13-21 - RTOWN OF PROSPER, TEXAS
RESOLUTION NO. 13-21
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY
AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE
A TWO YEAR CONTRACT WITH DOCUMENT MANAGEMENT PROFESSIONALS BUSINESS
PROCESS OUTSOURCING, INC. FOR THE PRODUCTION AND DISTRIBUTION OF TOWN
UTILITY BILLS..
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS:
SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to execute a
two year contract with Document Management Professionals Business Process Outsourcing, Inc., on behalf of
the Town Council of the Town of Prosper, Texas, for the production and distribution of Town utility bills.
SECTION 2: This Resolution shall take effect immediately upon its passage.
DULY RESOLVED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, on this the 261h day of February, 2013.
i
Ray Smith
Mayor
ATTEST:
Amy Piukan TRM
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APR 4 2013
Town of Prosper
Town Manager's Office Production Agreement
This Agreement, made and effective the 1 S'day of April, 2013 ("AQreement"), is by and between Burke Asset Holding, LLP, dba
Document Management Professionals Business Process Outsourcing (hereafter "DMP BPO"), having its principle place of business at
1505 Wallace Drive, Suite 154, Carrollton, Texas 75006, and the Town of Prosper (hereafter "CLIENT") having its principle place of
business at 121 W Broadway, Prosper, TX 75078.
WHEREAS, CLIENTwishes to procure services from DMP BPO relating to data file handling, computer processing, printing, and mail
shop assembly of CLIENTutility bills and/or other printing and mail fulfillment services;
WHEREAS, DMP BPO utilizes software programs and material production processes for providing the above cited services to CLIENT,
and has the ability to customize applications for CLIENT`s purposes;
NOW THEREFORE, in consideration of the mutual covenants and promises in this Agreement, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
For all purposes of this Agreement, the terms set forth in this Section 1 shall have the following meanings:
"Party" or "Parties" means the party or parties to this Agreement.
"Person" means any individual, corporation, partnership, firm, joint venture, association, joint stock company, trust, unincorporated
organization, regulatory body, government or any group or political subdivision thereof, or other entity.
"Third Party" means a person who is not a Party to this Agreement.
SECTION 2. TERM AND TERMINATION
2.1 Term. The initial term of the Agreement shall commence on the date first above written and shall continue for a period of twenty-
four (24) months from the first day of the month following the month in which this Agreement is executed (the "Initial Term"). Upon
expiration of the Initial Term, this Agreement shall automatically renew for five (5) additional successive twelve (12) month periods (each
a "Renewal Term") unless either party provides sixty (60) days prior written notice of intent to terminate, or unless terminated sooner as
provided below. The Initial Term and Renewal Term(s) may be referred to collectively as the "Agreement Term". During the term of this
Agreement, the CLIENT agrees to furnish data and documentation for, and DMP BPO agrees to produce, a minimum monthly quantity of
3,800 statements ("Minimum Commitment"), based upon the rates and terms provided herein. In the event that the CLIENT does not
fulfill the Minimum Commitment, then CLIENT shall pay to DMP BPO a minimum processing fee ("Minimum Processing Fee") in an
amount that shall be calculated based upon the Minimum Commitment and the rates and terms provided herein.
2.2 Termination by CLIENT. CLIENT may terminate this agreement for any reason upon 30 days notice to DMP BPO.
2.3 Termination for Default. If either Party materially breaches this Agreement, and if such breach continues uncorrected for a period of
thirty (30) days after written notice to the defaulting party describing the default, then the non -defaulting party may terminate this
Agreement upon written notice to the defaulting party.
2.4 Effect of Termination. In the event this Agreement is terminated for any reason, DMP BPO shall deliver all products and services
requested by CLIENT through the termination date, provided that CLIENT is current on all outstanding invoices and CLIENT pays all
additional fees upon performance and delivery of the balance of the requested products and services. Unless mutually agreed to
otherwise, upon termination, both parties agree to return, or warrant in writing that they have deleted or destroyed, any information or
data that has been exchanged as provided for in this Agreement.
2.5 Termination for Non -Appropriation of Funds. If CLIENT is a city, county, municipality or other government entity, CLIENT can
terminate if funds are not appropriated.
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SECTION 3. RESPONSIBILITIES
3.1 Production services.DMP BPO will provide the following ongoing services:
Production Agreement
i. Host one or more production applications for CLIENTwithin DMP BPO's automated document electronic
production technology (ADEPT) system.
ii. Receive print ready production files in PDF or Postscript formatvia DMP BPO's secure FTP site.
iii. Process inbound production files to extract and table piece level data, append each document with a unique 2D
barcode, and provide any required data processing in accordance with CLIENT business rules for each
application or line of business.
iv. Print, insert, meter, presort, and mail all documents received.
V. Provide standard tracking and reporting information via automated email notifications and DMP BPO's online
Client Information System (CIS) portal.
The prices to be charged by DMP BPO and paid by CLIENT are set forth in the attached Attachment 1.
3.2 Service levels. For all print files received prior to 5:00 PM Central Tirne, DMP BPO will process, print and mail all orders
received from CLIENT the next business day following the day the file was received. DMP BPO will meet this service level ninety-
five (95%) percent of the time, and will meet a 2'd business day service level one hundred (100%) percent of the time. Regardless of
the time received, DMP BPO will exercise its best efforts, in good faith, to meet any special requirements for expedited production for
specific CLIENT customers or projects. The above service levels assume that each production file received by DMP BPO is correctly
formatted in accordance with previously defined file definitions mutually agreed to by DMP BPO and CLIENT, and that the files are
valid and complete as previously defined in the appropriate application code or reference table, tested, and approved by CLIENT.
3.3 Billing and Payment. CLIENT will be billed monthly for all services completed during the previous billing period. A
consolidated invoice and a detailed billing report will be provided to CLIENTby DMP BPO. Invoices are due within thirty (30) days
of the date of invoice. Billing for production services will be on a component basis in accordance with the pricing schedule provided
in Attachment 1, and the price for all other goods and services which may be provided by DMP BPO will be agreed upon prior to
beginning any new projects. The pricing provided in Attachment 1 will remain in effect for a period of one (1) calendar year from the
execution date of this agreement. Thereafter, DMP BPO will have to right to adjust the pricing of any billing component. The price
of any billing component will not be increased more than four (4%) percent per year with the exception of postage charges. Postage
charges will be billed at the then current USPS Basic Presort (Machinable) rate for First Class Letter mail and the USPS Presorted rate
for First Class Flat mail. As is customary, CLIENT will maintain an escrow account sufficient to pay all applicable postage charges.
A reconciliation of escrowed funds used and ending balance will be provided with each invoice.
3.4 Exclusivity Provision. During the Term of this Agreement, CLIENTagrees that it shall not use any vendor or provider other than
DMP BPO to provide any of the goods or services contemplated by this Agreement, or for any composition, print or mail services of
the type contemplated in this Agreement, unless this Agreement is sooner terminated in accordance with its provisions for early
termination.
SECTION 4. CONFIDENTIALITY AND NON-USE
4.1 Confidential Information. Neither party (the "Receiving Partv") who has received Confidential Information (as defined in this
Agreement) from the other Party will, without the prior written consent of the other Party (the "Disclosing Partv"), use, copy,
publicize or disclose to any Third Party, either directly or indirectly, except as required by law, any of the following (hereinafter
"Confidential Information"):
a. any of the terms or conditions of the Agreement (except in a proceeding to enforce any of the provisions of this Agreement);
or
b. any confidential or proprietary information or data, either oral or written, pertaining to the Disclosing Party or the Disclosing
Party's customers, except such information as may be in the public domain or publicly available.
4.2Information Security. Each Party shall at all times administer an information security program that ensures the protection of the
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other party's Confidential Information. Without limitation, the following shall be considered Confidential Information: Records that
may contain non-public information about customers of either Party, including but not limited to information provided by CLIENT to
DMP BPO; any personally identifiable financial information; and any lists, description, or other grouping of consumers (and publicly
available information pertaining to them) that is derived using any personally identifiable financial information whether in paper,
electronic, or other form. In addition, DMP BPO agrees to comply with the provisions of the Gramm Leach Bliley Act of 1999 (Public
Law 106-102) as it relates to the services provided.
4.3 Third Party Disclosures. To the extent a Third Party is provided Confidential Information by the Receiving Party with the
knowledge and consent of the Disclosing Party, disclosure of such Confidential Information by such Third Party will not be a breach
of this Agreement. Either Party may provide Confidential Information to any person or organization not a party to this Agreement to
the extent necessary to obtain products or service from such person or organization required for the performance of its duties under
this Agreement, provided that the Disclosing Party has entered into a confidentiality and non-use agreement with such person or
organization on terms at least as restrictive as those contained in this Agreement. SO LONG AS THE CONDITIONS OF THIS
SECTION 4.3 ARE MET, DMP BPO AGREES TO INDEMNIFY THE CLIENT AGAINST THE DISCLOSURE OR USE
OF THE CONFIDENTIAL INFORMATION BY ANY EMPLOYEE, AGENT, OR THIRD PARTY RETAINED BY THAT
DMP BPO TO ASSIST IN THE PERFORMANCE OF ITS DUTIES UNDER THIS AGREEMENT. The above
notwithstanding, and except as required by legitimate legal process as described in section 4.4 below, DMP BPO agrees that it will
protect the Confidential Information provided to it by CLIENT to the same level it protects its own Confidential Information, and will
disclose only that information needed and only to the extent necessary for the fulfillment of DMP BPO's obligations to CLIENT under
this Agreement.
4.4 Disclosures Through Legal Process. If either Party is served with a subpoena or other legal process requiring the production or
disclosure of any Confidential Information, then that Party, before complying, will immediately notify the Disclosing Party and will
use it best efforts to permit the Disclosing Party a reasonable period of time to intervene and contest disclosure or productions.
4.5 Termination for Breach of Confidentiality. If the Receiving Party materially, intentionally and habitually breaches the
confidentiality provisions herein, then Disclosing Party may terminate this Agreement immediately, upon written notice.
SECTION 5. OWNERSHIP
5.1 Intellectual Property. Both parties acknowledge and agree that each party has sole and exclusive rights to all of its patents,
copyrights, trademarks, confidential technical information, trade secrets, and improvements as defined herein (collectively
"Intellectual Property Rights"). Each party shall have the sole and exclusive right, but not the obligation, to seek, pursue, prosecute
and maintain all intellectual property protection and government registrations for its own Intellectual Property Rights. Each party
agrees that, if necessary, it will cooperate with the other party to obtain and maintain protection of its intellectual property, and waives
any and all claims and rights to the other party's Intellectual Property Rights as defined herein.
5.2 Improvements. Each party agrees that any tangible improvements, enhancements, upgrades, modification and updates to any
technical confidential information, patents, copyrights or trade secrets (collectively "Improvements") developed by any party to this
Agreement shall be the property of that respective party. It is expressly understood that all software associated with any of DMP
BPO's products and services remains the property of DMP BPO including any and all changes made on behalf to CLIENT.
5.3 No Ownership. DMP BPO will use the software applications and other intellectual property to perform services for CLIENT as
set forth in this agreement. DMP BPO does not grant and will not grant (or be deemed to have granted) any right or license under any
patent, copyright, trademark, trade secret or any other business or intellectual property rights to CLIENT (or any other person) under
this Agreement. CLIENT acquires and will acquire no rights under this or any other Agreement, or by course of dealing or conduct
between the parties, to any of DMP BPO's work (such as, by way of example and not limitation, the software applications to be
developed by DMP BPO), any product or software developed pursuant to any dealings between the Parties, or any derivative works.
5.4 No Work for Hire. The Parties acknowledge that any work done by DMP BPO, and any embodiment of such work, (whether
patentable or not) shall not be considered a "specifically ordered or commissioned work" or a "work -made -for -hire'' as those terms are
defined by the United States Copyright Act. To the extent that any work does not so qualify, CLIENT agrees to and hereby does (a)
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irrevocably assign and transfer to DMP BPO all of CLIENT's right, title and interest (including all intellectual property rights with
respect to the United States and any other country) therein, and any associated rights of renewal and all reversionary interests thereof,
in and to such work including, without limitation, software and any and all upgrades and enhancements thereto, and all related
documentation, source and object code, modifications and other related materials. At DMP BPO's request and expense, CLIENT shall
execute and deliver such instruments and take such other action as may be requested (including assistance in any proprietary rights
application process) by DMP BPO to perfect or protect DMP BPO's rights in the work and to carry out the assignments contemplated
in this Section. Except as provided or allowed by law, CLIENT agrees that it shall not reverse engineer, decompile, disassemble, or
otherwise attempt to derive source code or other trade secrets of DMP BPO from any software or other intellectual property of DMP
BPO.
5.5 Scope of License. Unless written permission is obtained from DMP BPO, CLIENT is licensed only to distribute or redistribute
documents or other materials prepared and provided by DMP BPO under the terms of this Agreement. No other licenses, express or
implied, to any other DMP BPO Intellectual Property Rights are granted to CLIENT, CLIENT's customers, or any party associated
with CLIENT.
5.6 Rights on Termination. All rights to use each other's Intellectual Property terminate with the termination of this Agreement, and
no license rights, express or implied, shall survive the termination of this Agreement. Upon termination of this Agreement, CLIENT
may distribute the documents it has on hand or other materials provided by DMP BPO prior to the termination of this Agreement, but
CLIENT will not make any additional copies of such documents or materials, and CLIENT will not use the information provided by
DMP BPO hereunder in a manner which would infringe on DMP BPO's Intellectual Property Rights. Similarly, DMP BPO will not
use the information provided by CLIENT hereunder in a manner that would infringe on CLIENT's Intellectual Property Rights.
SECTION 6. GENERAL PROVISIONS
6.1 INDEMNIFICATION. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, DMP BPO (THE
"INDEMNITOR") WILL INDEMNIFY AND HOLD HARMLESS THE CLIENT AND ITS OFFICERS, DIRECTORS,
EMPLOYEES, AND AGENTS (THE "INDEMNITIES") FROM AND AGAINST ANY AND ALL LIABILITIES,
DAMAGES, LOSSES, EXPENSES, CLAIMS, DEMANDS, SUITS, FINES, OR JUDGMENTS (INCLUDING COPYRIGHT
INFRINGEMENT), INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES, COSTS, AND
RELATED EXPENSES, WHICH MAY BE SUFFERED BY, ACCRUE AGAINST, OR BE RECOVERED FROM ANY OF
THE INDEMNITIES RESULTING FROM ANY CLAIM OR SUIT BROUGHT BY ANY THIRD PARTY OR PARTIES
ARISING OUT OF OR IN CONNECTION WITH:
(A) ANY FAILURE OF PERFORMANCE OR WRONGFUL PERFORMANCE BY THE INDEMNITOR OF ANY OF
ITS OBLIGATIONS UNDER THIS AGREEMENT; AND
(B) ANY NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNITOR IN CONNECTION WITH THIS
AGREEMENT.
THE INDEMNITY AND HOLD HARMLESS OBLIGATIONS OF THE INDEMNITOR PURSUANT TO THIS
SECTION 6.1 ARE OF A CONTINUING NATURE AND WILL SURVIVE THE TERMINATION OR EXPIRATION OF
THIS AGREEMENT.
6.2 Disclaimer. Both parties will make every effort to achieve the results contemplated by this Agreement and any other mutually
agreed -upon objectives. However, except as otherwise provided in this Agreement, neither party guarantees or warrants that the
goods or services provided pursuant to this Agreement will achieve any level of results. DMP BPO is totally dependent on the
information received from CLIENT and cannot be held responsible for the accuracy of the data received. CLIENT assumes full
responsibility for any and all claims against either party for errors and omissions or any other liability arising from the information
contained in or omitted from any document produced by DMP BPO.
6.3 Governing Law, Venue and Jurisdiction. This Agreement will be governed and construed in accordance with the laws of the
State of Texas as applied to agreements made, entered into and performed entirely in Texas by Texas residents, notwithstanding the
actual residence of the parties. Both parties agree that any cause of action arising under this Agreement shall be brought exclusively in
the state or Federal Courts in Collin County, in Texas, and each party hereby irrevocably submits to the personal jurisdiction of such
Courts for such purpose. The parties agree to waive whatever rights they may have to a jury trial.
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6.4 Limit of Liability. Neither party will be liable for any incidental or consequential damages, including lost revenues, lost profits,
or lost prospective economic advantage, arising from any performance or failure to perform under this Agreement, and each party
hereby releases and waives any claims against the other party regarding such damages, except as follows: DMP BPO shall be entitled
to payment for all goods and services provided, and all actual damages resulting from any breach by CLIENT of the Exclusivity
Provision set forth in Section 3.4 above, including direct, indirect, consequential and incidental damages, lost revenues and lost
profits, and all other damages, if any.
6.5 Force Majeure. Except for any payment obligations, neither party will be liable for delays or failure in performance under this
Agreement caused by acts of God, war, strike, labor dispute, work stoppage, fire, or act of government.
6.6 Entire Agreement. This Agreement, including any Attachments, constitutes the entire agreement and understanding of the parties
on the subject matter hereof, and as of the effective date, supersedes all prior agreements, whether written or oral, between the parties
concerning the subject matter hereof. This Agreement may be modified only by further written agreement signed by all of the parties
hereto.
6.7 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions
will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a
valid provision that most closely approximates the intent and economic effect of the invalid provision.
6.8 Waiver. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver
of any other or subsequent breach.
6.9 Assignment. Neither party may assign nor delegate the performance of services to be rendered under this Agreement without the
express written consent of the other Party, which consent will not be unreasonably withheld. The parties agree that any agreed upon
assignee of services rendered will be subject to all of the terms and conditions of this Agreement.
6.10 Notices. All notices given by either party pursuant to this Agreement shall be deemed sufficiently given if mailed certified mail,
return receipt requested, Federal Express, or other form of receipted delivery to the respective addresses stated in this Agreement. A
copy of any Notice shall be sent to:
CLIENT
Town of Prosper
Harlan Jefferson, Town Manager
P.O. Box 307
Prosper, TX 75078
Document Management Professionals Business Process Outsourcing
Attention: Ken Aiken COO
1505 Wallace Drive, Suite 154
Carrollton, TX 75006
Notice sent via electronic means (e.g., telex, facsimile) will be effective immediately if received prior to 5:00 p.m. local time of the
recipient. All other notices will be effective the first business day after receipt.
6.11 Sovereign Immunity. The parties agree that the CLIENT has not waived its sovereign immunity be entering into and
performing its obligations under this Agreement.
6.12 No 'Third Party Beneficiary. Nothing herein shall be construed to give any rights or benefits to anyone other than CLIENT and
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IN WITNESS WHEREOF, this Agreement has been executed on this the 4rday of 1401- 2013.
DIRECT MAIL PARTNERS:
By:
Name: Ken Aiken
Title: Chief Operating Officer
CLIENT:
By:
—;�irrso Name: Hr an Jefferson
Title: Town Manage/ 0 )Z7
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Attachment 1 — Fees for Goods & Services
Bill (Package Includes: data processing & simplex, 2-color, laser imaging, 8.5x11
white paper, perforated at 3.5" from bottom, DMP BPO standard #10 two window
env., DMP BPO standard #9 single window reply env., folding, inserting,
presorting and delivery to USPS)
$0.11
Per Bill
Archive (Archive Package Includes: data processing, archive creation, search,
access & hosting of archive files for 12 months from creation date)
$0.02
8.5 xl l image
NCOALink — Automated address update service
$0.30
Per Correction
Additional Impressions
$0.02
Per Impression
Bill Suppression
$0.05
Per Bill
Oversized Surcharge 6-99 page bills
$0.20
Per Bill
Oversized Surcharge 100+ page bills
$4.00
Per Bill
Oversized archive surcharge
$0.10
Per Bill
Automated Insert of Additional Enclosure
$0.005
Per Enclosure
Offline Folding
$0.005
Per Sheet
Basic Set up Fee (Standard Format and Reports)
NC
Technical Services (including additional set-up beyond standard, formatting or
custom reports, conditional logic & insert/forms composition)
$125.00
Per Hour
Freight, Couricr & Air Delivery
Cost
Per Request
Postage (1 oz.)
Cost
Per Bill
Postage Deposit
Postage Deposit (Based on two (2) months estimated volume)
$3,464
2 mts.(a6, $0 .433
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