HomeMy WebLinkAboutContract 46945 CITY SECRETAW
CONTRACT NO, .
�",� I
�v'' PROFESSIONAL SERVICES AGREEMENT
is PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into
l�A iid between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation of the
State of Texas, acting by and through Rudy Jackson, its duly authorized Acting Assistant City Manager,
and nCourt, LLC ("Consultant" or "Contractor") a Delaware limited liability company, acting by and
through Kathleen M.Miller, its duly authorized Chief Financial Officer.
CONTRACT DOCUMENTS:
The Contract documents shall include the following:
1. This Agreement for Professional Services.
2. Exhibit A—Scope of Services
3. Exhibit B—Payments
All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes.
In the event of any conflict between the documents,the terms and conditions of this Professional Services
Agreement shall control. The term "Consultant" or "Contractor" shall include the Consultant or
Contractor, and its officers, agents, employees, representatives, servants, contractors or subcontractors.
The term"City"shall include its officers,employees, agents, and representatives.
1. GENERAL
1.1 Contractor hereby agrees to provide the City, in accordance with appropriate professional
standards, an electronic gateway payment services, as outlined in Exhibit"A", including any
attachments thereto, all of which are hereby made part of this Agreement for all purposes.
Exhibit "A" constitutes, at least in part, a proposal presented by Contractor to the City prior
to the Effective Date of this Agreement, as hereafter defined.
1.2 City and Contractor both recognize and acknowledge the professional nature of this
Agreement. Being cognizant that issues of interpretation and performance will inevitably
arise, both parties agree to consult with each other and covenant to negotiate in the utmost
good faith in order to ensure performance of this Agreement without hindrance.
i
2. AGREEMENT TERM
2.1 The initial term of the Agreement will be five(5)years and shall commence on July 29, 2015
("Effective Date") and shall expire on July 28, 2020, unless terminated earlier in accordance
with the provisions of this Agreement.
2.2 City shall have the sole right to renew this Agreement for three(3)additional one-year terms.
If City desires to exercise an option to renew, City shall notify Contractor in writing of its
intention to renew at least 60 days prior to the end of the then-current term. Compensation to
be paid during any option term shall be the same as that provided for in the Initial Term.
3. COMPENSATION
There is no cost to the City for the electronic payment gateway service. All costs for development,
hosting, processing,customer service and merchant fees related to the operation of the Program (as'
( � ' 1 '.
defined in Exhibit A)are paid to Consultant by a convenience fee paid by the customers pursuant to
Exhibit B.
4. MINORITY BUSINESS ENTERPRISE(MBE)PARTICIPATION
4.1 A waiver of the goal for MBE/SBE subcontracting requirements was requested by the
Purchasing Division and approved by the Minority/Women Owned Business Enterprise
(M/WBE) Office, in accordance with the Business Diversity Enterprise (BDE) Ordinance,
because the purchase of goods or services is from sources where subcontracting or supplier
opportunities are negligible.
5. TERMINATION
5.1 Written Notice
The City or Contractor may terminate this Agreement at any time, with or without cause, by
providing the other party with 60 days' written notice of termination. Upon the receipt of any
such notice, Contractor shall immediately discontinue all services and work and the placing
of all orders or the entering into contracts for all supplies, assistance, facilities and materials
in connection with the performance of this Agreement and shall proceed to cancel promptly
all existing contracts insofar as they are chargeable to this Agreement.
5.2 Non-appropriation of Funds
In the event no funds or insufficient funds are appropriated by the City in any fiscal period for
any payments due hereunder, City will notify Contractor of such occurrence and this
Agreement shall terminate on the last day of the fiscal period for which appropriations were
received without penalty or expense to the City of any kind whatsoever, except as to the
portions of the payments herein agreed upon for which funds shall have been appropriated.
5.3 Duties and Obligations of the Parties following Termination
In the event that this Agreement is terminated prior to the expiration of the then current term,
Contractor shall, to the extent permissible by applicable law, provide the City with copies of
all completed or partially completed documents prepared under this Agreement at no
additional cost to the City. City shall pay Contractor for services actually rendered up to the
effective date of termination and Contractor shall continue to provide the City with services
requested by the City and in accordance with this Agreement up to the effective date of
termination. The City also shall pay Contractor for services actually performed in accordance
herewith prior to such termination, less such payments as have been previously made, in
accordance with a final statement submitted by Contractor documenting the performance of
such work. CONTRACTOR SHALL NOT BE ENTITLED TO ANY LOST OR
ANTICIPATED PROFITS SHOULD THE CITY ELECT TO TERMINATE THIS
AGREEMENT.
6. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION
6.1 Disclosure of Conflicts
Professional Services Agreement,nCourt,LLC,Page 2 of 15
Contractor hereby warrants to the City that Contractor has made full disclosure in writing of
any existing or potential conflicts of interest related to services to be performed under this
Agreement. In the event that any conflicts of interest arise after the Effective Date of this
Agreement, Contractor hereby agrees immediately to make full disclosure to the City in
writing. Contractor, for itself and its officers, agents and employees, further agrees that it
shall treat all information provided to it by the City as confidential and shall not disclose any
such information to a third party without the prior written approval of the City. Contractor
shall store and maintain City information in a secure manner and shall not allow unauthorized
users to access, modify, delete, or otherwise corrupt City information in any way. Contractor
shall notify the City immediately if the security or integrity of any City information has been
compromised or is believed to have been compromised.
6.2 Confidential Information.
The City acknowledges that Contractor may use products, materials, or methodologies
proprietary to Contractor. The City agrees that Contractor's provision of services under this
Agreement shall not be grounds for the City to have or obtain any rights in such proprietary
products, materials, or methodologies unless the parties have executed a separate written
agreement with respect thereto. Contractor,for itself and its officers,agents and employees,
agrees that it shall treat all information provided to it by the City ("City Information") as
confidential and shall not disclose any such information to a third party without the prior
written approval of the City.
Notwithstanding the foregoing, Contractor understands and agrees that the City is a public
entity under the laws of the State of Texas, and as such, is subject to various public
information laws and regulations, including, but not limited to, the Texas Public
Information Act, Chapter 552 of the Texas Government Code (the "Act"). Contractor
acknowledges that, under the Act, the following information is subject to disclosure: 1) all
documents and data held by the City, including information obtained from the Contractor,
and 2) information held by the Contractor for or on behalf of City that relates to the
transaction of City's business and to which City has a right of access. If the City receives a
request for any documents that may reveal any of City's proprietary information under the
Act, or by any other legal process, law, rule, or judicial order by a court of competent
jurisdiction, the City will utilize its best efforts to notify Contractor prior to disclosure of
such documents. The City shall not be liable or responsible in any way for the disclosure of
information not clearly marked as "Proprietary / Confidential Information" or if disclosure
is required by the Act or any other applicable law or court order. In the event there is a
request for such information, it will be the responsibility of Contractor to submit reasons
objecting to disclosure. A determination on whether such reasons are sufficient will not be
decided by the City, but by the Office of the Attorney General of the State of Texas or by a
court of competent jurisdiction.
6.3 Unauthorized Access.
Contractor shall store and maintain City Information in a secure manner and shall not allow
unauthorized users to access, modify, delete or otherwise corrupt City Information in any
way. Contractor shall notify the City immediately if the security or integrity of any City
information has been compromised or is believed to have been compromised, in which
event, Contractor shall, in good faith, use all commercially reasonable efforts to cooperate
with the City in identifying what information has been accessed by unauthorized means and
Professional Services Agreement,nCourt,LLC,Page 3 of 15
shall fully cooperate with the City to protect such information from further unauthorized
disclosure.
7. RIGHT TO AUDIT
7.1 Contractor agrees that the City shall, until the expiration of five (5) years after final
payment under this Agreement, have access to and the right to examine, to the extent
permissible by applicable law, at reasonable times any directly pertinent books, documents,
papers and records of Contractor involving transactions relating to this Agreement at no
additional cost to the City. Contractor agrees that the City shall have access during normal
working hours to all necessary Contractor facilities and shall be provided adequate and
appropriate work space in order to conduct audits in compliance with the provisions of this
section. The City shall give Contractor reasonable advance notice of intended audits.
Contractor agrees to photocopy such documents as may requested by the City. City agrees
to reimburse Contractor for the cost of copies at the rate published in the Texas
Administrative Code in effect as of the time copying is performed.
7.2 Contractor further agrees to include in all its subcontractor agreements hereunder a provision
to the effect that the subcontractor agrees that the City shall, until expiration of five (5)years
after final payment of the subcontract, have access to and the right to examine at reasonable
times any directly pertinent books, documents, papers and records of such subcontractor
involving transactions related to the subcontract, and further that City shall have access
during normal working hours to all subcontractor facilities and shall be provided adequate
and appropriate work space in order to conduct audits in compliance with the provisions of
this paragraph. City shall give subcontractor reasonable notice of intended audits.
Subcontractor shall be required to photocopy such documents as may be requested by the
City. City agrees to reimburse subcontractor for the cost of copies at the rate published in the
Texas Administrative Code in effect as of the time copying is performed.
This section shall survive the expiration or termination of this Agreement.
8. INDEPENDENT CONTRACTOR
It is expressly understood and agreed that Contractor shall operate hereunder as an independent
contractor as to all rights and privileges granted herein, and not as agent, representative or
employee of the City. Subject to and in accordance with the conditions and provisions of this
Agreement, Contractor shall have the exclusive right to control the details of its operations and
activities and be solely responsible for the acts and omissions of its officers, agents, servants,
employees, contractors and subcontractors. Contractor acknowledges that the doctrine of
respondeat superior shall not apply as between the City, its officers, agents, servants and
employees, and Contractor its officers, agents, employees, servants, contractors and
subcontractors. Nothing herein shall be construed as the creation of a partnership or joint
enterprise between City and Contractor.
9. LIABILITY AND INDEMNIFICATION
9.1 LLABILITY- CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY
AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY,
INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR
CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY
Professional Services Agreement,nCourt,LLC,Page 4 of 15
THE NEGLIGENT ACTS) OR OMISSION(S), MALFEASANCE OR INTENTIONAL
MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR
EMPLOYEES.
9.2. INDEMNIFICATION- CONTRACTOR AGREES TO DEFEND, INDEMNIFY, AND
HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES
HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS,
AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE
FOR PROPERTYDAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR LOSS
TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR
PERSONAL INJURY (INCLUDING DEATH) AND DAMAGES FOR CLAIMS OF
INTELLECTUAL PROPERTY INFRINGEMENT, THAT MAY RELATE TO, ARISE
OUT OF, OR BE OCCASIONED BY (I) BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT BY CONSULTANT, ITS OFFICERS,
AGENTS, ASSOCIATES, SERVANTS, EMPLOYEES, CONTRACTORS (OTHER
THAN THE CITY) OR SUBCONTRACTORS, OR (II) ANY NEGLIGENT ACT OR
OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT,ITS OFFICERS,
AGENTS, ASSOCIATES, SERVANTS, EMPLOYEES, CONTRACTORS (OTHER
THAN THE CITY, OR SUBCONTRACTORS RELATED TO THE PERFORMANCE
OF THIS AGREEMENT, THE INDEMNITY PROVIDED FOR IN THIS SECTION
SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE
NEGLIGENCE OF CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR
SEPARATE CONTRACTORS. IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE OF BOTH CONSULTANT AND CITY, RESPONSIBILITY, IF ANY,
SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED
AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER
PROVIDED BY THE LAWS OF TEXAS.
9.3 SUBCONTRACTORS - CONTRACTOR SHALL REQUIRE ALL OF ITS
SUBCONTRACTORS AND ASSIGNEES TO INCLUDE IN THEIR SUBCONTRACTS
OR ASSIGNMENTS A RELEASE AND INDEMNITY IN FAVOR OF THE CITY IN
SUBSTANTIALLY THE SAME FORM AS ABOVE. THIS SECTION SHALL
SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT
9.4. INTELLECTUAL PROPERTY INFRINGEMENT — CONTRACTOR AGREES TO
DEFEND, SETTLE, OR PAY, AT ITS OWN COST AND EXPENSE, ANY CLAIM OR
ACTION AGAINST THE CITY FOR INFRINGEMENT OF ANY PATENT,
COPYRIGHT, TRADE MARK, TRADE SECRET, OR SIMILAR PROPERTY RIGHT
ARISING FROM CITY'S USE OF THE SOFTWARE AND/OR DOCUMENTATION IN
ACCORDANCE WITH THIS AGREEMENT, IT BEING UNDERSTOOD THAT THIS
AGREEMENT TO DEFEND, SETTLE OR PAY SHALL NOT APPLY IF THE CITY
MODIFIES OR MISUSES THE SOFTWARE AND/OR DOCUMENTATION. SO LONG
AS CONTRACTOR BEARS THE COST AND EXPENSE OF PAYMENT FOR CLAIMS
OR ACTIONS AGAINST THE CITY PURSUANT TO THIS SECTION 8,
CONTRACTOR SHALL HAVE THE RIGHT TO CONDUCT THE DEFENSE OF ANY
SUCH CLAIM OR ACTION AND ALL NEGOTIATIONS FOR ITS SETTLEMENT OR
COMPROMISE AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM,
HOWEVER, CITY SHALL HAVE THE RIGHT TO FULLY PARTICIPATE IN ANY
AND ALL SUCH SETTLEMENT, NEGOTIATIONS, OR LAWSUIT AS NECESSARY
TO PROTECT THE CITY'S INTEREST,AND CITYAGREES TO COOPERATE WITH
Professional Services Agreement,nCourt,LLC,Page 5 of 15
CONTRACTOR IN DOING SO. IN THE EVENT CITY, FOR WHATEVER REASON,
ASSUMES THE RESPONSIBILITY FOR PAYMENT OF COSTS AND EXPENSES
FOR ANY CLAIM OR ACTION BROUGHT AGAINST THE CITY FOR
INFRINGEMENT ARISING UNDER THIS AGREEMENT, THE CITY SHALL HAVE
THE SOLE RIGHT TO CONDUCT THE DEFENSE OF ANY SUCH CLAIM OR
ACTION AND ALL NEGOTIATIONS FOR ITS SETTLEMENT OR COMPROMISE
AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM, HOWEVER,
CONSULTANT SHALL FULLY PARTICIPATE AND COOPERATE WITH THE CITY
IN DEFENSE OF SUCH CLAIM OR ACTION. CITY AGREES TO GIVE
CONTRACTOR TIMELY WRITTEN NOTICE OF ANY SUCH CLAIM OR ACTION,
WITH COPIES OF ALL PAPERS CITY MAY RECEIVE RELATING THERETO.
NOTWITHSTANDING THE FOREGOING, THE CITY'S ASSUMPTION OF
PAYMENT OF COSTS OR EXPENSES SHALL NOT ELIMINATE CONTRACTOR'S
DUTY TO INDEMNIFY THE CITY UNDER THIS AGREEMENT. IF THE
SOFTWARE AND/OR DOCUMENTATION OR ANY PART THEREOF IS HELD TO
INFRINGE AND THE USE THEREOF IS ENJOINED OR RESTRAINED OR,IF AS A
RESULT OF A SETTLEMENT OR COMPROMISE, SUCH USE IS MATERIALLY
ADVERSELY RESTRICTED, CONSULTANT SHALL, AT ITS OWN EXPENSE AND
AS CITY'S SOLE REMEDY, EITHER: (A) PROCURE FOR CITY THE RIGHT TO
CONTINUE TO USE THE SOFTWARE AND/OR DOCUMENTATION, OR (B)
MODIFY THE SOFTWARE AND/OR DOCUMENTATION TO MAKE IT NON-
INFRINGING, PROVIDED THAT SUCH MODIFICATION DOES NOT
AATERIALLY ADVERSELY AFFECT CITY'S AUTHORIZED USE OF THE
SOFTWARE AND/OR DOCUMENTATION, OR (C) REPLACE THE SOFTWARE
AND/OR DOCUMENTATION WITH EQUALLY SUITABLE, COMPATIBLE, AND
FUNCTIONALLY EQUIVALENT NON-INFRINGING SOFTWARE AND/OR
DOCUMENTATION AT NO ADDITIONAL CHARGE TO CITY, OR (D)IF NONE OF
THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE TO
CONTRACTOR, TERMINATE THIS AGREEMENT, AND REFUND ALL AMOUNTS
PAID TO CONTRACTOR BY THE CITY,SUBSEQUENT TO WHICH TERMINATION
CITY MAY SEEK ANY AND ALL REMEDIES AVAILABLE TO CITY UNDER LAW.
CONTRACTOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE
REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION
13 OF THIS AGREEMENT.
9.5 PAYMENT CARD INDUSTRY COMPLIANCE — CONSULTANT SHALL, AT ITS
OWN EXPENSE, ENSURE THAT THE SERVICES PROVIDED UNDER THIS
AGREEMENT COMPLY WITH PAYMENT CARD INDUSTRY PAYMENT
SECURITY STANDARDS (PCI DSS) FOR PROCESSING, STORING, OR
TRANSMITING CREDIT CARD INFORMATION. CONSULTANT SHALL
MAINTAIN A SECURE ENVIRONMENT FOR ALL INFORMATION AND
TRANSACTIONS PROCESSED UNDER THIS AGREEMENT. FURTHER
CONSULTANT SHALL FULLY COOPERATE WITH THE CITY IN PROVIDING
ANY INFORMATION NECESSARY FOR AN AUDIT FOR COMPLIANCE WITH
PCI DSS. CONSULTANT HEREBY AGREES TO INDEMNIFY AND HOLD CITY
HARMLESS FOR ANY AND ALL CLAIMS OF LOSS OR DAMAGES FOR NON-
COMPLIANCE WITH PCI DSS RELATED TO OR ARISING OUT OF ANY
TRANSACTION PROCESSED UNDER THIS AGREEMENT.
10. ASSIGNMENT
Professional Services Agreement,nCourt, LLC,Page 6 of 15
Contractor shall not assign or subcontract any of its duties, obligations or rights under this
Agreement without the express prior written consent of the City. If the City grants consent to an
assignment, the assignee shall execute a written agreement with the City and Contractor under
which the assignee agrees to be bound by the duties and obligations of Contractor under this
Agreement. Contractor and Assignee shall be jointly liable for all obligations under this Agreement
prior to the date of assignment. If the City grants consent to a subcontract, the subcontractor shall
execute a written agreement with Contractor referencing this Agreement under which the
subcontractor shall agree to be bound by the duties and obligations of Contractor under this
Agreement as such duties and obligations may apply. Contractor shall provide the City with a fully
executed copy of any such subcontract.
11. INSURANCE
11.1 Prior to commencement of any work pursuant to this Agreement, Contractor shall provide
the City's Wellness Division and Risk Management Division with certificate(s)of insurance
documenting policies of the following minimum coverage limits that are to be in effect.
11.2 The City reserves the right to review the insurance requirements of this section during the
effective period of the Agreement and any extension or renewal hereof, and to modify
insurance coverage and limits when deemed necessary and prudent by the City's Risk
Manager based upon changes in statutory law, court decisions, or circumstances surrounding
this Agreement, but in no instance will the City allow modification whereupon the City may
incur increased risk.
11.3 Contractor's financial integrity is of interest to the City; therefore, subject to Contractor's
right to maintain reasonable deductibles, Contractor shall obtain and maintain in full force
and effect for the duration of the Agreement, and any extension hereof, at Contractor's sole
expense, insurance coverage written on an occurrence basis, except Technology and
Professional Liability, which may be written on a claims-made basis. All insurance required
under this Agreement must be written by a company that is authorized and admitted to do
business in the State of Texas and that is rated A-VII or better by A.M. Best Company or
similar rating acceptable to the City. Coverage shall be written in the following types and
amounts:
11.3.1 Workers' Compensation—Statutory
Employers' Liability-$500,000/$500,000/$500,000
11.3.2 Commercial General (Public) Liability Insurance to include the following types of
coverage: Premises/Operations, Independent contractors, Products/Completed
Operations,Personal Injury,and Contractual Liability.
(Combined Single Limit for Bodily Injury and Property Damage $1,000,000 per
Occurrence and$2,000,000 Aggregate)
11.3.3 Automobile Liability for Owned/Leased vehicles, Non-Owned vehicles, and Hired
Vehicles
(Combined Single Limit for Bodily Injury and Property Damage $1,000,000 per
accident)
11.3.4 Commercial Umbrella-$1,000,000 per occurrence$1,000,000 Aggregate
Professional Services Agreement,nCourt,LLC,Page 7 of 15
11.3.5 Cyber Liability-$1,000,000 per Claim,$1,000,000 Aggregate
11.4 For coverage underwritten on a claims-made basis, the retroactive date shall be coincident
with or prior to the Effective Date of the Agreement and the certificate of insurance shall
state the coverage is claims-made and indicate the retroactive date.
11.5 All required insurance shall be maintained for the duration of the Agreement and for five (5)
years following completion of the service provided under the Agreement. An annual
certificate of insurance submitted to the City shall evidence such insurance coverage.
11.6 City shall be entitled, upon request and without expense,to receive copies of the policies and
all endorsements thereto as they apply to the limits required by the City, and may make a
reasonable request for deletion, revision, or modification of particular policy terms,
conditions, limitations or exclusions (except where policy provisions are established by law
or regulation binding upon either of the parties hereto or the underwriter of any such
policies). Upon such request by the City, Contractor shall exercise reasonable efforts to
accomplish such changes in policy coverage and shall pay the cost thereof.
11.7 Contractor agrees that with respect to the above-required insurance, all insurance contracts
and Certificate(s)of Insurance will contain the following required provisions:
11.7.1 With the exception of Workers' Compensation and Professional Liability policies,
name the City and its officers, employees, officials, agents, and volunteers as
additional insureds in respect to operations and activities of, or on behalf of, the
named insured performed under the Agreement with the City.
11.7.2 An endorsement stating that Contractor's insurance shall be deemed primary and
non-contributory with respect to any insurance or self-insured retention carried by the
City for liability arising out of operations under the Agreement with the City.
11.7.3 Contractor's Workers' Compensation and Employers' Liability policy will provide a
waiver of subrogation in favor of the City.
11.8 Contractor shall notify the City in the event of any notice of cancellation, non-renewal or
material change in coverage and shall give such notices not less than thirty(30) days prior to
the change, or ten(10) days' notice for cancellation due to nonpayment of premiums, which
notice must be accompanied by a replacement Certificate of Insurance. All notices shall be
given to the City at the following address:
City of Fort Worth
Attn: Rudy Jackson,Assistant City Manager
1000 Throckmorton Street
Fort Worth,Texas 76102
A copy must also be sent to the City's Risk Manager at the same address.
11.9 If Contractor fails to maintain the aforementioned insurance, or fails to secure and maintain
the aforementioned endorsements,the City may obtain such insurance, and deduct and retain
the amount of the premiums for such insurance from any sums due under the Agreement;
however, procuring of said insurance by the City is an alternative to other remedies the City
may have, and is not the exclusive remedy for failure of Contractor to maintain said
Professional Services Agreement,nCourt,LLC,Page 8 of 15
insurance or secure such endorsement. In addition to any other remedies the City may have
upon Contractor's failure to provide and maintain any insurance or policy endorsements to
the extent and within the time herein required, the City shall have the right to order
Contractor to stop work hereunder, and/or the right to withhold any payment(s)that become
due to Contractor hereunder until Contractor demonstrates compliance with the requirements
hereof.
11.10 Nothing herein contained shall be construed as limiting in any way the extent to which
Contractor may be held responsible for payments of damages to persons or property
resulting from Contractor's or its subcontractors' performance of the work covered under
this Agreement.
11.11 Any failure on the part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirement.
12. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS
In fulfilling its obligations under this Agreement, Contractor, its officers, agents, servants,
employees, and subcontractors, agree to comply with all applicable federal, state and local laws,
ordinances, rules and regulations. If the City notifies Contractor of any violation of such laws,
ordinances,rules or regulations,Contractor shall immediately desist from and correct the violation.
13. NON-DISCRIMINATION COVENANT
Contractor, for itself, its personal representatives, assigns, subcontractors and successors in
interest, as part of the consideration herein, agrees that in the performance Contractor's
duties and obligations hereunder, it shall not discriminate in the treatment or employment of
any individual or group of individuals on any basis prohibited by law. If any claim arises
from an alleged violation of this non-discrimination covenant by Contractor its personal
representatives, assignees, subcontractors or successors in interest, Contractor agrees to
assume such liability and to indemnify and defend the City and hold the City harmless from
such claim.
This Agreement is made and entered into with reference specifically to the provisions in the
City Code of the City of Fort Worth prohibiting discrimination in employment practices,and
Contractor hereby covenants and agrees that Contractor, its officers, agents, servants,
employees, and subcontractors have fully complied with all provisions of same and that no
employee or employee-applicant has been discriminated against by either Contractor, its
officers,agents,servants,employees,or subcontractors.
14. NOTICES
Notices required pursuant to the provisions of this Agreement shall be conclusively determined to
have been delivered when (i) hand-delivered to the other party, its agents, employees, servants or
representatives; (ii) delivered by facsimile with electronic confirmation of the transmission; or(iii)
received by the other party by United States Mail,registered,return receipt requested, addressed as
follows:
To CITY: To CONTRACTOR
Professional Services Agreement,nCourt,LLC,Page 9 of 15
City of Fort Worth nCourt,LLC
Attn: Rudy Jackson Attn: Kathleen M.Miller,CPA
1000 Throckmorton Address: 955A Cobb Place Boulevard
Fort Worth TX 76102-6311 Kennesaw, GA 30144
Facsimile: (817)392-7766 Facsimile:
E-mail: rudy.jackson@foitworthtexas.gov Email: kmiller @ncourt.com
With Copy to City Attorney's Office at
same address
16. SOLICITATION OF EMPLOYEES
Neither the City nor Contractor shall, during the term of this Agreement and additionally for a
period of one year after its termination, solicit for employment or employ, whether as employee or
independent contractor, any person who is or has been employed by the other during the term of
this Agreement,without the prior written consent of the person's employer.
17. GOVERNMENTAL POWERS
It is understood and agreed that by execution of this Agreement, the City does not waive or
surrender any of its governmental powers.
18. NO WAIVER
The failure of the City or Contractor to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or
Contractor's respective right to insist upon appropriate performance or to assert any such right on
any future occasion.
19. GOVERNING LAW/VENUE
This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any
action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement,
venue for such action shall lie in state courts located in Tarrant County, Texas or the United States
District Court for the Northern District of Texas,Fort Worth Division.
20. SEVERABILITY
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
21. FORCE MAJEURE
The City and Contractor Agreement. If either party is unable, either in whole or part, to fulfill its
obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial
disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health
crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department,
commission, or agency of the United States or of any state; declaration of a state of disaster or of
emergency by the federal,state, county, or City government in accordance with applicable law;
issuance of a Level Orange or Level Red Alert by the United States Department of Homeland
Security; any arrests or restraints; civil disturbances; explosions; or some other reason beyond the
Professional Services Agreement,nCourt,LLC,Page 10 of 15
party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by
such Force Majeure Event will be suspended only during the continuance of such event.
22. HEADINGS NOT CONTROLLING
Headings and titles used in this Agreement are for reference purposes only and shall not be deemed
a part of this Agreement.
23. REVIEW OF COUNSEL
The parties acknowledge that each party and its counsel have reviewed and revised this Agreement
and that the normal rules of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto.
24. AMENDMENTS/MODIFICATIONS/EXTENSIONS
No extension, modification, or amendment of this Agreement shall be binding upon a party hereto
unless such extension, modification, or amendment is set forth in a written instrument that is
executed by both parties.
25. ASSIGNMENT-DELEGATION
No extension, modification or amendment of this Agreement shall be binding upon a party hereto
unless such extension, modification, or amendment is set forth in a written instrument, which is
executed by an authorized representative and delivered on behalf of such party..
26. ENTIRETY OF AGREEMENT
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between the
City and Contractor, their assigns and successors in interest, as to the matters contained herein.
Any prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement..
27. SIGNATURE AUTHORITY
Each person signing this Agreement hereby warrants that he/she has the legal authority to execute
this Agreement on behalf of his/her respective party, and further warrants that such binding
authority has been granted by proper order, resolution, ordinance, or other authorization of the
entity. The other party is fully entitled to rely on this warranty and representation in entering into
this Agreement.
[SIGNATURE PAGE FOLLOWS]
Professional Services Agreement,nCourt,LLC,Page 11 of 15
IN>VITNESS WHEREOF, the patties hereto have executed this Agreement in multiples on this the day of
#114(,(
2015.
CITY OF FORT WORTH nCOURT,LLC
Rudy Jac o d cf- 4-7-ICAAfdO4, &ffi ay--Je
Assistant City Manager
Date: 5-7 -- j� Date: e14 /5-
APPROVED AS TO FORM
AND LEGALITY:
(e,Assistant City Attorney
0 R
AT S, - 0
Ma Kaye
City Sec "P
I;P1 A
CONTRACT AUTHORIZATI EX I
M&C: C-27377
Date Approved: 7/21/2015
I OFFICOAL RECORD
CITY 5ECRE1/"i',%1
ANORT119 TX
Professional Services Agreement,nCourt,LLC,Page 12 of 15
EXHIBIT A
Scope of Services
1. nCourt LLC ("nCourt") is a government services technology company that, among other things,
provides software that permits government agencies to collect criminal and civil fines including
traffic and parking and other court-related payments on-line, via mobile device, at City offices
and through our bilingual call center with a credit or debit card(the"Program").
2. nCourt shall build, host and maintain a City specific website(s) for The City of Fort Worth.
nCourt will purchase a dedicated URL,with a.com extension to be used for the Program.
3. There is no cost to the City for the implementation and operation of the Program.
4. If desired, at no charge to the City, nCourt will provide the City with a non-cash stand-alone
payment kiosk. Upon receipt, the kiosk will become the sole and exclusive property of the City.
nCourt will facilitate the processing of any warranty claims during the manufacturer's warranty
period. Included in the purchase of the payment kiosk will be the 1't year maintenance and
support agreement and the printer required for the payment kiosk. The City will be responsible
for the day to day maintenance of the payment kiosk including obtaining any separate
maintenance contract beyond the initial maintenance period, and the provision of printing
supplies within the payment kiosk as required.
5. nCourt will provide a secure website that will allow payers to enter their pertinent information,
e.g., citation number and fine amount,and then proceed to pay with a credit or debit card.
6. The Court via their court management software, Journal Technologies' eCourt Court
Management System will update nCourt's database, on a near real-time basis via web services,
with data on all open and payable citations from the Court's server. Upon exchange data, the
information may be accessed and payment made by the offender. Citations will be searched by
citation number and the first and last name or similar identifying characteristic of the offender.
7. When a payment is authorized, nCourt will provide notification to the Court by e-mail. All
payment transactions will automatically update the court's case management system.
8. The citation holder will be simultaneously advised by nCourt that the transaction has been
completed.
9. Payments are deposited daily into a government fees custodial account and transferred by ACH
Electronic Transfer to Agency on a daily basis. The payment will be accompanied by a
reconciliation detailing the payments included. Any money transfer fees will be absorbed by
nCourt.
10. nCourt guarantees to The City of Fort Worth all fees collected, regardless of any chargeback
issues. In the case of suspected fraud,nCourt may, from time to time,reach out to the City of Fort
Worth for assistance in pursuing resolution to suspected fraudulent chargebacks. In such
instances,Agency agrees to provide reasonable assistance to nCourt in these efforts. Such support
may include providing documentation, call records, and/or in cases of documented fraud,
reinstatement of the underlying citation cost or fine.
Professional Services Agreement,nCourt,LLC,Page 13 of 15
11. Upon notification of an over or under payment of any fine amount, nCourt will refund an
overpayment or notify the payer via automated email of their under payment and remaining
amount due.
12. If there are designated payments which are ineligible for online payment,the Agency will be able
to reject the payment through the Dashboard. Payers will be notified by automated email.
13. nCourt shall hold harmless,indemnify and defend The City of Fort Worth, and all of his officers,
employees and/or officials from any and all liability, actions, claims, losses, damages or other
costs of whatsoever nature that may be asserted by any person or entity arising from or in
connection with the collection of payments by credit or debit card or through internet transactions
pursuant to the terms of this Agreement.
14. nCourt shall provide a toll-free telephonic customer service function to ensure that members of
the public utilizing the Program have a satisfactory experience that does not require the
technological assistance of City personnel. The operating hours for the call center shall be:
Monday-Friday 6 am-8pm CT
Saturday-Sunday 8 am-5pm CT
Closed Thanksgiving Day and Christmas Day(although citizens can pay 24x7x365 online)
15. In order to ensure high utilization of the Program and thereby further streamline payment
processing, the website address shall be printed on all invoices. Links from other government
websites will also be explored. Additionally, City administrative staff should routinely advise
telephone callers of the City's website(s) which should create greater utilization and reduce
telephone inquiries to the City.
Professional Services Agreement,nCourt,LLC,Page 14 of 15
EXHIBIT B
Payments
The City of Fort Worth understands that nCourt LLC will continue to provide customer support and
billing associated technology services. The City of Fort Worth hereby authorizes Vantiv, LLC. to fund a
bank account designated by nCourt LLC for your benefit and to make direct deposit of Visa,MasterCard,
and Discover funds into this account. Vantiv, LLC will debit an account owned and designated by nCourt
LLC: (1)for the discount fees,and other charges incurred in connection with The City of Fort Worth card
processing; (2) for all chargebacks and adjustments, and (3) for arbitration fees, fines, penalties, etc.
charged by the associations incurred as a result of The City of Fort Worth card processing.
All costs for development,hosting, application,processing,customer service and merchant fees
related to the Program are underwritten by a`service fee' for processing criminal and civil fines
including traffic and parking and other court-related payments included in the payment
transaction as follows:
For all major credit card brand(AMEX,Visa,MC,DISC),Apple Pay and Pay Pal:
Payment Channel Fee Percent
For payments made online,on mobile devices,or via IVR,including chargeback protection 3%
For payments made at the court utilizing nCourt provided PCI,EMV-ready card readers or at a kiosk, 3%
including chargeback protection
For payments taken by agents in our bilingual call center,including chargeback protection 4.5%
For payments taken using nCourt's outbound calling services to aid in the notification of upcoming 4.5%
and past due payments prior to the court engaging collection agency services;citizen phone numbers
provided by the Court
For all ACH/eCheck Transactions
Payment Channel Fee per transaction
For payments made online,on mobile devices,or via IVR,including chargeback protection $1.00 per
transaction
For payments taken by agents in our bilingual call center,including chargeback protection $4.00 per
transaction
For payments taken using nCourt's outbound calling services to aid in the notification of upcoming $4.00 per
and past due payments prior to the court engaging collection agency services;citizen phone numbers transaction
provided by the Court
Professional Services Agreement,nCourt,LLC,Page 15 of 15
�1�CRevicw/ Page lo[2
- '
Official site m the City m Fort Worth,Texas FORTWORTH
�� � =
��IT�' ����� 8����IH AGENDA
COUNCIL ACTION: Approved on 7/21/2015
38PAY�ENT
DATE' ��1/2O15 F��FE�EyVC�� ydC� ' °°C-27377 LC��� �AK8E'
' '' ' GATEWAY
P[]E��|��
CODE: � TYPE: CONSENT N{}
' ' HEARING:
SUBJECT: Authorize Execution of Professional Services Contract with nCourt, LLC. for the
Development and Implementation of Payment Gateway Services for Online, Mobile and
Other Electronic Payments for the Municipal Court at No Cost to the {}dv of Fort Worth
(ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a Professional Services Contract with
nCourt, LLC, for the development and implementation of payment gateway services for online, mobile
and other electronic payments for Municipal Court at no cost to the City of Fort Worth.
DISCUSSION:
The City of Fort Worth (City) will use this Contract to develop a web-based payment portal from which
oitbcana may make payments for Municipal Court services using credit card, debit card, ACH. PayPa|
or Apple Pay. In addition, nCoud. LLC /nCoudi, will develop o unique web portal and Interactive
Voice Response System (|VR) for the Municipal Court San/ioao Department /W1C8\ available
24/7/365, mobile payment platform, a bilingual call center with a unique 800 number for the Court and
afree-standing kiosk payment solution. These systems will be fully integrated with the new Case
Management System currently being developed. The program will a||ovv the acceptance of all
electronic forms of full or partial payments to include but not be limited to personal oheoka,
debit/credit cards for MasterCard, Viaa, American Expremn, Diacover, Pu|oe, VISA Gift Cards and
Automatic Clearing House (ACH) or m/Chenh payment options. Add|tjono||y, n{}ourt will accept
recurring payments and/or payment plans from citizens.
RFP ADVERTISEMENT - A Request for Proposals (RFP) vvos advertised in the
on Wednesdays between May 6. 2015 and June 4, 2015 with detailed specifications for
electronic payment gateway services. The evaluation factors included responsiveness tothe RFP,
understanding of scope of services, flexibility to customize oen/icaa for the Cib/, qualifications of the
firm and price of services. Fifteen vendors were solicited from the purchasing vendor database
evatenn, seven responses were received. The proposals received were reviewed by an evaluation �
committee consisting of staff from the Municipal Court Sen/ioaa and IT Departments. The nCourt
proposal was determined to be the boot value for the City due to oueta, variety of services offanad, o
user friendly system and the ability to progressively meet the needs of the Court.
CONTRACT TERMS - Upon City Council's opprova|, the initial five-year term of the' {}ontractvvi||
begin on July 22. 2015 and expire on July 21. 2O20.
RENEWAL OPTIONS -The Contract may be renewed for up to three additional one-year terms at the
City's option.
K8/VVBE OFFICE - A waiver of the goal for MBE/8BE subcontracting requirements was requested by
the Purchasing Division and approved by the yW/VVBE office in accordance with the BDE C>ndinanoe,
because the purchase of goods or oen/inao is from sources vvhena subcontracting or supplier
http://apps.cfwnet.org/council_packet/mc—review.asp?ID=21276&councildate=7/21/2015 8/6/2015
v
MFLC Review Page 2 of 2
opportunities are negligible.
PRICE ANALYSIS - These services will be provided at no cost to the City of Fort Worth. It is a fee
based service that will be applicable to the citizens using the various services. The transaction fee
charged to citizens remains the same as previously awarded in July 2010 (M&C C-24328) for
MasterCard and Visa transactions and is 50 percent less for American Express and Discover
transactions. All costs for development, hosting, processing, customer service and merchant fees
related to the operation of the program are underwritten by a convenience fee paid by the citizen
using the services. If a citizen chooses an ACH or e/Check to make a payment, the fee will range
from $1.00 to $4.00 per transaction based on the use of online, mobile or IVR payments. A
convenience fee payment schedule for services ranges from 3 percent to 4.5 percent for the use of
American Express, VISA, MasterCard, Discover, ApplePay or PayPal for online, mobile or IVR
payments.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on
City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Rudolph Jackson (6199)
Originating Department Head: Deidra Emerson (6711)
Additional Information Contact: William Rumuly (6736)
Dakisha R. Wesley (6711)
ATTACHMENTS
http://apps.cfwnet.org/council_packet/mc review.asp?ID=21276&councildate=7/21/2015 8/6/2015