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HomeMy WebLinkAbout3884 RESOLUTION NO.3 8 8 4 A RESOLUTION OF THE CITY COUNCil OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT FOR UTILITY BilLING CUSTOMER CARE SERVICES BETWEEN THE CITY OF AUBURN AND PUGET SOUND ENERGY, INC FOR THE PURPOSE OF PROVIDING FOR lOCKBOX SERVICES FOR THE CITY'S UTILITY BilLING SYSTEM WHEREAS, Puget Sound Energy (PSE) provides payment processing services (as more fully described in Section 1, "Customer Care Services") to municipal and private utilities; WHEREAS, the City of Auburn desires to purchase from PSE, and PSE desires to provide to City of Auburn, Customer Care Services, subject to the terms and conditions of this Agreement. NOW, THEREFORE, THE CITY COUNCil OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES AS FOllOWS: Section 1. Purpose. The Mayor and City Clerk of the City of Auburn are hereby authorized to execute an Agreement for Customer Care Services between the City and Puget Sound Energy, Inc in substantial conformity with the agreement attached hereto, designated as Exhibit "A", and incorporated by reference in this Resolution for the purpose of providing lockbox services for the City's utility billing system. Resolution No. 3884 July 26, 2005 Page 1 of 2 Section 2. Implementation. The Mayor of the City of Auburn is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this resolution. Section 3. Effective Date. This Resolution shall take effect and be in full force upon passage and signatures hereon. DATED and SIGNED THIS \~ DAY OF Av...:'f"-S[.t ,2005. CITY OF AUBURN ~ :-- . PET~R BTIOWIS ' MAYOR ATTEST: tJ~cljp~~ Danlelle E. Daskam, City Clerk Resolution No. 3884 July 26. 2005 Page 2 of 2 AGREEMENT FOR CUSTOMER CARE SERVICES This Customer Care Services Agreement ("Agreement") dated August I, 2005, is made and entered into by and between Puget Sound Energy, Inc., a Washington corporation ("PSE"), and City of Auburn, a municipal corporation of the state of Washington (the "City of Auburn"). PSE and the City of Auburn are each referred to in this Agreement as "Party" and; both PSE and the City of Auburn are at times referred to in this Agreement together as "Parties. " Recitals A. PSE provides payment processing services (as more fully described in Section I, "Customer Care Services") to municipal and private utilities. B. City of Auburn desires to purchase from PSE, and PSE desires to provide to City of Auburn, Customer Care Services, subject to the terms and conditions of this Agreement. Agreement PSE and City of Auburn therefore agree as follows: Section 1. Customer Care Services Subject to the terms and conditions of this Section I, PSE will provide to City of Auburn, and City of Auburn will accept from PSE, Customer Care Services as follows: 1.1 Payment Processing Services (a) On each working day during the term of this Agreement, PSE will receive all Customers' billing statements "payments" made by Customers that are delivered to a U.S. Postal Service caller box at the City of Bellevue Post Office for the City of Auburn. (b) Within one business day after receipt of any Customer payment at the Caller Box, PSE will remit such payment amount (which remittance may be an aggregate amount of all Customer payments received on the same day) to a bank account designated by City of Auburn in writing to PSE ("Remittance"). On the same day as PSE makes any such remittance, PSE will provide to City of Auburn an electronic data file describing each Customer whose payment has been received by PSE and the amount paid by such Customer. PSE will have no responsibility for the processing of any amount paid by any Customer that is delivered by the Customer to any location other than the Caller Box. (c) PSE will keep accurate records of total daily payment amounts received from Customers at the Caller Box and amounts remitted by PSE to City of Auburn's bank account CUSTQMpR CARE SERVICES AGREEMENT Exhiblt "An I Resolution 3884 PAGE I pursuant to this Agreement. PSE will make a correct copy of such records available to City of Auburn upon City of Auburn's request. (d) During the term of this Agreement, PSE will deliver to City of Auburn daily by U.S. mail any payments by Customers that do not meet the electronic payment processing tolerances established by PSE and City of Auburn jointly. (e) PSE will provide to City of Auburn, at agreed upon intervals, an electronic file with images of all checks and stubs processed by PSE in that day's work. (t) PSE will protect the Customer information provided by the City to PSE pursuant to this Section 1.1 against any unauthorized use or disclosure to the same extent that PSE protects its own customer information of a similar nature against unauthorized use or disclosure; provided, however, that this Section 1.1 (t) will not be interpreted or construed to prohibit (i) any use or disclosure that is necessary for PSE's performance of its obligations under this Agreement, (ii) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal or regulatory process) or (iii) any use or disclosure made with the prior wTitten consent ofthe City. Section 2. Compensation 2.1 Payment Amount - Payment Processing Services (a) During Contract Term. As full compensation for PSE's providing the Payment Processing Services of the Customer Care Services to the City of Auburn, the City of Auburn will pay to PSE on a monthly basis, the following amounts: (i) for each account bill payment received by PSE for processing on City of Auburn's behalf, whether posted or returned to the client, an amount equal to nineteen cents ($0.19) ("Processing Rate"). The payments to be made by City of Auburn pursuant to clause (a)(i) of Section 2.1 will be based on the number of account bill payments received during that month by PSE for processing on City of Auburn's behalf. City of Auburn will be responsible for the payment of any amounts charged by any billing vendor other than PSE to provide support for the Payment Processing Services ofthe Customer Care Services. (b) During Renewal Term. As full compensation for PSE's providing the Payment Processing Services of the Customer Care Services to City of Auburn during each Renewal Term, City of Auburn will pay to PSE, on a monthly basis, the following amounts: (i) for each account bill payment received by PSE for processing on City of Auburn's behalf, an amount equal to the Rate in effect during the last year of the Contract Term or the immediately preceding Renewal CUSTOMER CARE SERVICES AGREEMENT PAGE 2 Term, whichever is applicable, increased by the previous calendar year percentage increase in the Consumer Price Index (CPI-U, US City Average). 2.2 Payment Method City of Auburn will pay to PSE the amount of any invoice for the payment amounts referred to in Section 2.1 within thirty (30) days after the date of such invoice. PSE may accept any check or payment without prejudice to its rights to recover the balance due or to pursue other rights or remedies. No endorsement or statement on any check or payment or letter accompanying any check or payment or elsewhere will be construed as an accord or satisfaction. All amounts payable under this Agreement are denominated in United States dollars and City of Auburn will pay all amounts payable under this Agreement in lawful money of the United States. 2.3 Taxes City of Auburn will be responsible for the payment of all taxes of whatever nature and source, levied on or with respect to the amounts stated in PSE's invoices, exclusive of any taxes based on PSE's net income. Section 3. Relationship of Parties As between PSE and City of Auburn, PSE will maintain full and complete control and responsibility for the Customer Care Services and the performance thereof; provided, however, the Customer Care Services contemplated herein will be subject to City of Auburn's general rights of direction and must be approved in advance by City of Auburn. Notwithstanding the foregoing, the Parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in this Agreement will be interpreted as constituting either Party as the joint venturer, agent, employee, franchisee or partner of the other Party or as conferring upon either Party the power of authority to bind the other Party in any transaction with third parties. Employees or contractors ofPSE are not employees of City of Auburn and such employees are not entitled to any of the benefits City of Auburn provides to its employees. PSE will be solely and entirely responsible for the acts of its employees during the performance ofthis Agreement. All rights and obligations of the Parties under this Agreement are intended to be several, not joint or, collective, and neither Party will be jointly or severally liable for the acts, omissions or obligations under this Agreement ofthe other Party. Section 4. Term and Termination 4.1 Contract Term, Renewal Term, Termination The initial term of this Agreement will commence as of the date by which the Customer Care Services described in Section 1 will be made available by PSE to City of Auburn, such date to be not later than July 1,2005, ("Effective Date") and, unless earlier CUSTOMER CARE SERVICES AGREEMENT PAGEl terminated as provided in this Agreement, will expire on the first (1st) anniversary of the Effective Date ("Contract Term"). After the Contract Term, this Agreement shall automatically renew for consecutive one (1) year periods (each, a "Renewal Term"), unless either Party provides to the other Party, not less than sixty (60) days prior to the expiration of the then-current Contract Term or Renewal Term, written notice oftermination of this Agreement; provided, however, that no termination under this Section 4.1 will relieve either Party from any of its obligations or liabilities incurred during the then-current Contract Term or Renewal Term. 4.2 Termination Without Canse Either Party may terminate this Agreement by giving the other Party not less than sixty (60) days' prior written notice of termination, provided, however, that no termination under this Section 4.2 will relieve either Party from any of its obligations or liabilities incurred prior to such termination. 4.3 Termination for Breach or Default If either Party commits a material breach of or default under this Agreement, then the Non-Breaching Party may give the Breaching Party written notice of the breach or default (including a statement of the facts relating to the breach or default and the provisions of this Agreement that are applicable to such breach or default). Ifthe Breaching Party fails to cure the specified breach or default within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then this Agreement will terminate. Section 5. Limitation of Liability & Damages Except to the extent necessary to satisfy any liability for third-party claims under Section 6, neither party's total liability (whether in contract, tort or otherwise) with regard to this Agreement (including, but not necessarily limited to, any liability arising out of any performance, nonperformance, breach or default under this Agreement) will, in the aggregate, exceed the amount of Five Hundred Thousand dollars $500,000. Section 6. Indemnification 6.1 By PSE PSE will indemnity, defend, and hold City of Auburn harmless from any and all losses, claims, actions, damages and expenses arising out of or resulting from, PSE's negligence or willful misconduct under this Agreement except to the extent that such losses, claims, actions, damages and expenses are caused by or arise out of the negligence of City of CUSTOMER CARE SERVICES AGREEMENT PAGE 4 Auburn. In the event that any suit based upon such losses, claims, actions, damages, or expenses is brought against City of Auburn, PSE upon notice of the commencement thereof, will defend the same at its sole cost and expense, and if final judgment be adverse to City of Auburn, or City of Auburn and PSE jointly, PSE will promptly satisty the same. 6.2 By City of Auburn City of Auburn will indemnity, defend, and hold the PSE harmless from any and all losses, claims, actions, damages and expenses arising out of or resulting from City of Auburn's negligence or willful misconduct under this Agreement except to the extent that such losses, claims, actions, damages and expenses are caused by or arise out of the negligence ofPSE. In the event that any suit based upon such losses, claims, actions, damages, or expenses is brought against PSE, City of Auburn upon notice ofthe commencement thereof, will defend the same at its sole cost and expense, and if final judgment be adverse to PSE, or City of Auburn and PSE jointly, City of Auburn will promptly satisty the same. Section 7. Subcontracting PSE may not subcontract or delegate performance of the Customer Care Services to any third party company without further authorization from City of Auburn. The City of Auburn will not unreasonably withhold such authorization. Any such delegation or subcontracting of performance of any of the Customer Care Services to a third party company will not relieve PSE of its obligation to perform the Customer Care Services in accordance with this Agreement. Section 7.1 The City of Auburn may add third party clients for payment processing via PSE for the term of this contract. New third party clients will comply with PSE standards for processing. In addition, each new client will have a two thousand-dollar set up fee ($2,000) with an on-going processing fee per item at the set rate as the City of Auburn for the term of this agreement. Section 8. Notices Any notice, request or other communication specifically provided for under this Agreement will be provided in writing and will be delivered in person, by first-class U.S. mail, stamped with the required postage, via facsimile, accompanied by confirmation of receipt, or by express mail or similar form of overnight delivery, in each case properly addressed to the recipient specified below: Ifto City of Auburn: City of Auburn 25 West Main Auburn WA 98001 Attn: Julie Sharkich CUSTOMER CARE SERVICES AGREEMENT PAGE 5 If to PSE: Puget Sound Energy, Inc. P.O. Box 90868 Bellevue, W A 98009-0868 Attn: ICS BOT-Om Any notice, request or other communication delivered as set forth above will be deemed to be effective upon receipt. Any Party may change its address specified in this section by giving the other Party notice of such change in accordance with this section. Section 9. Force Majeure Neither Party will be liable to the other for, or be considered to be in breach of or default under this Agreement because of, any delay or failure in performance by such Party under this Agreement to the extent such delay or failure is due to any cause or condition beyond such Party's reasonable control, including, but not limited to, failure or threat of failure of facilities or equipment; fire, lightning, flood, earthquake, volcanic activity, wind, drought, storm and other acts of the elements; court order and act, or failure to act, of civil, military or governmental authority; strike, lockout and other labor dispute; epidemic, riot, insurrection, sabotage, war and other civil disturbance or disobedience; labor or material shortage; and act or omission of any person or entity (other than such Party, its contractors or suppliers or anyone acting on behalf of such Party). Each Party will exercise reasonable diligence to overcome the cause of such delay; provided, however, that to the extent the cause of such delay arises from any breach of, or failure by the other Party to perform any of its obligations under this Agreement, the costs and expenses incurred by the Party that has delayed or failed in its performance under this Agreement to overcome the cause of such delay will be for the account of such other Party. Nothing contained in this Agreement will be construed to require either Party to prevent or settle any strike, lockout or other labor dispute in which it may be involved. Notwithstanding the foregoing, nothing in this paragraph will apply to any delay or failure by either Party to pay any amounts due and owing to the other Party pursuant to this Agreement. Section 10. Assignment Neither Party will voluntarily assign or otherwise transfer any of its rights, interests or obligations in, to or under this Agreement without the prior written consent of the other Party (which consent will not be unreasonably withheld); provided, that either Party may assign or otherwise transfer, without the prior written consent of the other Party, any of its rights, interests and obligations in, to or under this Agreement to (a) a successor in operation of all or substantially all of the properties of such Party or (b) any holder (or the trustee of any holder) of the debt of such Party pursuant to the terms of a mortgage, trust, security agreement, indenture or other instrument of indebtedness to which such Party and such holder of debt (or such trustee) are parties, as security for bonds or other indebtedness of such Party, past or future. Without relieving any Party from its obligations under this Agreement, any successor or assignee of the rights of such Party under this Agreement (except for any CUSTOMER CARE SERVICES AGREEMENT PAGE 1 holder of debt or trustee described above), whether by voluntary transfer, judicial or foreclosure sale or otherwise, will be subject to all the provisions and conditions of this Agreement to the same extent as though such successor or assignee were an original party this Agreement, and no assignment or transfer of any rights under this Agreement will be effective unless and until such assignee or transferee agrees in writing with the other Party to assume all of the obligations of the assignor or transferor and to be bound by all of the provisions and conditions of this Agreement. Neither the pledge, mortgage or grant of any lien for security by any Party of its rights under this Agreement nor the execution of a pledge, mortgage, security agreement, indenture or trust deed or a judicial or foreclosure sale made thereunder will be deemed a voluntary transfer within the meaning ofthis paragraph. Subject to the foregoing restrictions on transfer, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors, assigns and legal representatives. Section 11. Non-Waiver The failure of City of Auburn or PSE to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights under this Agreement will not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon any such provisions or rights in that or any other instance; rather, the same will be and remain in full force and effect. Section 12. Survival The obligations of the Parties under Sections 3, 5, 6, 12, 13, 14, and all other provisions of this Agreement that may reasonably be interpreted or construed as surviving the completion, termination or cancellation of this Agreement will survive the completion, termination or cancellation of this Agreement. Section 13. Severability The invalidity or unenforceability of any provision of this Agreement will not affect the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted. The headings of sections and the title of sections of this Agreement are for convenience ofreference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections. Section 14. Rights Cumulative The rights and remedies of each Party set forth in any provision of this Agreement are in addition to and do not in any way limit any other rights or remedies afforded to such Party bylaw. CUSTOMER CARE SERVICES AGREEMENT PAGE 2 Section 15. No Third Party Beneficiary This Agreement will not be construed to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, obligation or undertaking established herein. Section 16. Governing Law The obligations of each Party under this Agreement will in all respects, including all matters of construction, validity and performance, be governed by and construed in accordance with the laws of the state of Washington, without reference to any rules governing conflict oflaws, except to the extent such laws may be preempted by the laws ofthe United States of America. Section 17. Governmental Authority This Agreement is subject to the rules, regulations, orders and other requirements, now or hereafter in effect, of all regulatory authorities having jurisdiction over this Agreement, the Parties or any of them, including, without limitation, the Washington Utilities and Transportation Commission. All laws, ordinances, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental regulatory authorities that are required to be incorporated in agreements ofthis character are by this reference incorporated in this Agreement. Section 18. Jurisdiction and Venue Neither Party will commence or prosecute any suit, proceeding or claim to enforce the provisions of this Agreement, to recover damages for breach of or default in this Agreement, or otherwise arising under or by reason ofthis Agreement, other than in the state and federal courts of the State of Washington. Both parties hereby irrevocably consent to the jurisdiction ofthe courts of the state of Washington with venue laid in King County. Section 19. Amendment No amendment or modification of any provision of this Agreement will be valid unless set forth in a written amendment to this Agreement. This Agreement may be amended only with the express written consent of both of the Parties and no provision of this Agreement will be varied or contradicted by any oral agreement, course of dealing or performance or any other matter not set forth hereafter in a written agreement signed by both of the Parties. Sectiou 20. Entire Agreement This Agreement constitutes, on and as of the date hereof, the entire agreement of the Parties with respect to the subject matter of this Agreement and all prior understandings or agreements, whether written or oral, between the Parties with respect to the subject matter of CUSTOMER CARE SERVICES AGREEMENT PAGEl this Agreement are hereby superseded in their entireties. Each provision of this Agreement is the product of negotiation between the Parties. Any rule of interpreting ambiguities against the interests of the drafting party will not be applied in resolving any dispute over the meaning of any provision of this Agreement or the intent of the Parties with respect to such prOVISIOn. Section 21. Counterparts This Agreement may be executed in any number of counterparts, each of which so executed will be deemed to be an original, and such counterparts together will constitute one and the same instrument. Once signed, any legible reproduction of this document made by reliable means (for example, photocopy or facsimile) is considered an original. In witness whereof, the Parties have executed this Agreement on the date first above written. ::~ ~ Pnget Sound E 6//"'/ - l~l~d(ClJe C;,.,1cmQ.[ <;c.1 i o~ ~ -'" By /' Its Mafltl(f( Peter B. Lewis, Mayor Daniel B. Heid, City Attorney CUSTOMER CARE SERVICES AGREEMENT PAGE 4