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HomeMy WebLinkAboutRes 2009-25RESOLUTION NO. 2009-25 A RESOLUTION OF THE MAYOR. AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AUTHORIZING AN INTERGOVERNMENTAL, AGREEMENT WITH THE REGIONAL PUBLIC TRANSPORTATION AUTHORITY FOR BUS TRANSIT SERVICE. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. That the intergovernmental agreement between the Town of Fountain Hills and the Regional Public Transportation Authority for bus transit service (the "Agreement ") to is hereby approved in the farm attached hereto as Exhibit A and incorporated herein by reference. SECTION 2. That the Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to take all steps necessary to cause the execution of the Agreement. PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills, Arizona, August 2.0, 2009. FOR THE TOWN OF FOUNTAIN HILLS: 161. Schlurn, Mayor REVIEWED BY: Richard L. Davis, Town Manager 1084330.1 .ATTESTED TO: 1 � L .. _ ..�ii►l i.�� .rte /' i 1 � er, 116wn Clerk APPROVED AS TO FORM: 0 4)qA 4 /"\ An v J. McGuire, Town Attorney EXHIBIT A TO RESOLUTION NO. 2009-25 [Intergovernmental Agreement] See following pages. 1084330.1 AGREEMENT NO. 12448-2010 INTERGOVERNMENTAL AGREEMENT BETWEEN THE REGIONAL PUBLIC TRANSPORTATION AUTHORITY AND THE TOWN OF FOUNTAIN HILLS (Funding Agreement — Special Transportation Services 09 -10) THIS INTERGOVERNMENTAL AGREEMENT (this "Agreement ") is made and entered into this 20th day of August, 2009, by and between the Regional Public Transportation Authority, a public agency duly organized and existing under the laws of the State of Arizona (hereinafter referred to as the "RPTA ") and the Town of Fountain Hills, a municipal corporation duly organized and existing under the laws of the State of Arizona (hereinafter referred to as the "TOWN "). RECITALS WHEREAS, the RPTA is a political subdivision of the State of Arizona, i.e., a public improvement district, established for the purpose of planning and providing public transportation services ARIZ. REv. STAT. §48 -5102. WHEREAS, the RPTA is authorized to contract for the provision of public transportation services pursuant to ARIZ. REv. STAT. §§ 48 -5122 and 48 -5123. WHEREAS, the TOWN is authorized to contract for the provision of public transportation services pursuant to the Fountain Hills Town Code and ARIZ. REv. STAT. & 11 -952. WHEREAS, the TOWN requires certain paratransit and related passenger assistance services for its citizens. WHEREAS, effective June 30, 2009, Maricopa County terminated the contract for the delivery of Special Transportation Services program (the "STS Program "), and the RPTA has agreed to provide similar service pursuant to the terms of this Agreement; WHEREAS, the RPTA is currently under an existing contract with Total Transit, Inc., an Arizona corporation, to provide fixed route and a deviated fixed route (combination fixed & paratransit route) transportation services. WHEREAS, the RPTA has authority pursuant to its procurement rules and regulations to amend its contract with Total Transit, Inc. to provide paratransit and passenger assistance services to the TOWN's citizens (the "Services "). 1051911.4 WHEREAS, the TOWN has been authorized by its TOWN Council and RPTA has been authorized by its Board of Directors to enter into this Agreement. WHEREAS, the sums set forth herein have been approved for disbursement in TOWN's and RPTA's annual budgets. WHEREAS, the TOWN and the RPTA desire to enter into this Agreement to set forth their respective rights and obligations with respect to the implementation of the Services. NOW, THEREFORE IT IS AGREED by and between the parties, as follows: SECTION 1. UNDERTAKINGS OF THE PARTIES. A. TOWN's Obligations. TOWN shall: Through the Transportation services contract awarded by RPTA to Total Transit, the TOWN will participate in the STS Program, previously administered by Maricopa County. RPTA is assuming responsibility for this program effective July 1, 2009. The RPTA, through its Contractor, will be responsible for administering a transportation program that provides limited transportation, free of charge, for designated residents of the TOWN. 2. The TOWN's Volunteer Coordinator shall approve and designate each passenger receiving paratransit services administered by the RPTA and the TOWN's financial responsibility shall extend only to those passengers referred to RPTA by the TOWN's Volunteer Coordinator. 3. The TOWN shall designate "allowed trips" for each passenger. Reservations for "allowed trips" for designated persons shall be made at least one day in advance of service. 4. In exchange for the Services, the TOWN shall pay RPTA monthly for the Services provided at the costs as set forth in the Cost Schedule, attached hereto as Exhibit A and incorporated herein by reference, not to exceed $5,880.00 per month and a total aggregate amount of $70,500.00 over the term of this Agreement, which amounts shall include up to a 5 percent fee for administration services based upon the monthly invoice sent to Town. B. RPTA's Obligations. RPTA shall: 1. With respect to the STS Program, the RPTA, in consultation with and with the approval of the TOWN, shall: a. Administer the STS Program, which shall provide limited transportation, free of charge, for designated residents of the TOWN. 1051911.4 2 b. Negotiate and coordinate the implementation of any operating agreements. Provide the Services directly or contract through a qualified subcontractor (the "Contractor ") for the provision of the Services, subject to available funding pursuant to Section 2.13. The Services shall include door -to -door paratransit and passenger assistance services. d. Provide marketing and merchandising of the Services. e. Draft and secure approval for the annual operating budget. f. Plan for, prepare changes, and amend service specifications. g. Bill TOWN on a monthly basis for transportation services provided to the TOWN. Specifically, the RPTA shall charge the TOWN for each trip provided to a registered and approved TOWN citizen at the rates set forth in the Cost Schedule attached hereto as Exhibit A. h. Provide professional staff as necessary to plan for, develop, contract for, monitor, and adjust the Services. i. Conduct nationwide background checks of all staff. j. Conduct ADA training of all staff. k. Conduct sensitivity training of all staff. 2. The RPTA and the TOWN may conduct service and financial audits, as required, of the STS Program. 3. The RPTA shall provide written performance reports to the TOWN no later than 30 days following the end of each month during the term of this Agreement. In the event that this Agreement is terminated upon expiration of the Initial Term, defined below, a report detailing the services provided during the month of June 2010 shall be provided to the TOWN no later than July 31, 2010. 4. The reports shall include at a minimum: a. Name of each passenger. b. Number of trips taken by passenger. Direct distance of trips by passenger. d. Origin and destination of passengers transported. 1051911.4 3 e. Cost of each trip. f. Pick up and appointment on time percentage. g. Number and classification of complaints. h. No shows, cancel at door, or missed trips (vehicle arrives late and passenger does not go). SECTION 2. STATUTORILY REQUIRED PROVISIONS. A. Duration. This term of this Agreement shall commence on July 1, 2009, and shall terminate on June 30, 2010 (the "Initial Term "), unless terminated earlier by either party pursuant to the terms of this Agreement. Upon expiration of the Initial Term, this Agreement may be extended, upon written agreement of the parties, for four additional one year periods (the "Renewal Terms "). The Initial Term and the Renewal Terms are collectively referred to as the "Term." B. Budget, _ Appropriation of Funds. Funding levels for this Agreement shall be determined annually and shall be incorporated into this agreement annually by written amendment. Each year of this Agreement, the budget amount will be based on available funds and the budget will be renegotiated. The provisions of this Agreement for implementation of the Services by both parties shall be effective when funds are appropriated for purposes of this Agreement and are actually available to each party. Each party shall be the sole judge and authority in determining the availability of funds under this Agreement and shall keep the other party fully informed as to the availability of funds for the Services. The obligation of each party to make any payment pursuant to this Agreement is a current expense of each party, payable exclusively from such annual appropriations, and is not a general obligation or indebtedness of either party. In the event that insufficient funds are appropriated by either party, either party may reduce payments or terminate this Agreement without further recourse, obligation or penalty to either party. Neither party shall be liable for any purchases or subcontracts entered into by the other party in anticipation of such funding. C. Purpose. The purpose of this Agreement is to set forth the rights and obligations with respect to the provision of the Services. D. Termination. Either party may terminate this Agreement, with or without cause, upon 30 calendar days' written notice to the other party at the addresses indicated below, and, upon such termination, all property used in connection with this Agreement will be promptly returned to the party holding title thereto. The written notice specified in this subsection shall specify the extent to which performance of work under this Agreement is terminated, and the date upon which such termination becomes effective. Notwithstanding such termination, each party shall be compensated for Services delivered prior to termination. 1051911.4 4 E. Scrutinized Business Operations. Pursuant to ARIZ. REV. STAT. §§ 35- 391.06 and 35- 393.06, the parties each certify that they do not have scrutinized business operations in Sudan or Iran. For the purpose of this subsection the term "scrutinized business operations" shall have the meanings set forth in ARIZ. REV. STAT. § 35 -391 or 35 -393, as applicable. If either party determines that the other party submitted a false certification, the party making such determination may impose remedies as provided by law including terminating this Agreement. SECTION 3. GENERAL PROVISIONS. The following provisions are material and essential to the parties' entry in to this Agreement. A breach of any of the provisions of this Section shall constitute a material breach of contract: A. Entire Agreement; Modification (No Oral Modification). This Agreement, and any Exhibits, Attachments, or Schedules attached hereto, constitute the full and complete understanding and agreement of the parties. It supersedes and replaces any and all previous representations, understandings, and agreements, written or oral, relating to its subject matter. This Agreement, and its terms, may not be modified or changed except in writing signed by both parties. B. Invalidity of Any Provisions. This Agreement shall remain in full force and effect even if one or more of its terms or provisions have been held to be invalid or unenforceable. Such a holding shall result in the offending term or provision being ineffective to the extent of its invalidity or unenforceability without invalidating the remaining terms and provisions hereof; this Agreement shall thereafter be construed as though the invalid or unenforceable term or provision were not contained herein. C. Applicable Law and Litigation. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Arizona. Any and all litigation between the parties arising from this Agreement shall be litigated solely in the appropriate state court located in Maricopa County, Arizona. D. Conflicts of Interest. All parties hereto acknowledge that this Agreement is subject to cancellation pursuant to the provisions of ARIZ. REV. STAT. § 38 -511. E. Non - waiver. Should either party fail or delay in exercising or enforcing any right, power, privilege or remedy under this Agreement such failure or delay shall not be deemed a waiver, release or modification of the requirements of this Agreement or of any of the terms or provisions thereof. F. Notices and Requests. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (1) delivered to the party at the address set forth below, (2) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, (3) 1051911.4 5 given to a recognized and reputable overnight delivery service, to the address set forth below or (4) delivered by facsimile transmission to the number set forth below: If to Fountain Hills: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Attn: Richard L. Davis Facsimile: 480 - 816 -5100 With copy to: Gust Rosenfeld, PLC 201 East Washington Street, Suite 800 Phoenix Arizona 85004 -2327 Attn: Andrew J. McGuire, Esq. Facsimile: 602 - 340 -1538 If to RPTA: Regional Public Transportation Authority 302 North First Avenue, Suite 700 Phoenix, Arizona 85003 Attn: David Boggs, Executive Director Facsimile: 602 - 495 -0411 With a copy to: Moyes, Sellers & Sims 1850 North Central Avenue, Suite 1100 Phoenix, Arizona 85004 Attn: William J. Sims, Esq. Facsimile: 602 - 274 -9135 or at such other address, and to the attention of such other person or officer, as any Party may designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed received (1) when delivered to the party, (2) ten business days after being placed in the U.S. Mail, properly addressed, with sufficient postage, (3) on the second business day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver no later than the second business day or (4) when received by facsimile transmission or e-mail during the normal business hours of the recipient, with proof of delivery. Notice sent by facsimile transmission shall also be sent by regular mail to the recipient at the above address; provided, however, that such duplicate notice shall not change the effective date of the notice sent by facsimile transmission. If a copy of a notice is also given to a party's counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. Any time period stated in a notice shall be computed from the time the notice is deemed received. Either party may change its mailing address, FAX number, or the person to receive notice by notifying the other party as provided in this subsection. 1051911.4 6 G. Indemnification. To the extent permitted by law, RPTA agrees to defend, indemnify and hold harmless the Town and any of its agents, officers, employees or directors (irrespective of the termination of this Agreement) on a current basis from and against any and all claims, liabilities and causes of action which may be imposed upon, incurred by or asserted against them or any of their agents officers, employees or directors attributable, directly or indirectly, to or arising in any manner by reason of the negligence, error, omission or intentional misconduct of any agent, officer, employee or director of RPTA. RPTA shall pay all claims, losses and costs program of any nature whatsoever (including reasonable attorney's fees) in connection therewith, and shall pay all costs program and judgments which may issue thereon. In addition, RPTA shall cause the Contractor to defend, indemnify and hold harmless the Town and any of its agents, officers, employees or directors (irrespective of the termination of this Agreement) on a current basis from and against any and all claims, liabilities and causes of action which may be imposed upon, incurred by or asserted against them or any of their agents officers, employees or directors attributable, directly or indirectly, to or arising in any manner by reason of the negligence, error, omission or intentional misconduct of any agent, officer, employee or director of the Contractor. RPTA shall cause the Contractor to pay all claims, losses and costs program of any nature whatsoever (including reasonable attorney's fees) in connection therewith, and shall pay all costs program and judgments which may issue thereon. H. E- Verify, Records and Audits. 1. The Federal Transit Administration (FTA), the Arizona Department of Transportation, the Comptroller General of the United States, RPTA, the TOWN, or any designee shall have access to any books, documents, papers and records which are pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcriptions. All required records shall be maintained for a minimum of three years after all pending matters are closed. 2. To the extent applicable under ARIZ. REV. STAT. § 41 -4401, the parties and their respective subcontractors warrant compliance with all federal immigration laws and regulations that relate to their employees and compliance with the E -verify requirements under ARIZ. REV. STAT. § 23- 214(A). The parties' or a subcontractor's breach of the above - mentioned warranty shall be deemed a material breach of the Agreement and may result in the termination of the Agreement by either party under the terms of this Agreement. The parties each retain the legal right to randomly inspect the papers and records of the other party and the other party's subcontractors who work under this Agreement to ensure that the other party and its subcontractors are complying with the above - mentioned warranty. The parties warrant to keep their respective papers and records open for random inspection during normal business hours by the other party. The parties and their respective subcontractors shall cooperate with the other party's random inspections including granting the inspecting party entry rights onto their respective properties to perform the random inspections and waiving their respective rights to keep such papers and records confidential. 1051911.4 7 Covenant Against Contingent Fees. Both parties warrant that no person has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee; and that no member of Congress, TOWN Council, the RPTA Board or any employee of TOWN or RPTA, has any interest, financially or otherwise, in this Agreement. J. Alteration in Character of Work. Minor alterations in the character of work shall be authorized in writing by RPTA and acknowledged in writing by the TOW N Manager. IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date and year first set forth above. "Town" TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Richard L. Davis, Town Manager ATTEST: C eTown Clerk 1051911-4 8 "Contractor" REGIONAL PUBLIC, TRANSPORTATION AUTHORITY, an Arizona public agency REVIEWED BY: { an edwin, Contracts and Procurement M alter REVIE ED BY: ichael aylor, Acting Deputy Executive Director Finance INTERGOVERNMENTAL AGREEMENT DETERMINATION In accordance with the requirements of § 11- 952(D), Arizona Revised Statutes, each of the undersigned attorneys acknowledge: (1) that they have reviewed the above Agreement oil . behalf of their respective clients; and, (2) that, as to their respective clients only, each attorney has determined that this Agreement is in proper form and is within the powers and authority granted under the laws of the State of Arizona. P ,I & a . An dr J. McGuire, William J. Sir s, Esq. Fountain Hills Town Attorney RPTA 105 191 1.4 9 EXHIBIT A TO INTERGOVERNMENTAL AGREEMENT BETWEEN THE REGIONAL PUBLIC TRANSPORTATION AUTHORITY AND THE TOWN OF FOUNTAIN HILLS [Cost Schedule] See following page. 1051911.4