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HomeMy WebLinkAbout20-009 - nCourt, LLC - 3rd Party Payment System (UP Program)City of Tukwila 6200 Southcenter Boulevard, Tukwila WA 98188 CONTRACT FOR SERVICES 20-009 Council Approval N/A Contract Number: JAN 3 0 2020 Tu 1a unicipa rt This Agreement is entered into by and between the Unified Payment Program hereinafter referred to as the ""UP Program," and nCourt LLC, hereinafter referred to as "the Contractor" or "nCourt"," whose principal office is located in the State of Georgia. WHEREAS, UP Program has determined the need to have certain services performed for local citizens but does not have the manpower or expertise to perform such services; and WHEREAS, nCourt is a government services, technology company that, among other things, provides software that permits government agencies to collect citizen payments online via the web or mobile device. WHEREAS, UP Program desires to have nCourt perform such services pursuant to certain terms and conditions; now, therefore, IN CONSIDERATION OF the mutual benefits and conditions hereinafter contained, the parties hereto agree as follows: 1. Scope and Schedule of Services to be Performed by Contractor. The Contractor shall perform those services described on Exhibit A attached hereto and incorporated herein by this reference as if fully set forth. In performing such services, the Contractor shall at all times comply with all Federal, State, and local statutes, rules and ordinances applicable to the performance of such services and the handling of any funds used in connection therewith. The Contractor shall request and obtain prior written approval from the UP Program if the scope or schedule is to be modified in any way. 2. Scope and Schedule of Services to be Performed by UP Program. UP Program shall perform those services described on Exhibit B attached hereto and incorporated herein by this reference as if fully set forth. 3. Duration of Agreement. This Agreement shall be in full force and effect for a period commencing April 1 2020, and ending December 31, 2022, unless sooner terminated under the provisions hereinafter specified. 4. Independent Contractor. Contractor and UP Program agree that Contractor is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither Contractor nor any employee of Contractor shall be entitled to any benefits accorded UP Program employees by virtue of the services provided under this Agreement. The UP Program shall not be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Contractor, or any employee of the Contractor. 0J/ 5. Indemnification. The Contractor shall defend, indemnify and hold the Public Entity, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the Public Entity. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the Public Entity, its officers, officials, employees, and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Contractor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 6. Insurance. The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. Contractor's maintenance of insurance, its scope of coverage and limits as required herein shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the UP Program's recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance. Contractor shall obtain insurance of the types and with the limits described below: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Automobile liability insurance shall cover all owned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and $2,000,000 products -completed operations aggregate limit. Commercial General Liability insurance shall be as least at broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products -completed operations, stop gap liability, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide a per project general aggregate limit using ISO form CG 25 03 05 09 or an equivalent endorsement. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The UP Program shall be named as an additional insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the UP Program using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing at least as broad coverage. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. B. Other Insurance Provision. The Contractor's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance with respect to the UP Program. Any insurance, self-insurance, or insurance pool coverage maintained by the UP Program shall be excess of the Contractor's insurance and shall not contribute with it. C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. D. Verification of Coverage. Contractor shall furnish the UP Program with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. Upon request by the UP Program, the Contractor shall furnish certified copies of all required insurance policies, including endorsements, required in this Agreement and evidence of all subcontractors' coverage. E. Subcontractors. The Contractor shall have sole responsibility for determining the insurance coverage and limits required, if any, to be obtained by subcontractors, which determination shall be made in accordance with reasonable and prudent business practices. F. Notice of Cancellation. The Contractor shall provide the UP Program and all Additional Insureds for this work with written notice of any policy cancellation, within two business days of their receipt of such notice. G. Failure to Maintain Insurance. Failure on the part of the Contractor to maintain the insurance as required shall constitute a material breach of contract, upon which the UP Program may, after giving five business days notice to the Contractor to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the UP Program on demand, or at the sole discretion of the UP Program, offset against funds due the Contractor from the UP Program. 7. Record Keeping and Reporting. A. The Contractor shall maintain accounts and records, including personnel, property, financial and programmatic records which sufficiently and properly reflect all direct and indirect costs of any nature expended and services performed in the performance of this Agreement and other such records as may be deemed necessary by the UP Program to ensure the performance of this Agreement. B. These records shall be maintained for a period of seven (7) years after termination hereof unless permission to destroy them is granted by the office of the archivist in accordance with RCW Chapter 40.14 and by the UP Program. 8. Audits and Inspections. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by law during the performance of this Agreement. 9. Termination. This Agreement may at any time be terminated by either party giving to the other party ninety (90) days written notice of the UP Program's intention to terminate the same. Failure to provide products on schedule may result in contract termination. If the Contractor's insurance coverage is canceled for any reason, the UP Program shall have the right to terminate this Agreement immediately. 10. Discrimination Prohibited. The Consultant, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation, the presence of any disability, or any other protected class status under state or federal law, in the selection and retention of employees or procurement of materials or supplies. 11. Assignment and Subcontract. The Contractor shall not assign or subcontract any portion of the services contemplated by this Agreement without the written consent of the UP Program. 12. Entire Agreement; Modification. This Agreement, together with attachments or addenda, represents the entire and integrated Agreement between the UP Program and the Contractor and supersedes all prior negotiations, representations, or agreements written or oral. No amendment or modification of this Agreement shall be of any force or effect unless it is in writing and signed by the parties. 13. Severabilitv and Survival. If any term, condition or provision of this Agreement is declared void or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. The provisions of this Agreement, which by their sense and context are reasonably intended to survive the completion, expiration or cancellation of this Agreement, shall survive termination of this Agreement. 14. Notices. Notices to the UP Program of Tukwila shall be sent to the following address: UP Program Clerk 6200 Southcenter Blvd. Tukwila, Washington 98188 Notices to the Contractor shall be sent to the address provided by the Contractor upon the signature line below. 15. Applicable Law; Venue; Attorney's Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. DATED this J day of CITY OF TUKWILA CONT K be A. Walden, Judge By: 20 ?-0. Printed Name and Title:0y Vitd Address: 10250 Winward Plaza Suite 200 ALPHARETTA, GA 30005 EXHIBIT A — Contractor's Scope and Schedule of Services 1. nCourt shall build, host and maintain an Agency -specific website(s) for the UP Program (the "Agency"). nCourt will purchase a URL, www [TBDi.com. 2. In consideration for the provision of the development, hosting, application, customer service, and processing fees related to the Program, users will pay a 'user fee' included in the payment transaction as follows: • $25 minimum monthly payments made online via the web or mobile device — $7.00 per month • $75 citizen application fee to sign up for the UP Program nCourt keeps $50, Tukwila Municipal Court keeps $25. (No transaction fee for the application) • $100 Re -application fee for citizens who are re -applying for the program nCourt keeps $75 and the other $25 goes to Tukwila (No transaction fee for the application) The 'user fee' is calculated based on certain cost assumptions for third party payment transaction processing fees (i.e. merchant fees, payment network fees, interchange fees, assessments, authorization fees, risk fees, transmission fees, etc.). nCourt and the Agency shall discuss any modification of the 'user fee' should the cost assumptions change. It is further agreed that both nCourt and the Agency will mutually agree upon all fee modifications prior to implementing any changes. The original 'user fee' will remain as noted in the original agreement until both parties agree upon the modification. 3. nCourt will take each payment (minimum of $25) and distribute the money equally to the courts the citizen owes a balance to. 4. Any Court within Washington State will be eligible to join the nCourt —UP Program. Tukwila Municipal Court will issue a MOU to the joining court and nCourt will have the joining court sign an addendum adding them to the program. 5. There is no cost to the Agency for the implementation and operation of the Program unless specified otherwise herein. Agency will make resources available to assist nCourt in the timely launch of the payment processing program. The expected "go live" date for the services contemplated in this Agreement is 180 days from the execution of this Agreement or a date mutually agreed upon by the parties. 6. nCourt will provide a secure website that will allow payers to enter their pertinent information, e.g., citizen name or other unique identifier, and then proceed to pay with a credit or debit card. 7. The Agency via their case management system, JIS, will update nCourt's payment program on a near real-time basis, with data on all open and payable case from the Agency's server. Upon exchange of the data, the information may be accessed, and payment made by the citizen. Data will be searched by the first and last name, or similar identifying characteristic of the citizen. 8. If there are designated payments which are ineligible for online payment, the Agency will be able to omit those records from being paid through nCourt via their case management system. 9. When a payment is authorized, nCourt will provide notification to the Agency by automated email. All payment transactions will automatically update the Agency's case management system. 10. The payer will be simultaneously advised via automated email that the transaction has been completed and will receive further notification when the Agency processes the payment. 11. Payments are deposited daily into a government fees custodial account and transferred by ACH electronic transfer to the 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. 12. nCourt guarantees to UP Program 100% of all funds collected, regardless of any chargeback issues with all forms of payment except for citizen ACH payments. In the case of suspected fraud, nCourt may, from time to time, reach out to the UP Program 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 assessment/payment due. 13. Electronic Payment System Utilization. Agency will make nCourt's Services available to its citizens through various means of communication, including a) through billing statements, invoices and other payment notices; b) by Web payment details on the Agency's website including a "Pay Now' or similar link on a mutually agreed prominent place on the web site; and c) other channels deemed appropriate by the Agency. nCourt shall provide the Agency with logos, graphics and other marketing materials for use in its communication with its citizens regarding the payment services provided by nCourt. Both parties agree that nCourt will be presented as the primary payment method option. Agency will communicate the nCourt payment Service option to its Citizens wherever the Agency generally communicates its other payment methods. 14. Both parties reserve the right to conduct a performance review of the program annually. Should either party find discrepancies or issues with the program and its performance, the parties will negotiate in good faith to resolve those concerns. 15. The disclaimer language to appear on the website is contained in Exhibit C, attached hereto. EXHIBIT B — UP Program's Scope and Schedule of Services Agency's Responsibilities; In order for nCourt to provide the Services outlined in this Agreement, the Agency shall: • Provide ACH forms required for the remittance of funds. • For the duration of this Agreement, Agency will maintain an active link connecting the Agency website and the nCourt payment portal in a prominent and mutually agreed location on the Agency website. The phone number for the payment IVR and nCourt Call center (if applicable) will also be added to the website. • Implement the items identified in item 15. • Agency will launch the nCourt electronic payment processing service to its citizen within 90 days from the execution of the agreement or a date mutually agreed upon by the parties.. • Agency will make JIS aware of the requirement to integrate with the nCourt system and of the anticipated "go live" date contemplated herein. Agency will compel said vendor to actively participate in accomplishing the "go live" of the Program in the specified timeframe outlined herein. • For the purpose of providing the Agency a posting file for posting to the Agency's case management system, JIS; Agency will provide the file format specification currently used to post its payments to the case management system, JIS. Agency will fully cooperate with nCourt and provide the information required to integrate with the Agency's case management system. The expected processing volume in the Program is estimated at $11,000.00 per month. EXHIBIT C Website Disclaimer To continue to pay your fee, fine, citation or other payment, you must accept the following TERMS OF USE. Please read and fully understand the following terms and press the "ACCEPT TERMS" button to acknowledge that you have read and accept these terms. Acceptance of these terms is required to continue to payment. If you do not accept these terms, press "DECLINE TERMS" button to return to the Citation Search screen. The systems in place for automated processing of information from this court have been tested thoroughly and are subject to multiple levels of backup, confirmation and security. By using this automated payment system, USER acknowledges and understands that nCourt is providing this service as an agent of the court for the strict purpose of accepting electronic payments due to the court and remitting such funds to the court. nCourt has no legal authority related to the USER's obligation to the court. By using this system, USER also acknowledged errors may occur just as errors can occur with human processing of information. By using this service, you agree that this is voluntary and that you (the "USER") understand that the service fee added to the payment(s) being made are charged by the Provider to pay merchant processing fees, web hosting fees, administration and other costs and expenses associated with providing this service. No part of thc service fee benefits the court, the judge, any specific civil service individual or any jurisdiction in which the charges or fees were levied, incurred or are being paid. Other than in connection with processing the payment being made, to the fullest extent possible, identifying private information will not be distributed in any way. No data records or other information will be used, released or sold to any third party. No information will be released to any other party unless such party requires the information for purposes of processing or providing another service essential to completing the transaction related to the payment(s) being made. nCourt, LLC (the "Company") agrees to use all reasonable efforts to provide accurate processing of information provided from court files and to diligently distribute information provided by the USER to the court. nCourt, LLC cannot and does not guarantee the accuracy or timeliness of any provided information provided and expressly disclaim any warranty, including merchantability and fitness for a particular use under the Uniform Commercial Code of Georgia beyond the extent of the service fees paid by the user of the service. nCourt, LLC has in place a comprehensive security plans and internal control plan which is designed to ensure the anonymity of program user information. Further, access to such information is controlled and restricted to authorized personnel only. The payment submission process uses Secure Sockets Layer (SSL) encryption to virtually eliminate the possibility of unauthorized access to your private information while it is being transferred across the internet. Your personal financial data is NOT stored on computers administered by the Company. By submitting this information electronically, you agree to release the court, judge, civil service individuals or any jurisdiction in which the charges or fees were levied, and nCourt, LLC, its principals, officers, directors, employees, agents affiliated companies, successors and assignees (collectively the 'Providers') from any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected to the use of the Program or with the delay or inability to use it, or for any information, software, products and services obtained through this program, or otherwise arising out of the use of this program, the internet generally, or on any other basis (whether based on contract, tort, strict liability or otherwise.) The Providers will not be responsible for any security breaches or non-compliance with Federal or State law or terms of this agreement which results in any act or omission of the USER or a third party unrelated to the negligence of the Provider. The operation of this online payment program is based in Kennesaw, Georgia and any action of any nature against the company must be brought in Cobb County, Georgia. You agree not to challenge the use of any electronic payment and additionally agree that any action brought by the Provider(s) against you to enforce any electronic payment for which any benefit has been provided to you in any way shall entitle the Provider(s) to per se probable cause for criminal action for theft of services or for civil recovery of all fees paid, process fees, costs, attomey's fees, plus any incidental or associated damages proven by the Provider(s). Any such civil actions shall be bought in the courts of Cobb County, Georgia, without regard to choose of law, and all parties consent to jurisdiction and venue therein. Nothing herein is to be construed as legal counsel or advice. Users should consult with their own legal counsel with respect to the implications of making the payment through this system. Any purchases made by a USER from nCourt, LLC via the nCourt web services sites are NON-REFUNDABLE, in whole or in part, once the payment has been submitted, confirmed and accepted by the court. If the submission is rejected by the court, refunds will be processed via credit card, ACH or paper check. Any processing fees associated with the transaction are NON-REFUNDABLE. To continue to pay your fee, fine, citation or other payment, you must accept the following TERMS OF USE. Please read and fully understand the following terms and press the "ACCEPT TERMS" button to acknowledge that you have read and accept these terms. Acceptance of these terms is required to continue to payment. If you do not accept these terms, press "DECLINE TERMS" button to return to the Citation Search screen. Please indicate your consent to these terms by pressing the 'Accept Terms' button.