08-001 - RTOWN OF PROSPER, TEXAS
RESOLUTION NO. 08 -001
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER
OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE A
NONEXCLUSVE DISTRIBUTION AGREEMENT BETWEEN THE
TOWN OF PROSPER AND THE NORTH TEXAS TOLLWAY
AUTHORITY.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS:
SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to
execute, on behalf of the Town Council of the Town of Prosper, Texas, a Nonexclusive
Distribution Agreement Between the Town of Prosper and the North Texas Tollway Authority.
SECTION 2: Resolved by affirmative vote of the Town Council on the 8`" day of
January, 2008.
ha es Niswanger, Mayor
ATTEST
° %q��
tthew Denton, TRMC
Town Secretary --
�
�9
•' & mqq NOdY ®4q� e�
"e !-O f- 'EX AS % *�
NONEXCLUSIVE DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
Page
-i-
1.
GRANT . ...............................................................................
l
2.
TERM ................................................................................................. ...............................
3.
DUTIES OF CITY OF PROSPER ................................................... ..............................1
3.1 Development of the Business ................................................. ..............................1
3.2 Compliance with Issuing Procedures ................................... ..............................1
3.3 Advertising ............................................................................. ..............................2
3.4 Reports ................................................................................... ...............................
2
3.5 Service ..................................................................................... ..............................2
3.6 Licensing ............................................................................. ...............................
"' 2
3.7 Payment for Lost Tags .......................................................... ...............................
2
4.
DUTIES OF THE AUTHORITY ..................................................... ..............................2
4.1 Advice and Promotional and Technical Materials .............. ..............................3
4.2 Materials and Tags ................................................................. ..............................3
4.3 Payment to City of Prosper ................................................... ...............................
3
5.
TRADEMARKS . .............................................................................................................
.3
6.
PAYMENTS ....................................................................................... ..............................3
7.
RELATIONSHIP OF THE PARTIES.
4
8.
CONFIDENTIAL INFORMATION ................................................ ..............................4
9.
INSPECTIONS .................................................................................. ...............................
4
10.
OWNERSHIP AND TRANSFER REQUIREMENTS ................... ..............................4
10.1 Transfer by the Authority ..................................................... ..............................4
10.2 Transfer by City of Prosper ................................................... ..............................5
10.3 Effect of Consent to Transfer ................................................ ..............................5
11.
TERMINATION ................................................................................ ..............................5
11.1 Default .................................................................................... ...............................
5
11.2 Non - Default ............................................................................. ..............................5
12.
RIGHTS AND OBLIGATIONS UPON TERMINATION
OF THE
LICENSE........................................................................................... ...............................
5
12.1 Payment of Amounts Owed ................................................... ..............................5
12.2 Compliance ............................................................................ ...............................
5
-i-
12.3
Continuing Obligations .........................................................
............................... 5
12.4
Return of Tags .......................................................................
............................... 6
13. MISCELLANEOUS ...........................................................................
..............................6
13.1
Severability .............................................................................
..............................6
13.2
No Waiver ..............................................................................
............................... 6
13.3
Cumulative Remedies ............................................................
..............................6
13.4
Applicable Law .......................................................................
..............................6
13.5 Entire Agreement .................................................................. ............................... 6
13.6 No Other Beneficiaries ........................................................... ..............................6
13.7 Construction ........................................................................... ..............................6
13.9 Counterparts ........................................................................... ..............................7
13.9 Notices ..................................................................................... ..............................7
13.10 Sovereign Immunity ........................................ ..............................7
-11-
NONEXCLUSIVE DISTRIBUTION AGREEMENT
THIS NONEXCLUSIVE DISTRIBUTION AGREEMENT (this "Agreement") made
and entered into this — day of 2007, between NORTH TEXAS TOLLWAY
AUTHORITY, a regional tollway authority and political subdivision of the State of Texas (the
"Authority") and CITY OF PROSER, ("City of Prosper").
RECITALS:
The Authority operates an electronic toll collection system (the "System") on its turnpike
projects pursuant to a license agreement with Transcore Corporation ("Transcore"). In
accordance with that license and other agreements, the Authority issues Tolltagg transponders
(collectively, "Tags" or individually, a "Tag") to the traveling public for use in connection with
the System. The parties have agreed that City of Prosper shall have the nonexclusive right to
issue Tags upon the terms set forth herein.
Now, therefore, in consideration of the mutual promises made herein, the receipt and
sufficiency of which are hereby acknowledged, the Authority and City of Prosper agree as follows:
1. GRANT.
Subject to the terms of this Agreement, the Authority grants to City of Prosper the
nonexclusive right to offer and issue Tags to its customers at the locations listed on Exhibit A
attached hereto and incorporated herein. The Authority reserves the unrestricted right to grant other
entities the right to offer and issue Tags on terms and conditions the Authority deems appropriate in
any location, area or market.
2. TERM.
The initial term of this Agreement shall be ten (10) years, commencing on the date first
written above and terminating at Midnight on ' 20 —. This
Agreement will automatically renew for two (2) additional three (3) year term(s), upon the same
terms and conditions unless either party notifies the other, in writing, its intention not to renew
this Agreement at least ninety (90) days prior to the expiration of the existing term.
3. DUTIES OF CITY OF PROSER.
3.1 Development of the Business. City of Prosper shall utilize reasonable efforts to
promote, advertise, market and issue Tags.
3.2 Compliance with Issuini! Procedures. In connection with the issuance of each
Tag, City of Prosper shall comply with the provisions set forth in this Agreement, including those
contained in the form of "Procedures for Issuing Tags" attached hereto as Exhibit B (the
"Procedures"). Without limiting the provisions of the Procedures, City of Prosper shall furnish
Tag applications to customers requesting same. City of Prosper shall accept and review
completed Tag applications and verify that (a) all required information has been provided in a
complete and legible manner by the applicant, (b) the applicant holds a current driver's license
and (c) the applicant has a valid credit card of a type accepted by the Authority and that the card
is in the name of the applicant. City of Prosper shall assign a Tag number to the applicant from
City of Prosper available inventory, said Tag numbers to be assigned in numerical sequence
beginning with the lowest available number. City of Prosper then shall transmit by facsimile the
completed application to the Authority's Tag Store at the location designated in Section 13.9
below. City of Prosper shall issue and deliver a Tag only after (x) the Tag Store transmits back
to City of Prosper the applicable account information and (y) City of Prosper verifies the
applicant's driver's license against the completed application. City of Prosper then shall provide
the Tag owner's kit to the applicant and shall instruct the applicant to read and follow the
instructions contained therein. To the extent of any conflict between this Section 3.2 and the
Procedures, the Procedures shall control. The Authority reserves the right to amend, supplement
or supersede the Procedures at any time and, thereafter, City of Prosper shall, within a reasonable
time after receiving written notice of the same, comply with said amended, supplemented or
superseding Procedures.
If the City of Prosper so chooses, a computer process available to the public in the designated
location shall supplant the above facsimile process and the Authority will train City of Prosper
personnel in conducting such a process.
3.3 Adve_ rtisin . Any advertising or marketing of Tags by City of Prosper shall be in
strict compliance with the Procedures, and all costs and expenses attributable thereto shall be the
responsibility of City of Prosper.
3.4 Reports. City of Prosper shall maintain books and records of the issuance of
Tags. City of Prosper shall provide the Authority with weekly reports, in substantially the same
form as set forth in Exhibit "C ", attached hereto and incorporated herein for all purposes,
reflecting such sales and other related information as the Authority may require, including
weekly spread sheets from each store location indicating all Tags furnished by the Authority, all
Tags issued, all Tags in inventory, and any lost or unaccounted for Tags. Such reports shall be
submitted to the Authority at the address set forth in Section 13.10 no later than the 10th day of
the month for the preceding month's operations.
3.5 Service. City of Prosper shall maintain high standards of service to all customers
who purchase Tags and refrain from offering or issuing any Tags under circumstances that would
reflect negatively on the Authority, the Tags or the System.
3.6 Licensing. City of Prosper shall comply with all applicable federal, state and
local laws, rules and regulations and timely obtain all licenses, certificates or permits, if any,
required for the offer and sale of Tags.
3.7 Payment for Lost Tags. City of Prosper shall pay the Authority $25.00 for each
lost or unaccounted for Tag as provided in Section 4.2 below.
4. DUTIES OF THE AUTHORITY.
-2-
4.1 Advice and Promotional and Technical Materials. The Authority may, from
time to time, provide City of Prosper advice with respect to the promotion of Tags, as well as
educational training updates at no cost to City of Prosper, which City of Prosper may use and/or
follow in its sole discretion. The Authority may also make available reasonable quantities of
brochures, and instructional and point of purchase materials as the Authority, in its sole
judgment, deems appropriate.
4.2 Materials and Tags. The Authority shall, at its expense, make available to City
of Prosper the Tag applications and the Tag owner's kits. The Authority shall provide Tags to
City of Prosper in boxes of — Tags. Upon receipt of Tags by City of Prosper, City of Prosper
assumes responsibility for them unless and until said Tags are properly issued to customers or
returned to the Authority in accordance with this Agreement. City of Prosper shall pay the
Authority $25.00 for each Tag that is lost or unaccounted for after receipt thereof by City of
Prosper, and before issuance to any customer, said payment to be made by the 10th day of the
month next following the month in which City of Prosper knew that the Tag was lost or
unaccounted for. City of Prosper shall promptly notify and pay the Authority with respect to all
lost or unaccounted for Tags. To facilitate timely delivery of Tags, each store location shall
contact the Tag Store and order additional Tags when said store has 20 or fewer Tags. Within
five (5) business days following the termination of this Agreement, City of Prosper shall return
all un-issued Tags to the Authority, and all unretumed and un-issued Tags shall be conclusively
deemed lost or unaccounted for, thereby unconditionally obligating City of Prosper for the
$25.00 per Tag payment described above.
4.3 Payment to City of Prosper. The Authority shall pay to City of Prosper $5.00 for
each Tag account opened by City of Prosper in compliance with this Agreement and the
Procedures. The payment shall be made on the 10`h day of each month for the accounts opened
in the preceding month by a single check to City of Prosper, provided that City of Prosper
provides supporting information indicating the number of accounts opened by each store, as
identified by store number. Within five (5) business days following the termination of this
Agreement, the Authority shall be unconditionally obligated to pay City of Prosper all outstanding
amounts for accounts opened as provided herein.
5. TRADEMARKS,
City of Prosper acknowledges and agrees that Transcore and/or one of its affiliates is the
owner of the trademark "Tolltagg" (the "Trademark"). City of Prosper shall display and
otherwise utilize the trademark in compliance with the Procedures. Without limiting the
foregoing, City of Prosper shall display in good taste and a dignified manner the Trademark for the
sole purpose of informing customers that City of Prosper issues Tags; provided, however, that City
of Prosper shall discontinue the display or use of the Trademark or change the manner in which the
Trademark is displayed or used when requested, in writing, to do so by the Authority. City of
Prosper shall not disparage the Trademark.
6. PAYMENTS.
52
City of Prosper shall make a reasonable effort to provide the Authority with a monthly
request for payment and supporting information for all amounts owing pursuant to Section 4.3
not later than the 15 1h day of each month. City of Prosper's failure to provide the information as
provided in this Section shall not excuse the Authority's obligation to tender the payment
described in Section 4.3. The Authority shall be obligated to diligently process any and all
requests for payment made by City of Prosper, in accordance with this Section, which are not
received by the 15th day of each month. Under no circumstances shall the Authority remit
payment to City of Prosper for requested amounts after the 10th day of the next succeeding
month.
7. RELATIONSHIP OF THE PARTIES.
The parties acknowledge and agree that this Agreement does not create a fiduciary
relationship between City of Prosper and the Authority, that the relationship between City of
Prosper and the Authority is that of an independent contractor, and that nothing in this Agreement is
intended to make either party a general or special agent, joint venture partner, franchiser, franchisee
or employee of the other for any purpose whatsoever. City of Prosper agrees to conspicuously
identify itself in all dealings with customers, business personnel and others as an independent
contractor distributing Tags pursuant to a nonexclusive agreement with the Authority.
8. CONFIDENTIAL INFORMATION.
The Authority possesses, either by license or otherwise, certain unique confidential and
proprietary information and trade secrets consisting of information, records, data, processes,
methods, techniques, products and knowledge owned, developed, compiled or acquired by the
Authority. City of Prosper acknowledges that the Authority is the exclusive owner of such
information. City of Prosper shall use such information only in connection with the offer and
issuance of Tags under this Agreement and shall maintain the absolute confidentiality of such
information during and after the term of this Agreement. Without limiting the foregoing, City of
Prosper shall protect the confidentiality of all Tag records, account information, credit card
information and other data and shall not disclose such records, information or data to any party
other than authorized personnel of the Authority, unless disclosure of the information is required by
law, statute or court order.
9. INSPECTIONS.
To determine whether City of Prosper is complying with this Agreement, the Authority shall
have the right, at any reasonable time after providing three (3) business days advance written notice
to City of Prosper, to inspect and copy any books, records and documents of City of Prosper relating
to the issuance of Tags.
10. OWNERSHIP AND TRANSFER REQUIREMENTS.
10.1 Transfer by the Authority. This Agreement is fully transferable by the
Authority and shall inure to the benefit of any person or entity to whom it is transferred, or to any
other legal successor to the Authority's interest in this Agreement.
so
10.2 Transfer by City of Prosper. City of Prosper understands and acknowledges
that the rights and duties created by this Agreement are personal to City of Prosper and that the
Authority has entered into this Agreement in reliance on City of Prosper character, skill, aptitude,
attitude, business ability and financial capacity. Accordingly, this Agreement may not be
transferred without the Authority's prior written approval. Any transfer that is made without the
Authority's prior written approval shall constitute a breach of this Agreement and shall convey
no interest.
10.3 Effect of Consent to Transfer. Any transfer of this Agreement as provided in
this Section shall not constitute a waiver of any claims either party may have against the other,
nor shall it be deemed a waiver of either party's right to demand exact compliance with any of
the terms or conditions of this Agreement by any transferee.
11. TERMINATION.
11.1 Default. This Agreement shall terminate if a party fails to correct its
noncompliance with any provision of this Agreement within five (5) business days after receipt
of written notice of said noncompliance from the other party.
11.2 Non-Default This Agreement shall terminate upon thirty (30) days prior written
notice by either party to the other party of its intent to terminate this Agreement for any reason.
12. RIGHTS AND OBLIGATIONS UPON TERMINATION OF THE LICENSE.
12.1 Payment of Amounts Owed. The Authority and City of Prosper each agree to
pay within ten (10) business days after the effective date of termination of this Agreement all
amounts owed to the other party that are then unpaid.
12.2 Compliance. City of Prosper agrees that immediately upon the termination of
this Agreement, City of Prosper shall:
(a) Cease to directly or indirectly at any time identify City of Prosper or any
business with which City of Prosper is associated as being authorized to issue Tags;
(b) not use the Trademark or any colorable imitation of the Trademark in any
manner or for any purpose, or use for any purpose any other commercial symbol that
suggests or indicates an association or continuing contractual relationship with the
Authority, except as required by law, statute or court order; and
(c) not interfere with the new or ongoing issuance of Tags elsewhere.
12.3 Continuing Obligations. All obligations of this Agreement which expressly or
by their nature survive the expiration, termination or transfer of this Agreement shall continue in
full force and effect after and notwithstanding its expiration, termination or transfer until such
are satisfied in full or by their nature expire.
-5-
12.4 Return of Tags. Upon termination of this Agreement for any reason, City of
Prosper shall, within a reasonable time, return to the Authority, at the location designated in
Section 13.9 below, all materials provided by the Authority relating to Tags.
13. MISCELLANEOUS.
13.1 Severability. Each provision of this Agreement is deemed to be severable and
independent of any other provisions. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
13.2 No Waiver. . If, at any time, either party does not exercise a right or power
available to that party under this Agreement, or as allowed by law, or does not insist on the other
party's strict compliance with the terms of this Agreement, or if there develops a custom or
practice which is at variance with the terms of this Agreement, neither party shall be deemed to
have waived any right to demand exact compliance with any of the terms of this Agreement at a
later time upon written notice to the other. Similarly, either party's waiver of any particular
breach or series of breaches under this Agreement, shall not affect either party's right to
enforcement with respect to any later breach. It shall also not be deemed to be a waiver of any
breach of this Agreement for either party to accept payments which are due to it under this
Agreement.
13.3 Cumulative Remedies. The rights and remedies specifically granted by this
Agreement to either party shall not be deemed to prohibit either party from exercising any other
right or remedy provided under this Agreement or permitted by law or equity.
13.4 Applicable Law. THIS AGREEMENT SHALL BE INTERPRETED AND
CONSTRUED UNDER TEXAS LAW AND EXCLUSIVE VENUE SHALL LIE IN
COLLIN COUNTY, TEXAS.
13.5 Entire Agreement. This Agreement, including introduction, the
Procedures and all other exhibits to it, constitutes the entire agreement between City of Prosper
and the Authority, and there are no other oral or written understandings or agreements between
City of Prosper and the Authority concerning the subject matter of this Agreement. Except as
expressly provided otherwise in this Agreement, this Agreement may be modified only by
written agreement signed by both City of Prosper and the Authority.
13.6 No Other Beneficiaries. The Authority shall not, because of this
Agreement, be liable to any person or legal entity who is not a party to this Agreement, and no
other party shall have any rights because of this Agreement.
13.7 Construction. All headings of the various Articles and Sections of this
Agreement are for convenience only and do not affect the meaning or construction of any
provision. All references in this Agreement to masculine, neuter or singular usage shall be
construed to include the masculine, feminine, neuter or plural usages wherever applicable. The
rel
language of this Agreement will in all cases be construed in accordance with its fair meaning and
not strictly for or against the Authority or City of Prosper.
13.8 Counterparts. This Agreement may be executed in counterparts, each of
which will be an original and all of which will constitute but one and the same instrument.
13.9 Notices. Any and all notices required or permitted under this Agreement
shall be in writing and shall be personally delivered or mailed by expedited delivery service or
certified or registered mail, return receipt requested, first-class postage prepaid, or sent by
prepaid facsimile (provided that the sender confirms the facsimile by sending an original
confirmation copy thereof by certified or registered mail or expedited delivery service within
three days after transmission thereof) to the respective parties at the following addresses unless
and until a different address has been designated by written notice to the other parties:
Notices to the Authority:
Notices to City of Prosper:
North Texas Tollway Authority
P.O. Box 260729
Plano, Texas 75026
Attn: Executive Director
City of Prosper
Any notice shall be deemed to have been given at the time of personal delivery or, in the
case of expedited delivery service, upon receipt or, in the case of registered or certified mail, three
days after the date and time of mailing and any notice given hereunder by facsimile shall be deemed
to have been given upon receipt thereof
13.10 Sovereign Innmunity. The parties agree that City of Prosper has not waived its
sovereign immunity by entering into and performing the obligations set forth in this Agreement.
The parties now execute and deliver this Agreement as of the date first written above.
THE CITY OF PROSPER
By:
Name:
Title:
NORTH TEXAS TOLLWAY AUTHORITY
By: —
Nam(
Title:
M
EXHIBIT A
LOCATIONS ISSUING TAGS
City of Prosper, TX
EXHIBIT B
PROCEDURES FOR ISSUING TAGS
NTTA will provide a web link specifically for your location (this should be saved under your
"favorites "). URL: hops: / /csc.ntta.org/ThirdParty/
An NTTA representative will come out to your location to train employees on the process of
issuing TollTags.
14. PROCEDURES FOR ISSUING TAGS
• Customer must fill out the application and gives it to the employee.
• Employee will go onto the internet site and sign in (each employee will be given a
user name and password from the NTTA IT Department).
• Employee must verify the Driver License and Credit Card information.
• Employee will enter the information below.
o Name
o Address
o Phone Number
o Email Address (if provided)
• Employee must ask the customer "how patron heard about To11Tag program ".
• Employee will choose the appropriate option and click save.
• Next screen employee will enter the Credit Card information and billing address.
• Click Save.
• Next screen enter the vehicle information below for each vehicle listed.
o License Plate Number
o Year
o Color
• Make and Model
• DNT Number (Located on the TollTag)
67318:53839: DALLAS:758082.2
-9-
• Make sure appropriate TollTag is entered for each vehicle.
• Clicks save.
• Click view transaction.
• Next screen will show all of the information.
• Click Check Out.
• Print the next screen and give it to the customer along with the To11Tag (inside the
metallic bag) and Starter Kit.
-10-
EXHIBIT C
June 30, 2005
Effective June 30, 2005 the following procedure needs to be followed when issuing a TollTag:
• In the case that an application is filled out by a customer, the completed application needs
to be locked in a secure location. Once per month an NTTA representative will be
coming out to each branch to pick up the completed applications. This is a security
procedure that will protect the customer as well as your branch.
If you have any questions, please call Joni Williams at 214 -461 -2088 or Neesh Sharma at 214-
461 -2053.
Thank you,
North Texas Tollway Authority
-11-