HomeMy WebLinkAbout2009-037SAOur Documents\Ordinances\09Tidel ity Express.doc
ORDINANCE NO. 0'7
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO APPROVE AN
AGREEMENT WITH FIDELITY EXPRESS TO PROVIDE ADDITIONAL PAYMENT
LOCATIONS FOR UTILITY CUSTOMERS; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council hereby authorizes the City Manager, or his designee, to
execute an agreement between the City of Denton and Fidelity Express, substantially in the form
that is attached hereto, and made a part hereof as Exhibit "A" (the "Agreement"), on behalf of
the City.
SECTION 2. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the % day of , 2009.
A. BURRO`UGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
.PVED AS/TO LEGAL FORM:
A BURGESS, CITY ATTORNEY
BY: Z C- ,
e
Exhibit A
THE STATE OF TEXAS )(
COUNTY OF DENTON )(
AGREEMENT
THIS AGREEMENT, by and between THE CITY OF DENTON, TEXAS (hereinafter called
"CITY') with its principal offices at 215 East McKinney Street, Denton City Hall, Denton, Texas
76201 and FIDELITY EXPRESS, a division of GSC DES, INC (herein called "Fidelity
Express"), a Texas corporation, having its principal offices at 128 Jefferson, Sulphur Springs, Texas
75482.
WITNESSETH
WHEREAS, CITY desires to provide its utility rate`paymg customers with retail payment processing
services that will improve overall the CTTY'S current bill collection and processing; and which will
result in convenience to the CI TY'S customers; and
WHEREAS, Fidelity Express operates or currently provides money orders and other services at
convenient, readily accessible, retail locations, which are capable of processing the CITY' S utilities
customer payments in an efficient, effective fashion; depositing said payments in designated CITY
accounts at specified banldng institutions; and transmitting payment information to the CITY; and
WBI REAS, Fidelity Express agrees and will at all times during the term of this Agreement provide
a minimum oftwelve (12) locations in the CITY and in contiguous cities to accept the CTTY'S utility
customer payments, and Fidelity Express will perform the necessary remittance processing; and
In consideration of the mutual covenants and promises, and the premises hereinafter contained, CITY
and Fidelity Express hereby AGREE as follows:
1. Description of Services
Fidelity Express stall provide the following payment processing services to CITY during the
term of this Agreement, until amended by a writing that is signed by both the CITY and
Fidelity Express, or until terminated as provided for herein.
A. Fidelity Express shall provide a minimum of twelve (12) retail locations for the
collection and processing of CTTY'S utility customer payments, in the CITY and in
contiguous cities.
B. A CITY utility customer pays to the Fidelity Express agent a CITY utility service bill, as
well as paying to the Fidelity Express agent a transaction fee (solely for the benefit of
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Fidelity Express) not to exceed $1.50 per service bill, and the agent immediately enters
the information into an agreed -upon database. Such database shall be agreed upon by the
CITY and Fidelity Fxpress before this Agreement commences. This payment may be in
any combination of cash, personal check, cashier's check, certified check or money order.
The agent's terminal transmits this data immediately to Fidelity Express.
C. On the same business day (Day 1), Fidelity Express shall enter payment information into
its database system; it shall process said information; it shall reconcile output with details
and batch totals at 3:00 p.m.; it shall create an electronic file and then transmit the
information to the CITY by 3:3 0 p.m. Fidelity Express shall notify CITY electronically,
at customer.semce@cityofdenton.com, or at a designated fax number, to report the total
number of items and the total dollar amount transmitted from Fidelity Express to the
CITY for that batch.
D. One business day following that (Day 2 ), Fidelity Express forwards via ACH the monies
obtained from CPTY'S utility customers, into the designated CTI'Y accounts at approved
banking institutions so that the finds are available for the CITY'S use on the second
business day following the payments (Day 3). Fidelity Express shall notify the CITY
electronically immediately thereafter, at customer.service@cityofdenton.com or at a
designated fax number, to report the exact dollar amount that Fidelity Express deposited.
E. The above is only a general description of services. Fidelity Express will accept
reasonable modifications of the procedures described in the procedures set forth in this
Paragraph 1 herein, with any such reasonable modifications to be submitted by one party
to the other party to this Agreement in writing from time -to -time and as agreed -upon.
2. Term
This Agreement shall become effective upon execution by the CITY and Fidelity Express
and shall remain in force and effect for a period of one (1) year from the I day of April,
2009 and expires the 31 st day of March, 2010. However, this Agreement will automatiy
call
renew for additional one-year terms unless written notice of termination t received by either
party at least thirty (30) days prior to the date of expiration of this Agreement. It is expressly
understood that CITY and Fidelity Express may continue renewing this Agreement, however,
only until the fifth anniversary of the signing of this original Agreement, at that time this
Agreement is deemed terminates
3. Termination
3.01 Termination for Convenience
The CITY or Fidelity Express may terminate this Agreement for any reason
by written notice provided to the other party, at least ninety (90) days before
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the expiration of the one-year term or extension of term. Upon service of said
notification the parties shall have no further obligation to each other under
this Ageement other than to faithfully perform this Agreement until its
expiration date, and to maintain the confidentiality of any proprietary
information previously provided. Fidelity Express shall cease all operations
required under this Agreement on the date of termination and return to CTTy,
as soon as possible any and all of the CITY'S property which it may be in
possession of, on the date of termination.
3.02 Termination for Defailt
In any event, this Agreement may be terminated by CITY in the event Fidelity
Express shall breach anymaterial obligation or material covenant hereunder,
and such breach is not fully remedied within thirty (30) days after receipt of
written notice thereof provided to Fidelity Express, setting forth the specific.
instances of default complained of and stating what actions must be done by
FIDELITY EXPRESS to cure said default.
In any event, this Agreement may be terminated by Fidelity Express in the
event that the CITY shall breach any material obligation or material covenant
hereunder, and such breach is not My remedied within thirty (30) days after
receipt of written notice thereof to CITY, setting forth the specific instances
Of default complained of, and stating what actions must be done by CTTy to
cure said default.
3.03 Termination for Bankrupt
Either party hereto shall have the absolute right to terminate this Agreement
upon the receipt of fifteen (15) days prior written notice in the event of a
filing, by or on behalf of the other party, in any court, of a petition of
bankruptcy, or insolvency or for a reorganization, or for an appointment of a
receiver or trustee of all or part of that party's property.
4. Risk of Loss
Fidelity Express shall bear all of the risk of loss for all S utility customer's CITY a
its A � �payments
that are received by gents, its retail outlets, or its subcontractors) that may be lost,
stolen, destroyed, embezzled, or mysteriously disappear, for anyreason prior to the CITY' S
bank accounts being properly credited. Fidelity Express shall, in order to protect CTTy,S
interests, maintain insurance, at its sole cost, and in sufficient amounts and form to
adequately and completely cover any such loss to the CITY.
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In the event Fidelity Express shall suffer such a loss, it shall reconstruct the missing
Payments, and shall deposit in CITY'S bank account an amount of equal value, within
seventy-two (72) hours of the time the loss was first discovered by CITY or by Fidelity
Express.
Timely Performance
Both patties hereto acknowledge that all parts of this Agreement will be executed in a timely
manner. Fidelity Express agrees and will communicate to its agents that its performance will
be executed diligently and without interruption to insure that the CITY'S banking accounts
will be credited within the parameters set forth in Article 1 hereof, 'Description of Services,,.
Notwithstanding that the CI f Y' S designated bank accounts have been credited within the
parameters set forth in this Agreement, Fidelity Express bears the full responsibility for daily
reconciliation and balancing of CTTY'S utility customer accounts. Fidelity Express shall
Perform any tt Saction research necessary to reconcile the CITY'S utility customer
accounts, which are out of balance due to the action or inaction of Fidelity Express within
five (5) days of notification thereof by the CITY and at no cost to the CITY.
6. Force Mweure
Neither party hereto shall. be held liable for any delay or Failm in the perfornmee of any
part of this Agreement from any cause beyond its control as a result of the folio
God, acts of civil or mill audioriti wings acts of
�y es, govemmentregulations,embergoes, epidemics, war,
terrorist acts, riots, MSLM=tions, earthquakes, nuclear accidents, floods, or volcanic action.
7. Payment Locations
Fidelity Express operates an agency consisting of many retail locations and/or sells money
orders and other services in retail locations, which among other things, collects utility bill
payments on behalf of the CITY. A list ofthese payment outlet locations will be provided to
the CITY prior to the commencement of this Agreement. CITY shall retain the right to
approve the list of payment outlets to be used by its utility customers and may request
Fidelity Express to add other locations, which may be mutually agreed upon between the
parties. The listing of authorized agents will be kept confidential by both parties and shall
not be released to any third party as it is proprietary information.
X in CITY'S sole opinion, a certain payment outlet or group of outlets are not providing for
efficient, convenient, courteous and secure processing ofpayments, the CTTY shall so notify
Fidelity Express in writing. If the problem is not resolved to CITY'S satisfaction within
seven (7) calendar days, Fidelity Express shall desist in the collection of the CITY payments
at that outlet or group of outlets, and deposit into the CTTY'S account(s) all customer
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Payments received to date, and modify its signs and promotional materials to indicate such
change.
CITY agrees that in the performance of the work contemplated hereunder, Fidelity Express
shall be an independent contractor and is not an employee of the CITY. Workers engaged by
Fidelity Express regarding this Agreement shall at all times be considered the to
Fidelity Express, and not those of the CITY. That FidelityY of
exclusive liability and shall hold the CITY harmless in aft and assume
contributions, assessments and deductions made on behalf of Fideliy Exp of � any and all
engaged in the performance of the work hereunder. tY Express s employees
Notwithstanding any existing principal/agency relationship between Fidelity Express and any
other party, such as in store outlets or subcontractors, Fidelity Express agrees that it shall
bear the sole responsibility for the performance of the work as specified hereunder and shall
solely bear all risk of loss as specified in Article 4.
Fidelity Express reserves the right to select and engage Fidelity Express locations. The CI f Y
also agrees not to meet or discuss any contractual relations that Fidelity Express has or might
have with any Fidelity Express agent or any other third party. An exception to the foregoing
is communication to any regulatory authorities.
9. Co ensation
Fidelity Express agrees that MY utility account customers who elect to transact their
payment using the services of Fidelity Express or its agents, shall be charged a transaction fee
by Fidelity Express not to exceed $1.50 for each payment they make at an authorized Fidelity
Express aget. The above represents the sole and exclusive compensation payable to Fidelity
Express. The CITY shall receive no part of the fee.
10. Check processing
Fidelity Express shall notify the CITY by facsimile or a mutually -agreed upon format of any
customer payments by check received by agents which are dishonored (i.e. NSF checks).
Following receipt and notification of NSF checks, Fidelity Express will recover the total
amount of any returned NSF check principal by deducting the total amount of such NSF
check principal from the next day's settlement deposit or by some other method that is
acceptable to both CITY and Fidelity Express. However, appropriate back-up information
must accompany any such deduction. In other words, Fidelity Express will provide returned
check amounts with corresponding customer account numbers
from the notice by facsimile g the amount deducted
csimile or another m
y agreed upon format, and Fidelity Express
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shall mail such dishonored check or a -mail thereof and a separate summ
United States mail, first class ary thereof in the
in Section 17 hereof. All Bank Service Fees will to CITY address forth
Presentment of return checks to the CITY on a monthly ffid bffi� � a �e of $3. S 0 per
again any settlement Y axis, and shall not be applied
deposits.
At this point in time the parties hereto specifically agree that Fidelity
any CITY utility customer payments that are payable b may collect
evaluate the progress of this method of Y �°� check. The CITY shall
continue this method of payment
payment and communicate its desire to modify or
11. CITY'S File Transmission Renuirement
If the CITY currently, or subsequently during the period of this Agreement
Express to transmit a requires Fidelity
payment files over a virtual Private Network, data cloud, secure
network, etc., in a manner which requires Fidelity Express to acquire additional hardware or software to communicate or transmit the files, the CITY agrees that any and all costs related
to the purchase of the necessary software, licensing, . feeS, etc., as well to transmit the daily
files, shall be bome solely by CITY. otherwise, normal installation, set up and daily file
transmissions are at no cost to the CITY.
12. Records
12.1 During the term of this Agreement and for a period of five
Fidelity Express shall k i � Yes th�fter,
Fidelity
alternate secure location, maintain and preserve, at FidehtyExprcw,s principal office orin
n, in the form of hard COPY, microfiche, microfifn or electronic
media full records of all transactions relating to the work Fidelity Express performed under
this Agreement. Upon ten (10) days reasonable advance written notice, which notice shall
specify the accounts, records and books requested for viewing, the CITY and its auditors
shall be afforded adequate work space and shall have full access during normal business
hours to inspect, audit and reproduce any and all such accounts, records and books ofFidelity
Express. Ag
reements between Fidelity Express and any of its subcontractors or Agents shall
contain a provision identical to that stated above. To assure the quality of services provided
to the CITY, Fidelity Express shall maintain a routine audit of its subcontractors'/Agents'
facilities throughout the performance of this Agreement, which audit may be
time -to -time by the CITY upon ten days advance written notice. guested from
12.2 All books, records, documents and other evidence pertaining to this Agreement shall
be made available at its home offices at Sulphur Springs, Texas. The cost of such audit same is that there has been a one-half
shall
be home by the CrTY, provided that the end result of
Percent or less underpayment to the CITY. If there has been a greater than one-halfpercent
underpayment to the CITY, the reasonable cost of the audit, including any travel costs of the
CITY auditor(s), must be borne byFidelityExpress, which amount shall be due and
Page 6 of 11 payable
Within fifteen (15) days after Fidelity Express' documented invoice from the CTTY. Failure to co receipt of an itemized and
I properly
y with the Provisions of this Paragraph
12.2 shall be deemed a material breach of this Agreement:
12.3 CITY shall have the right, with reasonable
Ea for advance written notice to Fidelity
Express or its
payment locations, to enter upon the premises of its payment locations in order
to observe the operation of the payment locations and to conduct such tests as it deems
necessary and .appropriate to verify the integrity of the payment processin
Furthermore, upon reasonable notice to Fidelityg Procedures.
four (24) hours, the CITY �� which shall not be less than twenty-
four have the right to observe Fidelity Express's operation in order to verify comPHM= with the terms and conditions of this Agreement.
13. Indemni{cation
Fidelity Express shall indemnify and hold the CITY harmless from and against any and all
loss, damage and liability and from any and all claims and demands, suits, actions and
judgments for damages on account of or by reason of bodily injury, including
and alldamages to pinpm ty incl , and any
—to have beensustainedb an Property of CTI'Y, which may b e sustained or claimed
of any subcontractor or yPn' including employees ofthe CITY, Fidelity Express and
any such sun agents, servants or employees and from all costs and expenses in
suits, demands, actions, claims or proceedings, whether groundless or not, which
maybe broom against CITY caused by or arising out of, or claimed to have been caused by
or arisen out of or in connection with any work done or performed by Fidelity Express or Fidelity Express's failure to do or perform any work required to be done under the terms of this Agreement or the negligence of Fidelity Express, its agents, servants or employees in
connection therewith, or Fidelity Express's failure to comply with any provisions or requirements of any laws, rules, regulations or permits of any duly constituted governmental
authority, which are or may be imposed upon the MY or Fidelity
assumed by Fidelity Express hereunder, and FidelityExpress O1 any obligations
expense, defend any such suits, actions, , at its own cost and
or not which may be commenced ' claims orproceedmgs, whether groundless
therewith, and Fidelityagainst the CITY by reason thereof; or in connection
Express shall pay and satisfy any and all judgments which may be
recovered in any such suits, actions, demands, claims or proceedings, and defray or
reimburse any and all expenses, incfiding costs and attorneys fees, which may be incurred in
or by reason of such suits, actions, demands, claims or Proceedings and keep the property of
the CiTY'S five and unencumbered of any charge or lien against it of any kind
The taking out and maintenance of any insurance shall not relieve Fidelity Express from its
obligation to defend and pzvtect the CITY to the full extent and, for any failure so to do, to
indemnify and save harmless the CITY, all as herein provided, without any limitation as to amount and regardless of the limits of insurance.
The liability of Fidelity Express under this ,agreement and its obligation
i s absolute and continuous and survives letion or ffid li indemnify CITY
hereunder, � by the � termination ofFidelity Express s work
acceptance and payment thereof. Neither the approval by CITY of the
Page 7 of 11
methods of doing the work for under this Agreement nor the failure of CITY to call attention
to improper or inadequate methods nor to require a change in methods nor the neglect of the
CITY
to direct Fidelity Express to take any particular Precautions or to refrain from doing
Y Particular thing shall excuse Fidel
ity Express in case of any such injury to Pin or
damage to Property or release it from liability hereunder.
14. Confidentiality
Any information provided to or received by Fidelity Express regarding COY utility customer
accounts shall be held in the highest confidence and not disclosed to any third party without
the express written permission of CITY. Additionally, anyproprietary
s
by Fidelity Express to CITY shall not be dlosed by CTTY to anythird-� provided
express consent Y Party without the
tY Express, and each party agrees to treat uch information
with the samewritten standard ofof careFideli that it uses with respect to its own
prevent the informatioes disclosure to third parties. Proprietary information to
15. hmcity
15.1 The CITY, at its option, may provide Fidelity with promotional material intended to inform CITY utility customers of Fidelity Express
locations, which are approved to handle its bill payments. The CITY shall in no way be
responsible for promoting or advertising the services of Fidelity Express.
15.2 All advertising or promotional material utilized to promote use of Fidelity Express
services to CITY customers shall be pre -approved by the CITY in writing prior to any use.
16. Compliance with Law
In the performance of this Agreement, Fidelity Express agrees to comply
local, City, County, State and Federal laws and regulations as theyY with any and all
provided hereunder (including OSHA). Y apply to the services
17. Notices
Any written notice required by the terns of this Agreement shall be deemed to be sufficiently
given when sent by certified or registered mail, postage prepaid, to the respective parties as
follows:
City of Denton, Texas and City of Denton, Texas
Customer Service Department City Manager
601 East Hickory Street Ste F 215 East McKinney Street
Denton, Texas 76205 Denton, Texas 76201
Page 9 of 11
Attn: Ethan Cox - Manager
Telephone (940) 349-7421
Fax: (940) 349-7411
Electronic: Ethan.Cox@cityofdenton.com
Fidelity Express
A Division of GSC Enterprises, Inc.
P.O. Box 768
1301 Main Street
Sulphur Springs, TX 75482
Attu: Ms. P. Odom - Division Manager
Telephone: 800-621-8030 ext 236
Fax:877-812-2470
Electronic: podom@fidelityexpress.com
The foregoing addresses and information may be changed at any time by written notices to
the other party.
18. Headings
The headings in this Agreement are for convenience only and shall not be construed to define
or limit any terms.
19. Waiver of Right
No course of dealing or failure of either party to strictly enforce any terms, right or condition
Of this Agreement shall be construed as a waiver of such team, right or condition.
20. Binding Nature and AM ent
This Agreement shall be binding upon the parties and their successors and permitted assigns.
The CITY reserves the right to assign this Agreement to any who
affiliate company of Fidelity Express Vaany
, provided that the subsidiary
oor d subsidiaryr affiliate of Fidelity
Express is of equal or greater creditworthiness, as reasonably determined by the CITY.
21. Governing Law/Jurisdiction
This Agreement shall be coed under and governed by the laws of the State of Texas.
The parties agree that any action arising out of this Agreement or breach thereof shall
be
commenced in the court of appropriate jurisdiction that is located in Denton County, Texas
and the parties hereby consent to the jurisdiction and venue of any such court.
Page 9 of 11
22. Severabi ity
In the event that one or more provisions contained in this Agre
to be unenforceable in any respect, such unenforceabiliare for any reason held
condition of this agreeme and this tY shall l not ot affect any other term or
agreement shall be construed as if the unenforceable
Provision was not contained in this agreement
23. Entire Agreement
The parties acknowledge that they have read this Agreement and understand it and agree to
be bound by its terms and conditions. Further, the parties agree that it is a complete and
exclusive statement of the Agreement between them which supersedes all other proposals
and prior agreements, oral or written, and any other communications between the parties
relating to the subject matter of this Agreement.
ATTEST:
'TWELITY EXPRESS"
A ,GSC Enterprise, Inc.
Title��
Date Q-
UCITV
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: �
Title:
Date: D2 l7
Page 10 of I
ATTEST;
JENNHER WALTERS, CITY SECRETARY
' -Its►��1- 1 1� 1 �
ANITA BURGESS, CITY ATTORNEY
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