HomeMy WebLinkAboutResolution - 2021-R0247 - Interlocal Agreement for GoPass Subscription with DART 7.13.2021Resolution No. 2021-R0247
Item No. 6.18
July 13, 2021
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT pursuant to the authority of the Texas Government Code, Chapter 791, the Interlocal
Cooperation Act, the Mayor of the City of Lubbock is hereby authorized and directed to execute
for and on behalf of the City of Lubbock an Interlocal Agreement for GoPass Subscription and
License Pilot by and between the City of Lubbock and Dallas Area Rapid Transit, a regional
transportation authority created under Chapter 452 of the Texas Transportation Code, and all
related documents. Said Agreement is attached hereto and incorporated in this Resolution as if
fully set forth herein and shall be included in the minutes of the Council.
Passed by the City Council on
ATTEST:
Re ec a arza, Clty SelGiretIn
APPROVED AS TO CONTENT:
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Platt•.�,'I , •. .
APPROVED AS TO FORM:
Ryan ooke, Assistant City Attorney
RES.Interlocal Agreement for GoPass Subscription -DART
6.28.21
July 13, 2021
"'k.,
DANIEL M. POPE, MAYOR
Resolution No. 2021-R0247
Exhibit A
INTERLOCAL AGREEMENT FOR GOPASS SUBSCRIPTION AND LICENSE PILOT
This agreement ("Agreement") is between the City of Lubbock acting by and through Citibus
("Citibus"), located at 801 Texas Ave, Lubbock, TX 79401 and Dallas Area Rapid Transit
("DART'), a regional transportation authority created under Chapter 452 of the Texas
Transportation Code, located at 1401 Pacific Street, Dallas TX 75202 (each herein referred to as
a "Party" and collectively referred to as the "Parties"). The Agreement governs the City of
Lubbock's public transportation provider, Citibus, Use (defined below) of a certain mobile ticketing
application, generally referred to as "GoPassV, limited as set forth herein.
WHEREAS, DART has a contractual relationship with Unwire ApS ("Unwire"). Unwire maintains,
develops and hosts the System and provides support services as defined in the Service Level
Agreement ("SLA"); and
WHEREAS, Citibus desires, under the terms of this Agreement to access and utilize the System;
and
WHEREAS, DART and Citibus are authorized to enter into this Agreement pursuant to the
authorityof the Texas Government Code, Chapter 791, the Interlocal Cooperation Act.
NOW THEREFORE, for and in consideration of the mutual covenants of the Parties set forth
herein, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Parties agree as follows:
a. "Acceptance", as used herein, means the act of an authorized representative of
Citibus who approves specific services, as partial or complete performance of this
Agreement.
b. "App" or "Application" means the customer facing aspects of the System.
c. "Back Office" means the portion of the System which administers and supports the
Application.
d. "Confidential Information" means all information relating to the System, including the
results of any testing performed under this Agreement. Confidential Information is
made up of proprietary and trade secret information.
e. "Correction," as used herein, means the elimination of a defect.
f. "Documentation" means the System technical manuals, training materials,
specifications or other documentation applicable to the System software provided to
Citibus by DART.
g. "Licensor" means Unwire ApS. Unwire ApS may also be referred to as "Unwire"
throughout this Agreement.
h. "System" means the mobile ticketing application, the software, and the Back Office
related to GoPass and any Upgrades made available hereunder to Citibus by DART.
"Upgrades" means all updates, upgrades, bug fixes, error corrections, enhancements
and any other modifications to the System and backup copies of the related software.
j. "Use" or "Using" means to download, install, activate, access or otherwise use the
System.
2. ACCEPTANCE OF TERMS. By signing this Agreement, Citibus agrees to be bound by the
terms of the Agreement. The undersigned signatories on behalf of Citibus and DART
represent he or she has signing authority. If the undersigned does not have such authority,
Citibus may not Use the System provided by DART in any way, it may not be installed or
downloaded, and it must be returned to DART in accordance with the notice provision here
within three (3) days of the date Citibus received the software.
a. Subject to payment of the License Fees (defined below) set forth in Exhibit A,
attached hereto and incorporated herein for all purposes, as well as compliance with
this Agreement, DART grants Citibus a limited, non-exclusive, non-sublicensable,
and non -transferable license to Use the System as set forth herein and solely for
Citibus' internal operations, in accordance with the Documentation, and within Citibus'
existing service area. Citibus is solely responsible for the consequences of Citibus'
Use including, without limitation, obtaining any and all permits, licenses and other
regulatory or other approvals required for such Use. Citibus hereby accepts all
responsibility for such Use at Citibus' sole risk. The System software provided to
Citibus hereunder may contain open source software, subject to separate license
terms made available with the software or Documentation.
b. Citibus' license is valid solely for the Term or period of time specified below in Section
14 hereof. Citibus' right to Use the System software begins on the date the software
is made available to Citibus for download or installation and continues until the end
of the Term set forth below, unless otherwise terminated earlier under this Agreement
or otherwise.
c. Citibus is solely responsible for: (a) selecting the appropriate software and equipment
for use in Citibus' operations; (b) properly installing and configuring any System
software provided under this Agreement; (c) testing the Application to verify that,
when used separately or as part of Citibus' operations, the Application and the
System software provided operate as intended and according to the Documentation;
and (d) ensuring that the System and software provided meets Citibus' requirements.
Citibus assumes all risks arising from its evaluation of the System, related software
and Documentation.
d. The license granted hereunder is conditioned upon Citibus' payment to DART when
due of the then -current one-time and recurring fees (individually, a "Fee" and
collectively "Fees") as well as any other applicable fees (all Fees dues hereunder,
collectively "License Fees") for the license granted herein, as set forth in Exhibit A.
e. Upon termination of the SLA for the software provided, and in the absence of an
alternate written agreement for maintenance services for the software, this Agreement
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will automatically terminate, DART and its Licensor shall have no further obligation to
deliver maintenance services, and Citibus shall have no further right to Use the
System in any way. DART shall provide Citibus notice within 30 days prior to
termination of the SLA. Citibus acknowledges that its Use of any System software not
permitted hereunder violates the terms of this Agreement and is deemed to infringe
the rights of DART, Licensor, and any third parties with rights in and to the System.
f. DART and/or Licensor retain interests in all intellectual property rights in and to the
System, including copies, improvements, enhancements, derivative works and
modifications of the related software. Citibus' right to Use such software is limited to
those expressly granted by this Agreement. No other rights with respect to the System
or any related intellectual property rights (including logos or marks) are granted or
implied. Citibus hereby covenants that it will not challenge DART's or Unwire's rights
to or ownership of the System (including derivatives and improvements), any DART,
Unwire, or GoPass entity trade name, trademark, trade device, logo, symbol or code
and the goodwill associated therewith, and related intellectual property rights, or
directly or indirectly, assert any rights with respect to any of the foregoing inconsistent
with DART's or Unwire's interests thereto or do or suffer to be done any other act or
thing that might in any way impair the rights of DART or Unwire in and to any of the
foregoing.
4. INVOICES. Invoices for License Fees shall be issued as provided in Exhibit A and payment
is to be due thirty (30) days after the invoice date. All payments to DART shall be in U.S.
dollars and in immediately available funds. Any failure to pay such invoices within ten (10)
days of when due (subject to any legitimately disputed amount which may be temporarily
withheld by Citibus for no more than thirty (30) days) shall entitle DART to terminate the
license granted hereunder and all rights to the System software provided and any other
rights addressed or granted herein.
5. LIMITATIONS AND RESTRICTIONS. Citibus shall not: and will not authorize a third party
to:
a. transfer, sublicense, or assign Citibus' rights under this license to any other person or
entity, unless expressly authorized by DART and Unwire in advance in writing;
b. modify, adapt or create derivative works of the System software or Documentation;
c. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the
source code for the System;
d. make the functionality of the System or System software available to third parties,
whether as an application service provider, or on a rental, service bureau, cloud
service, hosted service, or other similar basis unless expressly authorized by DART
and Unwire in advance in writing;
e. use System software that is licensed for a specific device, whether physical or virtual,
on another device, unless expressly authorized by DART and Unwire in advance in
writing;
f. remove, modify, or conceal any product identification, copyright, proprietary,
intellectual property notices or other marks on or within the System; or
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g. take or permit any act that would in any way impair the rights of DART and Unwire in
the System.
a. Communication. DART shall identify a project representative to coordinate all
communication with Citibus regarding this Agreement. Citibus shall not communicate
with DART's licensors with regard to this Agreement or with regard to changes or
additional features of the System, unless expressly agreed to in advance by DART.
Notwithstanding the foregoing, reference is made to Exhibit C, attached hereto and
incorporated herein for all purposes, which is executed by Unwire and which sets out
services to be provided to Citibus by Unwire.
b. Tickets. DART shall incorporate or cause to be incorporated, Citibus ticket types,
pricing, logo and service marks into the App and make the Citibus tickets available for
sale to the public in the App. DART reserves the right to exclude any ticket type and
shall provide notice of such exclusion to Citibus.
c. Refunds. As part of resolving customer complaints, DART may make refunds to
Citibus customers. Refunds shall only be made by DART for tickets that have not
been activated and where the refund amount is $15.00 or less. This amount may be
changed by written agreement of the Parties and without the need to amend this
Agreement. Any other refunds to Citibus customers shall require the approval of
Citibus. Refunds by DART shall be processed electronically with Citibus funds
accessed through the Back Office.
d. Back Office. DART shall provide or cause to be provided to Citibus a portal to a portion
of the Back Office to access Citibus data. Citibus data shall be available in the Back
Office for at least eighteen (18) months from the date of the transaction.
e. Aap Stores. DART shall be responsible for posting the App to the appropriate App
stores and for keeping the App current, as DART determines to be necessary, at no
charge to Citibus. DART shall promote the App at DART's discretion.
DART will provide commercially reasonable efforts to: (a) cause the System to be
delivered to Citibus without disruption to functionality, and (b) to cooperatively resolve
any issues either or both Parties may have with Unwire or each other.
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a. Communication. Citibus shall identify a project representative to coordinate all
communication with DART regarding this Agreement.
b. Back Office. To the extent currently available, and as may be further available during
the Term of this Agreement, Citibus shall be responsible for modifying Citibus' user
interfaces that are available for sale in the App using tools available in the Back Office.
It shall be Citibus' responsibility to ensure that the data entered is accurate, either by
direct data entry when available to Citibus, or by consistent and diligent review when
direct data entry is not available to Citibus. DART assumes no responsibility for the
accuracy of Citibus' data.
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c. Tickets. Until Citibus has obtained direct access for data entry, Citibus shall provide
information about the user interfaces (ticket type and price) that it desires to be made
available through the App. Citibus shall notify DART in writing of changes in such
information.
:: ►
Unwire warrants that the System provided under this Agreement will be free from defects
in workmanship and will conform to requirements of this Agreement. Citibus shall provide
written notice to DART of any defect or nonconformance of the System to be addressed
by Unwire. This notice shall state whether Citibus requests or requires Correction of
such defect or shall indicate that Citibus does not require correction. If Unwire is required
to correct or reperform, it shall be at no cost to Citibus and Correction provided by Unwire
shall be subject to the terms of this Agreement to the same extent as work initially
performed.
The System does not include fail-safe control functionality and is not designed,
manufactured, intended, nor authorized to be used to provide fail safe functionality and
is not licensed for use in the operation of transportation navigation systems,
transportation communication systems, traffic control facilities or electrical facilities or for
any other use in which the failure of the System, System software or any component
thereof could lead to death, personal injury, physical, environmental, property or financial
damage. The System software is provided "as is" and DART and Unwire expressly
disclaims all warranties, conditions or other terms, whether express, implied or statutory,
including without limitation, warranties, conditions or other terms regarding
merchantability, fitness for a particular purpose, design, condition, capacity,
performance, title, and non- infringement. DART and Unwire does not warrant that the
System or System software will operate uninterrupted or error -free or that all errors will
be corrected. DART and Unwire does not warrant that the System or system software or
any equipment, system or network on which the software is used will be free of
vulnerability to intrusion or attack.
9. LIMITATIONS AND EXCLUSIONS OF LIABILITY. In no event will DART and Licensor be
liable for the following, regardless of the theory of liability, or whether arising out of the Use
or inability to Use the System, System software, contract, warranty, tort (including
negligence), product liability or: (a) indirect, incidental, exemplary, special or consequential
damages; (b) loss or corruption of data or interrupted or loss of business; or (c) loss of
revenue, profits, goodwill or anticipated sales or savings. DART and Licensor also disclaims
any and all responsibility for costs that may be incurred by Citibus resulting from downtime
of the Payment Service Provider's services. Liability, if any, of DART, Licensor, its affiliates,
officers, directors, employees, agents, suppliers, and licensors collectively, to Citibus,
whether based in warranty, contract, tort (including any level of negligence), or any other
theory, if available at all, shall not exceed the License Fees paid by Citibus to DART in the
twelve (12) months preceding the claim. This limitation of liability is cumulative and not per
incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or
excluded under applicable law. DART in no way intends to nor shall be deemed to herein or
by performing hereunder to have waived any governmental immunity, defenses or limitations
on liability available to DART under Texas or any other applicable law. CITIBUS HEREBY
ACKNOWLEDGES AND AGREES THAT THE TERMS AND PROVISIONS OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION THE EXHIBITS AND THE PRICES
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AND OTHER CHARGES CONTEMPLATED HEREIN, ARE BASED UPON THE LIMITED
WARRANTY, LIMITATIONS OF LIABILITY, DISCLAIMERS AND INDEMNIFICATION
PROVISIONS SET FORTH HEREIN, AND THAT DART WOULD NOT HAVE ENTERED
INTO THIS AGREEMENT OR GRANTED CITIBUS THE RIGHTS SET FORTH HEREIN IN
THE ABSENCE OF ANY OF THESE PROTECTIONS AND PROVISIONS.
Notwithstanding any other provision of this Agreement, Citibus is not permitted to use
Upgrades unless Citibus, at the time of acquiring such Upgrade:
a. already holds a valid license for the original version of the relevant System software,
is in compliance with such license, and has paid DART the applicable License Fee
for the Upgrade;
b. limits Citibus' Use of Upgrades or copies to Use on devices Citibus owns or leases;
and
c. unless otherwise provided in the Documentation, makes and Uses additional copies
solely for backup purposes, and which backup is limited to archiving for restoration
purposes.
11. TOKEN SHARING AGREEMENT. The Token Sharing Agreement governing certain
payment procedures and protocols, attached hereto as Exhibit B, and incorporated
herein for all purposes, will simultaneously be executed by the Parties upon execution
of this Agreement.
12. SERVICE LEVEL AGREEMENT. Terms for the Service Level Agreement ("SLA") are
included in Exhibit C. DART and Unwire have certain responsibilities for performing
troubleshooting activities and support for Citibus as detailed in Exhibit C. Unwire is solely
responsible for maintaining GoPass service availability and responsible for any penalties
related to any deficiencies in SLA performance as set out in Exhibit C. Unwire is solely
responsible for maintaining GoPass service availability and responsible for any penalties
related to any deficiencies in SLA performance as set out in Exhibit C. Notwithstanding
the foregoing, certain service incidents shall also be reported to DART as set out in
Exhibit C.
13. AUDIT. During the Term hereof and for a period of three (3) years after its expiration or
termination, Citibus will take reasonable steps to maintain complete and accurate
records of Citibus' use of the System and System software sufficient to verify compliance
with this Agreement. Within a reasonable period following a written request from DART,
not more than once annually, Citibus will certify accurate counts regarding Citibus' Use
of the System software. If the certified count discloses underpayment of License Fees,
Citibus will promptly pay such License Fees to DART, plus an interest rate of five percent
(5%) per annum on unpaid sums.
14. TERM AND TERMINATION. This Agreement shall commence on the date it is last
executed by a Party and shall remain effective for six (6) months thereafter ("Initial
Term"), unless earlier terminated as set forth herein. Citibus agrees that as consideration
of this pilot program, a three year licensing agreement be ready for approval by the
N.
Parties within 4 months from execution of the Pilot Agreement. This Agreement will
terminate at DART's discretion and upon written notice from DART if Citibus breaches
its terms, or if Citibus fails to pay any portion of the License Fees as required herein and
Citibus fails to cure that breach or non- payment within sixty (60) days of written notice
of breach or non-payment. Upon termination of this Agreement and/or the license grant,
Citibus shall cease Use of the System and shall destroy all copies of System software in
Citibus' possession or control.
15. TRANSFERABILITY. This Agreement may not be assigned without the prior written
consent of the other Party, which may be withheld for any reason. Notwithstanding the
foregoing, either Party may transfer this Agreement, upon reasonable, and no less than
thirty days, advance written notice to the other Party, to a wholly owned -subsidiary of
the transferring Party; and DART may transfer this Agreement to a party approved by
the DART Board of Directors.
Citibus may not transfer or assign these license rights to another person or entity without
DART's advance written approval. Any attempted transfer or assignment in violation of
the foregoing shall be void and of no effect.
16. SURVIVAL. Sections 3(f), 5, 8, 9, 10, 13, 15, 17,18, 19, 20, 21, 22, and 23shall
survive termination or expiration of this Agreement.
17. CONFIDENTIALITY. Subject to applicable statutory requirements, including any
applicable open records requirements each Party shall keep such Confidential
Information provided by the other confidential and shall not use the Confidential
Information for the benefit of any third party or in violation of the terms of this Agreement.
Except as required by applicable law, Citibus shall not disclose such information to any
other person or entity, except to employees who require access to such information in
order to Use the System as contemplated herein, and then only after obtaining an
agreement from said employees to keep the Confidential Information confidential to the
same extent as required herein. Citibus may only use the Confidential Information as
necessary to exercise the rights expressly granted hereunder. Subject to applicable law,
including applicable records retention requirements, upon expiration or termination of
this License, Each Party shall destroy all Confidential Information learned or received
from the other and provide written certification of same signed by an officer of that Party.
Except when disclosure is required by law each Party shall be responsible for ensuring
that any third party receiving Confidential Information from such Party shall comply with
the confidentiality and non -disclosure terms herein and shall be responsible for any
breach thereof by any third party. Any breach of the provisions of this Section is a breach
of this Agreement and may cause irreparable harm to the non -breaching Party who shall
be entitled to receive injunctive or equitable relief, in addition to all other available legal
remedies.
18. RELEASE. Citibus hereby unconditionally and irrevocably releases and discharges
DART AND LICENSOR AND THEIR EMPLOYEES, DIRECTORS, CONTRACTORS,
SUPPLIERS, AND LICENSORS (collectively, the "DART Parties") from any and all loss,
claim, damage or other liability associated with, arising from or related to Citibus'
evaluation, access, or Use of the System, System software or Documentation, and to
the extent allowed by law, hereby agrees to indemnify, defend and hold DART and the
DART Parties harmless against any such liability, including without limitation, any liability
resulting from DART's negligence at any level. The parties expressly acknowledge that
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the City of Lubbock's authority to indemnify and/or hold harmless any third party is
governed by Article XI, Section 7 of the Texas Constitution and any provision which
purports to require indemnification by the City is invalid.
19. OTHER REMEDIES. Nothing contained herein shall limit any remedies that either Party
may have for default under this Agreement, nor relieve either Party of any of its
obligations incurred prior or after to termination of this Agreement.
20. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement, including, without
limitation, its validity, interpretation, construction, performance, and enforcement, will be
governed, interpreted and construed in accordance with the laws of the State of Texas.
Venue for any action brought in connection or related with this Agreement shall be only
in Dallas County, Texas or the Federal District Court, Northern District of Texas, Dallas
Division. By their signatures below, the Parties irrevocably submit themselves to
exclusive jurisdiction as set forth herein.
21. INTEGRATION AND SEVERABILITY. If any portion of this Agreement is found to be
void or unenforceable, the remaining provisions of the Agreement shall remain in full
force and effect. Except as expressly stated or as expressly amended in a signed
agreement, this Agreement constitutes the entire agreement between the Parties with
respect to the license of the System to Citibus and any other related matter and
supersedes any conflicting oradditional terms contained in any other agreement, any
request for proposal or other proposal, purchase order or elsewhere, all of which terms
are excluded.
22. REPRESENTATION BY COUNSEL. Each Party to this Agreement acknowledges that
such Party has: (a) read this Agreement in its entirety; (b) had full opportunity to review
this Agreement; and (c) been (or had the opportunity to be) represented by competent
counsel in connection with this Agreement, the negotiation of the terms and conditions
set forth in this Agreement and the transactions contemplated by this Agreement.
Accordingly, the language used in this Agreement shall be deemed to be the language
chosen by the Parties to express their mutual intent. Any rule of law or any legal decision
that would require interpretation of any claimed ambiguities in this Agreement against
the drafting Party has no application and is expressly waived by Citibus.
23. REGISTERED TRADEMARKS. Citibus acknowledges that "DART", the DART logo and
"GoPass" are trademarks or registered trademarks of DART and/or its affiliates in the
U.S. and other countries. Third party trademarks mentioned are the property of their
respective owners and no rights relative thereto are granted, unless specifically set forth
herein.
24. INDEPENDENT PARTIES. The relationship described in this Agreement is contractual in
nature between independent parties and is not to be construed to create a partnership, joint
venture, joint enterprise or agency relationship.
25. NO THIRD PARTIES. Nothing in this Agreement shall be construed to create any rights
in a third party nor do the Parties intend to create any third -party beneficiaries.
26. NOTICES. Any notice required or permitted to be given by any Party to another shall be
in writing and shall be deemed to have been duly given when sent by certified mail,
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return receipt requested, in a postage paid envelope addressed to the Party at the
Party's address as set out below:
DART: Dallas Area Rapid Transit
1401 Pacific Avenue
Dallas, Texas 75202
Attention: Executive Vice President and Chief Administrative Officer
Citibus: Citibus
801 Texas Ave.
Lubbock, TX 79401
Attention: General Manager
27. COUNTERPARTS. This Agreement may be entered into in multiple counterparts, each
of which shall be deemed an original but all of which shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in multiple originals,
effective as of the date last signed by a Party.
DALLAS AREA RAPID TRANSIT CITIBUS
By: hudBy:
David Leininger
Interim President & Chief
Executive Officer
Date: 2 q ,ZUZ 1
Daniel M. Pope, Mayor
Date: 7/13/2021
Exhibits to Agreement. Exhibits B and C to be executed simultaneously with this Agreement.
Exhibit A Exhibit A: Pricing & Feature Scope
Exhibit B Token Sharing Agreement
Exhibit C Service Level Agreement
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Citibus PILOT ILA Agreement — Exhibit A: Pricing & Feature Scope
Feature Scope:
GoPass App Delivery
Overview: Develop Citibus instance within the GoPass branded application and includes all key
features of the native GoPass application.
Implementation timeline: Implementation is expected to take three months from fully executed
interlocal agreement.
One-time Fees:
Pro -rated set-up fee: $5,833
Program Management fee: $24,000
Operational fee: $7,287
Service Level Agreement (SLA) fee: $3,000
Spare Labs Microtransit integration fee: $3,000
Spare Labs Microtransit operational fee: Waived
Credit card & interchange gateway fees: $4,554
Total: $47,674
Feature Delivery Invoicing Schedule:
50% Invoiced on commencement of work, 50% upon Acceptance by Citibus
Interlocal Agreement Pricing Limitation
Both DART and Citibus agree that, for the purposes of this six month pilot program and scope of
services outlined in this agreement, total fees are not to exceed $50,000.
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Citibus ILA Agreement — Exhibit B — Citibus Token Sharing Agreement
This agreement ("Agreement") is between the City of Lubbock acting by and through Citibus
("Citibus"), located at 801 Texas Ave, Lubbock, TX 79401 and Dallas Area Rapid Transit
("DART"), a regional transportation authority created under Chapter 452 of the Texas
Transportation Code, located at 1401 Pacific Street, Dallas TX 75202 (each referred to as a
"Party" and collectively referred to as the "Parties"). The Agreement governs the Citibus' public
transportation provider, Citibus, Use (defined below) of a certain mobile ticketing application,
generally referred to as "GoPass®", limited as set forth herein
WHEREAS, the Parties have entered into an Interlocal Agreement dated simultaneously herewith
to provide mobile ticketing services in order to allow Citibus to access and utilize GoPass mobile
ticketing products; and
WHEREAS, in order to facilitate payment processing, the Parties desire to enter into this
Agreement regarding certain data sharing.
NOW THEREFORE, for and in consideration of the mutual covenants of the Parties set forth in
this Agreement, and for other good and valuable consideration, the receipt and adequacy of which
is acknowledged by the Parties, the Parties agree as follows:
1.00 DEFINITIONS
1.01. "Token" means unique identification symbols that identify a credit card number of a User
(defined below).
1.02. "Service Provider" means a third party engaged by DART or a contractor of DART to
convert credit card numbers of Users to encrypted digital representations ("Tokens").
1.03. "User" means a customer of one of the Parties that purchases a product or services from
that Party on the mobile ticketing platform.
1.04. "Unwire" means Unwire ApS,.
2.00 SHARING OF TOKENS
2.01. When a User registers itself with one of the Parties on the mobile ticketing platform the User
registers a credit card. The credit card information will be sent to a service provider who will
provide with a Token to be used for future transactions with the User.
2.02. A Token may be shared between Parties or with Unwire or another contractor of DART.
2.03. The Parties will not receive any payment for sharing Tokens.
3.00 RIGHTS IN DATA
3.01. This Token Sharing Agreement ("Agreement") shall not be deemed in any way grant to
any Party any property or other rights to any Token that was received or shared by that
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Party with the other Party or with a third party.
3.02. Upon termination of this Agreement, the Parties shall delete any and all Tokens and
records of Tokens from storage and use and the Parties shall no longer be entitled to use
such Tokens for any purpose.
4.00 TERM, WITHDRAWAL AND TERMINATION
This Agreement shall be effective as of the date last signed by a Party and shall remain
effective for the duration of and be conterminous with the Interlocal Agreement between
DART and Citibus dated of even date herewith (the "ILA") governing the use of GoPass
5.00 MISCELLANEOUS PROVISIONS
5.01. Liability. It is understood and agreed between the Parties that each Party shall be
responsible for its own acts of negligence in connection with this Agreement and neither
Party shall be responsible to another Party for any negligent act or omission in connection
with this Agreement. If injury, financial, or property damage results from the joint or
concurrent negligence of any of the Parties, liability, if any, shall be shared by each Party
on the basis of comparative responsibility in accordance with the applicable laws of the
State of Texas, subject to all defenses available, including governmental immunity. No
provision herein shall be deemed a waiver of any defense by any Party.
5.02. Contractual Relationship. It is understood and agreed that the relationship described in
this Agreement between the Parties is contractual in nature between independent Parties
and is not to be construed to create a partnership, joint venture, joint enterprise or agency
relationship between the Parties. No Party shall be liable for any debts incurred by the
other Party in the conduct of such other Party's business or functions.
5.03. Assignment. This Agreement may not be assigned by any Party without the prior written
consent of the other Party, which consent may be withheld in the sole discretion of the
Party being asked to consent.
5.04. Amendments to Agreement. No modification, amendment, innovation, renewal or other
alteration of this Agreement shall be effective unless mutually agreed upon in writing, duly
authorized and executed by the Parties hereto.
5.05. Severability. If any provision of this Agreement is held for any reason to be illegal,
unenforceable or invalid, such holding will not affect the legality or validity of any of the
other provisions herein. The illegal, unenforceable or invalid provision will be deemed
stricken and deleted from this Agreement, but all other provisions shall continue and be
given effect as if the illegal or invalid provisions had never been incorporated.
5.06. Choice of Laws and Venue. This Agreement shall be governed by Texas law and exclusive
venue shall be in Dallas County, Texas.
5.07. Counterparts. This Agreement may be executed in multiple counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall
constitute one and the same instrument.
5.08. Survival of Covenants. Any of the representations, warranties, covenants, and obligations
of the Parties, as well as any rights and benefits of the Parties, pertaining to a period of
12
time following the termination of this Agreement, shall survive termination.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in multiple originals
effective as of the date last signed by a Party.
DALLAS AREA RA4PID TRANSIT CITIBUS
By: By:
David Leininger
Interim President & Chili Daniel M. Pope, Mayor
Executive Officer
Date.
l� k"'t- -;-> + -2CQ— ^^ Date: 7/13/2021
13
Citibus ILA Agreement — Exhibit C — Service Level Agreement
Contents
1.00
PURPOSE...................................................................................................................
18
2.00
SERVICE LEVELS.......................................................................................................
18
3.00
HOSTED BACK END SERVICE AVAILABILITY..........................................................
18
3.1
SERVICE WINDOWS...............................................................................................
19
3.2
AVAILABILITY PENALTY.........................................................................................
19
4.00
INCIDENT MANAGEMENT..........................................................................................
20
4.1
INCIDENT REACTION TIMES..................................................................................
22
4.2
END -USER CLIENT APP BUGS..............................................................................
22
5.00
TECHNICAL SUPPORT ENQUIRIES..........................................................................
23
6.00
REPORTING................................................................................................................24
7.00
HOSTING.....................................................................................................................24
8.00
CUSTOMER'S SECURITY OBLIGATIONS..................................................................
24
14
1.00 PURPOSE
This is a Service Level Agreement ("SLA") between Unwire ApS ("Unwire"), Dallas Area Rapid
Transit ("DART") and the City of Lubbock acting by and through Citibus ("Citibus"), for IT services
required to support and sustain GoPass as provided to City by Dallas Area Rapid Transit ("DART'
or "Vendor"). Unwire is solely responsible for GoPass service availability and for any availability
penalties in accordance with Table 4.
DART's responsibility under this SLA is limited to assistance in remediation of incidents reported
to DART within DART business hours. Any and all other obligations and liabilities under this SLA
are obligations of Unwire.
This Agreement remains in effect until superseded by a revised agreement mutually endorsed by
Unwire, DART and Citibus or terminated as set forth herein. This Agreement is coterminous with
the Interlocal/Sublicensing Agreement (the "ILA") between DART and Citibus dated of even date
herewith.
2.00 SERVICE LEVELS
Unwire offers three (3) service levels as specified below. For the avoidance of doubt all times
referred to in this SLA are cited as CST/CDT (US Central Standard Time/US Central Daylight Time),
whichever one is applicable for Citibus from time to time, unless otherwise specified.
Table 1 Service Levels
* As defined in Tables 5a to 5c below.
Citibus will be provided "Premium" service level. The price to Citibus for these services is reflected
in the ILA. DART's business hours are 09.00-17.00 Monday -Friday (CST/CDT), excluding US
public holidays and Decembers 24 and December 31. Business days are Monday -Friday,
excluding US public holidays and 12/24 and 12/31.
Unwire business hours are from 09.00-17.00 Monday -Friday (CET/CEST), excluding Danish
public holidays and December 24 and December 31. A full list of Danish national holidays can be
found at this location: https://www.worlddata.info/euror)e/denmarktpublic- holidays.php
3.00 HOSTED BACK END SERVICE AVAILABILITY
Availability of the hosted services is measured on a quarterly basis, recognized as 1st quarter
(January through March), 2nd quarter (April through June), 3rd quarter (July through September)
and 4th quarter (October through December) of the calendar year.
15
Table 2
Standard I z 98,00% 1 Per quarter
Plus I z 99,50% 1 Per quarter
Premium 1 z 99,90% 1 Per quarter
Availability Calculation
Service Availability is measured in percentages and calculated as follows:
Service Availabiity (%) _
Agreed Service Time — Downtime
Agreed Servoce Time
x 100
Agreed Service Time herein means 24 hours a day, 7 days a week, 365 days a year. For
example, 2nd quarter has an Agreed Service Time of 2,184 hours.
Downtime is defined as the percentage of time for which the hosted business critical service(s)
is/are down. All types of breakdown/incidents, irrespective of reason, caused by payment
providers, telecoms operators, telecoms companies, energy supply companies and any third party
services are not considered as "Downtime" as defined herein. Amazon AWS is not seen as a third
party for purposes of this definition. Service windows announced in accordance with the SLA are
not considered Downtime. Any downtime caused by Citibus that affects the software and the
systems without Unwire's prior approval is not considered Downtime.
3.1 SERVICE WINDOWS
Service windows related to necessary system changes and maintenance will be made outside
normal working hours as set forth in Table 3. Unwire reserves the right to extend the service
windows for Premium level (01.00-05.00) if server/networks installations and system restructuring
are required. A temporary extension of hours will not be considered downtime.
Table 3 Service Windows
"For Premium level: All regular and extended service windows are notified by Unwire email. All
regular service windows are notified one day in advance and extended service windows (01. 00-
05. 00) are notified one week in advance.
3.2 AVAILABILITY PENALTY
If system availability fails to comply with the applicable service level, Citibus will be compensated
by Unwire as set forth in Table 4. This compensation will appear in the monthly invoice to Citibus.
16
Table 4 Availability aena/t
Standard "Compensation value": None
Plus "Compensation value": 15% of the monthly fixed SLA charge for each
absolute percentage discrepancy (However, no more than 25% of the
monthly SLA fee)
Premium "Compensation value": 75% of the monthly SLA Charge for each
absolute percentage discrepancy (However, no more than 100% of the
monthly SLA fee)
Penalties cannot co -exist. Only the penalty with the highest compensation value will apply. The
compensation value will be provided as a service credit.
4.00 INCIDENT MANAGEMENT
DART and Unwire will remedy reported incidents in accordance with the guidelines set forth in
this SLA agreement.
P1 incidents within DART business hours: Within DART business hours, all P1 incidents must
be reported to DART as set forth below:
email to GOPASSOD-dart.org Phone to 214-907-3905
P1 incidents outside DART business hours: Outside DART business hours, all P1 incidents must
be reported by phone as set forth below:
phone to + 1 -855-631-8909
P2-134 incidents (DART business hours only): All P2-134 incidents must be reported as set
forth below:
email to GOPASSO—dart.org Phone to 214-907-3905
Incidents are categorised in accordance with the following Tables 5a, 5b and 5c.
Table 5a Incident severity definitions
Critical Complete loss of service or functionality with critical impact to
business services, i.e. significant loss of revenue, customer service,
production, corporate reputation or financial control.
Examples of Critical issues would be:
• Customers cannot access GoPass at/after opening
• Tickets cannot be activated or viewed
• Ticket purchase cannot be completed
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categorySeverity Description
High Loss of service or functionality, which will degrade parts of the
business services. instability, large delays and periodic influences or
the user experience.
Examples of High issues would be:
• Access to travel tools is not available
• Customers cannot access OTP
• Service is consistently unavailable and causes a high
level of hindrance
Medium Service partly degraded or parts of the customers' whole service not
available.
Examples of Medium issues would be:
• Access other integrated apps such as e.g. PayNearMe,
BCycle and other integration points
• Features of the application are not updating or displaying
correctly
• Customer cannot store or modify payment method or
features in their profile
• App is an inconvenience or causes inconsistent behavior,
which does not impede the normal functioning of the app
• Outage creates time outs resulting in multiple charges to
the bank with no delivery of tickets in the app
• Performance of the service is severely impacted
Table 5a Incident severity definitions continued
Severity category Description
Low Issues in a redundant element or incidents not critical for the business
services.
Examples of Low issues would be:
• Customers cannot register their device
• Customers not able to view or activate their tickets due to
device issues
• Citibus unable to access reports
Table 5b Incident impact definitions
Extensive All end -users affected
Significant A large number of end -users affected (more than 25% of end users)
Limited A limited group of end -users affected (more than 5% and lower that
25% of end users)
Local Very few or only one end -user affected
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Table 5c Incident priority definitions
Extensive
P1
P1
P2
P4
Significant
P1
P2
P3
P4
Limited
P2
P3
P3
P4
Local
P3
P3
P4
P4
4.1 INCIDENT REACTION TIMES
Troubleshooting begins as stated in Table 6a and 6b:
Table 6a Time
for troubleshooting of incidents related to the hosted backend
P1 Within 2 hours
P2 Within 4 business hours
P3 Within 2 business days
P4 Within 4 business days
Table 6b Time
131
P2
P3
P4
for troubleshootinq of incidents related to the end -user client
Within 2 business hours
Within 8 business hours
Next (non -started) app release or max thirty (30) calendar
Will be monitored and recurring cases will be investigated in next
(non- started) app release or within ninety (90) calendar days
4.2 END -USER CLIENT APP BUGS
Work related to fixing bugs due to an OS update or carrier or device manufacturer permutations
of the OS code will be priced separately.
Neither DART nor Unwire will remediate bugs on devices not running the latest OS release or the
release before that. Neither DART nor Unwire will remediate bugs for client apps not using the
latest app version. Troubleshooting will take place within the timeframes stated in Table 7. The
reaction time is calculated from the time the incident is reported by email until the first reply has
been made to the user by email or phone.
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Table 7
Standard
Plus
Premium
service level windows vs. incident
Backend Unwire
system and Business
end user client Hours
app
End user
client app
Backend
system
Monday -Friday
09.00-22.00
(CEST/CEST)e
xcl. Danish
public holidays
and 24/12 and
31/12 i
Unwire
Business
Hours
End user
client app
Backend
24 hours a day,
system
7 days a week,
365 days a
year
5.00 TECHNICAL SUPPORT ENQUIRIES
Unwire
Business
Hours
Same as Standard
Same as Standard
Same as Standard
Same as Standard
Unwire
Business
Hours
In addition to reporting incidents and bugs as per above, Citibus may make a number of cost-free
support inquiries to DART (questions or requests for assistance per month), as set forth below.
Support inquiries shall be made by email to GOPASSCDdart.ora
Table 8 Technical
Standard 4 support inquiries within business hours per
month _
Plus 6 support inquiries within business hours per
month
Premium 12 support inquiries within business hours per
month
Assistance over and above the amount in Table 8 will be invoiced in accordance with the support
rates per initiated hour specified in Pricing Exhibit within the ILA. Citibus will not be invoiced for
any time spent unless Citibus has been informed in advance.
20
6.00 REPORTING
For Premium level, Citibus shall receive reports on a quarterly basis, recognized as 1st quarter, 2nd
quarter, 3rd quarter and 4th quarter of the calendar year the following month.
The report is based on data from the internal monitoring systems and other internal data
sources.
The report includes the following data:
6.1.Service availability
6.2.Overview of bug reports and inquiries processed in DART's service deskwith open
and closed status
If any P1 incidents occurs, an incident report will by request be created to Citibus including affected
services, root cause description and corrective actions.
7.00 HOSTING
To ensure all data is stored and processed in the US as well as to ensure a flexible and scalable
solution for future growth, the GoPass ticket application service is located in a public cloud
environment at Amazon Web Service. The hosted service is within Region US-east-1 (US East
(N. Virginia)). For Premium service level the hosted service will be located in 2 (two) availability
zones to ensure high availability.
Unwire's production and staging environment will be located at the public cloud environment.
Other environments, such as test setup, will be located at Unwire's private cloud environment in
Copenhagen, Denmark or in a public cloud environment in Europe. No personally identifiable
information ("PI I") will be transferred to these environments. Only maintenance and administration
tools may be used from the private cloud environment in Denmark.
8.00 LIMITATION AND EXCLUSIONS OF LIABILITY
Liability, if any, of DART and/or Unwire, and/or their affiliates, officers, directors, employees,
agents, suppliers, to Citibus, whether based in warranty, contract, tort (including negligence), or
otherwise, shall not exceed the License Fees paid by Citibus to DART in the twelve (12) months
preceding any such claim. This limitation of liability is cumulative and not per incident. Nothing in
this Agreement limits or excludes any liability that cannot be limited or excluded under applicable
law.
9.00 CUSTOMER'S SECURITY OBLIGATIONS
Citibus' conduct may affect the operation of the systems. In order to guard against unauthorized
access to the Citibus' information and operation, services are protected by an access control
function. This is predominately based on the use of a user ID and associated passwords where
the passwords are known only by the user. A prerequisite for this protection to be effective is that,
Citibus contributes to maintaining this All parties to include Unwire, DART and Citibus undertake
to inform one another of any irregularities of which they may become aware concerning data
security, including any attempts to misuse or ascertained misuse of user ID and/or passwords.
Citibus and DART are obliged to follow all third party safety precautions and rules, preconditioned
that the Citibus is or should be familiar with the fact that third party components or services are
21
4
used by the system. Citibus is required to follow obligations under Texas and Federal law with
respect to PI and sensitive personal information.
If the Customer's security obligations are not fulfilled, Unwire and DART's SLA obligations will
become void.
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple originals
effective as of the date last signed by a Party.
DALLAS AREA RAPID TRANSIT
By: kowd
David Leininger
Interim President & Chief Lecutive
Officer
Date:l" >12OZ/
UNWIRE
By:
Date:
23
CITIBUS
By:
Daniel M. Pope, Mayor
Date: 7/13/2021