HomeMy WebLinkAboutContract 37407NONEXCLU.
IJY
CON R CT NO, 3D [a
DISTRIBUTION AGREEMENT
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
TABLE OF CONTENTS
1. GRANT........................................................................................................................1
2. TERM, We'll #aooV***ww *****1%% *4 0 1", 6 ***a so** *am* 6 *a*%,, no I,,**" I,* a WWI', In 1
3. DUTIES OF CITY OF FORT WORTH..................................................................... 1
3.1 Development of the Business........................................................................... 1
3.2 Compliance with Issuing Procedures.............................................................. 1
3.3 Advertising.................................................................................................. 2
.....
3 A Reports............................................................................................................. 2
3.5 Service.............................................................................................................. 2
3.6 Licensing...........................................................................................................2
3.7 Payment for Lost Tags"... nano 6 *%sell** I lw*wwoo** **no ad I* Intel,, etqqq 2
4. DUTIES OF THE AUTHORITY................................................................................ 3
4.1 Advice and Promotional and Technical Materials.*.",,**", I&** as a well &We*** 0 3
4.2 Materials and Tags........................................................................................... 3
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WORTH.......................................................... 3
4.3 Payment to CITY OF FO
5. TRADEMARKS......................................................................................................... n 3
6. PAYMENTS, . 0 * I I I I & 4 0 * I I I 1 0 0 q a a 0 w 4 V 9 0 0 a I I I * I I I I I * * I I * I * 0 * a 0 0 w w 0 0 a 0 4 ..... no 0 q1111*** "woo 5
7. RELATIONSHIP OF THE PARTIES. 5
8, CONFIDENTIAL INFORMATION.......................................................................... 5
9. INSPECTIONS........................................................................................................... l 5
10. OWNERSHIP AND TRANSFER REQUIREMENTS .............................................. 5
10.1 Transfer by the Authori 6
10.2 Transfer by CITY OF FORT WORTH.........................................................1 6
10.3 Effect of Consent to Transfer.......................................................................... 6
11. TERMINATION..........................................................................................................6
11.1 Default,,...... ... Seem ... 6
11.2 Non-Default......................................................................................................6
12. RIGHTS AND OBLIGATIONS UPON TERIVIINATION OF THE
LICENSE, 6
12.1 Payment of Amounts Owed............................................................................. 6
12.2 Compliance.......................................................................................................6
13
12.3 Continuing Obligations.................................................................................... 6
12.4 Return of Tags.................................................................................................. 7
MISCELLANEOUS.................................................................................................... 7
13.1 Severability, .......................................................................................................7
13.2 No Waiver...",..", I memo 6,*t*" 111*111*0*11601 7
13.3 Cumulative Remedies...................................................................................... 7
13.4 Applicable Law................................................................................................ 7
13.5 Entire Agreement............................................................................................. 7
13.6 No Other Beneficiaries..................................................................................... 8
13.7 Construction..................................................................................................... 7
13.9 Counterparts.................................................................................................... 8
13.9 Notices.............................................................................................................. 8
13.10 Sovereign Immuni6•411•099•0•1•697
DISTRIBUTIONAGREEMENT
THIS NONEXCLUSIVE DISTRIBUTION AGREEMENT (this "Agreement") made
and entered into this day of TV 1\C, 2008, between NORTH TEXAS TOLLWAY
AUTHORITY, a regional tollway authority and political subdivision of the State of Texas (the
"Authority") and CITY OF FORT WORTH, ("CITY OF FORT WORTIT').
RECITALS:
The Authority operates an electronic toll collection system (the "System") on its turnpike
projects pursuant to a license agreement with Transcore Corporation ("Transcore"). In
accordance with that license and other agreements, the Authority issues Tolltag® transponders
(collectively, "Tags" or individually, a "Tag") to the traveling public for use in connection with
the System. The parties have agreed that CITY OF FORT WORTH shall have the nonexclusive
right to issue Tags upon the terms set forth herein.
Now, therefore, in consideration of the mutual promises made herein, the receipt and
sufficiency of which are hereby acknowledged, the Authority and CITY OF FORT WORTH agree
as follows:
1. GRANT.
Subject to the terms of this Agreement, the Authority grants to CITY OF FORT WORTH
the nonexclusive right to offer and issue Tags to its customers at the locations listed on Exhibit A
attached hereto and incorporated herein. The Authority reserves the unrestricted right to grant other
entities the right to offer and issue Tags on terms and conditions the Authority deems appropriate in
any location, area or market.
The initial term of this Agreement shall be ten (10) years, commencing on the date first
written above and terminating at Midnight on 1 olGy O �Y1e 201 �. This
2 _
Agreement will automatically renew for two (2) additional �three (3 year term(s), upon the same
terms and conditions unless either party notifies the other, in writing, its intention not to renew
this Agreement at least ninety (90) days prior to the expiration of the existing term.
3. DUTIES OF CITY OF FORT WORTH .
11 Development of the Business. CITY OF FORT WORTH shall utilize reasonable
efforts to promote, advertise, market and issue Tags.
3.2 Compliance with Issuing Procedures. In connection with the issuance of each
Tag, CITY OF FORT WORTH shall comply with the provisions set forth in this Agreement,
including those contained in the form of "Procedures for Issuing Tags" attached hereto as
Exhibit B (the "Procedures"). Without limiting the provisions of the Procedures, CITY OF
FORT WORTH shall furnish Tag applications to customers requesting same. CITY OF FORT
WORTH shall accept and review completed Tag applications and verify that (a) all required
information has been provided in a complete and legible manner by the applicant, (b) the
applicant holds a current driver's license and (c) the applicant has a valid credit card of a type
accepted by the Authority and that the card is in the name of the applicant. CITY OF FORT
WORTH shall assign a Tag number to the applicant from CITY OF FORT WORTH available
inventory, said Tag numbers to be assigned in numerical sequence beginning with the lowest
available number. CITY OF FORT WORTH then shall transmit by facsimile the completed
application to the Authority's Tag Store at the location designated in Section 13.9 below. CITY
OF FORT WORTH shall issue and deliver a Tag only after (x) the Tag Store transmits back to
CITY OF FORT WORTH the applicable account information and (y) CITY OF FORT WORTH
verifies the applicant's driver's license against the completed application. CITY OF FORT
WORTH then shall provide the Tag owner's kit to the applicant and shall instruct the applicant to
read and follow the instructions contained therein. To the extent of any conflict between this
Section 3.2 and the Procedures, the Procedures shall control. The Authority reserves the right to
amend, supplement or supersede the Procedures at any time and, thereafter, CITY OF FORT
WORTH shall, within a reasonable time after receiving written notice of the same, comply with
said amended, supplemented or superseding Procedures.
If the CITY OF FORT WORTH so chooses, a computer process available to the public in the
designated location shall supplant the above facsimile process and the Authority will train CITY
OF FORT WORTH personnel in conducting such a process.
3.3 Advertising. Any advertising or marketing of Tags by CITY OF FORT WORTH
shall be in strict compliance with the Procedures, and all costs and expenses attributable thereto
shall be the responsibility of CITY OF FORT WORTH.
3.4 Reports. CITY OF FORT WORTH shall maintain books and records of the
issuance of Tags. CITY OF FOR WORTH shall provide the Authority with weekly reports, in
substantially the same form as set forth in Exhibit "C", attached hereto and incorporated herein
for all purposes, reflecting such sales and other related information as the Authority may require,
including weekly spread sheets from each store location indicating all Tags furnished by the
Authority, all Tags issued, all Tags in inventory, and any lost or unaccounted for Tags. Such
reports shall be submitted to the Authority at the address set forth in Section 13.9 no later than
the 1 Oth day of the month for the preceding month's operations.
3.5 Service. CITY OF FORT WORTH shall maintain high standards of service to all
customers who purchase Tags and refrain from offering or issuing any Tags under circumstances
that would reflect negatively on the Authority, the Tags or the System.
3.6 Licensing. CITY OF FORT WORTH shall comply with all applicable federal,
state and local laws, rules and regulations and timely obtain all licenses, certificates or permits, if
any, required for the offer and sale of Tags.
3.7 Payment for Lost Tags. CITY OF FORT WORTH shall pay the Authority
$25.00 for each lost or unaccounted for Tag as provided in Section 4.2 below.
-- 2
4. DUTIES OF THE AUTHORITY.
4.1 Advice and Promotional and Technical Materials. The Authority may, from
time to time, provide CITY OF FORT WORTH advice with respect to the promotion of Tags, as
well as educational training updates at no cost to CITY OF FORT WORTH, which CITY OF
FORT WORTH may use and/or follow in its sole discretion. The Authority may also make
available reasonable quantities of brochures, and instructional and point of purchase materials as
the Authority, in its sole judgment, deems appropriate.
4.2 Materials and Tars. The Authority shall, at its expense, make available to CITY
OF FORT WORTH the Tag applications and the Tag owner's kits. The Authority shall provide
Tags to CITY OF FORT WORTH in boxes of 2. o vTags. Upon receipt of Tags by CITY OF
FORT WORTH, CITY OF FORT WORTH assumes responsibility for them unless and until said
Tags are properly issued to customers or returned to the Authority in accordance with this
Agreement. CITY OF FORT WORTH shall pay the Authority $25.00 for each Tag that is lost or
unaccounted for after receipt thereof by CITY OF FORT WORTH, and before issuance to any
customer, said payment to be made by the loth day of the month next following the month in
which CITY OF FORT WORTH knew that the Tag was lost or unaccounted for. CITY OF
FORT WORTH shall promptly notify and pay the Authority with respect to all lost or
unaccounted for Tags. To facilitate timely delivery of Tags, each store location shall contact the
Tag Store and order additional Tags when said store has 20 or fewer Tags. Within five (5)
business days following the termination of this Agreement, CITY OF FORT WORTH shall
return all un-issued Tags to the Authority, and all unreturned and un-issued Tags shall be
conclusively deemed lost or unaccounted for, thereby unconditionally obligating CITY OF
FORT WORTH for the $25.00 per Tag payment described above.
4.3 Payment to CTI`Y OF FORT WORTH. The Authority shall pay to CITY OF
FORT WORTH $5.00 for each Tag account opened by CITY OF FORT WORTH in compliance
with this Agreement and the Procedures. The payment shall be made on the loth day of each
month for the accounts opened in the preceding month by a single check to CITY OF FORT
WORTH, provided that CITY OF FORT WORTH provides supporting information indicating
the number of accounts opened by each store, as identified by store number. Within five (5)
business days following the termination of this Agreement, the Authority shall be unconditionally
obligated to pay CITY OF FORT WORTH all outstanding amounts for accounts opened as
provided herein.
5. TRADEMARKS,
CITY OF FORT WORTH acknowledges and agrees that Transcore and/or one of its
affiliates is the owner of the trademark "Tolltag®" (the "Trademark"). CITY OF FORT
WORTH shall display and otherwise utilize the trademark in compliance with the Procedures.
Without limiting the foregoing, CITY OF FORT WORTH shall display in good taste and a
dignified manner the Trademark for the sole purpose of informing customers that CITY OF FORT
WORTH issues Tags; provided, however, that CITY OF FORT WORTH shall discontinue the
display or use of the Trademark or change the manner in which the Trademark is displayed or used
6. PAYMENTS.
CITY OF FORT WORTH shall make a reasonable effort to provide the Authority with a
monthly request for payment and supporting information for all amounts owing pursuant to
Section 4.3 not later than the 15th day of each month. CITY OF FORT WORTH's failure to
provide the information as provided in this Section shall not excuse the Authority's obligation to
tender the payment described in Section 4.3. The Authority shall be obligated to diligently
process any and all requests for payment made by CITY OF FORT WORTH, in accordance with
this Section, which are not received by the 151h day of each month. Under no circumstances shall
the Authority remit payment to CITY OF FORT WORTH for requested amounts after the 10th
Jay of the next succeeding month.
7. RELATIONSHII' OF THE PARTIES.
The parties acknowledge and agree that this Agreement does not create a fiduciary
relationship between CITY OF FORT WORTH and the Authority, that the relationship between
CITY OF FORT WORTH and the Authority is that of an independent contractor, and that nothing
in this Agreement is intended to make either party a general or special agent, joint venture partner,
franchiser, franchisee or employee of the other for any purpose whatsoever. CITY OF FORT
WORTH agrees to conspicuously identify itself in all dealings with customers, business personnel
and others as an independent contractor distributing Tags pursuant to a nonexclusive agreement
with the Authority.
8. CONFIDENTIAL INFORMATION.
The Authority possesses, either by license or otherwise, certain unique confidential and
proprietary information and trade secrets consisting of information, records, data, processes,
methods, techniques, products and knowledge owned, developed, compiled or acquired by the
Authority. CITY OF FORT WORTH acknowledges that the Authority is the exclusive owner of
such information. CITY OF FORT WORTH shall use such information only in connection with the
offer and issuance of Tags under this Agreement and shall maintain the absolute confidentiality of
such information during and after the term of this Agreement. Without limiting the foregoing,
CITY OF FORT WORTH shall protect the confidentiality of all Tag records, account information,
credit card information and other data and shall not disclose such records, information or data to any
party other than authorized personnel of the Authority, unless disclosure of the information is
required by law, statute or court order.
9. INSPECTIONS.
To determine whether CITY OF FORT WORTH is complying with this Agreement, the
Authority shall have the right, at any reasonable time after providing three (3) business days
advance written notice to CITY OF FORT WORTH, to inspect and copy any books, records and
documents of CITY OF FORT WORTH relating to the issuance of Tags.
10. OWNERSHIP AND TRANSFER REQUIREMENTS.
10.1 Transfer by the Authority. This Agreement is fully transferable by the
Authority and shall inure to the benefit of any person or entity to whom it is transferred, or to any
other legal successor to the Authority's interest in this Agreement.
10.2 Transfer by CITY OF FORT WORTH. CITY OF FORT WORTH
understands and acknowledges that the rights and duties created by this Agreement are personal
to CITY OF FORT WORTH and that the Authority has entered into this Agreement in reliance
on CITY OF FORT WORTH character, skill, aptitude, attitude, business ability and financial
capacity. Accordingly, this Agreement may not be transferred without the Authority's prior
written approval. Any transfer that is made without the Authority's prior written approval shall
constitute a breach of this Agreement and shall convey no interest.
10.3 Effect of Consent to Transfer. Any transfer of this Agreement as provided in
this Section shall not constitute a waiver of any claims either party may have against the other,
nor shall it be deemed a waiver of either party's right to demand exact compliance with any of
the terms or conditions of this Agreement by any transferee.
11. TEI3NIINATION.
11.1 Default. This Agreement shall terminate if a party fails to correct its
noncompliance with any provision of this Agreement within five (5) business days after receipt
of written notice of said noncompliance from the other party.
11.2 Non -Default This Agreement shall terminate upon thirty (30) days prior written
notice by either party to the other party of its intent to terminate this Agreement for any reason.
12.
12.1 Payment of Amounts Owed. The Authority and CITY OF FORT WORTH each
agree to pay within ten (10) business days after the effective date of termination of this
Agreement all amounts owed to the other party that are then unpaid.
12.2 Compliance. CITY OF FORT WORTH agrees that immediately upon the
termination of this Agreement, CITY OF FORT WORTH shall:
(a) Cease to directly or indirectly at any time identify CITY OF FORT
WORTH or any business with which CITY OF FORT WORTH is associated as being
authorized to issue Tags;
(b) not use the Trademark or any colorable imitation of the Trademark in any
manner or for any purpose, or use for any purpose any other commercial symbol that
suggests or indicates an association or continuing contractual relationship with the
Authority, except as required by law, statute or court order; and
(c) not interfere with the new or ongoing issuance of Tags elsewhere.
12.3 Continuing Obligations. All obligations of this Agreement which expressly or
by their nature survive the expiration, termination or transfer of this Agreement shall continue in
full force and effect after and notwithstanding its expiration, termination or transfer until such
are satisfied in full or by their nature expire.
12.4 Return of Tags. Upon termination of this Agreement for any reason, CITY OF
FORT WORTH shall, within a reasonable time, return to the Authority, at the location
designated in Section 13.9 below, all materials provided by the Authority relating to Tags.
13. NIISCELLANEOUS.
13.1 Severability. Each provision of this Agreement is deemed to be severable and
independent of any other provisions. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
13.2 No Waiver. If, at any time, either party does not exercise a right or power
available to that party under this Agreement, or as allowed by law, or does not insist on the other
party's strict compliance with the terms of this Agreement, or if there develops a custom or
practice which is at variance with the terms of this Agreement, neither party shall be deemed to
have waived any right to demand exact compliance with any of the terms of this Agreement at a
later time upon written notice to the other. Similarly, either party's waiver of any particular
breach or series of breaches under this Agreement, shall not affect either party's right to
enforcement with respect to any later breach. It shall also not be deemed to be a waiver of any
breach of this Agreement for either party to accept payments which are due to it under this
Agreement.
13.3 Cumulative Remedies. The rights and remedies specifically granted by this
Agreement to either party shall not be deemed to prohibit either party from exercising any other
right or remedy provided under this Agreement or permitted by law or equity.
13.4 Applicable Law. THIS AGREEMENT SMALL BE INTERPRETED AND
CONSTRUED UNDER TEXAS LAW AND EXCLUSIVE VENUE SIIALL LIE IN COLLIN
COUNTY, TEXAS,
13.5 Entire Agreement. This Agreement, including introduction, the Procedures and
all other exhibits to it, constitutes the entire agreement between CITY OF FORT WORTH and
the Authority, and there are no other oral or written understandings or agreements between CITY
OF FORT WORTH and the Authority concerning the subject matter of this Agreement. Except
as expressly provided otherwise in this Agreement, this Agreement may be modified only by
written agreement signed by both CITY OF FORT WORTH and the Authority.
13.6 No Other Beneficiaries. The Authority shall not, because of this Agreement, be
liable to any person or legal entity who is not a party to this Agreement, and no other party shall
have any rights because of this Agreement.
13.7 Construction. All headings of the various Articles and Sections of this
Agreement are for convenience only and do not affect the meaning or construction of any
provision. All references in this Agreement to masculine, neuter or singular usage shall be
construed to include the masculine, feminine, neuter or plural usages wherever applicable. The
language of this Agreement will in all cases be construed in accordance with its fair meaning and
not strictly for or against the Authority or CITY OF FORT WORTH.
13.8 Counterparts. This Agreement may be executed in counterparts, each of which
will be an original and all of which will constitute but one and the same instrument.
13.9 Notices. Any and all notices required or permitted under this Agreement shall be
in writing and shall be personally delivered or mailed by expedited delivery service or certified
or registered mail, return receipt requested, first-class postage prepaid, or sent by prepaid
facsimile (provided that the sender confirms the facsimile by sending an original confirmation
copy thereof by certified or registered mail or expedited delivery service within three days after
transmission thereof) to the respective parties at the following addresses unless and until a
different address has been designated by written notice to the other parties:
Notices to the Authority: North Texas Tollway Authority
P.O. Box 260729
Plano, Texas 75026
ATTN: Executive Director
Notices to CITY OF FORT WORTH: CITY OF FORT WORTH
1000 Throckmorton Street
Fort Worth, Texas 76102
ATTN: City Manager
Any notice shall be deemed to have been given at the time of personal delivery or, in the
case of expedited delivery service, upon receipt or, in the case of registered or certified mail, three
days after the date and time of mailing and any notice given hereunder by facsimile shall be deemed
to have been given upon receipt thereof.
13.10 Sovereign Immunity. The parties agree that CITY OF FORT WORTH has not
waived its sovereign immunity by entering into and performing the obligations set forth in this
Agreement.
The parties now execute and deliver this Agreement as of
Title:-,C�<c i c�a 4— Ci+r Mamma
Date: TV06
Marty
�rst written above.
I�tOR�[EXASO WAY AUTHORITY
Name:
Title: 2�'
OFFICIAL RECORD
CITY SECRETARY
FT, WORTH, TX
1 li
LOCATIONS ISSUING TAGS
CITY OF FORT WORTH, TX
Central Library
500 W. 3rd Street, 76102
East Regional Library
6301 Bridge Street, 76112
Southwest Regional Library
4001 Library Lane, 76109
Summerglen Branch Library
4205 Basswood Boulevard, 76137
Exhibit B
PROCEDURES FOR ISSUING TOLLTAGS
Manual Application Procedures
E Customer fills out the application in its entirety
2. Verify the customer's drivers license and credit card information
3. Log onto https://csc litta.org/ThirdParty/
4. Enter your username
5. Enter your password
6. Select location
7. Click the Log In
8. Fill in all the sections under New Account Setup
9. Click Save
10. Close the Credit Card Scan Pop-up
11. Enter the Credit Card Information and verify the billing address
12. Click Save
13. Manually enter the TollTag number in the Tag ID box under the Vehicle Maintenance
screen
14. Continue filling out the veh cle information
15. Click Save
16. Click New for additional vehicles
17. Repeat steps 1345
18. Click Save
19. Select Credit Card under Payment Type
20. Fill out the payment section
21. Click Check Out
22. Confirm the payment
23. Click Ok
24. Select the customer from the Fulfillment screen
25. Enter the Tag ID(s)
26. Click Update
27. Print TWO copies of the receipt, customer copy and NTTA copy
28. Customer signs the NTTA receipt
29. Fill out the Mventory Control Log
30. Give the customer their To11Tag(s)
The completed application needs to be locked in a secure location. Each month an NTTA
representative will pick up the completed applications. This is a security procedure that
All protect the customer as well as your branch.
Kiosk Procedures
1. Customer fills out the online application
2. Customer picks up their TollTag(s) from the assigned location(s)
3. Employee logs onto https://csc.ntta.org/ThirdPagy/
4. Enter your username
5. Enter your password
6. Click Tag Requests on the left side of the screen
7. Verify the customer's drivers license
8. Select the customer
9. Enter the Tag ID
10. Click Update
11. Print TWO copies of the receipt, customer copy and NTTA copy
12. Fill out the Inventory Control Log
13. Give the customer then TollTag(s)
Website Linlc Procedures
1. CITY OF FORT WORTH's IT department incorporates the links onto each computer.
(NTTA will provide the logos and activate the link during the set-up process.
2. Customer clicks on the NTTA link on http://
3. Customer fills out the online application
4. Customer picks up their TollTag(s) from the assigned location(s)
5. Employee logs onto li#,ps:Hcsc.ntta.org/ThirdPaqy/
6. Enter your username
7. Enter your password
8. Click Tag Requests on the left side of the screen
9. Verify the customer's drivers license
10. Select the customer
11. Enter the Tag ID
12. Click Update
13. Print TWO copies of the receipt, customer copy and NTTA copy
14. Fill out the Inventory Control Log
15. Give the customer their TollTag(s)
NTTA TOLLTAG WEEKLY REPORT
TOLLTAGS ISSUED
NEVI ACCOUNTS
MISSING TOLLTAGS
TOLLTAGS IN INVENTORY
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