Agreement for Provision of Public Transit Services
This Agreement is made this 6th day of November 2018 by and between First Transit, Inc., a Delaware Corporation, hereinafter referred to as “Contractor” and the City of Lawrence, Kansas, hereinafter referred to as “CITY”.
WHEREAS, CITY issued a Request for Proposal (hereinafter “RFP”) for Public Transportation Services on July 17, 2018, and
WHEREAS, Contractor responded by submitting a proposal (hereinafter “Proposal”) dated September 7, 2018, and
WHEREAS, Contractor has the technical expertise necessary to manage and operate CITY’s transportation system, and
WHEREAS, CITY desires to contract with Contractor to operate its transportation system,
NOW THEREFORE, CITY and Contractor do hereby agree as follows:
A.1 TERM. The term of this Agreement shall be from January 1, 2019 to December 31, 2023, inclusive.
A.2 SCOPE OF WORK. The Scope of Work is contained in Part II of the RFP, as revised by addenda, attached hereto and incorporated herein. The Scope of Work shall constitute all of the work to be provided by Contractor under the terms of this Agreement.
A.3 COMPLETE AGREEMENT. This Agreement incorporates by reference the City’s RFP, RFP Addendum 1, RFP Addendum 2, RFP Addendum 2a, Questions and Answers Letter (10-1-18) and Contractor’s Proposal, and contains the entire understanding between the parties. Any prior agreement or understanding, whether oral or written, shall be invalid upon execution of this Agreement.
A.4 CHANGES. Changes to this Agreement shall be effective only upon written agreement between the parties. Each change to this Agreement shall be sequentially numbered as a change order hereto and signed by authorized representative(s) of the CITY and Contractor. Change orders shall only amend the specific portions of this Agreement as written in the change order and shall not change any other portion of this Agreement.
A.5 CONSIDERATION. In consideration of Contractor’s provision of service as described herein, CITY shall pay Contractor an amount per revenue vehicle service hour plus a fixed monthly rate during the term of this Agreement. A revenue vehicle service hour is defined as the time from the vehicles first scheduled stop of the service day to its last drop off point, including layover time. A revenue vehicle service hour shall exclude travel time to and from storage facilities, fueling, all driver rest and lunch breaks, training, road tests, vehicle breakdowns and deadhead.
A.5.1 RATES. During the term of this Agreement, the following rates shall apply:
|
Contract Period |
Rate Per Revenue Hour (Variable) |
Rate Per Service Month (Fixed) |
Rate Per Month (Technology) |
|
01/01/2019 to 12/31/2019 |
$41.06 |
$123,418.62 |
$22,522.55 |
|
01/01/2020 to 12/31/2020 |
$42.68 |
$126,186.48 |
$22,522.55 |
|
01/01/2021 to 12/31/2021 |
$42.93 |
$128,612.22 |
$22,522.55 |
|
01/01/2022 to 12/31/2022 |
$44.35 |
$131,561.94 |
$22,522.55 |
|
01/01/2023 to 12/31/2023 |
$46.00 |
$134,648.11 |
$22,522.55 |
Note: The rates identified herein are subject to change pending the results of any cost allocation review between the CITY and the University of Kansas, provided such cost allocation does not inure to the detriment of Contractor and subject to Contractor's mutual agreement to the rate change.
A.5.2 RATE ADJUSTMENTS. The CITY or Contractor may request immediate re-negotiation of rates contained in Section A.5.1 of this Agreement in the event of the following occurrences during the term of this Agreement or any extensions thereof:
A.5.2.1 An increase or decrease in the number of CITY revenue vehicle service hours provided in the RFP of 10% or more.
A.5.2.2 An increase in the government mandated minimum wages or payroll taxes applicable to employees of Contractor that was unknown to Contractor when it submitted its Proposal to CITY.
A.5.2.3 Changes in laws or regulations adopted by Federal, State, Regional or Local governmental bodies that result in increases or decreases in Contractor’s operating costs.
A.5.2.4 In the event of a Contractor cost increase or decrease as described in this Section, Contractor shall notify CITY in writing of the cost increase or decrease and Contractor and CITY shall meet to negotiate a change to Contractor’s rates herein.
A.5.3 PENALTIES. CITY must notify Contractor in writing within seventy-two (72) hours of learning of an incident or receiving monthly reports of its intent to assess any penalty. Contractor shall have ten (10) days following receipt of such notice to investigate and cure any deficiency. Electronic notification shall satisfy the notice requirement. Any penalties imposed by CITY shall be deducted from Contractor’s invoice for the period(s) in which they occurred. Failure of CITY to timely notify or bill Contractor shall relieve Contractor of its obligation to pay any penalties for the particular incident.
A.6 INVOICES. On or before the 10th of each month, the Contractor will submit an invoice for previous month’s service.
A.7 PAYMENT TERMS. CITY shall pay Contractor within 30 days of receipt of Contractor’s invoice.
A.7.1 DISPUTED INVOICES. In the event CITY disputes any portion of Contractor’s invoice, CITY shall notify Contractor in writing within fourteen (14) days of receipt of Contractor’s invoice. CITY shall pay the undisputed portion of the invoice within thirty (30) days of receipt of Contractor’s invoice.
A.7.2 DISPUTE RESOLUTION. Contractor and CITY shall meet within fourteen (14) days of Contractor’s receipt of CITY’s notice of a disputed invoice to negotiate a resolution to the dispute. In the event Contractor and CITY cannot resolve the dispute through negotiation, then either party may seek remedies as prescribed by state law.
A.8 FORCE MAJEURE. Either party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by a cause beyond its control, including, but not limited to: any incidence of fire, flood, or strike; acts of God; acts of the Government; war or civil disorder; violence or the threat thereof; severe weather; commandeering of material, products, plants, or facilities by the federal, state, or local government; national fuel shortage; or a rational act or omission by the other party, when satisfactory evidence of such cause is presented to the other party, and provided further that such nonperformance is beyond the reasonable control of, and is not due to the fault or negligence of, the party not performing.
A.9 AUDIT. The records, books, documents, data, and accounting and operating procedures of Contractor as it related specifically to the performance of this Agreement are subject to audit and examination by the CITY or its representatives, the Secretary of Transportation and the Comptroller General of the United States, or their duly authorized representatives until the expiration of five (5) years from the date of final payment under this Agreement. Such audit shall be conducted after reasonable notice to Contractor and at Contractor’s accounting center where such records are maintained.
A.10 FARES. Contractor shall collect fares from passengers of the service at rates established by CITY.
A.11 INSURANCE. During the term of this Agreement, Contractor agrees to provide insurance of the type and in the amounts described in Part I, Section 4 - Special Conditions of the RFP. Prior to the start of work under this Agreement, Contractor shall provide CITY with proof of insurance as required herein.
A.12 TERMINATION. This Agreement may be terminated by either party under the following conditions:
A.12.1 If either CITY or Contractor fails to fulfill their respective obligations under this Agreement, the other party may serve written notice of the failure to perform. In the event the party failing to perform does not correct its performance or make substantial progress to correct its performance within fifteen days of receipt of said notice, then the other party may immediately terminate performance of the work under this Agreement in whole or in part for cause. Contractor shall be paid for all work satisfactorily completed prior to the effective date of such termination.
A.12.2 CITY may terminate performance of the work under this Agreement in whole or in part for convenience by notifying the Contractor in writing of the date of termination, which written notice shall be at least thirty (60) days in advance of the planned termination. Contractor shall be paid for all work satisfactorily completed prior to the effective date of such termination and furthermore shall be paid its contract close out costs involved in effecting such early termination.
A.12.3 Close out costs are defined as all reasonable costs reimbursable under this agreement, not previously paid, for the performance of this agreement before the effective date of the termination, and those costs that may continue for a reasonable time with the approval of or as directed by the CITY; however, the Contractor shall discontinue those costs as rapidly as practicable.
A.13 CONTRACTORS WARRANTIES. Contractor grants the City the following warranties during the term of this Agreement:
A.13.1 In the event City is dissatisfied with Contractor’s service for any reason during the term of this Agreement or any extension thereof, the City may terminate this Agreement pursuant to either Section A.12.1 or A.12.2 herein.
A.13.2 Contractor warrants that it will not relocate or reassign the Contractor’s General Manager to any other position or location of the Contractor during the term of this Agreement. If the Contractor chooses to move the General Manager without the consent of the City the Contractor will pay the City $100,000 within 30 days. This shall not apply to voluntary or involuntary terminations of employment of the Contractor’s General Manager.
A.14 CROSS-HIRING. Contractor and CITY agree that during the term of this Agreement, and for a period of one year following the termination thereof, the
CITY shall not hire an employee or former employee of the contractor without their written approval. The term “former employee” used in this provision shall mean employees who have separated their employment within the prior twelve months. The parties acknowledge that the prohibition on hiring contained in this Section A.14 applies only to employees of either party whose responsibilities fall fully or partially under this Agreement.
A.15 ORDER OF PRECEDENCE. In the event of conflicting language between the various portions of this Agreement, the following order of precedence shall apply: Change Orders to this Agreement, this Agreement, the RFP and the Proposal.
A.16 VEHICLES, VEHICLE LICENSES, FEES AND TAXES. CITY shall be responsible for providing all of the revenue vehicles required to operate the service, all vehicle licensing, motor vehicle fees and taxes, if any, on the vehicles the CITY provides under this Agreement. The CITY may at its sole discretion acquire or lease vehicles to comply with the requirements of this contract.
A.16.1 Major Repairs to vehicles unrelated to accidents. Upon execution of the Agreement major repairs not resulting from accidents, to the engine, transmission, HVAC systems or other major systems (excluding body damage) of the vehicles required to operate the service, where the necessary parts to repair a vehicle exceed $1,000, according to the coach manufacturer’s current parts price list, shall be completed by the Contractor, or the Contractor’s repair service provider, upon the CITY’S written approval. The CITY shall pay the costs of said parts or at its sole discretion, the CITY may acquire the necessary parts and provide them to Contractor for installation. The Contractor shall be responsible for ensuring the parts are installed in a professional manner and in conformance with the manufacturer’s specifications and shall pay for the cost of the labor and related costs for installation of the part or parts. In the event that the CITY adds vehicles to the contract that causes the Contractor to incur costs, the CITY will reimburse the Contractor for such costs. All costs associated with additional vehicles must have prior approval from the CITY.
KANSAS. The CITY retains the right to renegotiate relevant portions of this agreement, excluding the term, in the event that the CITY should alter its agreement with the University of Kansas to coordinate and/or combine the CITY and University Transit systems or parts thereof. Any change or amendment to this Agreement shall require a written amendment executed by both parties.
A.18 INDEPENDENT CONTRACTOR. In performing under this Agreement, Contractor shall act at all times as an independent contractor. Nothing contained in this Agreement shall be construed or applied to create the relationship of principal and agent, or of employer and employee, between Contractor and CITY. Employees of Contractor shall not under any circumstances be considered employees of CITY.
A.19 WAIVER. Failure of either party to assert any right, which it has under this Agreement, or to assess penalties as provided, shall not act as a waiver as to that party’s right to enforce the provisions of said Agreement, or assess penalties in the future.
A.20.1 All services provided under this Agreement shall be governed by the operating policies established by the CITY, unless otherwise specified in this Agreement.
A.20.2 Management of Contractor’s employees shall rest exclusively with Contractor. CITY shall not attempt to directly or indirectly manage, discipline or direct employees of Contractor.
A.20.3 In the event of substandard performance of an employee of Contractor, CITY may demand the removal of a Contractor employee. Such demand shall be in writing and shall not violate applicable local, state or federal laws, rules or regulations. To the extent allowable by law, CITY shall hold Contractor harmless from and against all claims, expenses or liabilities by or to a removed Contractor employee arising friom the removal of that employee based on CITY’S demand. Contractor shall comply with CITY’s demand within two weeks of receipt of CITY’s written notice.
A.21 COMMUNICATIONS. All communications and notices required hereunder shall be made by personal delivery or by certified mail, return receipt requested. Notices shall be effective upon the date of receipt Notices shall be delivered to the following persons:
A.21.1 To CITY: Public Transit Administrator
City of Lawrence
933 New Hampshire, P.O. Box 708
Lawrence, Kansas, 66044.
A.21.2 To Contractor: General Counsel
First Transit Inc.
600 Vine Street, Suite 1400
Cincinnati, OH 45202
A.21.3 Either party may change the address of notification by notifying the other party in writing.
A.21.4 City shall act in sole capacity as spokesperson for the transit system. Contractor shall direct all inquiries from the press about the transit system to the City’s Public Transit Administrator or City Manager. Contractor shall obtain prior approval of City prior to any press interviews or press releases relating to City’s transit system.
A.22 SEVERABILITY. In the event any provision of this Agreement is declared or determined to be unlawful, invalid or unconstitutional, such declaration shall not affect, in any manner, the legality of the remaining provisions of this Agreement and each provision of the Agreement will be and is deemed to be separate and severable from each other provision.
A.23 JURISDICTION. This Agreement is made in and subject to the laws of the State of Kansas.
A.24 ASSIGNMENT AND SUBCONTRACTING. The Contractor may subcontract portions of the services under this Agreement upon written approval of CITY; such approval shall not be reasonably withheld.
A.25 FTA REQUIREMENTS. CITY is a recipient of transportation funding from the
United States Department of Transportation, Federal Transit Administration (hereinafter “FTA”). Contractor shall comply with all requirements imposed on the City by FTA to the extent that compliance is within the scope of Contractor’s duties under this Agreement. The RFP, its addenda, along with all documents provided by the Contractor during the evaluation process are included in this agreement.
A.26 INDEMNIFICATION. Contractor agrees to indemnify, hold harmless and defend CITY, its governing board, officers, employees and agents from and against every claim or demand which may be made by any person, firm, or corporation, or any other entity arising from or caused by Contractor’s negligence, gross negligence or willful misconduct in the performance of this Agreement, except to the extent that such claims or demand arises from or is caused by the negligence or willful misconduct of CITY, its agents or employees.
To the extent permitted by law, CITY agrees to indemnify, hold harmless and defend Contractor, its governing board, officers, employees and agents from and against every claim or demand which may be made by any person, firm, or corporation, or any other entity arising from or caused by CITY’S gross negligence in the performance of this Agreement, except to the extent that such claim or demand arises from or is caused by the negligence or willful misconduct of Contractor, its agents or employees.
A.27 DISPUTE RESOLUTION The parties shall negotiate in good faith in an attempt to resolve any dispute that may arise under this Agreement. Disputes that cannot be resolved by negotiation may be submitted to mediation.
IN WITNESS WHEREOF, CITY and Contractor have executed this Agreement on this 6th day of November, 2018. The persons signing this Agreement certify that they have the authority to bind their respective organization to the provisions herein.
FIRST TRANSIT, INC. CITY OF LAWRENCE, KANSAS.
By:____________________________ By:____________________________
Date: _____/_____/_____ Date: _____/_____/_____
Attachment:
ATTACHMENT 1.
Lawrence Transit System and First Transit
Negotiated Elements
Scholarship / Internship: $10,000 per year is available as part of the Contractor Proposal. The City, University and the Contractor agree to immediately begin developing a Scholarship/ Internship program that will begin in the second half 2019 and continue into the first half of 2023.
ADA Certification: The existing ADA certification process will continue to be performed by First Transit staff through March 31, 2019. During this period the City and first Transit will work together to designate and develop a third party to perform this task.
Maintenance Assistance for Regional Providers: The Contractor will provide maintenance for regional transportation providers at a labor rate of $58 per hour plus parts. This would be available to voting members of the Regional Transit Advisory
Committee (RTAC) of the Lawrence Douglas County Metropolitan Planning
Organization. Work would only be performed on FTA or KDOT funded vehicles. All work would be preapproved by the City or University in order to not interfere with the current services being provided for the City and the University. The Contractor will directly invoice each provider for labor and parts associated with the work.
Technology Implementation: Full implementation of selected optional technologies. These technologies include the following:
|
One Time |
Annual |
|
|
Capital |
Recurring |
|
|
MDT - DoubleMap Base System |
$53,528.85 |
$18,605.25 |
|
Texting – Double Map Reatime Info |
$961.54 |
$1,176.92 |
|
APC - Automatic Passenger Counter |
$78,076.92 |
$1,875.00 |
|
GTFS |
$576.92 |
$288.46 |
|
Driver Adherence |
$769.23 |
$576.92 |
|
Total |
$133,913.46 |
$22,522.55 |
Additional technologies may be added during this contract. The and timing of such implementation will be negotiated between First Transit and the City.
Liquidated Damages: As stated in Part II, Section 14 of the RFP the City will impose liquidated damages “...after the Contractor has had opportunities to make corrections and failed to meet the needs of the City…”. Under this contract there will be no incentives provided for performing above and beyond the standards stated in the RFP.