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Ordinance No. 9,776 • • AMENDMENT TO THE GOVERNMENT IVR AGREEMENT BY AND BETWEEN THE CITY OF BAYTOWN AND OFFICIAL PAYMENTS CORPORATION, F/K/A U.S. AUDIOTEX, L.L.0 STATE OF TEXAS § COUNTY OF HARRIS § This Amendment to the Government IVR Agreement between the City of Baytown and Official Payments Corporation, f/k/a U.S. Audiotex, L.L.C., is made by and between the parties on the date hereinafter last specified. WITNESSETH: WHEREAS, the City of Baytown ("Governmental Entity" or "Agency") and Official Payments Corporation, f/k/a U.S. Audiotex, L.L.C., ("USA" or "OPC") did enter into a Government IVR Agreement, which was approved by the City Council via Ordinance No. 8042 on the 28th day of August, 1997 ("Agreement"), which allowed the Agency's Municipal Court to accept credit card payments; and WHEREAS, the Agency and OPC now desire to amend the Agreement in order to expand the scope of services to provide credit card payment services (the "Services") to individuals or entities ("Customers") attempting to make payments to the Agency for the Agency's municipal court, utility billing, health department, emergency medical services, planning and inspection functions; NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: I. Unless a different meaning clearly appears from the context, words and phrases as used in this Amendment shall have the same meanings as in the Agreement. II. 2.01 Section 1 "Scope of Agreement" of the Agreement shall be amended to include the following: Amendment to the Government IVR Agreement Page 1 • • • • • 1. SCOPE OF AGREEMENT A. Pursuant to this agreement, the obligations of OPC are as follows: 1. To provide Customers the opportunity to make Agency Payments by credit cards and "pin-less" debit cards through both an interactive telephone voice response (IVR) system and Internet interface (the "OPC Website," which together with the IVR shall constitute the"System"); 2. To collect and process, on behalf of Agency, Agency Payments from Customers using the American Express® Card, MasterCard®, VISAs1, Discover® Card or other credit card mutually agreed upon by Agency and OPC (each, a"Card"); 3. To provide all equipment and software for the purpose of accepting Cards; 4. To provide for the acceptance of fines, fees, taxes and/or other obligations owed to the Agency; 5. To forward Agency Payment transactions to the appropriate Card organizations for settlement to the Agency Bank Account; 6. To clearly state the Convenience Fee to Customers during the customer's call or during the Customer's online session and to give the Customer prior to completion of the transaction the choice to accept or decline the transaction; 7. To confirm the dollar amount of a Citizen's Agency Payment and the corresponding convenience fees to be charged to his/her Card and obtain the Citizen's approval (electronic or otherwise) of such charges prior to initiating credit authorizations; 8. To cause an authorization code to be obtained on every Card transaction; 9. To provide Customers with electronic confirmation of Card transactions; 10. To be responsible for the storage and retrieval of all "Card authorization logs and transaction records for a minimum of 36 months from the transaction date or for such longer period of time if required by the record retention laws governing the Agency. This paragraph shall survive the termination or expiration of this agreement; Amendment to the Government IVR Agreement Page 2 • • • 11. To electronically transmit to the appropriate Card-processing center all transactions in real time as transactions occur; 12. To balance and reconcile each day's electronically captured transactions on a daily basis. OPC system will, when necessary as a result of such reconciliation, process all appropriate adjustments; 13. To arrange for a unique line merchant descriptor for Agency Payment that references the name of the Agency and arrange for a separate unique line merchant description for the Convenience Fee that references the OPC and the nature of the fee; 14. To provide Agency with logos, graphic and other appropriate marketing material for Agency's use in its communications with Customers; 15. To fax the following daily transaction reports to Agency that details: a. the transaction activity of the previous day pertaining to the municipal court; and b. the transaction activity of the previous day pertaining to the utility billing division; c. the transaction activity of the previous day pertaining to the health department; d. the transaction activity of the previous day pertaining to the, EMS division; e. the transaction activity of the previous day pertaining to the planning services; and f. the transaction activity of the previous day pertaining to the inspection services. 16. To provide the following monthly transaction reports at month end that details the transactions that occurred each day of the past month for the municipal court, the utility billing division, health department, inspection services, emergency medical services, planning services; and 17. To provide Agency with reports summarizing use of the Services by Customers for given reporting periods. Amendment to the Government IVR Agreement Page 3 , . • • . . B. Pursuant to this agreement, the obligations of the Agency are as follows: 1. If required by the credit card organizations, to enter into all merchant Card agreements, which cards the City desires to accept, and fully adhere to the rules, regulations and operating procedures of the various Card organizations, including without respect to the use of specific Card logos and marks; 2. To permit OPC to charge the Convenience Fee in accordance with this Agreement; 3. To refrain from imposing a surcharge or other penalty on Card transactions made by Customers for Agency Payments, which surcharge or penalty is imposed only due to the fact that a Citizen utilized a Card to make the Agency Payment; 4. To provide OPC with the electronic record specifications necessary for funds settlement and the posting of Agency Payment data related to the Card payments; 5. To provide OPC the Agency's desired reporting formats sufficiently in advance of the desired report delivery date; 6. To promote the Services to the Customers, including publishing the relevant 800 number and URL for OPC's Website on citations, utility bills and notices seeking payments pertaining to the Agency's municipal court, utility billing, health department, emergency medical services, planning and inspection functions; and 7. To provide OPC all necessary documents and correspondence in connection with chargeback transactions or other similar refund transactions. 2.02 Section 2 "Costs and Payments" of the Agreement shall be amended to include the following: 2. COST AND PAYMENTS. A. OPC shall provide all services at no cost to the Agency. OPC agrees to pay all discount fees on behalf or the Agency. B. OPC may charge Customers a "Convenience Fee" for each Card transaction processed ("Convenience Fee"), to be collected in addition to the corresponding Agency Payments as part of a unified Card transaction. Amendment to the Government IVR Agreement Page 4 • • • 1. A schedule of convenience fees is attached hereto as Exhibit A and incorporated herein for all intents and purposes. 2. Such schedule shall not change more often than once a year at the end of each term of the Agreement. 3. Agency shall be given 60 days' written notice prior to any change. C. For VISA®, MasterCard® and American Express® Card transactions, OPC shall be responsible for routing the Agency's funds to the Agency's Bank Account via ACH transitions. All expenses for VISA®, MasterCard® and American Express® Card are paid by OPC. D. For Discover® Card transactions, the total transaction amount plus the Convenience Fee is electronically deposited into the Agency's Bank Account. Discover will sweep the discount fee from the transaction. OPC shall be responsible for the discount fees swept by Discover® Card. E. In the event of chargeback, which is a reversed or rejected Card transaction, Agency shall only be charged back the amount of the Agency's original transaction. OPC shall be responsible for that portion of the chargeback, which includes OPC's original transaction fee, and any service fees associated with the chargeback, excluding the Agency's Bank fees, if any. 2.03 Section 3 "Term of Agreement" of the Agreement shall be amended to include the following: 3. TERM OF AGREEMENT This Agreement shall commence on the date the system is first implemented and continues until ten days after such time as either OPC or Agency has notified the other party in writing of its decision to terminate this arrangement. Said termination notice shall be in accordance with Section 10 hereof. . • 2.04 Section 7 "Non-disclosure"of the Agreement shall be amended to include the following: 7. NONDISCLOSURE A. To the extent permitted by law, each party expressly covenants and agrees that it will not reveal or make known to any person, firm or corporation any confidential or proprietary non-public information disclosed to it and marked "Confidential" by the other relating to the business plans, operations, financial conditions, technology, systems, know-how, Amendment to the Government IVR Agreement Page 5 S • • • products, services, product research and development plans, customer relationships, supplier relationships, project and sales opportunities, proposal or bid strategies, corporation strategies or any other information which has been marked "Confidential" by the disclosing party, including, but not limited to all information relating the OPC's and the Agency's systems. B. Notwithstanding the fact 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. C. 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 party. D. 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: 1. which is subject to public disclosure by virtue of the Texas Public Information Act; 2. which, at the time of disclosure, is part of the public domain; 3. which, at the time of disclosure is already known to the recipient thereof or its employees; or 4. which subsequent to the time of disclosure, becomes part of the public domain by reason of authorized publications. If information, which is claimed by OPC to be proprietary or confidential, is requested from Agency by a third party, Agency will notify OPC of the request within three working days of the Agency's receipt of the same and will submit information to the Texas Attorney General. OPC will be required to submit arguments to the Texas Attorney General as to why the information should not be public. Should OPC fail to make timely arguments to the Texas Attorney General, the information requested will be deemed to be public and shall be disclosed by the Agency. Should OPC make timely argument to the Texas Attorney General, Agency and OPC shall be bound by the resulting opinion unless the opinion is timely Amendment to the Government IVR Agreement Page 6 • • appealed. These non-disclosure provisions shall survive the termination of this agreement. 2.05 A new section numbered and entitled 7.5 "Intellectual Property" shall be added and shall read as follows: 7.5 INTELLECTUAL PROPERTY. In order that Agency may promote the Services and OPC's role in providing the Services, OPC grants to Agency a revocable, non-exclusive, royalty-free license to use OPC's logo and other service marks (the "OPC Marks") for such purpose only. Agency does not have any other right, title, license or interest, express or implied, in and to any object code, software, hardware, trademark, service mark, trade name, trade dress, formula, system, know-how, telephone number, telephone line, domain name, URL, copyrighted image, text, script (including, without limitation, any script used by OPC on the IVR or OPC Website) or other intellectual property right of OPC. All Marks and the System and all rights therein (other than rights expressly granted in this letter) and goodwill pertain thereto belong exclusively to OPC. 2.06 Section 8 "Indemnification"of the Agreement shall be amended to include the following: 8. INDEMNIFICATION OPC agrees to indemnify, to the extent permitted by law, and hold the agency, its governing body and members, directors, officers, employees and agents ("Agency Parties") harmless from and against any liability and all liability, demands, claims, actions losses, 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 Agency Parties' negligence and willful misconduct. This indemnification shall survive the termination of this Agreement. 2.07 Section 10 "Notices"of the Agreement shall be amended to include the following: 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 duly given on the date of service, if served personally on the party to whom notice is to be given, or three (3) days after the date of mailing, if Amendment to the Government IVR Agreement Page 7 • • 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 Agency: City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 If to OPC: Official Payments Corporation Attn: Dion Preston 2333 San Ramon Valley Blvd. San Ramon, CA 94583 IlI. The provisions of this Amendment and the provisions of the Agreement should be read together and construed as one agreement provided that, in the event of any conflict or inconsistency between the provisions of this Amendment and the provisions of the Agreement, the provisions of this Amendment shall control. IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same amendment, this ii^i t'day of April, 2004. CITY OF BA TO By: GARY J SON, City Manager ATTEST: ;t-L. G Y W.SMITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR., Attorney Amendment to the Government IVR Agreement Page 8 ` • • OFFICI AYMENTS CORPORATION IN CONNELL, Senior Vice President STATE OFesx § NEW JERSEY § GaiiiiiiidiaricifihaRia § Before me, AN Pr CE2Qi I R.P, , the undersigned notary public, on this day personally appeared Kevin Connell,the Senior Vice President of Official Payments Corporation known to me; proved to me on the oath of ; or X proved to me through his/her current 1 at J E L S L.I c E.N5 E. {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this .2312 day of April,2004. /__q-7.________. Notary ublic in and for the State of Texas-/JEuJ 'SECS ty My commission expires: ANA.L.FCRREIRA NOTARYPM:CC OF NEW JERSEY My Commission Expires Dec.01,2005 1 F:\Karen\Files\Contracts\OPC Agreement\AMENDMENTCleanRevisedRevisedClean.doc Amendment to the Government IVR Agreement Page 9 Official Payments Corp. 800-2 PAY-TAX Convenience Fee Schedule Utility Payments Payment Amount From To Fees 0 500 $ 6.50 For payments greater than $500, an additional fee of $6.50 will be charged per $500 payment increment. Convenience Fee Schedule Other Non-Tax Payments Tier 68 Payment Amount From To Fees 0 99.99 $ 4.95 100 199.99 $ 8.95 200 399.99 $ 15.95 400 599.99 $ 23.95 600 799.99 $ 31.95 800 999.99 $ 39.95 1,000 1,499.99 $ 59.95 1,500 1,999.99 $ 79.95 2,000 2,699.99 $ 108.95 2,700 3,499.99 $ 139.95 3,500 4,399.99 $ 176.95 4,400 5,399.99 $ 216.95 5,400 6,399.99 $ 256.95 6,400 7,399.99 $ 296.95 7,400 8,699.99 $ 348.95 8,700 10,399.99 $ 416.95 10,400 12,999.99 $ 520.95 13,000 17,399.99 $ 696.95 17,400 20,999.99 $ 840.95 21,000 27,999.99 $ 1,120.95 28,000 35,999.99 $ 1,440.95 36,000 44,999.99 $ 1,780.95 45,000 54,999.99 $ 2,200.95 55,000 65,999.99 $ 2,640.95 66,000 76,999.99 $ 3,080.95 77,000 87,999.99 $ 3,520.95 88,000 99,999.99 $ 3,999.95 ©Copyright 1999,U S Audiotex5M,LLC San Ramon,CA 888-2PAY-TAX Fee Schedule.doc Rev.4/9