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HomeMy WebLinkAbout25C - AGMT - MERCHANT PAYMENT SRVSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 7, 2014 TITLE: AGREEMENT FOR MERCHANT PAYMENT SERVICES WITH TRANSFIRST, LLC CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: usage-Iwo, ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with TransFirst LLC, approving compensation not to exceed $70,000 annually, for two one -year terms commencing October 1, 2013 and continuing through September 30, 2015, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Agency Treasury Division is responsible for maintaining all banking related services for the City. Since 1997, the Treasury Division embarked on a program to allow for payment of services through the use of credit cards. Currently, customers are able to use a credit card to pay City of Santa Ana fees or charges. Acceptance of a credit card as a form of payment involves utilizing a merchant service company. TransFirst presents MasterCard and Visa transactions on behalf of the City for all credit card payments made at City facilities including City Hall, kiosk, Police Department and Recreation and Community Services. On March 12, 2012, City Council authorized the moratorium of the credit card processing fee to promote on -line payments and gain payment processing efficiencies in the Treasury Division. Since 2012 the number of on -line payments has increased by 50 %. Furthermore, during this last year the Treasury Division negotiated the reduction of the TransFirst, LLC discount fee from 1.5% to 0% resulting in an annual savings of over $55,000 which has helped offset City costs. TransFirst has agreed to maintain the reduced rates for the term of this agreement. Given the vendors past performance and cost savings associated with the removal of the discount fee, staff recommends retaining TransFirst for merchant services. 25C -1 Agreement for Merchant Services with TransFirst, LLC January 7, 2014 Page 2 FISCAL IMPACT Funds are budgeted and available in various department accounts (various - 62300). Francisco Gutierrez S� Executive Director Finance & Management Services Agency Exhibit 1 Rate Review Agreement 25C -2 EXHIBIT A RATE REVIEW AGREEMENT 25C -3 CONSULTANT AGREEMENT THIS AGREEMENT, dated as of this day of January 2014 by and between TransFirst, LLC, (hereinafter "Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of payment processing. B. The City acknowledges that it has received prior payment processing services from Consultant prior to the date of this Agreement and intends this Agreement to cover payment for prior unpaid services commencing as of October 1, 2013. C. Consultant represents that Consultant is able and willing to provide such services to the City. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting finn in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform credit card processing services according to the rates set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $ 70,000.00 annually during the term of this Agreement. For purposes of computing the 12 -month period, the City acknowledges invoices for services rendered from October 1, 2013 through the effective date of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. Exhibit A 25C -4 3. TERM This Agreement shall commence on the date first written above and terminate on September 30, 2015, unless terminated earlier in accordance with Section 12, below. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. WAIVED b. Business automobile liability insurance. WAIVED c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to 250 -5 have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 25C -6 telef tesirnile (714) 647 -6956 With courtesy copies to: Christine Duarte, Treasury Manager City of Santa Ana 20 Civic Center Plaza (M14) P.O. Box 1968 Santa Ana, CA 92702 -1968 Fax 714 - 647 -5304 Email: cduarteksanta- ana.org To Consultant: TransFirst LLC 12202 Airport Way, Suite 100 Broomfield, CO 80021 (631) 840 -6912 Attn: Peter Lucatuorto A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terns of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 25C -7 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of perfonmance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION -VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services 25C -8 hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Jose Sandoval Chief Assistant City Attorney RECOMMENDED FOR APPROVAL Francisco Gutierrez Executive Director of Finance and Management Services CITY OF SANTA ANA DAVID CAVAZOS City Manager CONSULTANT (NAME) (TITLE) Employer ID # or Individual SS # 25(o -9 Merchant March; Conti Rate Review Agreement Date of Request: 1 2/28/2013 Performed By: 1 Peter Lucatucrto I Current Rates & Fees Discount Rate: 1.50% Per Item Fee: $0.00 TransLink Monthly Fee: $0.00 $100,000 Breach Covera e: $0.00 Monthly Statement Fee: $5.00 Annual Fee: $0.00 V -M /C -Disc Auth Fee $0.25 Voice Auth $0.45 Retrieval Request $4.50 Char eback Fee $15.00 Monthly Service Fee $15.00 Pin Debit Trans Fee $0.25 Amex Auth Fee $0.25 Date Proposed: 2/28/2013 Date Accepted: Proposed Rates and Fees: Discount Rate: 0.00 Per Item Fee: $0.00 TransLink Monthly Fee: $0.00 $100,000 Breach Coverage: $0.00 Monthly Statement Fee: $0.00 Annual Fee: $0.00 V -M/C -Disc Auth Fee $0.25 Voice Auth $0.45 Retrieval Request $4.50 Char eback Fee $15.00 Monthly Service Fee $15.00 Pin Debit Trans Fee $0.25 Amex Auth Fee $0.25 Proposed rates are valid for 30 days. Rates are subject to change based on Visa/MasterCard /Discover Interchange increase(s). In consideration of TransFirst's agreement to lower Merchant's rates as described above, Merchant agrees that: (A) the Initial Term of Merchant's Merchant Processing Agreement will continue until the First (1st) anniversary of the date Merchant executes this form and will automatically renew for successive one (1) year periods (each a "Renewal Term "), unless a party to the Merchant Processing Agreement provides the other parties with notice of its intent not to renew this Agreement at least Thirty (30) days prior to the expiration of the then current term; and (B) termination of the Merchant Processing Agreement prior to expiration of the Initial Term or any Renewal Term shall result in the assessment of an account termination fee against Merchant in an amount equal to the greater of (i) the average monthly processing fees charged to Merchant for the previous 12 months (or such shorter time if the merchant has processed for less than 12 months) multiplied by the number of months remaining under the Merchant Processing Agreement, or (ii) $500. Merchant acknowledges and agrees that the damages above are riot a penalty, but rather a reasonable computation of the financial harm caused by the early termination of the Merchant Processing Agreement by the Merchant. Any modifications or alterations, handwritten or otherwise, to this document deems proposed rate quote null and void. Printed Name of Authorized Signer: Signature: Date: 25C -10 Please tax signed agreement to (303) 482.0407 25C -11 25C -12