Ordinance No. 8,042970828 -1
ORDINANCE NO. 8042
® AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO
EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT WITH
U S AUDIOTEX, LLC TO PROCESS CREDIT CARD PAYMENTS AT THE
MUNICIPAL COURT; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the Mayor and City Clerk of the City of Baytown to execute and attest to an agreement with
U S Audiotex, LLC to process credit card payments at the Municipal Court. A copy of said
agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and
purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 28 "' day of August, 1997.
/�C &y!�
PETE C. ALFARO, Mayor
ATTEST:
'e�. �- lz9 2'1��
EILEEN P. HALL, City Cleric
APPROVED AS TO FORM:
4.
CIO RAMI , R., 6ty Attorney
C:\MyDocuments\Counci l \Meetings\August\USAudiotexCred itCardA,,eement.28.doc
•
U 5 Aud/otex, LLC
U S Audiotex, LLC
Legal Brief
U S Audiotex, LLC is an IBM Business Partner, developing Interactive Voice Response (IVR)
Credit Card Payment Systems. U S Audiotex has a Service Bureau that can process credit card
payments for various county /city agencies.
The Service Bureau performs the following functions:
• Real time authorization and posting
• Electronic audit controls
• Comprehensive reporting
Creates update files
U S Audiotex charges the caller a convenience fee for the usage of the system thereby offsetting
the system price.
Some of the key aspects of our proposal are:
FREE SYSTEM The U S Audiotex System provides an Interactive Voice Response
Credit Card Payment application. U S Audiotex provides the entire
system and on going maintenance at no cost to you.
ELECTRONIC BANKING The U S Audiotex System electronically deposits funds into your
bank of choice. The U S Audiotex processing does not result in any
lock box or check processing fees for transactions processed by
the IVR system.
NO INSTALLATION No systems on customer site. All processing and systems
management are handled by the service bureau.
DIGITAL 800 SERVICE All caller access is through free digital 800 service.
FAST SETUP Accounts are turned on within a few days of completed paperwork.
MONTH TO MONTH The service bureau is designed to accept pilot accounts without
committing to any term.
CONTRACTS
There are three documents required: the Government IVR Agreement, Government
Services Agreement and Electronic Deposit Instructions.
The Government IVR Agreement establishes the service. An agreement follows.
The Government Services Agreement establishes exclusive ownership of the funds in
your name. This agreement is between the GOVERNMENT ENTITY and the credit card
processor.
® The Electronic Deposit Instructions allow the funds to be electronically deposited in your
bank of choice.
ID Copyright 1997, U S Audiolex, LLC, San Ramon, CA
EXW p Page t
City of Baytown.doc
4P
U 5 AUdlotex, LLC
GOVERNMENT IVR AGREEMENT
This Agreement is made and entered into this _ day of , 1997, by and between U S Audiotex. LLC, A
Califomia Limited Liability Corporation (hereinafter referred to as -USA' I. and the City of Baytown (hereinafter referred to
as "GOVERNMENT ENTITY"). The term 'USA' shall refer to the company, its agents, and its subcontractors.
In consideration of the mutual understandings herein contained, GOVERNMENT ENTITY and USA agree as follows:
1. SCOPE OF AGREEMENT
A Pursuant to this Agreement, the obligations of USA are:
1) To provide Interactive Voice Response (IVR) services including all equipment and software for the
purpose of accepting various 'Credit Cards' as agreed to by both parties. USA shall provide for the
acceptance of fines, fees, taxes and/or other obligations owed to GOVERNMENT ENTITY:
2) USA system is responsible for the storage and retrieval of all -Credit Card' sales for a minimum of thirty -
six (36) months from the transaction date. This paragraph shall survive the termination of this
Agreement.
3) USA system will electronically transmit to processing center all sale and refund transactions in real time
as the transactions occur. USA system will balance and reconcile each day's electronically captured
transactions on a daily basis. USA system will, when necessary as a result of such reconciliation,
process all appropriate adjustments.
B. Pursuant to this Agreement, the obligations of GOVERNMENT ENTITY are:
1) Enter into a Government Services Agreement for accepting 'Credit Cards' as payments:
2) To be responsible for all promotion and advertising of the credit card payment program. GOVERNMENT
ENTITY will print the system's '800' number on citations and notices.
3) In the event of a reversed or rejected credit card transaction, termed Chargeback, GOVERNMENT
ENTITY shall only be Charged Back the amount of GOVERNMENT ENTITY's original transaction. USA
shall be responsible for that portion of the Chargeback which includes USA's original transaction fee, and
any service fees associated with the Chargeback, excluding GOVERNMENT ENTITY's Bank fees, if any.
2. COSTS AND PAYMENTS
USA shall provide all services at no cost to the GOVERNMENT ENTITY. USA agrees to pay all discount fees on
behalf of GOVERNMENT ENTITY.
For VISA, MasterCard and American Express transactions, USA shall be responsible for routing the
GOVERNMENT ENTITY's funds to the GOVERNMENT ENTITY's Bank Account via ACH transactions. U S
Audiotex shall invoice the GOVERNMENT ENTITY on a monthly basis for the convenience fees. All expenses for
VISA, MasterCard and American Express are paid by USA.
For Discover transactions, the total transaction amount plus the convenience fee is electronically deposited into the
GOVERNMENT ENTITY'S Bank Account. Discover will sweep the discount fee from the transaction. USA shall
invoice the GOVERNMENT ENTITY on a monthly basis for the convenience fee less the discount fees swept by
Discover Card.
USA will cause an authorization code to be obtained on every Card transaction.
GOVERNMENT ENTITY agrees to pay all invoices within 10 business days from date of postmark.
USA agrees to fax a daily transaction report to GOVERNMENT ENTITY that details the transaction activity of the
previous day. USA wilt fax a monthly transaction report at month end that details the transactions that occurred
each day of the past month.
USA will clearly state the convenience fee to customers during the customer's call. The customer will be informed
of the convenience fee prior to completion of the transaction and given the choice to accept or decline transaction.
tD Copyright f997, U S Audiotex, LLC, San Ramon, CA
Page 2
City of Baytown.doc
U s Afueflotex, ttrt
® 3. TERM OF AGREEMENT
This agreement shall commence on the date the system is first implemented and continues on a month to month
basis. Termination of this agreement shall be by written notice and shall be given by either party with thirty (30)
days written notice. Said termination notice shall be considered to be rendered when placed in the United States
Postal Service for delivery to the other party. Upon termination, both parties shall be released from all contractual
obligations to the other party, excluding Scope of Agreement (paragraph 41A2), Non Disclosure (paragraph #7) and
Indemnification (paragraph 08) provisions.
4. EMPLOYMENT STATUS
In performance of the services herein provided for, USA shall be, and is, an independent contractor, and is not an
agent or employee of GOVERNMENT ENTITY.
5. RECORDS AND AUDIT
USA shall keep complete and accurate records for the services performed pursuant to this Agreement and any
records required by law or government regulation, and shall make all records available for AUDIT to
GOVERNMENT ENTITY upon written request of GOVERNMENT ENTITY. USA shall prepare and forward such
additional or supplementary records as GOVERNMENT ENTITY may reasonably request. USA shall assure the
confidentiality of any records that are required by law to be so maintained.
6. OWNERSHIP
GOVERNMENT ENTITY retains for itself, and USA acknowledges that GOVERNMENT ENTITY so retains
ownership and rights of ownership to all data and associated transaction records entered into the database or
created by the System: and to all data and information files created by USA in the performance of this Agreement
and owned by GOVERNMENT ENTITY.
U S Audiotex retains for itself, and GOVERNMENT ENTITY acknowledges that USA so retains ownership and
rights of ownership to all Interactive Voice Response systems, phone lines and numbers, connected to USA's data
center used in performance of this agreement.
7. NON - DISCLOSURE
To the extent permitted by taw, each party expressly covenants and agrees that it will not. at any time during or one
year after the termination of this agreement with each other, whatever may be the reason for such termination,
reveal or make known to any person, firm, or corporation, any confidential information disclosed to it by the other.
relating to the business plans, product research and development plans, customer relationships, supplier
relationships, project and sales opportunities, proposal or bid strategies, corporate strategies, or any information
which has been marked 'Confidential' by the disclosing pary, including, but not limited to, all information relating to
USA's systems and GOVERNMENT ENTITYs.
Notwithstanding the fad that confidential information may be disclosed, it is understood and agreed that all such
information shall remain the property of the disclosing party and no use shall be made of such information except
as is required by the terms of the business relationship between the parties in accordance with the instructions, and
with the consent of, the disclosing party.
Neither party shalt copy, photograph, photocopy or in any other manner reproduce or cause reproduction to be
made of any plans, specifications, formulae, instructions or any other document or information furnished to it
without the express written permission of the other party. Neither party will disclose any verbal confidential
information which may be communicated to it. Immediately upon termination of the business relationship between
the parties, whatever may be the reason for such termination, or the request of either party, each party shall return
to the other all plans, equipment, specifications. formulae, instructions and any other documents or information
delivered or communicated to it by the other parry.
Notwithstanding anything to the contrary herein before set forth or implied, the obligations of non -use and
maintenance of confidentiality shall not apply to any information:
A. which is subject to public disclosure by virtue of the Texas Public Information Act.
B. which, at the time of disclosure, is part of the public domain,
C. which, at the time of disclosure, is already known to the recipient thereof or its employees; or
D. which, subsequent to the time of disclosure, becomes part of the public domain by reason of
® authorized publications.
These non - disclosure provisions shall survive the termination of this Agreement.
0 Copyright 1997, U S Audiotex. LLC, San Ramon, CA
Page 3
City of Baytown.doc
U S Audiotex, LLC
® 8. INDEMNIFICATION
USA agrees to indemnify, to the extent permitted by law, and hold the GOVERNMENT ENTITY, its governing body
and member, directors, officers, employees and agents (-GOVERNMENT ENTITY Parties-) harmless from and
against any and all liability, demands, claims, actions, loses, interest, costs of defense, and expenses (including
reasonable attorney's fees) which arise out of its acts or omissions in connection with this Agreement, except for the
GOVERNMENT ENTITY Parties' negligence or willful misconduct.
GOVERNMENT ENTITY agrees to indemnity, to the extent permitted by law, and hold USA, its directors, officers,
employees and agents ('USA Parties) harmless from and against any and all liability, demands, claims, actions,
loses, interest, costs of defense, and expenses (including reasonable attorney's fees) which arise out of its acts or
omissions in connection with this Agreement, except for the USA Parties' negligence or willful misconduct.
These indemnification provisions shall survive the termination of this Agreement.
9. THIRD PARTY BENEFICIARIES
Notwithstanding mutual recognition that use of the System under this Agreement may provide some aid or
assistance to members of the GOVERNMENT ENTITY's population, it is not the intention of either the
GOVERNMENT ENTITY or USA that such individuals occupy the position of intended third party beneficiaries of
the obligations assumed by either party to this Agreement.
10. NOTICES
A. MAILING OF NOTICES
All notices, requests, demands and other communications under this Agreement which are required to be in writing
shall be deemed as having been duty given on the date of service, if served personally on the party to whom notice
is to be given, or on the date of mailing, if mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed as follows:
IF TO GOVERNMENT ENTITY: City of Baytown
PO Box 424
Baytown, TX 77522
IF TO USA: U S Audiotex, LLC
Centerpoint Building
18 Crow Canyon Court, Suite 300
San Ramon, CA 94583
e. CHANGE OF ADDRESS
Either party may change the address at which notice may be given by giving ten (10) days prior written notice of
such change to the other party.
11. GENERAL
A. This Agreement is the final, entire and complete agreement between GOVERNMENT ENTITY and USA, and
supersedes any prior and contemporaneous negotiations, understandings, representations and agreements.
The terms and provisions of this Agreement may not be waived or amended except by a written agreement
between the parties.
B. Should any provision of this Agreement or any amendment be held by any court to be unenforceable, such
defect shall not affect the remainder of this Agreement, which shall remain in full force and effect.
C. Any failure by USA at any time to require strict compliance with this Agreement shall not waive or diminish any
right of USA to demand strict compliance. No waiver of any default by GOVERNMENT ENTITY shall waive or
affect any other default by GOVERNMENT ENTITY.
D. In the event of any dispute in connection with this agreement, including all addenda, amendments, revisions
and periodic disclosures, the prevailing party shall be entitled to recover costs of suit, including reasonable
attorney's fees.
E. This agreement shall, in all respects, be interpreted and construed in accordance with and governed the laws
• of the State of Texas and the City, regardless of the place of its execution or performance. The place of
making and the place of performance for all purposes shall be Baytown, Harris County, Texas.
0 Copyright 1997, U S Audiotex, LLC, San Ramon, CA
Page 4
City of Baytown.doc
U s Aueflofex, LLC
IN WITNESS WHEREOF, the parties have caused this Agreement, which shall inure to the benefit of and be binding
upon the successors of the respective parties to be signed and entered as of the date first mentioned above,
U S AUDIOTEEX; LLC, CITY OF BAYTOWN
By: IV -77/ AkZ'. By:
'Kenneth Stem
Title: President
Date:
'USA'
0
Title:
Date:
"GOVERNMENT ENTITY"
0 Copyright 1997, U S Audiotex. LLC, San Ramon, CA
Page 5
City of Baytown.doc
GOVERNMENT
SERVICES AGREEMENT
This Agreement is made and entered into on , 1997, by and between Pacific Bancard
Association, a California corporation (hereinafter referred to as "SERVICE PROVIDER "). and the City of Baytown
(hereinafter referred to as "GOVERNMENT ENTITY "). The SERVICE PROVIDER shall include its employees,
agents, and subcontractors.
In consideration of the mutual understandings herein contained, GOVERNMENT ENTITY and SERVICE PROVIDER
agree as follows:
1. DEFINITIONS
The following terms will have the following meanings:
A. 'Card" means an unexpired and valid credit transaction card bearing the service marks of VISA or
MasterCard, or other service marks as mutually agreed upon by GOVERNMENT ENTITY and SERVICE
PROVIDER.
B. "Cardholder' means the person whose name is embossed on the Card, and whose name also appears
signed on the reverse side.
C. 'Charge Back" means a transaction in which the Cardholder or the Card Issuer questions or disputes the
validity of a transaction posted to a Cardholder's account.
D. 'IVR System" means the US Audiotex, LLC Interactive Voice Response ( "IVR ") system or systems, defined,
described and govemed under the terms and conditions of the Government IVR Agreement. US Audiotex,
LLC, on a daily basis, will submit payments processed under the terms of the Government IVR Agreement
to SERVICE PROVIDER'S settlement system.
2. SCOPE OF AGREEMENT
For the purposes of this Agreement, all Card transactions will be presumed to have been generated via an IVR
System and for the purpose of Cardholders making payments of fines, fees and /or taxes to GOVERNMENT
ENTITY. Descriptions, disclosures, processing requirements and pricing of IVR System products and services
have been addressed in a separate Government IVR Agreement between GOVERNMENT ENTITY and US
Audiotex, LLC. This Agreement addresses strictly those issues conceming the settlement processing of Card
transactions with the various Card associations, networks and issuers, ultimately resulting in net deposits of
funds to GOVERNMENT ENTITY.
A. The obligations of SERVICE PROVIDER are:
1) Upon executions of this Agreement by GOVERNMENT ENTITY and SERVICE PROVIDER and the
separate execution of a Government IVR Areement between GOVERNMENT ENTITY and US
Audiotex, LLC, SERVICE PROVIDER shall thereafter settle GOVERNMENT ENTITY'S Card
transactions to the appropriate Card associations, networks and issuers.
2) SERVICE PROVIDER agrees to pay GOVERNMENT ENTITY the total face amount of any Card sale.
and SERVICE PROVIDER will have the right, at any time. to invoice GOVERNMENT ENTITY for any
incoming Charge Backs, or other types of returned items. that are deemed valid and proper by any of
the Card associations, networks, issuers or any other appropriate regulatory agency. GOVERNMENT
ENTITY will pay such invoices without delay, and never longer than ten (10) business days from the
date of postmark.
Page 1
0 B. The obligations of GOVERNMENT ENTITY are:
1) GOVERNMENT ENTITY will adhere fully to the terms and conditions contained in the separate
Govemment IVR Agreement between GOVERNMENT ENTITY and US Audiotex, LLC.
2) GOVERNMENT ENTITY will adhere fully to the rules and regulations of the various Card associations,
networks and issliers.
3) GOVERNMENT ENTITY will not establish minimum or maximum transaction amounts as a condition
for honoring Cards.
4) GOVERNMENT ENTITY will not impose any surcharges on Card transactions. Convenience Fees, as
defined in the separate Government IVR Agreement, are permitted for those Card transactions that are
processed under the terms and conditions of the separate Government IVR Agreement.
5) GOVERNMENT ENTITY will insure that pricing advertised or disclosed to its customers is the pricing
associated with the use of a Card. Any Convenience Fee permitted under the terms and conditions of
the separate Government IVR Agreement will be clearly disclosed to Cardholders prior to completing
the Card transactions.
6) GOVERNMENT ENTITY will not impose a requirement on Cardholders to provide any personal
information such as 1) a home or business telephone number, 2) a home or business address, 3) a
driver's license, or 4) a photocopy of a driver's license as a condition for honoring Cards, unless such
information is normally required anyway in the normal course of providing such services to the
Cardholders.
7) GOVERNMENT ENTITY will not require a Cardholder, as a condition for honoring a Card, to agree in
any way to waive the Cardholder's rights to dispute the transaction with the Card issuer.
8) Prior to including any Card specific logos or marks in any signs or in any printed and broadcast
materials, GOVERNMENT ENTITY will obtain written approval for such usage from SERVICE
PROVIDER.
9) GOVERNMENT ENTITY will cause an authorization code to be obtained on every Card transaction
utilizing an authorization method specifically defined within the separate Government IVR Agreement.
10) GOVERNMENT ENTITY will establish and maintain a reasonable adjustment policy to accommodate
adjustments that are required in the normal course of GOVERNMENT ENTITY'S daily operation.
GOVERNMENT ENTITY may restrict its adjustment policy, provided that both a proper disclosure of
such restriction is made and the purchased goods or services are provided to the Cardholders at the
time the transaction takes place. Proper disclosure does not include any statement that in any way
waives a Cardholder's right to dispute the transaction with the Card issuer.
3. TERM'OF AGREEMENT
The term of this Agreement shall coincide with the separate Government IVR Agreement. Upon expiration of
both this Agreement and the Government IVR Agreement, and should GOVERNMENT ENTITY desire to
continue receiving those IVR services, GOVERNMENT ENTITY and SERVICE PROVIDER will negotiate a new
all inclusive agreement, encompassing both IVR and Card transaction settlement services. In the event of
default by either party, the other party may give written notice of termination of this Agreement if the defaulting
party has not cured all defaults hereunder within thirty (30) days of notice of said default(s). Notice of default
and notice of termination shall be considered to be received when placed in the United States Postal Service,
postage paid for delivery to the other party. Upon termination, both parties shall be relieved from all continuing
contractual obligations to the other party, excluding Card related liabilities and obligations of either party,
pursuant to the rules and regulations of the various Card associations, networks and issuers, including but not
limited to the right of SERVICE PROVIDER to continue charging valid Charge Backs to GOVERNMENT ENTITY
49 for the term and to the extent provided for in such rules and regulations.
Page 2
4. INDEMNIFICATION
A. SERVICE PROVIDER agrees, to the extent permitted by law, to indemnify and hold the GOVERNMENT
ENTITY, its governing body and member, directors, officers, employees and agents ( 'GOVERNMENT
ENTITY Parties') harmless from and against any and all liability, demands, claims, actions, loses, interest,
costs of defense, and expenses (including reasonable attorney's fees) which arise out of its acts or
omissions in connection with this Agreement, except for the GOVERNMENT ENTITY Parties' negligence or
willful misconduct.
B. GOVERNMENT ENTITY agrees, to the extent permitted by law, to indemnify and hold the SERVICE
PROVIDER, its directors, officers, employees and agents ('SERVICE PROVIDER Parties ") harmless from
and against any and all liability, demands, claims, actions, loses, interest, costs of defense, and expenses
(including reasonable attorney's fees) which arise out of its acts or omissions in connection with this
Agreement, except for the SERVICE PROVIDER Parties' negligence or willful misconduct.
C. These indemnification and hold harmless provisions shall survive the termination of this Agreement.
5. NOTICES
A. MAILING OF NOTICES
All notices, requests, demands and other communications under this Agreement which are required to be in
writing shall be deemed as having been duly given on the date of service, if served personally on the party to
whom notice is to be given, or on the date of mailing, if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly addressed as follows:
IF TO GOVERNMENT ENTITY: City of Baytown
P.O. Box 424
Baytown, TX 77522
IF TO SERVICE PROVIDER: Pacific Bancard Association, Inc.
P.O. Box 92520
Los Angeles, CA 90009
Attention: Center Manager
B. CHANGE OF ADDRESS
Either party may change the address at which notice may be given by giving ten (10) days prior written notice of
such change to the other party.
6. GENERAL
A. This Agreement (including all Addenda, Schedules. Attachments and Exhibits attached hereto) is the final,
entire and complete agreement between GOVERNMENT ENTITY and SERVICE PROVIDER, and
supersedes any prior and contemporaneous negotiations, understandings, representations and
agreements. The terms and provisions of this Agreement may not be waived or amended except by a
written agreement between the parties.
B. Should any provision of this Agreement or any amendment be held by any court to be unenforceable, such
.defect shall not affect the remainder of this Agreement, which shall remain in full force and effect.
C. Any failure by either party to this Agreement, at any time, to require strict compliance with this Agreement
shall not waive or diminish any right of that party to demand strict compliance. No waiver of any default by
either party shall waive or affect any other default by that party.
D. In the event of any dispute in connection with this Agreement, including all addenda, amendments,
® revisions and periodic disclosures, the prevailing party shall be entitled to recover costs of suit, including
reasonable attorney's fees.
Page 3
E. Pacific Bancard Association, Inc. is a provider of various Card related products and services in conjunction I
with and is a wholly owned subsidiary of Imperial Bank, a California banking corporation. I
F. This Agreement shall, in all respects, be interpreted and construed in accordance with and governed by the
laws of the State of Texas and the City, regardless of the place of its execution or performance. The place
of making and the place of performance, for all purposes, shall be Baytown, Harris County, Texas.
IN WITNESS WHEREOF, the parties have caused this Agreement, which shall inure to the benefit of and be binding
upon the successors of the respective parties, to be signed and entered into as of the date first mentioned above.
"SERVICE PROVIDER- "GOVERNMENT ENTITY"
PACIFIC BANCARD ASSOCIATION, INC. CITY OF BAYTOWN
By:
Title
Date
wowmt.d« July 31, 1991
:7
Page 4
By: .
Title:
Date:
11A9
COM,,ZS NAT SPEZ K FOR N- EM/SE" S
1
1
ELECTRONIC DEPOSIT INSTRUCTIONS
U S AUDIOTEX
The undersigned hereby authorizes PACIFIC BANCARD ASSOCIATION "and U S AUDIOTEX
to deposit Automated Clearing House Credits ( "ACH Credits ") or wire transfers for the payment
of settlements due from PACIFIC BANCARD ASSOCIATION and U S AUDIOTEX to Customer
to the following bank account:
Account Account Name and Bank Name and
Number Address Address
ABA Number
Telephone Numbers
Debit transactions may not be charged against this account.
Customer:
By:
Title:
Dated
Centerpoint Building 0 18 Crow Canyon Court • Suite 300 • San Ramon. CA 94583
PHONE: 1- 800.487 -4567 • FAX: 1-800-434-4913