Loading...
HomeMy WebLinkAbout2019-549-E OPT - GoTriangle GoPass service agreement 1 GOPASS PROGRAM AGREEMENT This GoPass Agreement (the “Agreement”) is made this 8 day of July, 2019, by and between Orange County Government, a local political subdivision of the State of North Carolina, located at 200 South Cameron Street, Hillsborough, North Carolina 27278, (“Customer”), and RESEARCH TRIANGLE REGIONAL PUBLIC TRANSPORTATION AUTHORITY, d/b/a GoTriangle, whose address is P.O. Box 13787, Research Triangle Park, North Carolina 27709. Customer and GoTriangle may be individually referred to as a “Party” and collectively referred to as “Parties” in this Agreement. The Parties have a shared interest in the conservation of fossil fuel resources and improved air quality through the reduction of vehicle emissions and decreased traffic congestion. The Parties also believe that they receive a mutual benefit from an increase in transit ridership by Customer’s employees, and by demonstrating that transit is a convenient and viable transportation mode. Finally, the Parties agree that a well-designed GoPass program will provide a wide range of benefits to GoTriangle, including its regional transit partners, GoRaleigh Transit, GoDurham Transit and GoCary Transit (collectively, “Regional Transit Partners”) and to the Customer’s employees, including providing regional mobility options for the Customer’s employees, a reduction of demand for parking and fossil fuels, significant savings in commuter costs, greater opportunity for community interaction, and enhanced public support. In consideration of the increased transit ridership for GoTriangle and its Regional Transit Partners and the reduced bus fare charges for Customer’s employees, as well as the mutual promises, conditions, and obligations herein, GoTriangle and Customer, intending to be legally bound, agree as follows: 1. Term: The term of this Agreement (the “Term”) shall commence on July 1, 2019 and shall expire on June 30, 2020, unless sooner terminated pursuant to Section 6 “Right to Terminate” of this Agreement. The Parties may renew the Term prior to expiration in a writing signed by both Parties. 2. Customer’s Responsibilities: 2.1 Prior to the commencement of the Term, the Parties agree that GoTriangle will initially provide the Customer with twenty-five ( 25) magnetic-stripe passes and that Customer will distribute these passes to its employees. Additional passes may be provided as needed upon written request by Customer. 2.2 The Customer agrees to pay the following to GoTriangle during the Term in the manner described in Section 2.3 (the “Fee”): Payment is based on number of rides recorded. For boardings on GoTriangle buses: 55% of the full fare per each recorded boarding of a passenger with a valid GoPass distributed pursuant to this Agreement. Customer will pay only for those boardings on GoTriangle routes that serve the Customer’s properties, i.e. the boarding ends or begins at a Customer property. GoTriangle routes that currently serve the Customer’s properties and for which the Customer will pay include routes DocuSign Envelope ID: 482E99B7-9A3A-4E92-AA6E-2549FE065DDE 2 420, ODX, 800, 805, 400 and 405. Customer will be notified in writing if routes are changed or added that would require payment. 2.3 To pay all properly submitted invoices within 30 days from the date of invoice by GoTriangle. All payments will be made in U.S. dollars in immediately available funds acceptable to GoTriangle. GoTriangle reserves the right to suspend performance if Customer has not paid any amounts when due. The Parties will act in good faith to resolve any fee disputes as promptly as possible. 2.4 At the Customer’s expense, to develop internal communications to advertise periodically and to promote the GoPass Program to its employees during the Term. The Customer and GoTriangle will coordinate the content of the advertisement to ensure that the advertisement does not violate the terms or intent of this Agreement or the policies of GoTriangle. The Customer will decide the type, quantity and method of advertisement, but all communications and advertising regarding this GoPass Program must be acceptable and approved in writing in advance by GoTriangle in its sole discretion. 2.5 To solicit comments, concerns and suggestions from Customer’s employees as to the administration and benefits of the GoPass program and provide the information to GoTriangle for evaluation and recommendation. The information described in the preceding sentence shall be collected and provided to GoTriangle at least every six months during the Term. 2.6 To designate an individual (the “Customer Account Manager”) who will serve as the primary Customer representative under this Agreement. The Customer Account Manager may be changed by written notice to GoTriangle. 2.7 To collect the passes from employees leaving employment, immediately convey the pass identification numbers to GoTriangle for disablement, and return the passes to GoTriangle. 3. GoTriangle Responsibilities: GoTriangle will allow Customer’s employees who present a valid and current GoPass to ride fare free on all regular GoTriangle and Regional Transit Partner routes. GoTriangle reserves the right to deny GoPass service on routes created by GoTriangle or Regional Transit Partners for special events. GoTriangle further agrees: 3.1 On a daily basis, to track ridership data of individuals presenting a GoPass distributed to Customer, such data shall include number of boardings by route. GoTriangle shall present this information to the Customer by the 20th of the following month for each quarter of the Term. GoTriangle will use commercially reasonable efforts to ensure the accuracy of this information. 3.2 To provide assistance to the Customer in the development and implementation of a marketing campaign for the GoPass program. 3.3 To designate an individual (the “GoTriangle Account Manager”) who will serve as the primary GoTriangle representative under this Agreement. The GoTriangle Account Manager may be changed by written notice to Customer. 4. Management Committee: GoTriangle and Customer shall create a management committee to assist in the resolution of disputes and provide guidance and management under this DocuSign Envelope ID: 482E99B7-9A3A-4E92-AA6E-2549FE065DDE 3 Agreement (the “Management Committee”). The Management Committee will consist of the GoTriangle Account Manager, the Customer Account Manager, and other representatives from the management of the Parties and shall meet as issues arise with respect to this Agreement. 5. Notices: Any notice given pursuant to this Agreement shall be deemed given if delivered by hand or overnight express courier or if deposited in the United States Mail, postage paid, certified mail, return receipt requested and addressed as follows: If to GoTriangle: And with a copy to: Jeff Mann, President & CEO Shelley Blake, General Counsel GoTriangle GoTriangle P.O. Box 13787 P.O. Box 13787 Research Triangle Park, NC 27709 Research Triangle Park, NC 27709 If to the Customer: And with a copy to: Human Resources Director Transportation Administrator Orange County Government Orange County Government PO Box 8181 PO Box 8181 Hillsborough, NC 27278 Hillsborough, NC 27278 GoTriangle will send quarterly invoices to the Customer at the address below: Human Resources Director Orange County Government PO Box 8181 Hillsborough, NC 27278 Customer will send monthly Fee payment to GoTriangle at the address below: Accounts Receivable GoTriangle PO Box 13787 RTP, NC 27709 6. Right to Terminate: Either Party may terminate this Agreement for convenience at the end of the first year of the initial Term, by giving ninety (90) days advance written notice to the other Party. Either Party may terminate this Agreement for a material breach of the Agreement by giving written notice of the alleged breach and the intent to terminate to the other Party. Material breach of the Agreement includes the failure by GoTriangle to provide the service and passes and the failure by Customer to communicate to and distribute passes to interested employees and pay the Fee. The breaching Party has thirty (30) days to cure the breach. If the breach is not timely cured, or cannot be cured, the non-breaching Party may terminate this Agreement. The Parties will cooperate on a winding down of the program including reasonable notice to Customer’s employees. After the Termination Date, neither Party shall have any duties or responsibilities to the other Party except for the obligations of Customer to pay any amounts owing to GoTriangle hereunder as of the Termination Date, including, without limitation, the Fee. DocuSign Envelope ID: 482E99B7-9A3A-4E92-AA6E-2549FE065DDE 4 7. Mutual Representations: The Parties have full legal and corporate power and authority to enter into this Agreement. Except as provided in this Agreement, neither GoTriangle nor Customer is subject to any agreement or other constraint that would prohibit, restrict or adversely affect its right or ability to enter into, or carry out its obligations under, this Agreement. This Agreement, when executed, will become the legal, valid and binding obligation of and inure to the benefit of the respective Parties and their agents, grantees, successors, and assigns. 8. Disclaimer. Except as otherwise specifically provided in this Agreement, GOTRIANGLE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICE, RESOURCE, OR PRODUCT PROVIDED OR SUPPLIED BY GOTRIANGLE OR AN AFFILIATE, CONTRACTOR OR AGENT, AND GOTRIANGLE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GOTRIANGLE DOES NOT WARRANT THAT THE PERFORMANCE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. 9. Dispute Resolution: Except for disputes regarding the payment of invoices or other amounts owed to GoTriangle under this Agreement, which will be handled pursuant to Section 2.3 above, in the event a dispute arises between the Parties to this Agreement in connection with the requirements of this Agreement the dispute will first be submitted to the Management Committee for resolution. If the Management Committee cannot resolve the dispute within thirty (30) days, the Parties shall each appoint a representative to bargain in good faith towards a mutual resolution. If the representatives of the Parties, after reasonable good faith negotiations that lasted at least thirty (30) days, cannot reach a compromise then either Party may adjudicate their dispute as allowed by North Carolina State Laws. 10. Damages: Regardless of the basis of any claim (whether an action in contract or tort), GoTriangle’s total liability in the aggregate for all claims under or relating to this Agreement will be limited to actual direct damages of Customer in an amount not to exceed the Fee paid by Customer to GoTriangle with respect to the services that are the subject of, or gave rise to, the claim during the twelve months prior to the date on which the basis for the first claim first arose. The limitations of liability in this Section will not apply to claims for bodily injury or death. In no event will GoTriangle be liable for any damages if, and to the extent caused, by Customer’s failure to perform its responsibilities, as set forth in this Agreement. 11. Non-Performance; Force Majeure. To the extent any non-performance or delay by GoTriangle results from or is caused by (a) the actions, omissions or interference of Customer or service of GoPass riders or their employees, contractors or agents or other third parties or (b) the failure or delay of any of the foregoing to perform any conditions required for GoTriangle’s performance of its responsibilities, such non-performance or delay will be excused. GoTriangle will not be liable to Customer for any delay or inability to perform its obligations or otherwise if such delay or inability arises from any act of God, fire, natural disaster, act of government, act of war (declared or undeclared), act of terrorism (domestic or international), riot, civil disturbance, manufacturer's shortages or constraints of parts or products, or any other cause beyond the reasonable control of GoTriangle, whether or not foreseeable. DocuSign Envelope ID: 482E99B7-9A3A-4E92-AA6E-2549FE065DDE 5 12. Miscellaneous: This Agreement constitutes the entire understanding of the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements between the Parties hereto (whether written or oral) and is intended as a final expression of their mutual understanding. This Agreement shall not be modified or amended except in writing signed by each of the Parties hereto and specifically referring to this Agreement. Failure by either Party to exercise any right or remedy under this Agreement does not signify acceptance of the event or waiver of any such right or remedy. Should any part of this Agreement be held unenforceable or invalid, then the validity of or the enforceability of the remaining provisions will not in any way be affected or impaired. Customer may not assign this Agreement in whole or in part without the consent of GoTriangle. Neither Party may bring a legal action against the other more than one (1) year after the date on which cause of action arose. This Agreement may be executed in one or more counterparts, all of which taken together will constitute the Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of North Carolina. This Agreement is the result of negotiations between the Parties, and this Agreement may not be construed in favor of or against any party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement. This Agreement is non-exclusive and shall not be deemed to be a requirements or an output contract. In connection with this Agreement, each Party is an independent contractor. This Agreement establishes and shall only be construed as establishing a contract between unrelated business entities for the provision and purchase of certain services and does not and shall not be deemed to create a joint venture, partnership, fiduciary or agency relationship between the Parties for any purpose. Nothing contained in this Agreement is intended or shall be construed to confer upon any person (other than the Parties hereto), including without limitation GoPass holders, any rights, benefits or remedies of any kind or character whatsoever, or to create any obligations of a Party to any such person, including to any suppliers, customers or subcontractors of a Party. Nothing in the this Agreement shall supersede the rules and regulations of GoTriangle with respect to ridership on GoTriangle routes, and GoTriangle may enforce such rules and regulations against holders of a GoPass in the same manner as they are applied to the general ridership. 13. Governing Law: Both parties agree that this Agreement shall be governed by the laws of the State of North Carolina. GoTriangle shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state and federal anti- discrimination laws, policies, rules, and regulations and the Orange County Anti-Discrimination Policy. Any violation of this requirement is a breach of this Agreement and Customer may immediately terminate this Agreement without further obligation on the part of the Customer. This paragraph is not intended to limit and does not limit the definition of breach to discrimination. By executing this Agreement GoTriangle affirms that GoTriangle is and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement GoTriangle certifies that GoTriangle has not been identified, and has not utilized the services of any agent or subcontractor, on the list created by the State Treasurer pursuant to G.S. 147-86.58 or the Israel boycott list created pursuant to G.S. 147-86.81. 14. Non Appropriation: GoTriangle acknowledges that Customer is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of Customer’s obligations under this Agreement, then this Agreement shall automatically expire without penalty to Customer immediately upon written notice to GoTriangle of the unavailability and non- appropriation of public funds. DocuSign Envelope ID: 482E99B7-9A3A-4E92-AA6E-2549FE065DDE 6 In witness whereof, the Parties hereto have caused this Agreement to be executed by their duly authorized officials as of the date first given above. RESEARCH TRIANGLE REGIONAL PUBLIC TRANSPORTATION AUTHORITY ________________________________ Jeff Mann, General Manager Approved as to Legal Form: _________________________________ Office of General Counsel This instrument has been pre-audited in a manner required by the Local Government Budget and Fiscal Control Act. _________________________________ Saundra Freeman, Chief Financial Officer ORANGE COUNTY ___________________________________ County Manager DocuSign Envelope ID: 482E99B7-9A3A-4E92-AA6E-2549FE065DDE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2016 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY Willis of Virginia, Inc. c/o 26 Century Blvd P.O. Box 305191 Nashville, TN 372305191 USA Research Triangle Regional Public Transportation Authority DBA Go Triangle P O Box 13787 Research Triangle Park, NC 27709 Orange County is included as an Additional Insured as respects to General Liability. SEE ATTACHED Orange County 08/08/2019 1-877-945-7378 1-888-467-2378 certificates@willis.com RLI Insurance Company 13056 Key Risk Insurance Company General Star Indemnity Company 10885 37362 Evanston Insurance Company 35378 W12270017 A 5,000,000 100,000 5,000 5,000,000 5,000,000 5,000,000 Y LGB0014226 07/01/2019 07/01/2020 A 5,000,000 07/01/202007/01/2019LFB0016746 A 5,000,000 LXB0010603 07/01/2019 07/01/2020 5,000,000 KEY0137315 B 1,000,000 07/01/2019 07/01/2020 1,000,000 1,000,000 C Excess Liability $5,000,000 xsIXG931151 07/01/2019 07/01/2020 131802918362881SR ID:BATCH: $5,000,000 Page 1 of 2DocuSign Envelope ID: 482E99B7-9A3A-4E92-AA6E-2549FE065DDE ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: Research Triangle Regional Public Transportation Authority DBA Go Triangle P O Box 13787 Research Triangle Park, NC 27709 INSURER AFFORDING COVERAGE: Evanston Insurance Company NAIC#: 35378 POLICY NUMBER: MKLV2EUE100674 EFF DATE: 07/01/2019 EXP DATE: 07/01/2020 TYPE OF INSURANCE: LIMIT DESCRIPTION: LIMIT AMOUNT: Excess Liability $5,000,000 xs $10,000,000 22 Willis of Virginia, Inc. See Page 1 See Page 1 See Page 1 See Page 1 25 Certificate of Liability Insurance W12270017CERT:1318029BATCH:18362881SR ID: DocuSign Envelope ID: 482E99B7-9A3A-4E92-AA6E-2549FE065DDE