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HomeMy WebLinkAboutC7. PSA Prose Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Anna Rosenberry, Administrative Services Director SUBJECT: Authorize City Manager to Sign Professional Services Agreement with Data Prose, LLC for Utility Billing Services. MEETING DATE: May 4, 2015 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize City Manager to Sign Professional Services Agreement with Data Prose, LLC for Utility Billing Services. BACKGROUND: Each month, the City bills over 13,000 customers for their Water, Sewer, Stormwater, Garbage Collection and Recycling services. We currently utilize an in-house printer and our Sungard system to produce the utility bills. With the adoption of the new Stormwater charges and credits, our current bill format needed to be revised. Given the additional number of printed charges, all of the new items will not fit on our existing bill layout. It has also been a goal to create a more user-friendly bill that could communicate information about water consumption to our customers in a graphical form. We’ve been working with Public Works and Water Conservation on a new bill format. After discussions and quotes from vendors, we have decided to recommend the attached agreement with Data Prose for bill printing and mailing services. (We will still use the Sungard system to calculate charges and the data for bill printing.) Attached is a SAMPLE bill; the elements of the bill are nearly complete and we will work to finalize the layout once this contract is signed. This format uses multiple colors, icons, and graphs – which is a significant improvement over the current bill. We anticipate that customers will see this new bill format in June or July. UNRESOLVED ISSUES: None. ALTERNATIVES: Select a different vendor; or, significantly modify the Sungard bill that exists now. FISCAL EFFECTS: The costs of this contract are charged to the Water, Sewer, Solid Waste and Stormwater Funds. 66 Under the Agreement, bill stock, envelope, printing and processing costs, including postage, are estimated to total $89,000/year. The actual amount will be charged by piece/file according to the Agreement. Currently, we spend $65,000 on printing and mailing services, $15,000 on bill stock and envelope costs, and $7,500 in staff-time and printer costs per year. All of this produces a single- color utility bill. (Totaling $87,500.) Under this new agreement, we will be able to allocate the staff time that was used for bill-printing to other utility customer service. We will also generate a full-color bill for a small increase in costs annually. Attachments: Professional Service Agreement with Data Prose, LLC Sample - New Bill Report compiled on: April 22, 2015 67 ACCOUNT NAME: JOHN Q SAMPLESERVICE ADDRESS: 83 W FIELDVIEW CIR RATE CLASS: RESIDENTIALCYCLE/ROUTE: 01-23 BILLING DATE: 01/13/2015 CURRENT CHARGE SUMMARY DESCRIPTION USAGE CHARGEWATER SERVICE WATER SERVICE CHARGE $12.70MINIMUM FIRST 2 HCF 2.00 $4.77 USAGE 2-8 HCF 0.45 $1.07 EXTRA LINE 4 0.00 $0.00EXTRA LINE 5 0.00 $0.00 EXTRA LINE 6 0.00 $0.00EXTRA LINE 7 0.00 $0.00 TOTAL WATER $18.54 SEWER SERVICE SEWER SERVICE CHARGE $15.22USAGE PER HCF 2.45 $7.11 EXTRA LINE 10 0.00 $0.00 EXTRA LINE 11 0.00 $0.00 TOTAL SEWER $22.33 GARBAGE/RECYCLING SERVICE 100 GAL RECYCLE TOTE 10/31/14-10/29/14 -$0.32 100 GALLON TOTE 10/31/14-10/29/14 -$0.78EXTRA LINE14 0.00 $0.00 EXTRA LINE 15 0.00 $0.00 TOTAL GARBAGE/RECYCLING $1.10 STORMWATER SERVICE STORMWATER CHARGE -$0.12EXTRA LINE 17 0.00 $0.00 EXTRA LINE 18 0.00 $0.00 TOTAL STORMWATER -$0.12 TOTAL CURRENT CHARGES $39.85 YOUR MONTHLY STATEMENT © 2015, All rights reserved. Sample provided by DataProse.AMOUNT ENCLOSED $ Keep top portion for your records and return the bottom stub with your payment. Make check payable to: City of Bozeman Sign up for Automatic Bill Pay ‒ See Reverse or to pay by credit card or go to www.bozeman.net **SINGLE-PIECE 1 SGL 90348AA24-A-14 1 SP 0.480 FFDDAAFATTTFTDAAFFTDAAFFTDAAFFTTTADAFFAFAFFFFFFTTTTFAAAAATADDFDA JOHN Q SAMPLE 83 W FIELDVIEW CIR BOZEMAN MT 59718-1234 121 NORTH ROUSE AVENUEPO BOX 1230 BOZEMAN MT 59771-1230 099999999990043519 FTTDAAFDTFAFTFDFFFDFAFTDTATTTFDAFDATFDAFDTTDDAFFDTTFDDTDDTTDDTFFT CITY OF BOZEMAN PO BOX 1230BOZEMAN MT 59771-1230 Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec AVG Previous Usage Current Usage Neighborhood Average YOUR HISTORICAL USAGE (IN GALLONS) IMPORTANT MESSAGE A 1.5% Late Fee (or $1.00 minimum) will be assessed on delinquent balances. $15.00 Returned Payment Fee. Water will be subject to being turned off if payment is not made by due date. 4500 3600 2700 1800 900 0in gallons121 NORTH ROUSE AVENUEPO BOX 1230BOZEMAN MT 59771-1230 MONTHLY USAGE (1 HCF= 748 GALLONS) Pay or View your bill online at www.bozeman.net Check here to receive E-statement (details on back). Please indicate address corrections above Water/Sewer: (406) 582-2328 Message Line 1, 50-60 characters (upper/lower) Arial 9pt..... Message Line 2, 50-60 characters (upper/lower) Arial 9pt.....Message Line 3, 50-60 characters (upper/lower) Arial 9pt..... Message Line 4, 50-60 characters (upper/lower) Arial 9pt..... Message Line 5, 50-60 characters (upper/lower) Arial 9pt..... Message Line 6, 50-60 characters (upper/lower) Arial 9pt..... Message Line 7, 50-60 characters (upper/lower) Arial 9pt.....Message Line 8, 50-60 characters (upper/lower) Arial 9pt..... Message Line 9, 50-60 characters (upper/lower) Arial 9pt..... Message Line 10, 50-60 characters (upper/lower) Arial 9pt..... How does my water usage compare Efficient Neighbors All Neighbors My home METER ID NUMBER READ DATES DAYS PREVIOUSMETER READ CURRENT METER READ USAGE UNIT 99999999 10/03/14-10/29/14 26 29583 29607.5 2.45 HCF 99999998 10/03/14-10/29/14 26 29583 29607.5 2.45 HCF 99999997 10/03/14-10/29/14 26 29583 29607.5 2.45 HCF 99999996 10/03/14-10/29/14 26 29583 29607.5 2.45 HCF 99999-999999 02/13/2015 Amount Due Now$435.19 Account Number Due Date PREVIOUS BALANCE $395.54 PAYMENT - THANK YOU -$0.00LATE FEE $0.00ADJUSTMENTS $0.00 TOTAL CURRENT CHARGES $39.85 TOTAL AMOUNT DUE NOW $435.19 ACCOUNT SUMMARY 99999-999999 02/13/2015 Amount Due Now$435.19 Account Number Due Date Garbage/Recycling: (406) 582-2332 SAMPLE 68 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this day of April, 2015, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Avenue, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and DataProse LLC, a Texas limited liability company, hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Attachment A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate on the third anniversary of the effective date, unless terminated earlier in accordance with this Agreement. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services, Attachment A. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services, Attachment A. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, 69 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 2 of 11 Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 70 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 3 of 11 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of and expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. 71 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 4 of 11 Contractor also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City and Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non- contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. 72 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 5 of 11 The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or 73 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 6 of 11 immediately in progress. c. In the event of a termination pursuant to this Section 13, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 13(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within ten (10) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Brian LaMeres, Controller / Software Application Manager or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as listed above 74 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 7 of 11 and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be William K. Murray, Chief Executive Officer or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 12. Notice: All notices must be in writing and may be delivered in person, by fax, first class mail, overnight delivery service, or electronic mail to the parties’ authorized representatives. Mailed notices will be effective on the third day after mailing. Notice by personal delivery or delivery service will be effective when delivered. Addresses for the purpose of giving notice are: If to City: City of Bozeman 121 N. Rouse Ave. Bozeman, MT 59771-1230 Attn: Brian LaMeres, Controller If to DataProse: DataProse 1122 W. Bethel Road Coppell, TX 75019 Attn: William K. Murray, CEO 13. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 75 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 8 of 11 14. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 15. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms of its sub-Contractors providing services under this agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing his employees and agents in safe work practices. 76 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 9 of 11 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. 77 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 10 of 11 b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Force Majeure: Neither party shall be responsible for delays or failures in performance resulting from acts or occurrences beyond the reasonable control of such party, including, without limitation: fire, explosion, power failure, flood, earthquake or other act of God, 78 Professional Services Agreement for Utility Bill Print & Mailing Services FY 2015 – FY 2018 Page 11 of 11 war, revolution, or acts of terrorism. In such event, the party affected shall be excused from such performance (other than any obligation to pay money) on a day-to-day basis to the extent of such interference, and the other party shall likewise be excused from performance of its obligations on a day-to-day basis to the extent such party’s obligations relate to the performance so interfered with. 32. Confidentiality: Each party agrees that any and all data, reports and documentation supplied by the disclosing party or its affiliates or third parties on disclosing party’s behalf, which are confidential shall be, subject only to the disclosure required for the performance of receiving party’s obligations hereunder, held in strict confidence and shall not be disclosed or otherwise disseminated by receiving party without the consent of disclosing party, except as required by applicable law, regulation or legal proceeding. 33. Extensions: this Agreement may, upon mutual agreement, be extended for periods of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than five (5) years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA DATAPROSE LLC By________________________________ By__________________________________ Chris Kukulski, City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 79 ATTACHMENT A: SCOPE OF SERVICES LAST UPDATED – THURSDAY, APRIL 16, 2015 Client:_________DataProse:_________ Page 1 of 3 ARTICLE 1 SCOPE OF SERVICES. DataProse agrees to provide to Client goods and/or services as described in Schedule 1.0 (the “Goods and Services”), and Client agrees that DataProse shall be its exclusive provider of these Goods and Services during the term of the Professional Services Agreement (“Agreement”) between the parties dated April __, 2015. During the term of the Agreement, the City agrees to furnish data and documentation for, and DataProse agrees to produce a minimum monthly quantity of 12,000 statements (“Minimum Commitment”), based upon the rates and terms provided herein. In the event that the City does not fulfill the Minimum Commitment, then the City shall pay to DataProse 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. ARTICLE 2 COMPENSATION. In full and complete compensation for all Goods and Services provided by DataProse hereunder, the City agrees to pay DataProse according to rates set forth in Schedule 1.0. DataProse will provide an invoice to the City after each production run consisting of the fees, as outlined in Schedule 1.0 and postage used. Invoices are due upon receipt and will be considered past due if not paid within 30 days. A monthly late charge will be assessed on invoices not paid within thirty (30) days. The late payment charge will be the lesser of (i) 1-1/2% per month, and (ii) the applicable maximum lawful rate of interest, applied to the invoice amount unpaid (30) thirty days after billing to the City. The prices charged by DataProse to the City for the Goods and Services listed in Schedule 1.0 will not be increased for a period of twelve (12) months from the Effective Date of this Agreement (“Pricing Period”). All DataProse prices are subject to increase following this initial Pricing Period or any subsequent Pricing Period, upon written notice to the City. The rate of any price increase shall not exceed ten percent (10%) at the completion of any Pricing Period. In the event the City cancels the Agreement as allowed under the provisions of the Agreement, then payment for all Goods and Services delivered and/or rendered between the cancellation notification date and the effective date of the cancellation shall be due concurrently upon delivery and/or rendering of such Goods and Services. The compensation payable to DataProse under the Agreement is subject to future appropriation of funds. In the event of nonappropriation of funds, the City will notify DataProse within thirty (30) days of the nonappropriation. ARTICLE 3 POSTAGE. The City must maintain a permanent postage deposit in connection with the Agreement. The City shall deposit in advance with DataProse the initial sum specified on Schedule 2.0 as the permanent postage deposit. The amount required to be maintained on deposit with DataProse may be changed by DataProse on a periodic basis due to changes in the City’s volume, postage usage, postal rates or payment history. The City will be notified in writing and in advance if the deposit amount is changed. Upon termination of the Agreement, DataProse shall return the deposit amount to the City after payment for all Goods and Services and postage has been paid by the City. If this Agreement is terminated due to default of the City, DataProse may apply any of the City’s funds it holds against any sum owed by the City to DataProse upon termination of the Agreement. If the City fails to maintain the deposit at the required levels, or if the City fails to maintain current status of all invoices as described in article 2, or fails to notify DataProse that funds have been appropriated to meet the City’s obligations under the Agreement, DataProse may immediately suspend its performance under the Agreement. ARTICLE 4 EXPENSES. When the City has approved the amount of such costs and expenses in advance and in writing, the City will reimburse DataProse for costs and expenses associated with the delivery and performance of Goods and Services for the City, such as cost of travel, expenses associated with travel, freight, delivery service and other required supplies in connection with providing the DataProse Goods and Services associated with the Agreement. 80 ATTACHMENT A: SCOPE OF SERVICES LAST UPDATED – THURSDAY, APRIL 16, 2015 Client:_________DataProse:_________ Page 2 of 3 Schedule 1.0 – Fees for Goods & Services Bill Package (Includes: data processing & simplex, full-color laser imaging, 8.5x11 white paper, perforated at 3.5” from bottom, #10 window OE, single window RE, folding, inserting, presorting and delivery to USPS) $0.137 Per Bill Search & ViewBill (Archive Package Includes: data processing, archive creation, search, access & hosting of archive files for 12 months from creation date – Minimum Monthly fee - $150) $0.015 Per Bill Optional Services NCOALink – Automated address update service $0.40 Per Address Correction NetBill (Includes: Internet bill presentment, 24x7 access to customer bills, hosted on DataProse servers, posting of invoices, email notification of bill availability to customer, payment facilitation)  Credit Card Transaction Fee  ACH Transaction Fee $400.000 $0.350 $0.60 or 1.25% (Whichever is greater) Per Month Per CC Transaction Per ACH Transaction Additional Impressions – Color $0.05 Per Impression Additional Impressions – Black Ink Only $0.035 Per Impression Simplex Backer Impression $0.01 Per Impression Bill Suppression (data processing only – Group Y & Z) $0.05 Per Bill Oversize Surcharge (8-99 page bills – Group C) $0.20 Per Bill Oversize Surcharge (100+ page bills – Group D & E) $4.00 Per Bill Search & ViewBill Transmission Fee (CD or FTP – Shipping will be charged separately) $100.00 Per Transmission/CD Additional Inserts (Inserting fee / above and beyond what is included in the Bill Package) $0.015 Per Insert Offline Folding (As requested) $0.005 Per Piece Basic Statement Set up Fee (Standard Format and Reports) NC One Time Technical Services (including additional set-up beyond standard, formatting or custom reports, conditional logic & insert/forms composition) $125.000 Per Hour Freight, Courier & Air Delivery Cost Per Request Minimum Daily Processing/Production Fee $150.000 Per Day Postage (1 oz.) $0.406 Per Bill Schedule 2.0 – Permanent Postage Deposit Permanent Postage Deposit (Based on two (2) months estimated volume = 24,000 x $0.406) $9,744.00 (2 months @ .406) Schedule 3.0 – Performance Guarantee DataProse will deliver the City’s bills within an average of 24 hours from the applicable Determination Date (defined below). Such average time period will be determined by measuring the number of elapsed business days between each respective Determination Date and the date which 95% or more of the City’s bills were mailed for consecutive three (3) month period or a minimum of six (6) production cycles. Schedule 3.1 – Determination Date The “Determination Date” is the date which data is received via electronic transmission if prior to 12:00 PM (Noon), Central Time. If data is received after 12:00 PM (Noon), Central Time, the Determination Date is the business day immediately following the date data is received. If data is received on a non-business day (weekend or national holiday) the Determination Date will be the next consecutive business day. Schedule 3.2 – Approval and/or Business Rule Exception If an Approval has been required by the City and defined in the business rules for each production run, then the Determination Date will be set by the date and time of the Approval instead of the receipt of data as defined above. As to any production run, the Performance Guarantee will not apply if the City has not provided all data and documentation necessary (as dictated by required business rules) to permit DataProse to produce the bills in a timely manner, or if the City fails to approve or report required changes to DATAPROSE in order to complete the work in a timely manner. 81 ATTACHMENT A: SCOPE OF SERVICES LAST UPDATED – THURSDAY, APRIL 16, 2015 Client:_________DataProse:_________ Page 3 of 3 Schedule 4.0 – Glossary of Terms Impression Laser Imaging of one side of one piece of paper. Each physical piece of paper can contain two (2) impressions. USPS United States Postal Service Laser Imaging The process where the application of dry toner (ink) is electro statically applied and bonded to a piece of paper. Simplex Laser Imaging of one (1) side of a piece of paper only. Duplex Laser Imaging of both (2) sides of a piece of paper. OE Outer Envelope – This envelope is used as the carrier mechanism for all information contained in a package to be mailed. RE Reply Envelope – This envelope is usually utilized by a customer to return information/payment requested by on organization. Presorting The act of organizing mail according to the rules and regulations defined by the USPS in order to achieve lower postage rates and increase deliverability of mail. Business Day Any day in which the USPS as well as the U.S. Federal Reserve are open for business. U.S. federal holiday All Holidays as defined by the U.S. Federal Reserve. 24x7 24 hours a day, 7 days a week. Additional Inserts Any item requested to be placed into the mail container above and beyond (a) the bill and (b) the RE . Container One complete piece of mail packaged into one OE. Electronic Transmission The act of sending data via DataProse online utility, FTP or Modem Bill Data and other information pertaining to one (1) account number and usually in reference to one customer Group The term used by DataProse to define how bills are gathered & produced in order to maximize production capabilities. These groups are defined as follows: Group A – 1 ounce bills Group B – 2 ounce bills Group C – 8-99 page bills Group D – 100-499 page bills Group E – 500+ page bills Group I – International bills Group P – Pull bills (Pulled and returned to Account Manager for further action) Group X – Hold bills (combined and sent back to Client) Group Y – Online only bills (Suppress from print only) Group Z – Suppress all Suppress or Suppression The act of excluding records or bills (based on City defined criteria) that have been received in the input data stream received from the City 82