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Res 075-2011 9/6/2011 RESOLUTION NO. _75-2011__ Resolution Authorizing The City Manager To Execute An Interlocal Agreement With Midwestern State University For The Operations Of A Dedicated Public Transit Route WHEREAS, Midwestern State University attracts students from all over the United States and the world; WHEREAS, many of these students do not have access to a private means of transportation; WHEREAS, Midwestern State University has requested that the City of Wichita Falls provide transportation for its students, faculty and employees; WHEREAS, the City of Wichita Falls can provide the requested transportation service in a cost-effective manner; and, WHEREAS, Midwestern State University agrees to pay for the City of Wichita Falls’ required local match expenditures under Federal Transit Administration grant requirements. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: Interlocal Agreement The City Manager is authorized to execute the attached with Midwestern State University to provide a dedicated public transportation route, with changes as approved by the City Attorney. th PASSED AND APPROVED this the 6 day of September, 2011. ______________________________ M A Y O R ATTEST: ____________________ City Clerk INTERLOCAL AGREEMENT BETWEEN MIDWESTERN STATE UNIVERSITY AND THE CITY OF WICHITA FALLS FOR TRANSIT SYSTEM ROUTE AND REIMBURSEMENT Under the authority of the T.G’.CChapter 791, this Interlocal Agreement is made and entered EX OVT ODE into by and between Midwestern State University (MSU), an agency and institution of higher education organized under the laws and agency of the State of Texas, and the City of Wichita Falls (CITY), a Texas municipal corporation. Whereas, MSU and the City desire to enter into a long term commitment to meet the mobility needs of the MSU community to the mutual benefit of MSU and the CITY; Whereas, the CITY will develop a dedicated transportation route that will run along the following roadway boundaries within the CITY: 1) Taft Boulevard to 2) Southwest Parkway to 3) Maplewood Avenue to 4) Midwestern Parkway to 5) MSU Campus Whereas, MSU will pay for the CITY's local match cost of establishing this new route, and the City will allow, all MSU students and employees to use all CITY FallsRide scheduled routes, free of charge; Whereas, the CITY will obtain and retain benefits accruing from the new route arising from sources other than MSU students and employees, and Whereas, both parties find and agree that the consideration described in this agreement is in an amount based on cost recovery that fairly compensates the CITY for the governmental services or functions performed under the contract, and each party paying for the performance of governmental functions or services is making those payments from current revenues available to the paying party. NOW, THEREFORE, in consideration of the mutual covenants and promises made by the parties hereto, it is agreed as follows: I. CITY Duties 1) CITY will provide a FallsRide bus route, open to the general public, utilizing equipment furnished by City and operated in a manner consistent with the performance standards here, which will include: A. bus service from Taft Boulevard to Southwest Parkway to Maplewood Avenue to Midwestern Parkway to MSU Campus (Service) B. CITY will provide Service Monday through Friday C. Service will begin at 7:15 a.m. and conclude at 10:00 p.m. D. Service is calculated on a 45-week schedule E. Service will be on 15 minute headways from 7:15 a.m. to 9:00 a.m. F. Service will be on 20 minute headways from 9:00 a.m. to 9:00 p.m. G. CITY agrees to extend Service from 9:00 p.m. through midnight for MSU, upon request, for ten prearranged dates that will be certified by MSU. CITY must be given at least 10 days’ notice of such request for extended Service by MSU. If CITY is requested to provide extended Service for more than 10 dates, MSU will reimburse CITY for local matching requirements for labor and fuel costs associated with providing said extended transportation services. H. City will provide drivers, fuel, vehicle maintenance, supervisory and management services, and all other goods and services neede to provide the transportation services described herein. 2) CITY will not provide Service for this route on the following dates/days: th A. Observed CITY holidays (New Years, Memorial Day, July 4, Labor Day, Thanksgiving, Friday after Thanksgiving, Christmas) B. Saturdays and Sundays C. December 12, 2011 to January 6, 2012 D. March 12, 2012 to March 16, 2012 E. May 14, 2012 to May 18, 2012 F. August 6, 2012 to August 10, 2012 G. Days when MSU classes are cancelled by MSU H. Weather days as identified by CITY 3) City agrees to perform all services in compliance with all applicable federal, state and local, laws, regulations, and ordinances and establish and monitor performance standards for the service. City will monitor bus service access and the bus route for individuals with disabilities to ensure that the bus route is fully compliant with ADA regulations and meets the needs of individuals with disabilities. CITY will provide a qualified and trained driver for each bus who is duly registered and/or licensed under all applicable federal, state and local, laws, regulations, and ordinances. 4) CITY will provide bus shelters and bus stops, as the CITY determines necessary to serve student demand. CITY will only install bus shelters or bus stops on MSU’s property in a manner and location as approved by MSU. 5) CITY will provide 35-foot buses with a seated/standing capacity of 50 people. These vehicles will meet all state and federal safety inspection requirements. The vehicle will be equipped with air-conditioning, heating, wheelchair access, and destination signs. The vehicle will be maintained in a quality manner to assure delivery of a safe, reliable, on time and clean service for the passenger. 6) CITY will maintain records or documentation of the following: A. Number of passenger trips operated. B. Number of passenger complaints received. C. Number of vehicle and passenger accidents. D. The estimated number of trips operating on schedule (within 0-5 minutes). CITY agrees to cooperate with the properly designated MSU official charged with inspecting and auditing said records and documentation. Records of CITY’S costs, reimbursable expenses pertaining to the project and payments will be available to MSU or its authorized representative during business hours and will be retained for four (4) years after final payment or abandonment of the project, unless MSU otherwise instructs City in writing. 6) CITY will provide invoices to MSU for the CITY’s local match consideration for future service st periods by July 1 of each calendar year. 7) CITY employees operating buses for this route service shall not be convicted felons. CITY will have an appropriate criminal background screening performed on all individuals and will determine on a case-by-case basis whether each individual assigned to operate a bus is qualified to provide the services. The CITY will not knowingly assign any individual to provide services on MSU campus who has a history of criminal convictions for : 8) ________________________________________________________________. 9) With the exception of the MSU Campus, the CITY will not route buses off of public right-of-way. 10) CITY will allow all MSU students and MSU employees, who possess their own current MSU identification card, to use all of the scheduled CITY FallsRide service routes free of charge for the duration of this agreement. MSU students and employees who fail to show MSU identification, will be charged fares indicated in the FallsRide route booklet. 11) MSU students and employees will adhere to the Riding Rules published in the Wichita Falls Transit System route booklet. Failure to adhere to these rules, which apply to all Wichita Falls Transit System passengers, may result in the MSU student and/or employee not being allowed to ride the bus. II. MSU Duties 1) MSU will provide orientation to potential and current students and employees concerning the proposed route service. 2) MSU will provide readily available information, such as schedules and route books, to MSU students and employees who may want to use the service. 3) For and in consideration of City furnishing such buses and bus service as set forth above, MSU will reimburse the CITY for the CITY's local match obligation by October 1, 2011 for services provided during the term of this agreement. CITY's obligation to perform these services for the remainder of the term of this agreement shall be conditioned on receipt of the aforementioned local match obligation, and failure to meet this requirement may result in the immediate suspension of the services identified in this agreement. For the first annual term of this $_36,886.85 agreement, MSU and the CITY agree that the consideration will be , based on the attached spreadsheet. 4) MSU will assist the CITY in any off-campus issues regarding transit operations in student housing areas. 5) MSU will assist the CITY in any type of customer service issues regarding student concerns on the CITY’s FallsRide route system. 6) MSU will provide shelter options located on the MSU Campus for bus operator and passengers in the event inclement weather creates a safety concern. III. Joint Duties 1) Calculations for local match will be made using the City’s entry level driver hourly rate and the City’s cost of diesel fuel budgeted in the upcoming CITY fiscal year for the proposed service. 2) Calculations on the CITY’s local match considerations as required by the Federal Transit Administration will be included with the invoice in order to provide documentation to MSU. 3) CITY in conjunction with MSU will periodically conduct an operational and customer satisfaction survey for all services and programs offered to students. 3) The PARTIES shall designate Dennis Burket, CITY Public Transit Administrator, and Keith Lamb, MSU Associate Vice President for Student Affairs, as the primary contact persons for all matters relating to this agreement and services provided. 4) The PARTIES shall commit to cooperative processes that will make the agreement successful. A. The dispute resolution process provided for in Chapter 2260, Texas Government Code, shall be used by MSU and CITY to attempt to resolve any claim for breach of contract. B. If the parties are unable to resolve their disputes under Section 12.21.1.1, the contested case process provided in subchapter C of Chapter 2260 is the CITY’s sole and exclusive process for seeking a remedy for any and all of the CITY’s claims for breach of this Agreement by MSU. C. Compliance with the contested case process provided in subchapter C of Chapter 2260 is a required prerequisite to seeking consent to sue from the Legislature under Chapter 107, Texas Civil Practices and Remedies Code. The parties hereto specifically agree that (i) neither the execution of this Agreement by MSU nor any other conduct, action or inaction of any representative of MSU relating to this Agreement constitutes or is intended to constitute a waiver of MSU’s or the state’s sovereign immunity to suit and (ii) MSU has not waived its right to seek redress in the courts. D. The CITY retains its right to terminate the services described herein if MSU fails to pay the CITY in accordance with this agreement. E. The maximum liability of the CITY pursuant to this agreement shall be the amount of consideration described in Section II.3. Also, neither party shall be liable for: (1) consequential or similar damages; (2) exemplary damages; (3) any damages based on an unjust enrichment theory; (4) attorney's fees; or (5) home office overhead 5) The PARTIES shall meet annually to review services provided in this agreement. 6) Parties agree that CITY is not providing to MSU a charter service as defined by Federal transit law. IV. Term This agreement will become effective August 15, 2011 and will remain in effect until August 3, 2012, unless otherwise amended by mutual agreement or terminated by any party by written notice of at least 90 days in advance of the cancellation or August 3, 2012, whichever comes first. The payment will be prorated for any remaining time left should this agreement be terminated before August 3, 2012. Unless terminated by either party prior to its renewal, this agreement will renew automatically for subsequent annual terms on August 3rd of each year, beginning in 2012. Notwithstanding, MSU shall be authorized to terminate this agreement in 2012 or subsequent years within 30 days after the CITY has informed MSU of the CITY's calculation of MSU's reimbursement obligation. V. General Conditions 1) Both parties warrant that (a) the services performed by each of them are necessary and authorized for activities that are properly within their statutory functions and programs; (b) they have the authority to contract for the services; (c) they have all necessary power and have received all necessary approvals to execute and deliver this agreement; and (d) the representatives signing this agreement on their behalf have authority from their respective governing bodies to sign this agreement. 2) There are not intended beneficiaries of this agreement other than the parties named herein. No person other than the parties to this agreement shall have the right to enforce any term hereof. 3) The operation by the CITY under this Agreement shall be performed in compliance with all the applicable ordinances of the City of Wichita Falls, laws of the State of Texas and the laws of the United States. This Agreement shall be binding on the parties hereto, their successors and assigns. The CITY may not assign this Agreement without prior written consent of MSU. This agreement and any incorporated documents shall be governed by and construed in accordance with the laws of the State of Texas. The exclusive venue of any suit brought concerning the agreement and any incorporated documents is fixed in any court of competent jurisdiction in Wichita County, Texas. 4) This agreement is not intended to create and does not create a partnership or joint venture between MSU and the CITY. 5) Notwithstanding any provision of this Agreement to the contrary, the CITY shall be an independent contractor in all matters relating to this Agreement. City will not bind or attempt to bind MSU to any agreement or contract. The CITY and its employees or agents shall not be deemed or construed to be the employees or agents of MSU for any purposes whatsoever. The CITY agrees that it shall have complete responsibility in the area of employment law and relations regarding its own employees, contractors, and agents, including but not limited to: wrongful discharge lawsuits, unemployment issues, workers' compensation, employment taxes, and reimbursement due to losses in these areas. Consistent therewith, the CITY agrees that it shall make its own arrangements to provide CITY employees with all necessary employee benefits, including unemployment and workers' compensation benefits, and MSU is, in no way, a party to such arrangements. Regarding CITY employees, the CITY shall have the sole authority to hire, fire, transfer, train, evaluate, discipline, pay and assign work. 6) Either party may suspend this Agreement at any time because of war, declaration of a state of national emergency, acts of God or public enemy, strike, work stoppage or slow down, or other cause beyond the control of such party, by giving the other party written notice of suspension and the reason for same. MSU shall be obligated only to pay for services actually provided under this Agreement. Payments to be made and services to be rendered under this Agreement shall not become due during a period of suspension. MSU may secure the services herein contemplated from another source during the period in which CITY suspends performance under this Agreement. 7) This Agreement and any attachments, exhibits or addenda contain the entire agreement between the parties and supersede any prior understanding or written or oral agreements between the parties concerning the subject matter herein. Any oral representations or modifications concerning this Agreement shall be of no force or effect unless reduced to writing and signed by authorized representatives of the parties. 8) In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 9) No delay or omission in exercising any right accruing upon a default in performance of this Agreement will impair any right or be construed to be a waiver of any right. A waiver of any default under this Agreement will not be construed to be a waiver of any subsequent default under this Agreement. 10) This agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted assigns and successors. 11) Except for MSU’s obligation (if any) to pay the CITY certain fees and expenses, MSU will have no liability to the CITY or to anyone claiming through or under the CITY by reason of the execution or performance of this agreement. Notwithstanding any duty or obligation of MSU to the CITY or to anyone claiming through or under the CITY, no present or future affiliated enterprise, subcontractor, agent, officer, director, employee, representative, attorney or Regent of MSU, or anyone claiming under MSU has or will have any personal liability to the CITY or to anyone claiming through or under the CITY by reason of the execution or performance of this Agreement. IN WITNESS WHEREOF, executed this day of September 2011. Midwestern State University City of Wichita Falls By: By: Dr. Jesse Rogers, President Darron Leiker, City Manager