2014-371•' i � • � �
AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A
CONTRACT FOR A UTILITY PAYMENT KIOSK SOLUTION FOR THE CITY OF DENTON;
PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN
EFFECTIVE DATE (RFP 5459-AWARDED TO US PAYMENTS, LLC 1N THE THREE (3)
YEAR NOT-TO-EXCEED AMOUNT OF $200,000).
WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for a
Utility Payment Kiosk Solution in accordance with the procedures of State law and City ordinances;
and
WHEREAS, the City Manager or a designated employee has received and reviewed and
recommended that the herein described proposals are the most advantageous to the City considering
the relative importance of price and the ather evaluation factors included in the request for proposals;
and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The items in the following numbered request for proposal for materials,
equipment, supplies or services, shown in the 66Request for Proposals" on file in the office of the
Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City
considering the relative importance of price and the other evaluation factors included in the request
for proposals.
RFP
NUMBER CONTRACTOR AMOUNT
5459 U.S. Payments, LLC $200,000
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
proposals, the City accepts the offer of the persons submitting the proposals for such items and
agrees to purchase the materials, equipment, supplies or services in accordance with the terms,
specifications, standards, quantities and for the specified sums contained in the Proposal Invitations,
Proposals, and related documents.
SECTION 3. Should the City and person submitting approved and accepted items and of the
submitted proposals wish to enter into a formal written agreement as a result of the acceptance,
approval, and awarding of the proposals, the City Manager ar his designated representative is hereby
authorized to execute the written contract; provided that the written contract is in accordance with
the terms, conditions, specifications, standards, quantities and specified sums cantained in the
Proposal and related documents herein approved and accepted.
SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of Denton
under File 5459 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council
hereby authorizes the expenditure of funds therefor in the amount and in accordance with the
approved proposals.
SECTIONmmm6. This ordinance shall become effective immediately upon its passage and
approval. �
PASSED AND APPROVED this the �„��'�� day of � l� �° y'.�'�,�;���� _, 2014.
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� ' 1 °� �" WATTS MAYOR ...._... � ��.��
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY �,���;���°�. :'�� ����� _ ^ ,^ �`���� ����
.. . �
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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BY. � � � �
RFP 5459 - KIOSK
BILL PAYMENT SERVICES CONTRACT
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i�,)�,I��I:������� lus��il�� li�,ri���i�y company ("USP") and City of Denton a Texas Corporation ("Client").
RECITALS
A. USP owns a proprietary electronic bill presentment and payment service system whereby
customers of companies such as Client may pay their monthly bills electronically
(hereafter sometimes the "PaySite System");
B. Client desires to utilize for its benefit and for the benefit of Client's customers (hereafter
sometimes the "Customers") those portions of the PaySite System as hereafter described
with particularity; and
C. USP is willing to allow Client and Customers to utilize those portions of the PaySite
System hereafter described with particularity, but only upon all of the terms and
conditions herein contained.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and which includes, but is not limited to the mutual covenants,
rights and obligations herein contained, the parties do hereby agree as follows:
1. The Services— Subject to the terms and conditions of this Agreement, USP shall make available
to Client those features of the PaySite System more particularly described in the Scope of
Services, attached hereto as "Attachment A" and made a part hereof by this reference. The
portions of the PaySite System made available to Client pursuant to this Agreement are
sometimes herein collectively referred to as the "Services." USP is responsible for providing and
maintaining sufficient infrastructure and staffing to enable it to provide the Services.
2. Term— The initial term of this Agreement shall be three (3) years, commencing on the effective
date, unless sooner terminated as herein provided. This Agreement shall automatically be
extended for four (4) additional successive terms of one (l) year each, unless either USP or
Client give written notice to the other at least ninety (90) days prior to the expiration date of the
then current term that it will not extend this Agreement beyond the then applicable termination
date.
RPP 5459- KIOSK SERVICES CONTRACT
3. Service Nanae and Ownership-- Subject to the terms of this Agreement:
A. Client may market the Services by reference to the name PaySite;
B. Client acknowledges and agrees that the PaySite System and the Services constitute valuable
and proprietary intellectual property of USP and that nothing in this Agreement is intended to
affect nor shall ever be construed as affecting USP's ownership of or proprietary rights in and
to any and all of USP's intellectual property, rights and licenses constituting the PaySite
System or any component thereof including any copyrights, trade secrets, patents and other
intellectua] and proprietary rights therein. All proprietary rights of USP, including without
limitation, all intellectual property, and all rights and licenses in the PaySite System and
Services, and the programs, methods of processing, specific design and structure of
individual programs and their interaction and the programming techniques employed therein,
shall all remain the property of USP. It is expressly understood and agreed that no title to or
ownership of the PaySite System or any part thereof are transferred to Client or its
Customers; and
C. USP warrants that it owns rights and licenses in the operating systems sufficient to perform
and support the Services. USP further warrants that said rights and licenses do not infringe
on any known copyright, patent, trade secret, trademark or proprietary right. USP agrees to
defend and hold harmless Client from any suit brought against Client for any alleged
infringement based upon Client's use of the Services or PaySite System provided that Client
fully cooperates with USP, which cooperation shall include, but not be limited to: (i)
notifying USP as soon as possible of any suit or threat of suit or similar claim; and (ii)
granting USP complete control of the defense of all such claims including the right to settle
all claims.
4. Marketing— USP shall make available to Client sufficient product descriptions and other
materials as USP shall in its discretion determine to allow Client to adequately inform Client's
Customers of the availability of the Services. Client, during the term hereof, may market the
Services. Such marketing obligations may include not less than the following:
A. Client may describe the Services on Client's web page and shall provide a link to USP's
website; and
B. Client may employ the use of its call center and customer service representatives to educate
Customers regarding the Service and, when appropriate, direct customers to the location of
the PaySite terminals.
All such marketing costs shall be the sole and exclusive expense of Client.
shall include the Client's brand name and a statement that the Services
PaySite System. All proposed marketing materials shall be provided by
approval before any of same shall be distributed in any manner whatsoever.
2
RFP 5459- KIOSK SERVIC�S CONTRACT
All marketing materials
are provided via USP's
Client to USP for USP's
5. Pricing— Client shall pay USP;
A. Transaction fees as set forth with particularity in any Pricing Attachment, which is attached
hereto as "Attachment B" which are incorporated herein by this reference; and
B. All expenses incurred by USP as a result of enhancements or customization as Client may
request in writing and which USP in its sole discretion chooses to implement.
Pricing shall be subject to change, increase, decrease, addition and deletion by USP. Notice of each
such change will be given to Client ninety (90) days prior to implementation thereof. Upon
notification, the Client shall have thirty (30) days to review the notice, and either accept the
requested pricing changes, or cancel this contract, with a written (90) day cancellation notice.
6. Payment of Charges — USP will invoice Client monthly for all sums which may become due
USP from Client by virtue of this Agreement (except for the implementation fees and costs which
are payable upon the execution hereo fl. All invoices are payable not later than 30 days from the
date of each of same at the offices of USP at the address as may be provided within USP's
invoices. Invoices not paid when due shall accrue service charges at the rate of one and one half
per cent (1.5%) per month from and after the due date thereof, or as defined by Texas
Government Code 2251.025, and in compliance with the statutory provisions thereof. USP will
settle and collect directly from Customers at the time of the transactions any convenience fees
due from Customers (as set forth in the Pricing Exhibit).
7. Tertninatio� of Services—
A. Client may terminate this Agreement at any time during the initial three (3) year term hereof
upon written notice to USP at least ninety (90) days prior to the desired termination date. If
such termination is for cause (as hereafter defined), there shall be no early termination fee. If
such termination is without cause, the applicable early termination fee described hereafter
shall apply and the notice of termination shall be accompanied by payment of the early
termination fee. Termination shall be deemed 'for cause" if such termination is due to a
material default by USP of its obligations as set forth herein which USP fails to cure within
thirty (30) days after notice thereof by Client to USP, or, if such default cannot reasonably be
cured within said thirty (30) day period, if USP has failed to implement commercially
reasonable measures to remedy the default within the thirty (30) day period and has further
failed to continuously prosecute such remedy with due diligence. Termination hereof by
Client for any other reason shall conclusively be deemed to be "without cause. " The notice
of termination shall detail the reason or reasons for such termination;
B. Upon termination of this Agreement by Client without cause pursuant to subpart A above,
Client shal) pay to USP the balance of the remaining fees associated with this Agreement
listed in Attachment B, as a final and equitable termination settlement. The parties agree
that actual damages incurred by virtue of Client's early termination hereof withoul cause
would be impractical or extremely difficult to ascertain;
RFP 5459- KIOSK SERVIC�S CONTRACT
C. USP may by notice of its intent to do so terminate this Agreement upon notice to Client only
in the event of any one or more of the following occurrences:
i. Client's failure to timely remit any payment then due USP pursuant to any term or
provision of this Agreement, in which case the Agreement may be terminated by USP
immediately; or
ii. Client's breach of any other Client obligation arising under this Agreement unless Client
cures such breach within 30 days of USP's notice of its intent to terminate this
Agreement.
D. Either party may terminate for cause should an authority having jurisdiction to make such
determinations determines that any Service being provided hereunder or any fee being
charged by virtue hereof is in violation of any federal or local law, statute, rule or regulation
in which case this Agreement may be terminated immediately.
E. Any termination of this Agreement by either party shall be without prejudice to any action by
either party to recover delinquent or unpaid charges or for any other damages to which it may
prove itself entitled.
8. Confidential Information— All obligations imposed by this Agreement regarding confidentiality
shall survive any termination of this Agreement for any reason whatsoever, and:
A. As used herein, Confidential Information shall, as to each party hereto, include, but not be
limited to, information regarding each respective party's: (i) business, business plans,
procedures, property, processes, practices, protocols, projections and analyses, forecasts,
marketing plans, client or customer lists or personal data and business opportunities; (ii)
existing contracts; (iii) fnancial information and data; (iv) data processing or management
information or systems including, but not limited to, hardware, software and technical
specifications and technical information pertinent thereto; (v) intellectual property; (vi)
business facilities, architecture, structure, operational and technical information; (vii) any
data or information that is competitively sensitive material, and not generally known to the
public, including, but not limited to, products, planning information, marketing strategies,
plans, finance, operations, customer relationships, customer profiles, customer lists, sales
estimates, business plans, and internal performance results relating to the past, present or
future business activities of the parties or their respective parent corporations, subsidiaries or
affiliated companies and the customers, clients and suppliers of any of the foregoing; (viii)
any scientific or technical information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its confidentiality affords the owner
thereof a competitive advantage over its competitors; (ix) all concepts, documentation,
reports, data, specifications, computer software, source codes, object codes, flow charts,
databases, inventions, substances, engineering and laboratory notebooks, drawings, diagrams,
specifications, bills of material, equipment, prototypes and models and any other tangible
manifestation of the foregoing which now exist or come into the control or possession of a
party; and (x) any information in any manner ancillary or pertinent to any of the foregoing.
It is the express intent of the parties that Confidential Information, as used herein, be defined,
interpreted and construed as broadly and liberally as legally possible to include any and all
information, facts or knowledge provided to or observed or derived by a party regarding, in
any manner the other party's Confidential Information or any information ancillary or
pertinent thereto;
4
RFP 5459- KIOSK SERVICES CONTRACT
B. Except as expressly authorized by prior written consent of the disclosing party, the receiving
party shall: (i) limit access to any Confidential Information of the disclosing party received
by the receiving party to its employees and consultants who have a need-to-know in
connection with the business transactions contemplated by this Agreement, and only for use
in connection therewith; (ii) advise its employees and consultants having access to the
Confidential Information of the disclosing party of the proprietary nature thereof and of the
obligations set forth in this Agreement; (iii) take appropriate action by instruction to its
employees and consultants having access to the Confidential Information of the disclosing
party to fulfill the receiving party's obligations under this Section; (iv) safeguard all
Confidential Information of the disclosing party received by the receiving party, using a
reasonable degree of care, but not less than that degree of care used by the receiving party in
safeguarding its own similar information or material; and (v) use all Confidential Information
of the disclosing party received by the receiving party solely for purposes of carrying out the
business transactions between the parties contemplated by this Agreement and for no other
purpose whatsoever;
C. Following the termination of this Agreement for any reason and upon the request of the
disclosing party, the receiving party shall, within twenty (20) days thereafter, surrender to the
disclosing party all memoranda, notes, records, drawings, manuals, records, diagrams and
other documents or materials (and all copies of the same) pertaining to or including the
Conf dential Information of the disclosing party. Upon the return of such materials, the party
returning materials agrees to certify, in writing, that all of the foregoing materials have been
surrendered to the disclosing party and that no copies have been made or retained;
D. The obligations of confidentiality and restrictions on use in this section shall not apply to any
information that: (i) was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of the receiving party; (ii) was
lawfully received by the receiving party from a third party free of any obligation of
confidence to the disclosing party; (iii) was already in the possession of the receiving party
prior to receipt thereof, directly or indirectly, from the disclosing party; (iv) is required to be
disclosed in a judicial or administrative proceeding after all reasonable legal remedies for
maintaining such information in confidence have been exhausted including, but not limited
to, giving the disclosing party as much advance notice of the possibility of such disclosure as
is practical so that the disclosing party may attempt to stop such disclosure or obtain a
protective order concerning such disclosure; or (v) is subsequently and independently
developed by employees, consultants or agents of the receiving party without reference to the
Confdential Information disclosed under this Agreement; and
E. The parties acknowledge that the disclosing party may be irreparably harmed if the receiving
party's obligations under this Section are not specifically enforced and that the disclosing
party would not have an adequate remedy at law in the event of an actual or threatened
violation by the receiving party of its obligations. Therefore, the receiving party agrees that
the disclosing party may be entitled to an injunction or any appropriate decree of specific
performance for any actual or threatened violation or breach by the receiving party, its
employees or agents, without the necessity of the disclosing party showing actual damages or
that monetary damages does not afford an adequate remedy. Such injunctive relief shall not
preclude recovery for monetary damages sustained or for cost of the action including
reasonable attorneys' fees.
RFP 5459- KIOSK SERVICES CONTRACT
9. Both parties agree that the City of Denton is a local government entity subject to compliance with
Texas Government Code 552, commonly known as the "Public Information Act". Both parties
agree that records generated by a government entity, including those records held by the
government entity's contractors may not be confidential, and subjected to open records requests
for information. USP agrees to ensure that all records lawfully subject to the open records act and
requested by the City of Denton shall be delivered to the City as may be required to effectively
comply with Texas statutory requirements.
10. Force Majeure—
A. Liabiliry— Defi�ition. Except as otherwise provided herein, neither party shall be liable for
any delay or performance of, or the inability to perform, any obligation required by this
Agreement when such delay or inability is caused by a force majeure occurrence. Force
majeure, as used herein shall mean the following: acts of God, wars, governmental or court
orders, regulatory or legislative changes by any local, state or federal governmental agency,
strikes, work stoppages, or other occurrences not within the control of the party affected
thereby;
B. Action on Occurrence of Claimed Force Majeure. Upon the occurrence of a claimed event of
force majeure, the affected party claiming same shall (i) promptly notify the other party in
writing thereof, furnishing a full description of the pertinent circumstances and the basis and
rationale of the claimed event of force majeure; and (ii) shall remedy to the extent practicable
with all reasonable dispatch the cause or causes claimed as preventing it from carrying out
this Agreement; and
C. Termination ofAg�^eement. In the event that either party's performance under this Agreement
is suspended or rendered impracticable by reason of a force majeure event for a period in
excess of ninety (90) days, either party shall have the right to terminate this Agreement, upon
ten (10) days written notice, without further obligation.
11. Relationship of the Parties— This Agreement is entered into by the parties for the sole and
express purpose of governing the relatio�ship between them. Nothing herein contairred shall be
deemed or construed to create a partnership, joint venture or similar relationship. This
Agreement is not intended to be, nor shall it be construed as, a joint venture, association,
partnership, or franchise. No party shall have nor hold itself out as having any right, power or
authority to assume, create or incur any expense, liability or obligation, expressed or implied, on
behalf of the other party, except as expressly provided herein.
l2. Notices— All notices or other communications which may be given or which are required to be
given by either party to the other and any exercise of a right provided by this Agreement shall be
deemed duly given, served or exercised when reduced to writing, dated and either: (i) personally
delivered to the officer of the intended recipient at the office address provided below; (ii) sent by
certified or registered mail, return receipt reyuested, postage prepaid, addressed to the intended
recipient at the address specified below; or (iii) deposited into the custody of a nationally
recognized overnight delivery service such as Federal Express or United Parcel Service,
addressed to the intended recipient at the address specified below. Notices shall be effective on
the date of delivery or receipt, or, if delivery is not accepted, on the earlier of the date that
delivery is refused or three (3) days after the date the notice or other communication is mailed or
delivered to a nationally recognized overnight delivery service for delivery. For purposes of this
6
RFP 5459- KIOSK SCRVICES CONTRACT
Notice Section, the addresses of the parties for all notices shall be as follows (unless changed by
the party whose address is to be changed in accordance with the provisions of this Notices
Section):
If to Client: City of Denton
Attention: George Campbell, City Manager
2l5 E. McKinney Street
Denton, TX 76201
If to USP: U.S. PAYMENTS, L.L.C.
Attention: its President
1800 S. Baltimore Avenue, 4th Floor
Tulsa, OK 741 l9
13. Assignment— Neither this Agreement nor any of the rights or obligations under it may be
assigned, delegated, sub-licensed or transferred (by operation of law or otherwise) by either party
without the prior written consent of the other party except that USP may, at its sole discretion,
assign its rights or delegate or subcontract performance of its obligations under this Agreement to
(i) any subsidiary, affiliate or parent entity of USP and (ii) any purchaser or transferee of
substantially all the stock or assets and liabilities of USP.
14. Independent Contractor— In performing the services to be provided hereunder, USP is an
independent contractor and is neither an employee nor an agent of Client. USP shall have no
authority to legally bind Client to any transaction.
15. Client Marks— Any use of, or reference to, the Client name, service mark or logo by USP in any
service or promotional materials must be approved in writing by Client prior to use.
16. Insurance— USP shall, at its expense, during the term of this Agreement, keep in full force and
effect General Comprehensive Liability Insurance, with an insurance company licensed to do
business in the State of Texas by the State Insurance Commission or any successor agency
that has a rating with Best Rate Carriers of at least A or better:
Comprehensive General Liability Insurance with bodily injury limits of not less than
$500,000 for each occurrence and not less than $500,000 in the aggregate, and with property
damage limits of not less than $100,000 for each occurrence and not less than $100,000 in
the aggregate.
Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each
person and not less than $500,000 for each accident, and with property darnage limits of not
less than $100,000 for each accident.
Workers' Compensation Insurance in accordance with statutory requirements, and
Employers' Liability Insurance with limits of not less than $100,000 for each accident.
Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate.
7
RFP 5459- KIOSK SCRVICES CONTRACT
USP shall furnish insurance certificates or insurance policies at the Client's request to
evidence such coverages. The insurance policies shall name the Client as an additional
insured on all such policies, and shall contain a provision that such insurance shall not be
canceled or modified without thirty (30) days' prior written notice to Client and USP. In
such event, USP shall, prior to the effective date of the change or cancellation, serve
substitute policies furnishing the same coverage.
17. Exclusion of Certain Damages— USP specifically DISCLAIMS and the parties specifically and
explicitly agree that under no circumstances whatsoever shall USP ever be liable for any
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF
EQUIPMENT, LOST PROFITS OR REVENUE, COSTS OF REPLACEMENTS AND OTHER
ADDITIONAL EXPENSES, EVEN IF USP HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES arising in connection with this Agreement or the alleged breach or violation
hereof, and that any damages recoverable by Client as the result of any alleged breach of any
provision hereof shall never exceed the total fees actually paid to USP during the term hereof
pursuant to this Services Agreement. The pricing for the Services stated in this Agreement is a
material consideration in limiting USP's liability and Client's remedies.
18. To the extent permitted by law, and subject to the foregoing exclusions, each Party (an
"Indemnifying Party") agrees to reimburse, indemnify and hold the other Party (an
"Indemnified Party") and its agents harmless from all losses, claims, demands, actions, suits,
proceedings or judgments, including costs, expenses and reasonable attorneys' fees
("Liabilities") assessed against or otherwise incurred by the Indemnified Party arising, in whole
or in part, from: (a) actions or omissions, whether done negligently or otherwise, by the
Indemnifying Party, its agents, directors, officers, employees or representatives; (b) actions taken
by the Indemnified Party at the request of the Indemnifying Party; (c) violation of any applicable
laws, rules, regulations or ordinances by the Indemnifying Party; or (d) the Indemnifying Party's
breach of any term or condition of this Agreement; provided, however, that this provision does
not apply if such claim arises out of (i) an act of fraud, embezzlement or criminal activity by the
Indemnified Party; (ii) willful misconduct, gross negligence, or bad faith by the Indemnified
Party; or (iii) the failure of the Indemnified Party to comply with, or to perform its obligations
under, this Agreement. The indemnification obligations set forth in this Section survive any
termination of this Agreement.
19. Disclaimer of Warranties— EXCEPT AS OTHERWISE EXPLICITLY SET FORTH
HEREIN, USP SPECIFICALLY DISCLAIMS AND MAKES NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND, EXPRESS�D OR IMPLIED AND THE SAME
ARE HEREBY EXCLUDED FROM THE TERMS OF THIS AGREEMENT.
8
RPP 5459- KIOSK SCRVICES CONTRACT
20. Dispute Resolution—If a dispute arises out of or relates to the Contract, or the breach thereof,
the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does
not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek
injunctive relief. Either party may make a written request for a meeting between
representatives of each party within fourteen (14) calendar days after receipt of the request or
such later period as agreed by the parties. Each party shall include, at a minimum, one (1)
senior level individual with decision-making authority regarding the dispute. The purpose of
this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the
dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded
in negotiating a resolution of the dispute, they will proceed directly to mediation as described
below. Negotiation may be waived by a written agreement signed by both parties, in which
event the parties may proceed directly to mediation as described below.
If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation
process, the dispute shall promptly be submitted to a commercial mediator trained in mediation
skills to assist with resolution of the dispute. The parties shall attempt to settle the dispute by a
mediation to be conducted in the City of Denton, Texas, and to be administered by the American
Arbitration Association, pursuant to its Commercial Mediation Procedures (or by such other
private mediation service provider to which the parties may then agree). The parties shall
participate in mediation in good faith for up to thirty (30) calendar days from the date of the first
mediation session. The City and USP will share the mediator's fees equally and the parties will
bear their own costs of participation such as fees for any consultants or attorneys they may utilize
to represent them or otherwise assist them in the mediation.
21. Bindi�g Arbitration— If a bona fide dispute arises out of or relates to this Agreement, or any
alleged breach hereof, and if the dispute is not satisfactorily resolved after resort to the
compulsory mediation requirement hereinabove set forth, then any such dispute, controversy or
claim slaall be resolved by binding arbitration to be administered by the American Arbitration
Association under its Commercial Arbitration Rules (or by such other arbitration service and
rules as to which the parties may mutually agree) and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. It is the express declared
intent of the parties that any such arbitration will be held as promptly as possible at such time and
place within Denton County, Texas, as the arbitrator(s) may determine.
22. Exclusive Forum— The parties agree that the exclusive jurisdiction and venue of any arbitration
or litigation arising out of or relating to this Agreement shall be the District Court within and for
Denton County, Texas, or, if jurisdictional requirements are otherwise met, the United States
District Court in and for the Northern District of Texas.
23. Choice of Law— This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas.
24. Entirety of Agreement= This Agreement, together with all Attachments, constitutes the entire
Agreement between the parties and supersedes all previous agreements, promises,
representations, understandings and negotiations between the parties, whether written or oral,
with respect to such subject matter.
9
RPP 5459- KIOSK SERVICES CONTRACT
25. Modification, Amendment, Supplement or Waiver— No modification, amendment or supplement
to this Agreement shall be binding upon the parties hereto unless made in writing and duly signed
by an authorized representative of each party hereto. No waiver of any of the provisions of this
Agreement shall be binding unless reduced to writing, dated and executed by the party sought to
be charged therewith. A failure or delay of either party to this Agreement to enforce any
provision hereof, to exercise any option which is herein provided or to require performance of
any provision hereof shall in no way be construed to be a waiver of such provision. Pre-printed
terms and conditions in order and acknowledgment documents issued pursuant to this Agreement
by one party to the other are not binding.
26. Severability— In the event a court of competent jurisdiction shall determine that any of the
provisions of this Agreement are invalid, illegal or unenforceable, the parties shall negotiate in
good faith in an attempt to agree on a mutually acceptable valid, legal and enforceable substitute
provision consistent with the original intention of the parties hereto. If the parties are unable to
agree upon a substitute provision, then either party may terminate this Agreement upon ninety
(90) days notice to the other party.
27. Effective Date— This Agreement shall be effective for all purposes upon the date and year first
above written notwithstanding the actual date any party hereto executes this Agreement and
notwithstanding any other provision, expressed or implied, of this Agreement.
28. Third Party Beneficiaries— This Agreement is made solely and specifcally between and for the
benefit of the parties hereto, and their respective successors and assigns subject to the express
provisions hereof relating to successors and assigns, and no other person, frm or entity
whatsoever shall have any rights, interest or claims hereunder or be entitled to any benefits under
or on account of this Agreement as a third party beneficiary or otherwise.
29. Attorneys' Fees— In any Arbitration or subsequent litigation as may be reguired to enforce the
terms of this Agreement or to collect damages for its breach, the prevailing party shall be entitled.
to its reasonable attorneys' fees and all costs of such litigation through all arbitration, trial and
appellate levels and post judgment proceedings.
30. Time of the Essence— The parties agree that time shall be of the essence of this Agreement.
31. Attachments— The terms and conditions of any and all attachments hereto as amended from
time-to-time by mutual agreement of the parties or in accordance with the terms of this
Agreement, are incorporated herein by reference and shall constitute part of this Agreement as if
fully set forth herein. This Agreement shall be construed and interpreted wherever possible to
avoid conflict between the provisions hereof and any attachments hereto provided that, if such
conflict shall arise, the provisions of this Agreement shall control.
32. Headings— The headings in this Agreement are for purposes of reference only and shall not in
any way limit or otherwise affect the meaning or interpretation of any of the terms hereof.
33. Counterparts— This Agreement may be executed in multiple counterparts, each of which shall
be deemed an original, but al l of which shall constitute one and the same instrument.
10
,. , , , * *
34. Survival— The following provisions of this Agreement shall survive the expiration or termination
of this Agreement: (i) provisions relating to protection of Confidential Information; (ii) all
obligations and liabilities incurred prior to the expiration or termination; and (iii) provisions
which by their express terms shall survive the expiration or termination.
35. 13inding Effect— This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and any permitted assigns.
36. Taxes— USP represents and warrants that it is an independent contractor for purposes of
federal, state, and local employment taxes. USP agrees that Client is not responsible to
collect or withhold any such taxes, including income tax withholding and social security
contributions, for USP. Any and all taxes, interest or penalties, including any federal, state,
or local withholding or employment taxes, imposed, assessed, or levied as a result of this
Agreement shall be paid or withheld by USP.
EXEMPTION FROM TAXES
The City of Denton is exempt from Federal Excise and State Sales Tax.
The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article
20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing
work under this contract for the City of Denton may purchase materials and supplies and rent
or lease equipment sales tax free. This is accomplished by issuing exemption certificates to
suppliers. Certificates must comply with State Comptroller's ruling #95-0.07 and #95-0.09.
37. Compliance With Laws; Custonzer Policies and Procedures— Both parties agree to comply
with all applicable federal, state, and local laws, executive orders and regulations issued, where
applicable.
38. No Waiver— The failure of either party at any time to require performance by the other party
of any provision of this Agreement shall in no way affect that party's right to enforce such
provisions, nor shall the waiver by either party of any breach of any provision of this Agreement
be taken or held to be a waiver of any further breach of the same provision.
39. Cumulative Remedies— All rights and remedies of Each Party herein shall be in addition to all
other rights and remedies available at law or in equity, including, without limitation, specific
performance against the other Party for the enforcement of this Agreement, and temporary and
permanent injunctive relief.
40. Regulatory Exan�ination/Audil— Each Party agrees to submit to any examination which may be
required by any regulatory authority with audit and examination authority over such Party, to the
fullest extent of such regulatory authority. Each Party agrees to also provide to the other Party any
information which may be required by any regulatory authority in connection with their audit or
review of such Party or this Agreement and to reasonably cooperate with such regulatory authority in
connection with any audit or review.
41. Entire Agreeme�t— This Agreement and its attached exhibits constitute the entire agreement
between the parties and supersede any and all previous representations, understandings, or
agreements between Customer and Service Provider as to the subject matter hereof. This
Agreement may only be amended by an instrument in writing signed by the parties.
11
RPP 5459- KIOSK S�RVICCS CONTRACT
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the
year and day first above written.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
� � y � � �"� �
BY ..:�� ...::. �� .........����"�" �� --��_ � _ , ,
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
,��" � "� ���� � �� � ��,,M
BY: �,�,� � �" .. .. �� . �� �� �� ...... �� � ..�;�` �� �
�
��
RFP 5459- KIOSK SERVICES CONTRACT
SUPPLIER: U.S. Payments, L.L.C.
BY: �� �,�
AUTHORIZED SIGNATURE
Date:
Name: Tim Neece
Title: President
18-728-3800
,. .....
PHONE NUMBER
918-728-3898
��� �.._......_ � _ ._...........--- -....__
FAX NUMBER
CITY OF DENTON, TEXAS
� ,�;� � I� � �„�
Y� u ��
� w."
BY � � � � �,m. ���
GEO��,C�� �"W�{�i�a'91 141���1,.uL.w CITY ��J�,�i.�l^���.� . �
� , , �
Date: � �,. ����` __.�
Attachment A—Scope of Services
Summary of Services: USP will provide to customers of Client the ability to pay their bill at the
PaySite kiosk payment terminal. Customers will be given the option to pay their Client bill with a
personal check (converted to ACH), cash, credit card and pinless debit card.
At the end of each processing day, a payment file will be forwarded to Client for processing.
Support will be provided to Client and its customers by USP.
PavSite Confi�uration:
• Touch Screen
• Audio: English and Spanish
• Multi-biller unless specifically agreed otherwise
• Payment methods available: cash, check, credit/debit
• Kiosk does not provide change; overpayments are forwarded to Client
• Check payments are converted to an electronic transaction (ACH/POP)
• Each kiosk updates the USP database real-time
• Receipts are provided for each transaction in English or Spanish �
PavSite Bill Pavment Experience:
• Touch screen to exit attract loop
• User disclosure (Accept/Decline)
• Choose English or Spanish (choice provided on most screens throughout the process)
• Select a category
• Select a biller
• Customer enters account number (barcode or OCR; and manual input)
• Client provides an account number algorithm to validate numbers provided by customers
• Enter last name
• Enter phone number and PIN (i.e., last 4 digits of SSN or Birth date)
• Select a payment method
• Fee disclosure (if applicable)
• Customer enters amount they wish to pay (check and credit/debit transaction only)
• Payment inserted (cash, check or card)
• Checks are marked "Electronically Presented" then returned to customer (if applicable)
• Payment amount and fee are displayed
• Transaction is complete
• Receipt is printed
13
RFP 5459- KIOSK SERVICES CONTRACT
PavSite Receipt Information:
• Date and time of transaction
• PaySite terminal number
• PaySite location
• Payment method
• Client name
• Customer account number
• Check (if applicable)
o Serial number
o Last 4 digits of account number
• Card (if applicable)
o Last 4 digits of card number
o Authorization number
� Bill payment amount
• PaySite processing fee
• Transaction total
� Receipt reference number
• Transaction ID#
• USP toll free number for questions
Ifpaying by check, the receipt will restate the customer's authorization to convert their check to
an electronic transaction.
14
P 5459- KIOSK SERVICES CONT CT
Dailv Processing:
• USP will compile the Client transactions for the processing day
• USP will provide Client a remittance file formatted as instructed by Client
• USP will provide access to the daily remittance and reports files
• Memo posts of transactions (if applicable) are sent 24x7x365 �
• Real time posts of transactions (if applicable) are sent 24x7x365
• USP will complete daily remittance, reports and deposits on all business days USP is open
(business days are defined as Monday through Friday)
� USP's holiday schedule (days when no remittance, reports, or deposits are sent):
l . New Year's Day
2. Memorial Day
3. Tndependence Day
4. Labor Day
5. Thanksgiving Day
6. Friday after Thanksgiving
7. Christmas Eve
8. Christmas Day
• Daily remittance and reports are sent on the next business day on those holidays observed by
USP
Daily Reports:
� Chargeback Report
• Daily Payment
• New Accounts
• Representment Report
• Kiosk Payment Report
The Administrative Console provides additional access to reports.
Funds Settlement:
• Client provides to USP bank account and routing number for settlement of payments
• USP initiates credit to Client through the Federal Reserve the next business day after
customer(s) initiated payment(s); normally applied to Client account on day two
• Client's account is charged (or netted) for charge backs and/or returns for ACH payments
Customer �,.rn°w�r�.
• USP Customer Care is available Monday through Friday 7:00 a.m. to 6:00 p.m., CST
• Voice Mail is available 24-hours a day, 7-days a week
• USP will attempt to return voice mail messages the same day they are received
� USP will provide Spanish speaking Customer Care support
15
RFP 5459- KIOSK SERVICES CONTRACT
Attachment B—Pricing
Description of charges paid by Client
1. Implementation ..........................................
a. Training materials.
b. Licensing for Administrative Console.
c. Development of file formats.
Cost/Unit Price
....................w.,,... $0.00
Description offees Paid by Clientfor machines located in Client Offices CosC/Unit Price
Monthly Kiosk Fee .......... ......... ........ ........ ......... ......... ....... .......... $950.00
Transaction fee paid by Client for Cash, ACH, and Cards ............� ................ $0.40
Merchant fees (if applicable) are billed monthly as a pass through.
Description of Services Provided by Client for n�achines located in Client Offices
1. Internet conneclion and power for each machine.
2. Cash service.
Description offees fo�^ machines localed in Retail locations
MonthlyKiosk Fee ......� .. ......... ......... ......... .....�, �,. �.�..... .,.....a.
Cash and ACH convenience fees paid by Customers .....................
Card convenience fees paid by Customers .....................................
' Maximum payment of $300.00. Visa, MasterCard, Discover,
16
RFP 5459- KIC35K SERVICCS CONTRACT
Cost/Unit Price
........., $0.00
.......... $2.00
......... $3.50'