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HomeMy WebLinkAboutContracts & Agreements_45-2023PASS DISTRIBUTOR SALES AGREEMENT BETWEEN OMNITRANS AND CITY OF REDLANDS THIS AGREEMENT ("Agreement") is made and entered into this 7th day of, March, 2023, by and between Omnitrans, ajoint powers authority (hereinafter referred to as "AGENCY"), and CITY OF REDLANDS, (hereinafter referred to as "DISTRIBUTOR"). Sometimes hereinafter, AGENCY and DISTRIBUTOR may be referred to individually as a "Party" or collectively as the "Parties." WHEREAS, AGENCY wishes to provide convenient distribution opportunities for customers to obtain transit passes; and WHEREAS, DISTRIBUTOR wishes to provide transit passes to clients, employees, students or customers. NOW, THEREFORE, as herein set forth, the Parties agree as follows: ARTICLE 1. STATEMENT OF WORK A. DISTRIBUTOR agrees to provide Veteran, Youth, Senior/Disability/Medicare and Full Fare Transit Passes, and OmniAccess Tickets (hereinafter called "TRANSIT PASSES") to eligible persons in accordance with the AGENCY Procedures for Transit Pass Distributors (hereinafter called "PROCEDURES"), attached hereto and incorporated herein by reference as Exhibit "A," attached hereto and incorporated herein by this reference. B. TRANSIT PASSES may be in the form of magnetic stripe paper passes (hereinafter called "PAPER PASSES") or mobile digital fare transit passes (hereinafter called "DIGITAL PASSES"), as further described in the PROCEDURES. C. DISTRIBUTOR shall pay AGENCY no later than 30 days from the date of each invoice supplied by AGENCY. DISTRIBUTOR, at its option, may elect to make payment for TRANSIT PASSES at the time of purchase via use of a valid credit card, as further described below. Page 1 of 9 If DISTRIBUTOR disputes the amount of any invoice, it shall promptly notify AGENCY, prior to the date the invoice is due of such dispute and the basis therefor. Should DISTRIBUTOR fail to timely pay an invoice, AGENCY shall provide notice of such failure to DISTRIBUTOR in accordance with the provisions set forth in Article 9 below. ARTICLE 2. GENERAL TERMS AND CONDITIONS A. AGENCY shall fulfill orders received for PAPER PASSES from DISTRIBUTOR provided DISTRIBUTOR presents an order to AGENCY using an AGENCY supplied order form and such order meets the minimum order requirement, does not exceed the AGENCY established credit limit for DISTRIBUTOR, and DISTRIBUTOR's account with AGENCY is not past due. If DISTRIBUTOR elects to pay for PAPER PASS orders using a credit card, a valid credit card number shall be provided to AGENCY as part of the completed order form, and AGENCY shall be entitled to charge DISTRIBUTOR's credit card at the time of order. B. If DISTRIBUTOR elects to utilize DIGITAL PASSES, AGENCY shall provide access to a secure web portal distribution account operated by AGENCY's DIGITAL PASS vendor (hereinafter called "WEB PORTAL"). DISTRIBUTOR shall be solely responsible for any and all access to and use of the WEB PORTAL by or on behalf of DISTRIBUTOR. DISTRIBUTOR shall have authority to use the WEB PORTAL to distribute DIGITAL PASSES up to a value which shall not exceed the AGENCY established credit limit for DISTRIBUTOR, and provided that DISTRIBUTOR's account is not past due. DISTRIBUTOR is solely responsible and liable for monitoring its WEB PORTAL access and DIGITAL PASS distribution activity, and for ensuring that only authorized users, as determined by DISTRIBUTOR, have access to the WEB PORTAL. The charge for a DIGITAL FARE shall be incurred by DISTRIBUTOR, and shall be due and payable, at the time the DIGITAL PASS is distributed via the WEB PORTAL. If DISTRIBUTOR elects to pay for DIGITAL PASSES using a credit card, such payment may be made by DISTRIBUTOR through the WEB PORTAL at the time DIGITAL PASSES are distributed by DISTRIBUTOR. Page 2 of 9 C. DISTRIBUTOR has the sole obligation and responsibility to track the status of its account and to perform its obligations. If DISTRIBUTOR fails to perform its obligations under this AGREEMENT, AGENCY shall have no obligation to fulfill orders for PAPER PASSES nor to give DISTRIBUTOR advance notice that AGENCY will not fulfill DISTRIBUTOR's order(s) for PAPER PASSES. In addition, AGENCY shall be entitled to immediately restrict DISTRIBUTOR's access to the WEB PORTAL without prior notice to DISTRIBUTOR. In addition to any other rights or remedies of AGENCY under this Agreement, if DISTRIBUTOR fails to make payment in accordance with the terms of this Agreement, DISTRIBUTOR shall be obligated to pay AGENCY for all actual and reasonable costs incurred by AGENCY to collect amounts owed by DISTRIBUTOR. D. DISTRIBUTOR acknowledges that the WEB PORTAL is provided by AGENCY's vendor as a convenience to DISTRIBUTOR and AGENCY provides no warranty or guarantee regarding availability, use of, or access to the WEB PORTAL. DISTRIBUTOR waives any claims against AGENCY related thereto. ARTICLE 3. INDEPENDENT CONTRACTOR The Parties hereto, in the performance of this Agreement, will be acting in their individual capacities and not as agents, employees, partners, joint ventures or associates of one another. The employees or agents of one Party shall not be deemed or construed to be the employees or agents of the other Party for any purpose whatsoever. Neither Party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other except as defined in this Agreement or as mutually agreed to under the terms of this Agreement. ARTICLE 4. LOSS OF TRANSIT PASSES; INCORRECT ISSUANCE OF DIGITAL PASSES DISTRIBUTOR shall be responsible for PAPER PASSES delivered to it, and for DIGITAL PASSES distributed by DISTRIBUTOR. Loss of any TRANSIT PASSES or incorrect distribution of DIGITAL PASSES does not relieve DISTRIBUTOR of the responsibility for payment to AGENCY. Page 3 of 9 DISTRIBUTOR may contact the AGENCY's DIGITAL PASS vendor to attempt to cancel or resolve issues related to incorrect distribution of DIGITAL PASSES. ARTICLE 5. INSPECTION OF RECORDS DISTRIBUTOR shall permit an authorized representative of AGENCY, during reasonable hours, to examine TRANSIT PASSES, AGENCY -supplied documents as provided in this Agreement, the WEB PORTAL, and books, records and accounts of DISTRIBUTOR to determine compliance with or to enforce this Agreement. AGENCY shall make reasonable efforts to provide DISTRIBUTOR with advanced notice of any such inspection. ARTICLE 6. ASSIGNMENT AND MODIFICATION This Agreement shall not be voluntarily or involuntarily assigned or transferred by DISTRIBUTOR. DISTRIBUTOR must notify AGENCY of any event that may have an effect on this AGREEMENT, which includes but is not limited to closure or relocation of DISTRIBUTOR's location(s) or DISTRIBUTOR's insolvency (failure to timely pay obligations under this or other agreements). No modification of this Agreement shall be effective unless made in writing and signed by both Parties. ARTICLE 7. TERM AND CANCELLATION A. This Agreement shall be effective upon execution by both Parties and shall continue in full force and effect until canceled by either Party upon written notice to the other Party at least thirty (30) days prior to the effective date thereof, except as provided in Article 2. The term "cancelation" and "termination" are interchangeable in this Agreement. B. On or before the effective date of cancelation of this Agreement, DISTRIBUTOR with PAPER PASS inventory shall either: 1) Return any unused PAPER PASSES for credit minus five percent of retail value to be applied toward any outstanding balance owed or for refund if no balance owed exists; OR Page 4 of 9 2) Retain unsold PAPER PASSES, in which case, DISTRIBUTOR shall remit any outstanding payments, including any late fee charges no later than five (5) days from the date of receipt of the AGENCY's invoice. C. DISTRIBUTOR engaging in DIGITAL PASS distribution agrees: 1) On the effective date of cancelation of this Agreement, AGENCY shall terminate WEB PORTAL access for DISTRIBUTOR and therefore eliminate the ability for DISTRIBUTOR to purchase or distribute any new DIGITAL PASSES. 2) No later than thirty (30) days from the date of receipt of the AGENCY's invoice, DISTRIBUTOR shall promptly transmit or send outstanding payments due to the AGENCY, including any late fee charges, for DIGITAL PASSES. D. Notwithstanding the foregoing, AGENCY and DISTRIBUTOR may terminate this Agreement immediately for the other Party's breach if such Party fails to cure any default within five (5) calendar days of receipt of written notice of default from the other Party. If AGENCY terminates for breach, then DISTRIBUTOR shall remit any outstanding payments due to AGENCY, including any late fee charges, within thirty (30) calendar days of receipt of the notice of termination for breach, and the AGENCY'S invoice. ARTICLE 8. SCHEDULING No provision of this Agreement shall be construed to require AGENCY to continue to operate any transit service to or from the facility of DISTRIBUTOR or elsewhere during the term of this Agreement and it is expressly agreed that the AGENCY shall incur no liability to DISTRIBUTOR due to any rerouting, rescheduling, discontinuance, or other changes in transit services operated by the AGENCY. AGENCY shall make reasonable efforts to give notice as soon as reasonably practical to DISTRIBUTOR of any permanent rerouting, rescheduling, or discontinuance. Page 5 of 9 ARTICLE 9. NOTIFICATION All notices hereunder and communications with respect to this Agreement shall be effective upon the mailing thereof by first class mail, postage prepaid, addressed as follows, followed by facsimile transmission or electronic mail with delivery receipt requested. Notice shall be deemed communicated two (2) business days from the time of mailing if mailed as provided in this paragraph. To DISTRIBUTOR: City of Redlands 35 Cajon Street Redlands, CA 92373 ATTENTION: Dave Jaffe Recreation Supervisor (909) 798-7579 To AGENCY: Omnitrans 1700 W. 5th Street San Bernardino, CA 92411 ATTENTION: Melissa Castillo Omnitrans Customer Service Supervisor (909) 379-7157 ARTICLE 10. INSURANCE AGENCY and DISTRIBUTOR are authorized self -insured public entities for purposes of professional liability, general liability, automobile liability, and workers' compensation and warrant that through their respective programs of self-insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this agreement. ARTICLE 11. GOVERNING LAW; VENUE; SEVERABILITY This Agreement shall be governed by the laws of the State of California and the United States of America. Venue shall be in San Bernardino County. If any provision of this Agreement is held by a trier of fact having competent jurisdiction as to the Parties to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. ARTICLE 12. COMPLETE AGREEMENT; WAIVER; SURVIVAL Page 6 of 9 This Agreement and documents incorporated herein constitute the complete and exclusive statement of the terms of the Agreement between AGENCY and DISTRIBUTOR regarding the subject matter hereof, and it supersedes all prior representations, understandings, and communications. AGENCY's failure to insist in any one or more instances upon the performance of any term or terms of this Agreement shall not be construed as a waiver or relinquishment of AGENCY's right to such performance or to future performance of such a term or terms, and DISTRIBUTOR's obligation in respect thereto shall continue in full force and effect. Changes hereto shall not be binding upon AGENCY except when made in writing by authorized representatives of the Parties. The issuance of information, advice, approvals, or instructions by AGENCY's technical personnel or other representatives shall be deemed expressions of personal opinions only and shall not affect AGENCY's and DISTRIBUTOR's rights and obligations hereunder. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement including, but not limited to the indemnification obligations, shall survive any such expiration or termination. ARTICLE 13. COUNTERPARTS; FACSIMILE SIGNATURES This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Facsimile signatures, including signatures transmitted via electronic mail, shall be considered and shall have the same force and effect as original signatures. ARTICLE 14. INCORPORATION OF RECITALS The recitals contained above are true and correct and are hereby incorporated herein by this reference. ARTICLE 15. ATTORNEY'S FEES If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing Party will have the right to recover its reasonable attorneys' fees and costs of suit from the other Party. Page 7 of 9 ARTICLE 16. AUTHORITY The persons signing this Agreement hereby warrant that he or she has the authority to bind the Party for which he or she is signing. Page 8 of 9 SIGNATURE PAGE TO PASS DISTRIBUTOR SALES AGREEMENT IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the day and year first above written. CITY OF REDLANDS OMNITRANS By ddie Tejeda Mayor, City of Redland Date: ATTEST: 'nne Donaldson, City Clerk 3/7/2 3 By Erin Rogers Omnitrans CEO/GENERAL MANAGER Date: 3/2/2023 APPROVED AS TO FORM: Best Best & Krieger LLP By Page 9 of 9 OmniTrans Omnitrans Procedures for Transit Pass Distributors Organizations such as Government Agencies, Employers, Non -Profit Organizations or Schools who distribute passes to clients, members, students, or employees but do not sell passes directly to the public ("Distributors") must apply and be approved by Omnitrans to participate in the Omnitrans Pass Distributor program. Transit passes may be in the form of magnetic stripe paper passes ("Paper Passes") or mobile digital fares ("Digital Passes"). Paper Passes and Digital Passes are sometimes referred to herein as "Transit Passes". Transit Passes can be paid for in advance at the time of purchase, for Paper Passes, or at the time of distribution, for Digital Passes. Alternatively, approved Distributors may utilize the deferred billing option. Under this option, payment for Paper Passes will be due within 30 days of an invoice for orders over $500; Digital Passes will be billed monthly, or as soon as the credit limit is reached, and due within 30 days of invoice ("Deferred Billing Option"). Application Procedure All applicants are required to submit an Omnitrans Pass Distributor application packet which includes the following documents: • Omnitrans Pass Distributor Agreement (the "Agreement") • Business Reference and Credit Application • Banking Information Bank Notification • Order Form (Paper Passes Only) The application packet will be evaluated using the following criteria: Paper Passes: To utilize the Deferred Billing Option, Distributors must purchase a minimum of $500 of Paper Passes with each written order submitted as described below. Orders less than $500 can be made online at www.omnitrans.org or in person at Omnitrans headquarters located at 1700 W. 5th Street in San Bernardino. However, payment for Paper Passes purchased online and at Omnitrans headquarters is due at the time of purchase. Digital Passes: No minimum order is set for Digital Passes purchased and distributed via the Web Portal (defined below). Distributors, at their option, can choose to submit payment for Digital Passes at time of distribution via use of a valid credit card. Credit Worthiness: A bank and/or business reference check will be performed by Omnitrans and if approved, Omnitrans will set a credit limit for each Distributor. Upon approval of a Distributor's application, Omnitrans will fulfill qualifying Paper Pass orders under the Deferred Billing Option and prepare an invoice to accompany the delivery of the Paper Pass order. Distributors electing to utilize Digital Pass distribution will be limited to a fixed aggregate Digital Pass dollar value not to exceed credit limit set for Distributor. The Web Portal shall limit Distributor to this dollar value. Invoices will be sent to Distributors on the first business day of the following month for billable Digital Passes, or as soon as the credit limit is reached. Billable Digital Passes are defined as the total number of Digital Passes distributed by a Distributor to respective cliental/employees. The charge for a Digital Pass is incurred by Distributor at the 1 Omnitrans Pass Distributor Procedures time the Digital Pass is distributed, as further described below. The credit limit does not apply to Paper Passes for which payment is made at the time of purchase, or to Digital Passes for which payment is made at the time of distribution, through use of a valid credit card. Deferred Billing Option Payment Terms Invoices will reflect the total of the Transit Passes ordered/distributed. Payment for Transit Passes under the Deferred Billing Option is due 30 days from the date of invoice. Omnitrans may initiate collection activities in accordance with the terms of the Agreement if payments are not received in a timely manner. Refunds/Returns/Exchanges o Refunds/Returns (Paper Passes Only) Omnitrans maintains an all -sales final policy. Omnitrans will not replace or provide credit for any lost, stolen, or activated Paper Passes. Paper Pass refunds are only granted when a Distributor's Agreement terminates and only as applies to unused Paper Passes for which Omnitrans received payment in full more than 30 days before request. Refunds are issued minus 5% the retail value. o Exchange (Paper Passes Only) An exchange of one type of Paper Pass for a different Paper Pass category will be considered when the Paper Passes were purchased from Omnitrans more than 90 days previous and remain unsold. Distributor should have a proven ability to distribute the requested Paper Pass types. No refunds or exchanges are available for Digital Passes once such passes have been distributed. Paper Pass Ordering Procedure Paper Pass orders for $500 or more will be processed following an account review. Omnitrans shall not fill any order if the account is past due or if the order exceeds the credit limit. Omnitrans Paper Pass Order form (Attachment A) must be used for all Paper Pass orders. This form can be emailed, mailed, or phoned in. For all accounts in good standing, Paper Pass orders will be processed and can either be picked up or mailed within 2-4 business days from receipt of the order. By email: By U.S. Mail: passsales@omnitrans.org Omnitrans Pass Sales 1700 W. 5th Street San Bernardino CA 92411 By Phone order: 909-379-7150 If Paper Passes are sold to the public, they are to be sold at the full price of the pass. Digital Pass Distribution Account Distributors electing to utilize the Digital Pass program will be provided access to a secure web portal where Distributor will be able to establish a secure distribution account ("Web Portal"). The Web Portal is operated by Omnitrans' Digital Pass vendor. Distributors will be able to use Distributors June 2022 Page 2 of 4 Omnitrans Pass Distributor Procedures the Web Portal to send Digital Passes directly to their recipients' smartphones. Distributors' recipients can use the Omnitrans Digital Pass vendor's mobile fare app ("Mobile App") to store and use their Digital Passes. The charge for a Digital Pass is incurred by Distributor at the time of distribution. Digital Passes are validated at time of use on Omnitrans' vehicles. Distributors will designate administrators who will have access to the Web Portal, through use of secure passwords, where they can select the type and quantity of Digital Passes to distribute using phone numbers of recipients. Recipients will receive a text message notifying them they have received a Digital Pass and prompting them to download the Mobile App to start using their Digital Pass. Recipients with existing Mobile App accounts will find their Digital Pass located within their Digital Pass wallet. Digital Passes must be activated (a simple tap on the phone screen) and shown onboard to ride. Distributor retains full responsibility and liability for monitoring and limiting access to the Web Portal by or on behalf of Distributor; for ensuring that only authorized users, as determined by Distributor, have access to the Web Portal; and for all Digital Passes distributed through the Web Portal. Any Digital Pass distributed via the Web Portal will be deemed a billable Digital Pass. Distributors will be able to designate multiple administrators, each having their own secure password; however, cumulative distribution of Digital Passes will be limited to Distributors' established credit limits. Distributors, at their option, may use a valid credit card to submit payment for Digital Passes at the time of distribution. The credit limit will not apply to Digital Passes if the credit card payment option is used. Pass Types (Applies to Paper Passes & Digital Passes) Transit Passes offered by Omnitrans are designed to provide value to the riders. As a distributor of these passes, it is Distributor's responsibility to make sure the Transit Pass provided to a transit rider is a pass that may be used by the rider. Full Fare Transit Passes do not require any proof of eligibility for use. Reduced fare Transit Passes and OmniAccess Fares have eligibility requirements that must be met. If a Transit Pass is issued to a rider who does not have acceptable form of ID or is eligible for services, that rider will not be able to use the Transit Pass when boarding the bus. For information on current fares and pass types, please visit Omnitrans.org or contact the pass sales department. REDUCED FARE TRANSIT PASSES Senior Pass/Disability/Medicare Senior Criteria: Patrons 62 years or older must provide documentation verifying their age including the following: • DMV ID card/Driver's License • Red, white, and blue Medicare card • Omnitrans Senior identification card • Current Senior photo ID card from another transit agency Disability/Medicare Pass Criteria: Persons with disabilities must provide verification of their disability. Acceptable verification includes: • Red, white, and blue Medicare card • Omnitrans Disability identification card • Service -connected Veteran identification card • Americans with Disabilities Act identification card • Current Disability photo ID card from another transit agency Youth Pass: Persons qualifying for a youth pass must provide verification of their age or student status. Acceptable verification includes: • Proof of age (18 or under) or student status Distributors June 2022 Page 3 of 4 Omnitrans Pass Distributor Procedures • Current Student ID card • Current school registration Veteran Pass: Persons qualifying for a veteran pass must provide verification of their veteran's status. Acceptable verification includes: • County of San Bernardino Military Veterans ID Card • US Dept. of Veterans Affairs ID Card • DMV ID/Driver License with Veteran Designation • Dept. of Defense retired ID Card • Other Transit Agency Veterans ID Card OmniAccess Fares: OmniAccess services are available to qualified individuals who have completed and met all requirements outlined in Omnitrans eligibility process. For current information on OmniAccess services or other Mobility options and application procedures please visit www.Omnitrans.org. Contact Information For questions about your application status or to cancel your agreement: Omnitrans Melissa Castillo, Customer Service Supervisor 1700 W. 5th Street San Bernardino, CA 92411 Phone: 909-379-7157 Website: www.omnitrans.org Distributors June 2022 Page 4 of 4