use its beat efforts to afford equal opportunity for employment regardless of physical handicap unrelated to job performance, race, color, religion, national origin, age or sex. 12.2 Each party will make a good faith effort to contract with firms owned and controlled by ethnic minorities and women, consis- tent with sound procurement principles. 12.3 Each party will establish an affirmative action policy that will ensure that minority individuals and business entities receive the full and equitable opportunity to share the Authority plan's contract opportunities, employment and all other benefits. ARTICLE 1 . FINANCIAL INTEREST PROHIBITED 13.1 No officer, director or employee of the Authority or the City may have any financial interest, direct or indirect, in the purchase or sale of any product, material, services or equipment used in the performance of this contract.. _1G- ARTICLE 14. REPORTS 14.1 The City will maintain and make available to the Authority • accurate records and reports pertaining to the transportation ser- vices provided under this contract in accordance with the Uniform System of Accounts and Records and Reporting System of the Urban Mass Transportation Administration. 14.2 The City will provide the Authority with a monthly finan- cial report within fifteen (15) working days of the beginning of each month. The report will, at a minimum, show the current status of funds managed by the City for the Authority, revenue and expenses and interest earned and credited to the Authority. ARTICLE 15. ENFORCEMENT, VENUE: AND GOVERNING IMS 15.1 This contract is enforceable in Fort Worth, Tarrant County, Texas, and if legal action is necessary for the enforcement of any or all of the provisions or conditions of this contract, exclusive venue will lie in Tarrant County, Texas. 15.2 This contract will be governed by and construed in accor- dance with the laws and judicial decisions of the State of Texas. ARTICLE 16. SAVINGS CLAUSE 16.1 The provisions of this agreement are severable and if for any reason a clause, sentence, paragraph or other ,part of this agreement shall be determined to be invalid by a court or federal or state agency, board or commission having jurisdiction over the subjec matter thereof, such invalidity shall not affect other provisions which can be given effect without the invalid provision. ARTICLE 17. ASSIGNMENT 17.1 Neither party may assign or transfer any interest in this _ contract, except for necessary contracts between the City and its 11 subcontractors, without prior written authorization of the other party. ARTICLE 18. TERMINATION 18.1 This contract may be terminated by mutual agreement of the parties. 18.2 Each party hereto has a fiscal year ending on September 30th. Either party may terminate this contract unilateral- ly on September 30th of any year during the term of the contract (a) by giving written notice of intent to terminate at least nine months before the intended termination date, or (b) without such notice, in the event no funds or insufficient funds are appropriated and budgeted or are otherwise available in the next fiscal year for obligations hereunder, provided, however, this subparagraph (b) shall not be construed so as to permit a party to terminate in order to enter other agreements or make other arrangements for essentially the same services made the subject of this agreement. 18.3 Termination of this contract will not affect rights and obligations of the parties that survive termination by express pro- vision of this contract. EXECUTED this the 04 day of 0t%J*4er 1984. CITY OF FORT WORTH FORT WORTH TRANSPORTATION AUTHORITY 1)ak Bert L. Herchert H rshel R. Payne, Chairman' City Manager Executive Committee APPROVED AS TO FORM AND LEGALITY: APPROVEDs Wide City Attorney a 1, en q sel Date; °2 1 Date RSB:lrb3 _. MWM RY CM { BNCI Ruth mod ,DAY-Secrete City*Fort,worth THE STATE OF TEXAS § COUNTY OF TA NT § BEFORE ME, the undersigned authority, on this day personally appeared Robert L. Herchert, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of the City of Fort Worth, a municipal corporation of Tarrant County, Texas, and as City Manager thereof, for the purposes and considera- tion therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this � �e day of r 1981. Ijbtary Public in and for Tarrant County, Texas STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Hershel R. Payne, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowl- edged to me that such was the act of Fort Worth Transportation Authority and that he executed the same for the purposes and con- sideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, on this the day of No a is , for the .Mate Iof T s -1; City of Fort Worth, Texas Mayor and Council Communicaltion DATE REFERENCE SUBJECT; PAGE NUMBER Fort Worth Transportation 9118/84 C-8611 Authority/City Contract I of Background The Fort Worth Transportation Authority (FWTA) was established by public referendum on November 8, 1983. The Executive Committee of FWTA is charged with the responsibility for public transportation in the City. To meet this responsibility the Authority will provide service through an operating contract with the City. A separate agreement provides for the Authority's purchase of the City's share of transit assets. The Authority's Executive Committee reviewed the proposed operating agreement and authorized its execution by the Chairman at the Authority's August 9, 1984, meeting. Operating Agreement The City will provide all transportation service to the extent requested by FWTA in accordance with policies, standards and specifications established by FWTA. Administrative and support services to be provided to FWTA under the contract will include program administration, intergovernmental relations, accounting, purchasing, marketing, grant application and administration, services of a General Manager, budgeting, financial advisory services, bond counsel and other services as required by the Authority. The City will not provide general counsel or auditing services under the contract. The Operating Agreement provides that the Authority will establish fares and charges; reimburse the City for all services performed by the City as defined in the contract and approved in the budget; reimburse the City for its share of the net operating cost of public transportation services for the period November 10, 1983, through September 30, 1984; and pay the City the total actual direct and indirect cost of services provided by the City in fulfilling this contract to the extent that the costs are included in the approved operating budget. The Authority also will contribute to a dedicated fund for street improvements to be established for financing maintenance of bus route streets. The payment for the year beginning January 1. 1985, will be $180,000, with a mechanism established for adjusting that amount in response to (1) increases/decreases in the Construction Price Index and (2) increased service requirements that result in 5% or greater change in street usage. The City will maintain its administration and responsibilities in connection with grants programs existing prior to April 1, 1984. FWTA will apply for all future grants and will be responsible for the local share of these grants. DATE REFERENCE SUNIEC PAGE NUMBER Port Worth Transportation 9/18/84 -8611 Authority/City Contract -2—ot The Purchase Agreement provides that the Authority will pay the City a total of $2,694,927 for the City's share of the transit assets, in quarterly installments over a five year period, plus interest at 9.5%. Title to the transit assets will pass to FWTA upon the final payment. Financial These actions will not increase City expenditures. Revenue will be received to cover City support functions and the dedicated street maintenance fund. Surmar�r The contracts have been reviewed by the City Attorney and approved by the FWTA Executive Committee. Recommendation It is recommended that the City Council authorize the City Manager to: 1. Execute the Operating Agreement with the Fort Worth Transportation Authority; and 2. Execute the Purchase Agreement, selling the City's share of public transportation assets over a five year period, as set out above. DAI:cb SUBMITTED MANAGER'S TH + DISPOSITION BY COUNCIL. PROCESSED By CiTY OFFICE BY. � ir.4 i APPOOVED ORIGINATsNG TH ( ) DEPARTMENT HEAD: Gary L, Santerre CITY SECRETARY FOR ADDITIONAL INFORM ION CONTACT: ZV anCy AMOS . 78915 GATE