CM-14-01-300rOUNDOCK. TEXAS
ON PROSPERITY
City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider executing a Use Agreement with Capital Metro for the right to
use and access "Transit Bay J" located at Capital Metro's Tech Ridge Park
and Ride facility.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 1/24/2014
Dept Director: Gary Hudder, Transportation Director
Cost: $8,208.00
Indexes: General Fund
Attachments: Use Agreement Final
Department: Transportation Department
Text of Legislative File CM -14-01-300
On November 14, 2013 the City Council approved the Project Grant Agreement for the use
of Job Access Reverse Commute grant funds. The funds from this Grant Agreement will be
used to transport employees of Sears Telesery between Capital Metro's Tech Ridge Park &
Ride and Sears. In order for the City to access Tech Ridge Park and Ride, Capital Metro
requires a use agreement to be in place with the City. The agreement outlines the terms of
use and the associated fees. The agreement is effective March 1, 2014 through September
30, 2017. The schedule of fees is below:
Year 1
March 2014 - February 2015
$0.00
Year 2
March 2015 - September 2015 (7 months)
$1,750.00
Year 3
October 2015 - September 2016
$3,150.00
Year 4
October 2016 - September 2017
City of Round Rock Page 1 Printed on 1/23/2014
Agenda Item Summary Continued (CM -14-01-300)
$3,308
Staff recommends approval.
City of Round Rock Page 2 Printed on 1/23/2014
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P.
USE AGREEMENT
This Use Agreement ("Agreement"), executed as of the date of the last party to sign ("Effective
Date"), is made by and between CAPITAL METROPOLITAN TRANSPORTATION AUTHORITY, a
public body corporate and politic organized and existing under Chapter 451, Texas Transportation Code,
with its principal office located at 2910 East Fifth Street, Austin, Texas 78702, Attn: Chief Counsel
(hereinafter referred to as "Capital Metro") and the CITY OF ROUND ROCK, a local governmental
public entity (hereinafter referred to as "City) is as follows:
WITNESSETH:
1. PROPERTY. Capital Metro grants to City the non-exclusive right to use and access "Transit
Bay J" located at Capital Metro's Tech Ridge Park and Ride facility located at 900 Center Ridge Drive,
in Austin, Texas, and depicted on Exhibit "A," together with the non-exclusive right to access and use the
bus operator facilities located thereon (hereinafter referred to as the "Property").
2. TERM AND USE FEE. This Agreement shall be effective from the Effective Date and
terminate on September 30, 2018 ("Term"); provided however, in the event Capital Metro, in its sole
discretion, determines that the continued use of the Property by City is incompatible and/or interferes with
Capital Metro's mass transit, rail freight plans or operations, then Capital Metro may, upon thirty (30)
days written notice to City, terminate this Agreement without cause. Upon early termination by Capital
Metro under this provision, the prorated amount of the User Fee paid by City, for any unused days under
this Agreement, will be refunded to City.
(a) During the Term, City shall pay to Capital Metro an annual fee for use of the Property,
beginning March 1, 2014, and payable thereafter on or before the anniversary date of each succeeding
anniversary date with the third and fourth year anniversary dates as October 1 ("Use Fee") as follows:
First Year $ 0.00
Second Year $ 1,750.00 (prorated through September 30`h)
Third Year $ 3,150.00
Fourth Year $ 3,308.00
City shall remit payment to Capital Metro at the following address: 2910 East Fifth Street,
Austin, Texas 78702, Attn: Real Estate Manager.
(b) The Use Fee is non-refundable, except as herein provided.
(c) If City's use of the Property requires Capital Metro to incur additional costs for
operations or capital (e.g. passenger traffic requires Capital Metro to add more trips, etc.), Capital Metro
reserves the right to impose additional fees for access to passenger facilities at a cost consistent with
Ceti -1 --01- 360
Capital Metro additional costs. In such event the Parties agree to negotiate in good faith to amend this
Agreement and add such additional amounts. No fees or costs in addition to the User Fee set forth in
Section 2(a) shall be imposed on the City without a written amendment to this Agreement.
3. USE AND HOURS OF OPERATION. City shall use the Property solely for the purpose of
picking up and dropping off passengers from buses and other transit vehicles operating on behalf of the
City, and for the use of the bus driver facilities by City's bus operators ("Permitted Use"). The hours of
operation are restricted to the hours of 4 a.m. to 1 a.m. No overnight parking is permitted.
4. PERSONAL PROPERTY. Capital Metro shall approve in writing any personal property
located on the Property during the Term. Except as otherwise agreed by the parties, City shall remove all
personal property from the Property at the end of the Term. Any personal property of City that remains
after the expiration or termination of this Agreement shall be deemed abandoned and, at Capital Metro's
sole election, may be retained by Capital Metro as Capital Metro's property, disposed of by Capital
Metro, without accountability, in such manner as Capital Metro deems fit, in its sole discretion. Any
expense incurred by Capital Metro in connection with the failure of City to remove all personal property
from the Property shall be the responsibility of City and unpaid amounts shall bear interest at the
maximum rate allowed by applicable law.
5. INSURANCE.
(a) INSURANCE. City shall obtain and maintain insurance of the types and in the amounts
as set forth on Exhibit "B."
(b) WAIVER OF SUBROGATION. ANYTHING IN THIS AGREEMENT TO THE
CONTRARY NOTWITHSTANDING, CAPITAL METRO AND CITY HEREBY WAIVE AND
RELEASE EACH OTHER OF AND FROM ANY AND ALL RIGHT OF RECOVERY, CLAIM,
ACTION OR CAUSE OF ACTION, AGAINST EACH OTHER, THEIR AGENTS, OFFICERS AND
EMPLOYEES, FOR ANY LOSS OR DAMAGE THAT MAY OCCUR TO THE PROPERTY OR
PERSONAL PROPERTY WITHIN THE PROPERTY, BY REASON OF FIRE OR OTHER CAUSE,
REGARDLESS OF ORIGIN, INCLUDING NEGLIGENCE OF CAPITAL METRO OR CITY AND
THEIR AGENTS, OFFICERS AND EMPLOYEES, TO THE EXTENT SUCH LOSS OR DAMAGE
WOULD HAVE BEEN COVERED BY INSURANCE POLICIES, WHETHER OR NOT ACTUALLY
OBTAINED AND WHETHER OR NOT CAPITAL METRO OR CITY SELF INSURES ANY RISK.
CAPITAL METRO AND CITY AGREE IMMEDIATELY TO GIVE THEIR RESPECTIVE
INSURANCE COMPANIES WHICH HAVE ISSUED POLICIES OF INSURANCE COVERING ANY
LOSS OR DAMAGE, WRITTEN NOTICE OF THE TERMS OF THE MUTUAL WAIVERS
CONTAINED IN THIS SECTION, AND TO HAVE THE INSURANCE POLICIES PROPERLY
ENDORSED, IF NECESSARY, TO PREVENT THE INVALIDATION OF THE INSURANCE
COVERAGES BY REASON OF THE MUTUAL WAIVERS.
6. ACCEPTANCE OF PROPERTY. CITY ACKNOWLEDGES AND AGREES THAT IT
ACCEPTS THE CONDITION OF THE PROPERTY "AS -IS" WITH ANY AND ALL LATENT AND
PATENT DEFECTS, AND CITY ACKNOWLEDGES THAT CAPITAL METRO HAS NOT MADE
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AND DOES NOT MAKE ANY WARRANTIES OF THE CONDITION OF THE PROPERTY OR
THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE. CITY IS NOT RELYING ON ANY
REPRESENTATION BY CAPITAL METRO OF THE CONDITION OF THE PROPERTY, BUT IS
RELYING UPON ITS OWN EXAMINATION OF THE PROPERTY.
7. LIABILITY. City shall defend (at the option of Capital Metro), indemnify, and hold
Capital Metro, its successors, assigns, officers, and employees harmless from and against all
suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and
any and all other costs or fees arising out of, or incident to, injury to person, loss of life or damage to
personal property occurring or arising out of City's use of the Property.
8. ACCESS TO PROPERTY.
(a) Assigned Personnel. Capital Metro reserves the right to approve all assigned personnel
that will be accessing the Property pursuant to this Agreement. City certifies that it has a criminal
background policy that complies with guidance issued by the U.S. Equal Employment Opportunity
Commission regarding criminal background checks on its employees (and contractors, as applicable) to
identify, hire and assign individuals whose criminal backgrounds are appropriate for accessing the
Property considering the risk and liability to the City and Capital Metro. Criminal background checks
shall include the following:
(1) State Criminal History: City shall research criminal history, including driving
records (where applicable), covering all jurisdictions within the state, including local counties and
municipalities.
(2) Out of State Criminal History: City shall research criminal history, including
state driving records (where applicable), for all 50 states.
(3) Military Discharge: For any candidates that have served in the military,
contractor shall review the D Form 214 "Certificate of Release or Discharge from Active Duty"
(Long Form).
Capital Metro reserves the right to require the City to disclose any criminal record for assigned personnel
(whether employee or contractor) and the right to disapprove the use of assigned personnel with criminal
records.
(b) Access to Bus Operator Facilities. City's bus operators may have access to the bus
operator facilities while on the Property provided, each person must comply with Capital Metro's security
policy, and wear a security badge at all times while in the bus operator facilities. The City will reimburse
Capital Metro for any lost security badges at the cost of $50.00 each upon invoice by Capital Metro.
9. MISCELLANEOUS.
(a) No Waiver. The failure of either party to insist in any one or more cases upon the
performance of any of the provisions, covenants, agreements or conditions of this Agreement or to
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exercise any option herein contained shall not be construed as a waiver or a relinquishment for the future
of any such provision, covenant, agreement, condition or option.
(b) Governing Law. This Agreement shall be governed and enforced by, and construed in
accordance with the laws of the State of Texas and venue shall be Travis County.
(c) Compliance with Laws. City agrees not to use the Property for any unlawful purpose and
agrees not to violate any law, ordinance, rule or regulation of any governmental authority.
(d) Interpretation. Whenever used herein, the term "including" shall be deemed to be
followed by the words "with limitation." Words used in the singular number shall include the plural, and
vice -versa, and any gender shall be deemed to include each other gender. All Exhibits attached to this
Agreement are incorporated herein by reference.
(e) No Third Party Beneficiaries. No term or provision of this Agreement is intended to be,
or shall be, for the benefit of any person, firm, organization, or corporation for a party hereto, and no such
other person, firm, organization or corporation shall have any right or cause of action hereunder.
(f) Invalid Provisions. If any term or provision of this Agreement or any portion of a term or
provision hereof or the application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
(g) Texas Public Information Act. This Agreement, all data and other information developed
pursuant to this Agreement, shall be subject to the Texas Public Information Act.
(h) Time of the Essence. Time is of the essence in this Agreement and each and every term,
condition and provision hereof.
(i) Equal Employment Opportunity. City shall not discriminate against any employee or
applicant for employment because of race, color, age, creed, sex, or national origin. City shall take
affirmative action to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, religion, sex, age, creed, or national origin.
(j) Entire Agreement and Modification. It is agreed that once this Agreement is fully
executed and delivered that it contains the entire agreement between the parties and supersedes any oral
or written agreement. This Agreement may not be modified, changed or altered in any respect except by
a writing executed and delivered in the same manner as required for this Agreement.
(k) Authorized Signatory. Each party represents that each is duly authorized to execute this
Agreement.
(1) Exhibit List.
Exhibit "A" Property
Exhibit "B" Insurance Coverage
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CAPITAL METROPOLITAN TRANSPORTATION AUTHORITY:
By:
John Hodges, Vice President of Real Estate and Asset Management
6 FekrU�ry ,2014
Date of Execution:
Approved as
Legal
By:
Printed Name:
e.ve, N‘ocwoock
Date of Execution:
.2 , 2014
•
Exhibit "A"
Sketch of Location of Transit Bay J
EXHIBIT "A"
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Exhibit "B"
City Insurance Coverage
Required Certificate of Insurance
General Liability of at least One Million Dollars and NO/100 ($1,000,000.00)
Worker's Compensation/Employer's Liability of at least One Million Dollars and NO/100
($1,000,000.00)
Auto Liability of at least One Million Dollars and NO/100 ($1,000,000.00)
Capital Metro named as "additional insured"
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