ITEM NO: 4e
MEETING DATE: Dec. 08, 2015
2.0 TERM OF AGREEMENT AND CONTACT PERSONS
2.1 This Agreement shall take effect upon the effective date specified in Attachment 1.
Unless terminated in accordance with Section 13, this Agreement shall expire on the last
day of the Program Term specified in Attachment 1, or an Amended Attachment 1 that
has been signed by a person authorized to bind the Business Account.
2.2 The Business Account shall designate a Primary Contact Person in Attachment 2,
Designated Representatives, which is incorporated in this Agreement by this reference.
This PrimaryContact Person shall be responsible for managing the Business Account's
roles and responsibilities under this Agreement. A Secondary Contact Person shall also
be designated in Attachment 2. The Lead Agency may communicate with and rely upon
either the Primary or Secondary Contact Person on matters relating to this Agreement.
3.0 DEFINITIONS
3.1 Business Account. The employer, educational or human services institution,
government agency or other entity that has entered into this Agreement enabling it to
purchase OFlCA Business Cards and OFiCA Products for distribution to their employees,
students, clients or other constituency.
3.2 Business Account Website. The website used by the Business Account to manage its
account, currently at orcacardbiz. '
3.3 Business Choice Products. The ORCA Products that may be purchased at retail prices
to supplement the ORCA Business Passport Product for one or more Business
Cardholders (e.g. a WSF monthly pass)
3.4 Business Cardholder(s) or Cardholder(s). The individual(s) who are eligible to receive
an OFlCA Business Card from the Business Account. The eligibility requirements for
Business Cardholders are more fully defined in Attachment 3, Eligible Business
Cardholders, which is incorporated in this Agreement by this reference.
3.5 Business Passport Product. The OFtCA Product loaded on the Business Account's
OFlCA Business Cards under this Agreement that provides the Business Cardholders an
unlimited right-to-ride the regularly scheduled Transportation Services of, or operated
by, certain Agencies to the extent specified in Attachment 1.
3.6 Card Block. An-ORCA system process that culminates in invalidating an ORCA
Business Card.
3.7 Lead Agency. The Agency that entered into this Agreement on behalf of itself and the
other Agencies and that is responsible for administration of this Agreement on behalf of
the Agencies, including invoicing, contract modifications and renewals, and ORCA
system support.
3.8 OBCA. The trademarked name of the system that enables use of a common fare card
(One Ftegional Card for All) on the public transportation services provided by any of the
Agencies.
3.9 OBCA Business Card (or "Business Card'?. An ORCA fare card issued to a Business
Account to enable the loading of ORCA Products for use by a Cardholder to whom it
was distributed by the Business Account to access Transportation Services as specified
in Attachment 1.
OBCA Passport Agreement Page 2 of 25
Port of Seattle. BA ID: 2384
February 1, 2015 ~ January 31, 2016
3.10 ORCA Products. Any transit fare payment mechanism or electronic voucher offered for
sale within the OFlCA system by any of the Agencies. Examples include, but are not
limited to, monthly or period pass, 'E-purse, and electronic Voucher.
3.11 ORCA Services. The materials and services that may be provided, from time to time,
under the ORCA program, including but not limited to the ORCA Business Cards, ORCA
Products, ORCA Websites, data, information, and any equipment, systems and services
related to the ORCA program.
3.12 Parties. The Business Account and the Agencies (which include the Lead Agency) may
be collectively referred to as "Parties."
3.13 Primary Contact Person. The individuals identified as the primary contact points for the
Lead Agency and the" Business Account, as listed in Attachment 2 or as modified from
time to time.
3.14 Product Block. An ORCA system process that culminates in invalidating an ORCA
Product without invalidating the card on which it is loaded.
3.15 Transportation Services are those public transportation services provided by the
Agencies that are specified in Attachment 1.
4.0 PRICES AND PAYMENT TERMS
4.1 The prices and payment terms applicable to this Agreement are specified in Attachment
1, Products, Pricing and Terms. Such terms shall include: (a) the amounts due for the
Business Cards, Business Passport Product, and any other products, services and fees;
(b) the timing of payments, and (c) the acceptable method of payment. Each order
submitted by the Business Account for ORCA Business Cards and/or any OFlCA
Products will be subject to the provisions of this Agreement.
4.2 The Business Account's purchase of any Business Choice Products via the Business
Account Website will be at the prices and terms in effect at the time of order. The
Business Account is responsible for reviewing the prices in effect before submitting each
order and shall be deemed to have agreed to the thenapplicable prices by submitting
,
the order.
4.3 Payment in full is due as specified in Attachment 1.
4.4 If for any reason payment in full is not received by the date due, if a payment is not
honored due to non-sufficient funds (NSF) or if for any reason a payment is negated or
reversed, the Lead Agency will notify the Business Account of the payment problem and,
if full and clear payment is not received within ten (10) calendar days of such notification,
the Lead Agency may:
4.4.1 Refuse to process new orders for ORCA Business Cards and block the loading
of new OFlCA Products by or for the Business Account;
4.4.2 Assess any late payment, NSF and collection fees to the maximum amount
permitted by law; *
OFICA Passport Agreement Page 3 of 25
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February 1, 2015 January 31, 2016
4.4.3 Initiate a Card Block or Product Biock on the Business Cards issued to the
Business Account, rendering them ineffective for use by the Cardholders, until
such time as the Business Account pays the full amount due, including any late
payment, NSF and fees, in a manner acceptable to the Lead Agency; and
4.4.4 Suspend or terminate access rights to the Business Account's secured area of
the website.
4.5 in addition to any other obligations it may have under this Agreement and at law, the
Business Account agrees to pay to the Lead Agency any reasonable collection fees
incurred in collecting amounts due from the Business Account.
5.0 PURCHASE, OWNERSHIP, DISTRIBUTION AND REPLACEMENT OF ORCA
BUSINESS CARDS
5.1 Ordering ORCA Business Cards. The Business Account shail order OFiCA Business
Cards via the OFiCA Business Accounts Website, in accordance with the directions
provided on that website, and shall make payment as provided in Attachment 1,
Products, Pricing and Terms. If additional cards are required, the Business Account shall
be required to pay both the standard card fee and the monthly rate for loading the
Passport Product on such additional cards for the remaining months of this Agreement,
as specified in Attachment 1.
5.2 Receipt and Ownership of ORCA Business Cards. Upon actual or constructive receipt
of the ORCA Business Cards it has ordered, the Business Account shail become the
owner of the ORCA Business Cards. The Business Account shall be deemed to have
constructively received all ordered ORCA Business Cards unless it notifies the Lead
Agency of any nondelivery or incorrect delivery within thirty (30) days after the order
was placed. If the Business Account notifies the Lead Agency that it has not received
the ordered cards, the Lead Agency will ship a repiacement order. If the Business
Account subsequently receives the cards reported as missing, the Business Account is
responsible for returning them to the Lead Agency.
5.3
Storage and Risk of Loss. The Business Account is responsible for the storage, ,
distribution and use of the ORCA Business Cards issued to it. The Business Account
bears the sole risk of any loss, damage, theft or unauthorized use of one of its cards,
whether such card is held in its inventory or has been distributed for use. The Business
Account is responsible for the cost of any use of its Business Cards until the effective
date of a Card Block that may be initiated as provided below.
5.4 Distance Based Transit Fare. The Business Account is responsibie for communicating
to Cardholders that "distance based fares" are charged on some systems such as: Link
light rail, and Sounder commuter rail systems. On distance based fare modes, when the
Cardholder "taps on," the ORCA system will record the trip to the last stop on the
line. When the Cardholder "taps off" at the end of the ride, ORCA will record the actual
'
ride. The Business Account then will be charged the correct fare for the actual ride
taken. If the Cardhoider fails to "tap off", then ORCA will record a ride to the end of the
line. The result of not "tapping off" is that the Business Account will be charged the
largest fare for the ride even if a shorter ride was taken.
The Business Account may provide Cardhoider Rules of Use to the Cardholder as
referenced in Attachment 4, or provide this information using other methods such as an
email or flyer;
ORCA Passport Agreement Page 4 of 25
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February 1, 2015 January 31, 2016
5.5 Distribution of OBCA Business Cards. The Business Account is responsible for
distributing its Business Cards for use by its Eligible Business Cardholders. The
Business Account remains the owner of all Business Cards it distributes but a cardholder
Business Card and
may also purchase and load individual OFlCA products on a
individually register the card. To enable Cardholders to register Business Cards as
provided in Section 6 below, the Business Account may not register, or allow anyone
other than the Cardholder to register, the Business Cards that are issued under this
Agreement.
The Business Account shall require, as a condition of receiving a Business Card, that
the Cardholder sign the written Cardholder Rules of Use incorporated in this Agreement
as Attachment 4, OBCA Business Cardholder Rules of Use.
The Business Account understands and agrees that it is solely responsible for
'
implementation and enforcement of the Cardholder Rules of Use. .
5.6 Proof ofpayment. The Business Account is responsible for notifying Cardholders that
proof of payment must be made by tapping the OFlCA Card on the card reader in the
fine if
manner required by each Agency; otherwise, the Cardholder may be subject to a
the ORCA Card is not tapped, and the Cardholder will be personally responsible for any
fines that may be imposed.
5.7 Business Account Access to Personally Identifying Information. if an individual
Cardholder opts to register one of the Business Cards issued to the Business Account,
any personally identifying information provided to the ORCA System (e.g. name,
address, telephone number, and credit card number) will not be accessible by the
Business Account. If the Business Account collects any personally identifying
information about individuals to whom it has distributed Business Cards, the Business
Account is solely responsible for its collection, use, storage and disclosure of such
information.
5.8 Card Blocks. In the event a Business Card is determined to be lost or stolen or if a
Cardholder is determined by the Business Account to be no longer eligible to use the
card, the Business Account may initiate a Card Block via the Business Account Website
to invalidate the subject Business Card. The Lead Agency may also initiate a Card Block
Cards at the request of
or a Product Block as to any of the Business Account's Business
the Business Account, or at the sole disCretion of the Lead Agency in accordance with
Section 4.4, or if it is suspected that a card has been altered, duplicated, counterfeited,
stolen or used by an ineligible Cardholder. Once initiated, a Card Block must be
processed in the ORCA system and downloaded to all reader devices throughout the
region. Until that occurs, there is the potential that the Business Passport Product and
card will continue to be used.
any Epurse value or other ORCA Products on the subject
The Business Account, not the Agencies, remains responsible for all transactions, and
hours after the Card Block was
any loss or costs arising there from, for forty-eight (48)
initiated.
5.9 Restoration of Value After Card Block. Following a Card Block, the Business Account
of the blocked
may request the Lead Agency to restore value on a replacement
Business Card. An Epurse on a blocked card will be restored on the replacement card
in approximately ten (10) calendar days after the replacement card is issued. The E-
hours after the
purse amount that remained on the lost or stolen card, forty-eight (48)
Card Block was initiated in the ORCA system, will be restored to the replacement card
via a remote revalue function. An E-purse on a blocked card will be restored on the
replacement card on the eighth day after the card has been issued. The card must then
be tapped to activate the E-purse value.
ORCA Passport Agreement Page 5 of 25
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February 1, 2015 January 31, 2016
5.10 CardHep/acement. The Business Account is responsible for ordering and paying for
any new cards needed to replace Business Cards that for any reason cease to be
available or suitable for use by the Cardholders under the program of the Business
Account, including but not limited to, if the unavailability or unsuitability is caused by
damage, abuse, loss, theft, Card Block, and end of useful life. Provided, however, and
notwithstanding the exclusion of warranties in Section 14, if a Business Card
malfunctions within twelve (12) months after it was delivered to the Business Account, it
shall be replaced by the Lead Agency without additional charge to the Business Account
if the malfunction was caused by a defect in design, material or workmanship and was
not caused by misuse, an intentional act, negligence or damage, reasonable wear and
tear excepted. The Business Account understands and agrees that to avoid the
disruption and inconvenience caused by sporadic failures as its cards are used, it must
plan for replacement of its Business Cards on a regular basis. As a condition of
continuing under the Business Passport program, the Business Account agrees that:
(a) it will retire all of its ORCA Business Cards at some time within four years after they
are issued by the Lead Agency to the Business Account; and (b) purchase replacement
Business Cards at the thenapplicable rate. -
6.0 CARDHOLDER USE OF ORCA BUSINESS CARDS
Cardholder Privileges. The Business Account understands and agrees that, although it remains
the owner of ORCA Business Cards after distribution, the Cardholder has the following
privileges in connection with the use of an ORCA Business Card.
6.1 The Cardholder may present an ORCA Business Card, loaded with a valid-applicable
Business Passport or Business Choice Product, to an OFlCA fare transaction processor
as proof of payment of all or a portion of a required fare on a regular transportation
service operated by one or more of the Agencies. (Provided, however, an OFlCA
Product that is not sufficient to fully pay a fare will not be accepted as partial payment by
the Washington State Ferries.) In all cases, a Cardholder will be required to make other
payment to the extent a fare is not covered by an ORCA Product.
6.2 The Cardholder may individually purchase ORCA Products and load them on the
Business Card in addition to any ORCA Product loaded by the Business Account.
individual ORCA Products may be used to pay all or a portion of a required fare on a
transportation service not covered by a Business Passport Product or Business Choice
Product. (Provided, however, an ORCA Product that is not sufficient to fully pay a fare
will not be accepted as partial payment by the Washington State Ferries.) In all cases, a
Cardholder will be required to make other payment to the extent a fare is not covered by
an ORCA Product.
6.3 The'CardhoIder may register his/her name and other contact information with the ORCA
System and link such personal information to the serial number of the Business Card
provided to him/her. Such registration does not give the Cardholder any ownership
rights in the card but does give the Cardholder the right to access the ORCA Cardholder
Website to view the card's transaction history and current stored value, to modify travel
zone preferences, and to add retail products.
ORCA Passport Agreement Page 6 of 25
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February 1, 2015 January 31, 20i6
7.0 NO RETURNS OR REFUNDS
Except as otherwise provided herein or in Section 13.2, the Business Account understands and
agrees that its purchases of Business Cards, and Business Passport-Products and Business
Choice Products purchased for such cards, are final and it is not entitled to any refunds.
Provided, however, the Business Account may request a refund of the Epurse value remaining
on a Business Card if the card is surrendered by the Business Account to the Lead Agency.
Upon surrender of the subject Business Card, the Lead Agency shall initiate a Card Block and
the refund processed approximately ten (1 0) calendar days after the Card Block was initiated.
The E-purse amount refunded will be that which remained on the surrendered card forty-eight
(48) hours after the Card Block was initiated in the ORCA system. A processing fee of ten
dollars ($10) shall be payable by the Business Account to the Lead Agency for each such E-
purse refund that is processed, regardless of e-purse value refunded. The Business Account,
not the Lead Agency, is responsible for the refunding of such E-purse value, if any, to the
individual Cardholder to whom the Business Card had been distributed.
8.0 BUSINESS ACCOUNT WEBSITE
8.1 The Business Account Website is the primary means by which the Business Account
shall purchase OFlCA Business Cards, Business Passport and Business Choice
Products, manage its Business Cards and obtain information about the use of said
cards. As a condition of participation in the Business Passport program, the Business
Account agrees that it will use the Business Account Website when it is available and
that each access and use of said website shall be subject to the Terms of Use and
Privacy Statement that are in effect and posted on the Business Account Website at the
time of such access and use.
8.2 The Business Account understands and agrees that uninterrupted access to and use of
the Business Account Website is not guaranteed and agrees that it will contact its
representative at the Lead Agency by email or telephone if the website is not available.
8.3 At the time the Business Account enters into the ORCA program, the Lead Agency will
provide a single password to the Business Accounts Primary Contact, as specified in
Attachment 2, Designated Representatives, to enable user access to the Business
Accounts secured area of the Business Account Website. The Business Account is
required to change the temporary password to one of its own creation. The Business
Account shall be solely responsible for the number and identity of those employees with
whom the Business Accounts pasSWord is shared. The Business Account is aiso solely
responsible for compiying with the security standards specified in Attachment 5, ORCA
Business Account Security Standards, which is incorporated in this Agreement by this
reference. >
9.0 INFORMATION PROVIDED BY THE AGENCIES AND THE ORCA SYSTEM
9.1 The Business Account understands and agrees that the data, reports or any information
provided to it via the Business Account Website or otherwise, is and remains the sole
property of the Agenciesand nothing shall be construed as a transfer or grant of any
copyright or other property interest in such data, reports'or information. The Agencies
hereby grant to the Business Account a nonexclusive license to use any data, reports or
information provided by the Agencies, via the Business Account Website or otherwise,
for any lawful purpose related to the administration of the transportation benefits
program of the Business Account.
ORCA Passport Agreement Page 7 of 25
Port of Seattle. BA ID: 2384
February 1, 2015 January 31, 2016
9.2 The ORCA System will record data each time an ORCA Business Card is presented to
an ORCA device for fare payment and to load a product. Such transaction data
includes, but is not limited to, the date, time, and location (or route) of the transaction.
The Business Account may routinely access such transaction data related to its
Business Cards to the extent provided via the Business Account Website. Said website
and its reports do not provide the Business Account Business Card transaction data
linked to card serial numbers. For the purpose of preventing fraud, the Primary Contact
Person of the Business Account may submit a written request to the Lead Agency for
transaction data reiated to a specific card number or for a card number linked to a
specific transaction. The written request shall include the follOwing:
9.2.1 Card number or the date, time and other known details about the specific
transaction for which a card serial number is being requested;
9.2.2 A statement as to why the information is germane to the prevention of fraud; and
9.2.3 The signature of the Primary Contact Person.
If the Lead Agency determines that the subject transaction(s) is linked to a Business
Card issued to the Business Account, the Lead Agency will provide the Business
Account with the card serial number linked to the requested transaction(s). The
Business Account agrees that it wili use such card serial number information only for
purposes of enforcing its Rules of Use or other lawful business purposes. The Business
Account must maintain its own records if it wishes to identify the card serial number
issued to an individual.
10.0 PUBLIC RECORDS
The Business Account understands and agrees that all records related to its participation in the
ORCA System are public records under the Washington Public Records Act (Chapter 4256
HOW) ("Act"), including but not limited to: (a) this Agreement and the sales activity hereunder;
(b) the orders, communications, and any other information provided by the Business Account to
the Lead Agency, the other Agencies or the ORCA System, whether provided via this website
or otherwise and whether provided in hard copy or electronic form; (c) any communications,
responses, requests, reports or information of any kind provided to the Business Account from
the Lead Agency, the other Agencies or the ORCA System; and (d) all data, reports and
information of any kind related to the loading of products on, and the use of, the Business Cards
issued to the Business Account. As public records, these records will be made available for
public inspection and copying upon request,unless the Lead Agency determines they are
exempt from disclosure. '
11.0 INDIVIDUAL USE OF BUSINESS CARD AFTER LEAVING A BUSINESS ACCOUNT
The Business Account is encouraged to collect Business Cards from Cardholders who are no
longer eligible for the Business Account's transportation benefits program. in any case, the
Business Account is solely responsible for initiating a Card Block or Product Block in
accordance with this Agreement to prevent any continued use of, and financial liability for, a
card that had been distributed to a person who is no longer eligible.
ORCA Passport Agreement Page 8 oi 25
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February 1, 2015 January 31, 2016
12.0 ORCA SERVICES SUBJECT TO CHANGE
The Agencies seek to continually improve and enhance the ORCA Services. With thousands
of employers, schools, and other entities entering into business account agreements at varying
dates in the year, the Agencies are unable to guarantee to each business account that the
OHCA Services will not change during the term of its agreement. The Business Account
understands and agrees that one or more ORCA Services may be changed, suspended or
terminated from time to time without prior notice to, or agreement by, the Business Account,
including but not limited to changes in the look, feel, content and functions of the Business
Account Website. if the Business Account is dissatisfied with a change in the OFlCA Services,
however, it may terminate this Agreement for its convenience in accordance with the provisions
of Section 13.2.
13.0 TERMINATION
13.1 The Lead Agency may at any time terminate this Agreement if the Business Account
fails to make timely and effective payment of all amounts due, or otherwise materially
breaches the Agreement, or acts in manner indicating that it intends to not comply, or is
unable to comply, with the Agreement. To effect such a termination for cause, the Lead
Agency shall send email notice to the last known email address for the last known
primary contact person of the Business Account describing the manner in which the
Business Account is in default and the effective date of termination. If the basis for
' termination is a failure to perform that can be cured, the termination shall not take effect
of the
so long as the Business Account cures the default within ten (10) calendar days
sending of the email notice. Upon the effective date of such termination, the Lead
Agency may immediately terminate the website access privileges of the Business
Account, block the Business Cards issued to the Business Account and decline to
accept and fulfill any pending or new orders from the Business Account. In the event of
such a termination for cause, the Business Account shallnot be entitled to any refund of
any amounts paid.
13.2 Either the Business Account or the Lead Agency may terminate the Agreement without
notice at
cause and for its own convenience by sending the other party written or email
least thirty (30) days in advance of the effective date of the termination. Upon receipt of
Lead Agency
a notice of termination for convenience from the Business Account, the
may, in its sole discretion, waive the advance notice period and immediately terminate
the website access privileges of the Business Account, initiate a Card Block on the
Business Cards issued to the Business Account, and decline to accept and fulfill any
pending or new orders from the Business Account. In the event of such a termination
for convenience and not cause, the amounts due under this Agreement shall be
calculated by the Lead Agency. (The amounts due for the OHCA Passport Product and
any optional products listed in Attachment 1 shall be the annual amounts due prorated
for the number of months during which the Passport Product and optional products were
valid for at least one day.) If the Business Account has not paid in full all of the amounts
due under this Agreement as of the termination date, the Business Account shall
immediately pay the remaining amount due. If the Business Account has paid more than
all of the amounts due under this Agreement as of the termination date, the Business
Acc0unt shall be entitled to a refund of the excess it has paid.
ORCA Passport Agreement Page 9 of 25
Port of Seattle. BA [0: 2384
February 1, 2015 ~ January 31, 2016
13.3 Notwithstanding any termination of the Agreement, the Business Account shali remain
iiable to satisfy and comply with all of its obligations under this Agreement and at iaw
with regard to, or arising out of, any orders submitted or any of its acts or omissions
occurring prior to the effective date of the termination, including but not limited to paying
all amounts due or incurred prior to the effective date of the termination and any fees,
charges, coliection costs or other costs arising from a failure to make timeiy and effective
payment.
I
14.0 EXCLUSION OF WARRANTIES
14.1' ALL ORCA SERVICES PROVIDED ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS. ANY USE OF THE ORCA SERVICES IS AT THE BUSINESS
ACCOUNT'S SOLE DISCRETION AND RISK.
14.2 BY WAY OF EXAMPLE, AND NOT LIMITATION, THE LEAD AGENCY AND EACH OF
THE OTHER AGENCIES SPECIFICALLY DO NOT REPRESENT AND WARRANT
THAT:
A. THE BUSINESS ACCOUNT'S USE OF THE ORCA SERVICES WILL BE
UNINTERRUPTED, TIMELY, FREE FROM ERROR AND OTHERWISE MEETING
ITS REQUIREMENTS;
B. ANY INFORMATION OBTAINED BY THE BUSINESS ACCOUNT AS A RESULT OF
USING THE ORCA SERVICES WILL BE ACCURATE AND RELIABLE; AND
C. ANY USE OF THE ORCA WEBSITES, INCLUDING BUT NOT LIMITED TO THE
CONTENT OR MATERIAL DOWNLOADED FROM SAID WEBSITES, WILL BE
FREEOF DEFECTS, VIRUSES, MALWARE, HACKS OR POTENTIALLY
HARMFUL INTRUSIONS.
14.3 TO THE EXTENT PERMITTED BY LAW, THE LEAD AGENCY AND EACH OF THE
OTHER AGENCIES DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO: ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; ANY
WARRANTIES OF QUIET ENJOYMENT OR NON-INFRINGEMENT; AND ANY
WARRANTIES CREATED BY TRADE USAGE, COURSE OF DEALING, OR COURSE
OF PERFORMANCE.
14.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
THE AGENCIES OR THE ORCA SYSTEM SHALL REVISE OR CREATE ANY
WARRANTY.
15.0 NOTICES
15.1 Any notice required to be given under the terms of this Agreement shall be directed
either by email or regular mail to the Parties' Designated Representatives, as specified
in Attachment 2, or to the last and address provided by a Party'In accordance
person
with Section 152.
15.2 Each Party shall immediately notify the other Parties of any changes to its Designated
Representatives' contact information. The Business Account shail also immediately
notify the Lead Agency of any changes in any other information provided in its
application.
ORCA Passport Agreement Page 10 of 25
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February 1, 2015 January 31, 2016
16.0 FORCE MAJEURE
The Agencies and each of them shall be relieved of any obligations under this Agreement to the
extent they are rendered unable to perform, or comply with such obligations as a direct or
indirect result of a force majeure event, or any other circumstance not within such party's
control, including, but not limited to, acts of nature, acts of civil or military authorities, terrorism,
fire or water damage, accidents, labor disputes or actions, shutdowns for purpose of emergency
repairs, or industrial, civil or public disturbances.
17.0 APPLICATION OF AGENCY FARES AND OTHER POLICIES
The purchase, distribution and use of Business Cards and ORCA Products by the Business
Account and its Cardholders, and access to and use of the OFlCA websites, shall be subject to
all applicable federal, state and local law, regulations, ordinances, codes and policies, including
but not limited to the ORCA Terms of Use and Privacy Statement (posted on the OFlCA
websites and available in printed form upon request to the Lead Agency), and the Agencies'
respective fares, transfer rules, codes of conduct and other operating policies and procedures.
18.0 PROHIBITED DISCRIMINATION
The Business Account shall not discriminate on the basis of race, color, sex, religion, nationality,
creed, marital status, sexual orientation, age, or presence of any sensory, mental, or physical
handicap in the administration of its transportation benefits program, the provision of ORCA
Business Cards and ORCA Products, or the performance of any acts under this Agreement.
The Business Account shall comply fully with all applicable federal, state and local laws,
ordinances, executive orders and regulations which prohibit such discrimination.
19.0 COMPLIANCE WITH APPLICABLE LAW
The Business Account shall be solely responsible for compliance with all applicable federal,
state and local laws, regulations, resolutions and ordinances, including, but not limited to, any
provisions relating to the Business Account's provision of compensation, benefits or services to
employees or others (eg. including, but not limited to, transportation fringe benefits) and any
reporting, tax withholding, or other obligations related thereto: The Business Account expressly
acknowledges and agrees that it has not relied on any representations or statements by the
Agencies and will not rely on them to provide any legal, accounting, tax or other advice with
regard to the Business Account's provision of compensation, benefits or services to employees
and any reporting,
or others (eg. including, but not limited to, transportation fringe benefits)
withholding or other obligations related thereto.
20.0 LEGAL RELATIONS
20.1 No Partnership, Agency or Employment Relationship Formed. The Business Account
and the Agencies are independent parties and nothing in this Agreement shall be
construed as creating any joint venture, partnership, agency or employment relationship
between and among them or their respective employees. Without limiting. the foregoing,
the Business Account understands and agrees that none of its employees or agents
shall be deemed employees or agent, for any purpose, of any of the Agencies and the
Business Account is solely responsible for the acts of its agents and employees and
their compensation, wages, withholdings and benefits.
OFlCA Passport Agreement Page 11 of 25
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February 1, 2015 January 31, 2016
20.2 LIMITATION ON LIABILITY
A. THE LEAD AGENCY AND EACH OF THE OTHER AGENCIES SHALL NOT BE
LIABLE FOR, AND THE BUSINESS ACCOUNT HOLDS EACH AGENCY
HARMLESS FROM, ANY LOSS OR DAMAGE ARISING OUT OF OR RELATED
TO:
1. ANY RELIANCE PLACED BY THE BUSINESS ACCOUNT ON THE
COMPLETENESS, ACCURACY OR EXISTENCE OF ANY INFORMATION
PROVIDED TO THE BUSINESS ACCOUNT BY OR THROUGH THE ORCA
SERVICES;
2. ANY CHANGES TO THE ORCA SERVICES OR THE TEMPORARYIOR
' PERMANENT CESSATION OF ANY SUCH SERVICES (OR FEATURES
WITHIN A SERVICE);
3. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY
INFORMATION MADE AVAILABLE TO THE BUSINESS ACCOUNT, OR -
GENERATED BY THE USE OF THE ORCA SERVICES UNDER THIS
AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE USE OF THE ORCA
BUSINESS CARDS ISSUED UNDER THIS AGREEMENT;
4. THE BUSINESS ACCOUNT'S FAILURE TO PROVIDE THE LEAD AGENCY
WITH ACCURATE ACCOUNT INFORMATION; AND
5. THE BUSINESS ACCOUNT'S FAILURE TO KEEP INFORMATION SECURE
AND CONFIDENTIAL.
B. THE LEAD AGENCY AND EACH OF THE OTHER AGENCIES SHALL NOT BE
LIABLE FOR, AND THE BUSINESS ACCOUNT HOLDS EACH AGENCY
HARMLESS FROM, ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
OR EXEMPLARY DAMAGES INCURRED BY THE BUSINESS ACCOUNT UNDER
ANY THEORY OF LIAIBILITY, INCLUDING BUT NOT LIMITED TO LOSS OF USE,
LOSS OF TIME, LOSS OF PROFITS, LOSS OF PRIVACY, LOSS OF DATA, LOSS
OF GOODWILL OR BUSINESS REPUTATION, WHEN SUCH DAMAGES ARISE
OUT OF, OR ARE RELATED TO, THIS AGREEMENT OR THE ORCA SERVICES,
WHETHER OR NOT ONE OR MORE AGENCIES HAS BEEN ADVISED OF, OR
SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF ANY SUCH DAMAGES
ARISING.
C. TO THE EXTENT ONE OR MORE OF THE AGENCIES INCURS ANY LIABILITY
FOR A BREACH OF THIS AGREEMENT, OR ANY DUTY RELATED TO THE
.
ORCA SERVICES, AND SUCH LIABILITY THAT IS NOT EXCLUDED UNDER THE
TERMS OF THIS AGREEMENT, THE EXCLUSIVE, AGGREGATE REMEDY
AGAINST THE LEAD AGENCY AND EACH OTHER AGENCY WILL BE, AT THE
OPTION OF THE APPLICABLE AGENCIES: (A) THE CORRECTION,
SUBSTITUTION OR REPLACEMENT OF ALL OR PART OF THE ORCA
SERVICES GIVING RISE TO THE BREACH, OR (B) A REFUND OF THE
AMOUNT PAID BY THE BUSINESS ACCOUNT FOR THE ORCA
SERVICE CAUSING THE DAMAGE, THE AMOUNT OF WHICH WILL NOT
EXCEED THE DAMAGES (OTHER THAN THOSE EXCLUDED ABOVE)
ACTUALLY INCURRED BY THE BUSINESS ACCOUNT IN REASONABLE
RELIANCE.
ORCA Passport Agreement Page 12 of 25
P011 of Seattle. BA ID: 2384
February 1, 2015 January 31, 2016
The damage exclusions and limitations on liability in the agreement shali apply even if
any remedy fails for its essential purpose.
20.3 No Waiver. The Business Account agrees that if the Lead Agency does not exercise or
enforce any legal right or remedy which is contained in the Agreement or under
applicable law, this will not be taken to be deemed to be a waiver or modification of the
Lead Agency's rights and remedies, and that those rights or remedies will still be
available to the Lead Agency.
20.4 Governing Law and Forum. This Agreement and all provisions hereof shall be
interpreted and enforced in accordance with, and governed by, the applicable law of the
State of Washington and of the United States of America without regard to its conflict of
laws provisions. The exclusive jurisdiction and venue for conducting any legal actions
arising under this Agreement shall reside in either the Federal District Court or the State
of Washington Superior Court, as applicable, that is located in the county in which the
Lead-Agency's primary. administrative office is located. The Business Account hereby
consents to personal jurisdiction and venue in said courts and waives any right which it
might have to conduct legal actions involving the Agencies in other forums.
20.5 Attorneys' Fees and Costs. In the event of litigation between the parties related to this
Agreement, the Court is authorized to award the substantially prevailing party its costs,
fees and expenses including reasonable attorney fees to the extent authorized by the
Court and permitted by applicable law.
20.6 Survival. Sections 4, 5, 9, 14 and 20 shall survive and remain effective notwithstanding
'
any termination of this Agreement.
20.7 Use of ORCA name and logos. The Business Account understands and agrees that the
' "ORCA" name and logos are trademarked and that it will not copy or use them and any
other trade names, trademarks, service marks, logos, domain names, and other
distinctive features or inteilectual property of the Agencies without written permission.
The Agencies understand and agree the Business Account name and iogo may be
trademarked and that it will not copy or use them and any other trade names,
trademarks, service marks, logos, domain names, and other distinctive features or
intellectual property of the Business Account without written permission.
21.0 SUCCESSORS AND ASSIGNS
This Agreement and all terms, provisions, conditions and covenants hereof shall be binding
no
upon the parties hereto, and their respective successors and assigns; provided, however,
Party may assign or deiegate the duties performed under this Agreement without the written
agreement by the Lead Agency, the Business Account and the assignee.
22.0 ENTIRE AGREEMENT AND WRITTEN AMENDMENTS
This Agreement constitutes the entire agreement between the Business Account and the Lead
Agency, on behalf of all Agencies, related to the Business Account's use of and access to
ORCA Services (but excluding any services which Lead Agency may provide under a separate
written agreement), and completely replaces and supersedes any prior orai or written
representations or agreements in relation to fare media consignment and sales or to ORCA
Services. No oral agreements or modifications wiil be binding on the parties and any changes
shall be effective only upon a written amendment being signed by the parties.
'
OFlCA Passport Agreement Page 13 of 25
Port of Seattle. BA ID: 2384
February 1, 2015 January 31, 2016
23.0 SEVERABILITY
In the event any provision of this Agreement is determined by a court of competent jurisdiction
to be unenforceabie or invatid, then the meaning of that provision shalt be construed, to the
extent feasible, to render the provision enforceable, and if no feasible interpretation would save
such provision, it shall be severed from the remainder of the Agreement which shall remain in
fuit force and effect unless the provisions that are invalid and unenforceabie substantially impair
the value of the entire Agreement to any party.
24.0 AUTHORITY TO EXECUTE
Each party to this Agreement represents and warrants that: (i) it has the legal power and
authority to execute and perform this Agreement and to grant the rights and assume its
obligations herein; and (ii) the person(s) executing this Agreement below on the party's behalf
is/are duly authorized to do so, and that the signatures of such person(s) is/are legally sufficient
to bind the party hereunder.
ORCA Passport Agreement Page 14 of 25
Port of Seattle. BA lD: 2384
February 1, 2015 January 31, 2016
25.0 COUNTEHPARTS
This Agreement may be executed in two (2) counterparts, each one of which shall be regarded
for all purposes as one original.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have
'
executed this Agreement as of the Effective Date.
BUSINESS ACCOUNT LEAD TRANSRQRTATION AGENCY
/,.
'4'" Victor Obeso
'
'
' Title: ' Titie:
Chief Executive Officer Manager, Transit - Service Development
Business Name: ' Agency:
Port of Seattle King County
OFICA Passport Agreement Page 15 of 25
Port of Seattle. BA ID: 2384
February 1 2015 January 31, 2016
,
ATTACHMENT 1
Products, Pricing and Terms - Business Passport Flat Rate
Business Account: Port 01 Seattle
ORCA Business lD#: 2384
(Online Business Account name: Port of Seattle)
1
Agreement Type: Passport Fiat Rate
Program Term: February 1, 2015 January 31, 2016
Business Pass-ort Flat Rate Products
0 Valid for full fare on -
0 Regular bus services on Community Transit, Everett Transit, Kitsap Transit,
Metro Transit, Pierce Transit, and Sound Transit.
0 Regular service on Sound Transit Link light rail.
0 Regular service on Sound Transit SoUnder train (including Rail Plus partnership
with Amtrak Cascades).
0 Regular service on Seattle Streetcar
0 Regular service on King County Water Taxi. (Vashon and West Seattle routes)
0 Regular service on Kitsap Transit Foot Ferry. (Port Orchard and Annapolis
routes)
0 Access Transportation service on Kitsap Transit and Metro Transit (eligible riders
only)
$65 monthly vanpool fare subsidy on Community Transit, Kitsap Transit, Metro
Transit, and Pierce Transit vanpool vans. . --
'_ ,
100% vanshare fare subsidy on Community Transit, Kitsap Transit, Metro Transit
and Pierce Transit vanshare vans. (Note: the current minimum fare is $37/mo.)
Guaranteed ride home service. (Up to eight rides per employee.)
0 (See Attachment 6 Home Free Guarantee Program.)
Business Passport Fiat Rate Pricing
Community Transit
Transit Trips (Source: ORCA: 1 1/01/2013 - 10/31/2014) 3,139
Transit rate per trip $3.34
Total Transit cost (Note: rounded to $0.12 for ORCA) $10,484.28
Vanpool (no current riders) $0.00
'
'
Total Cost $10,484.28
Everett Transit
Transit Trips (Source: ORCA: 11/01/2013 - 10/31/2014) 218
Transit rate per trip $0.91
Totat Cost (Note: rounded to $0.12 for ORCA) $198.36
ORCA Passport Agreement Page 16 of 25
Port of Seattle. BA iD: 2384
February 1, 2015 January 31, 2016
King County Metro Transit
Transit Trips (Source: ORCA: 11/01/2013 10/31/2014) = 68,184
Transit rate per trip x $1.89
Total Transit cost (Note: rounded to $0.12 for ORCA) = $128,867.76
1,453
King County Water Taxi Trips
Rate per trip ||>
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