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HomeMy WebLinkAboutResolution - 2021-R0496 - Interlocal Agreement with Dallas Area Rapid Transit for GoPass - CitibusResolution No. 2021-R0496 Item No. 6.19 December 14, 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 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 December 14, 2021 DANIEL M. POPE, MAYOR ATTEST: Q4A6CW' X__'111 Reb cca Garza, City SEcredrvN APPROVED AS TO CONTENT: APPROVED AS TO FORM: RES.Interlocal Agreement for GoPass Subscription -DART 11.29.21 Consent Agreement for Dallas Area Rapid Transit to License Unwire ApS software to Citibus 1. Unwire ApS ("Unwire") hereby consents to Dallas Area Rapid Transit ("DART") granting to Citibus a license for a term of forty-eight (48) months for full and continuing access to the GoPass app solution, as well as related back -office services, as set forth in the Interlocal Agreement for GoPass Subscription and License ("ILA") between DART and the City of Lubbock acting by and through Citibus ("Citibus"), a copy of which is set forth as Exhibit I hereto. Unwire and DART are each referred to herein as a "Party" and collectively as the "Parties." 2. Nothing in the ILA shall establish a privity of contract between Unwire and Citibus other than by virtue of this executed consent. Unwire acknowledges it is bound to Citibus with regard to the Unwire obligations set forth in the Service Level Agreement ("SLA"), which is an exhibit to the ILA and which Unwire agrees to execute with Citibus in the form included in Exhibit 1 to this agreement. 3. Except for the terms described in this consent agreement, the GoPass Agreement (DART Contract Nos. 5-2027710-01, S-2027710-02, and S-2027710-03) (collectively, "the Contract") or any fully executed agreement by the Parties hereto replacing or amending the contract shall continue to govern the Parties in relation to the contract. The Parties also have agreed on the specifications to Unwire's ongoing service and maintenance obligations related to Citibus' use of the GoPass app solution as set forth in the ILA and SLA. The Parties also have agreed on the terms of service and fees payable to Unwire by DART related to the ILA, as set forth in Exhibit 2 hereto. Citibus is a third -party beneficiary of this consent. Unwire ApS Jesper Thor Rasmussen Title: CEO Date: TV is is!% -� -Nadine S. Lee Title: President & CEO Date: OT 1 Consent Agreement for Dallas Area Rapid Transit to License Unwire ApS software to Citibus Unwire ApS ("Unwire") hereby consents to Dallas Area Rapid Transit ("DART") granting to Citibus a license for a term of forty-eight (48) months for full and continuing access to the GoPass app solution, as well as related back -office services, as set forth in the Interlocal Agreement for GoPass Subscription and License ("ILA") between DART and the City of Lubbock acting by and through Citibus ("Citibus"), a copy of which is set forth as Exhibit 1 hereto. Unwire and DART are each referred to herein as a "Party" and collectively as the "Parties." 2. Nothing in the ILA shall establish a privity of contract between Unwire and Citibus other than by virtue of this executed consent. Unwire acknowledges it is bound to Citibus with regard to the Unwire obligations set forth in the Service Level Agreement ("SLA"), which is an exhibit to the ILA and which Unwire agrees to execute with Citibus in the form included in Exhibit 1 to this agreement. 3. Except for the terms described in this consent agreement, the GoPass Agreement (DART Contract Nos. 5-2027710-01, S-2027710-02, and 5-2027710-03) (collectively, "the Contract") or any fully executed agreement by the Parties hereto replacing or amending the contract shall continue to govern the Parties in relation to the contract. The Parties also have agreed on the specifications to Unwire's ongoing service and maintenance obligations related to Citibus' use of the GoPass app solution as set forth in the ILA and SLA. The Parties also have agreed on the terms of service and fees payable to Unwire by DART related to the ILA, as set forth in Exhibit 2 hereto. Citibus is a third -party beneficiary of this consent. Unwire A PS Jesper Thor Rasmussen Dallas Area Rapid Transit Title: CEO Title: Date:_____ 19/1 2022 Date: Exhibit 1 INTERLOCAL AGREEMENT FOR GOPASS SUBSCRIPTION AND LICENSE 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 "GoPass®", 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: DEFINITIONS. 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. "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. "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 2 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. 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. Invoicesfor License Fees shall be issued as provided in ExhibitA 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 3 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. App 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. el Z 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. 4 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. 1 _::_► 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 5 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 January 12, 2022 following execution by both Parties and shall remain in effect for forty eight (48) months thereafter ("Initial Term"), unless earlier terminated as set forth herein. This Agreement will terminate at DART's discretion and upon written notice from DART if Citibus 6 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 23 shall 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. RF.+�. 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. 19. OTHER REMEDIES. Nothing contained herein shall limit any remedies that either Party 7 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 asset forth herein. 21. INTEGRATION AND SEVE ABILITY. 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, return receipt requested, in a postage paid envelope addressed to the Party at the Parry's address as set out below: DART: Dallas Area Rapid Transit 1401 Pacific Avenue Dallas, Texas 75202 Attention: President & Chief Executive Officer 8 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 ID NSIT By: Nad' e . President & Chief Executive Officer Date: d 7I 0 02'- CITIBUS By: Daniel M. Pope Mayor, City of Lubbock Date: February 17, 2022 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 0 Citibus ILA Agreement — Exhibit A: Pricing & Feature Scope Feature Scope: GoPass App Delivery Overview: Hosting and Operation of Citibus instance within the GoPass branded application and including all key features of the native GoPass application. One-time Fees: 48 Months GoPass Licensing, Hosting & Support 48 Months Service Level Agreement Microtransit Fee Total One -Time Fees: Recurring Monthly Fees: Credit Card and Interchange Fees $192,000 $24,000 $24,000 $240,000 2.5% Credit Carol and Interchange Fees will apply until such time as Citibus' Merchant ID is integrated to DART's Payment Service Provider, at which point, these fees will be waived by DART. Brokerage -based Microtransit (GoLinkTM) DART has integrated Microtransit through a combined solution created with third party vendors, Spare, and Unwire. In this configuration, riders will request a ride through the GoPass App, which will dispatch estimates and bookings to the Spare scheduling platform. Spare communicates to various operators to offer rides (sending trips to their own Driver App with which the drivers from these operators will be equipped). The responses received by the Driver App will then be aggregated and the best fit for the Agency will be provided back to the rider as an option. This model is inherently flexible across multiple vendors (permitting that they will utilize the Spare driver App when supporting GoPass Microtransit options. Spare's scheduling system supports both dedicated vehicles where riders can be aggregated and dispatched on -demand or through advanced bookings to a fleet of vehicles which are providing dedicated trips. But also, with non -dedicated vehicles where the Spare scheduling system offers riders to drivers who then can accept the trip based on their availability, perfect for taxis or TNCs. 10 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 Party with the other Party or with a third party. 11 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 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 RAPID TRANSIT CITIBUS By: By: n President & Chief Executive Daniel M. Pope Officer Mayor, City of Lubbock Date: Date: February 17, 2022 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 Standard I Access to Vendor's technical support services within Vendor's business hours. Plus I Same as Standard plus additional access to server duty Monday -Friday 17:00- 22:00 in case of P1 Events* Premium Same as Standard plus additional access to server duty 24 hours a day, 7 days a week, 365 days a year in case of P1 Events* As aerinea in r aotes as to bC Mow. 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.woriddata.info/euroae/denmark/r)ublic- holidays.php 3.00 HOSTED BACK END SERVICE AVAILABILITY Availability of the hosted services is measured on a quarterly basis, recognized as list 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 U time AgreedService Level Availability Period Standard z 98,00% Per quarter Plus z 99,50% Per quarter Premium z 99,90% Per quarter Availability Calculation Service Availability is measured in percentages and calculated as follows: Agreed Service Time — Downtime Service Availabiity (%) = x 100 Agreed Servoce Time 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 WindowsService Level Service Standard 18.00 — 08.00 (Business Days) Plus 22.00 — 06.00 (one day a week) Premium* 02.00 — 04.00 (one day a week) *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 (0 1. 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 A Standard I "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 GOPASSA-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-P4 incidents (DART business hours only): All P2-P4 incidents must be reported as set forth below: email to GOPASSO-dart.orq 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 urchase cannot be completed 17 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 (con 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 18 Table 5c Incident Priority definitions Extensive P1 P1 P2 P4 Significant Limited P1 P2 P3 P4 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 specification for P1 P2 P3 P4 Table 6b Time specification for P1 P2 P3 of incidents related to the hosted backend system Within 2 hours Within 4 business hours Within 2 business days Within 4 business days 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 P4 (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. 19 Table 7 Standard Plus Premium service level windows vs. incident Backend system and end user client app End user client app Backend system End user client app ' Unwire Unwire Unwire + Unwire Business Business Business Business Hours Hours Hours Hours l � I Same as Standard Monday -Friday 09.00-22.00 (CEST/CEST)e xcl. Danish public holidays and 24/12 and 31/12 Backend 24 hours a day, system 7 days a week, 365 days a year 6.00 TECHNICAL SUPPORT ENQUIRIES Same as Standard Same as Standard Same as Standard 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 GOPASSO)-dart.orp 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 anyliability 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 used by the system. Citibus is required to follow obligations under Texas and Federal law with respect to PH 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: Na President & C of Executive Officer Date: 2 Z2 UNWIRE By: Date: 23 CITIBUS By: Daniel M. Pope Mayor, City of Lubbock Date: February 17, 2022 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: Nadine S. Lee President & Chief Executive Officer Date: UNWIRE By: Jesp r Thor Rasmussen, CEO Date: 12/09/2021 23 CITIBUS By: Date: Exhibit 2 Pricing and Payment Schedule Unwire One-time Fees: 48 Months GoPass Licensing, Hosting & Support $96,000 48 Months Service Level Agreement $24,000 Microtransit Fee $24,000 Total One -Time Fees: $1441000 Invoicing Schedule 100% invoiced on fully signed ILA.