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2001-165-RES AWARDING BID/AUTHORIZING EXECUTION OF CONTRACT FOR PRINTING AND DISTRIBUTION OF UTLIITY BILLS FOR WATER BILLING OFFICE RESOLUTION NO.2001-165 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, AWARDING THE BID AND AUTHORIZING THE EXECUTION OF A CONTRACT FOR THE PRINTING AND DISTRIBUTION OF UTILITY BILLS FOR THE WATER BILLING OFFICE; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Paris did heretofore advertise for bids for the printing and distribution of utility bills for the Water Billing Office, which bids were received until 3:00 o'clock P.M., Tuesday, the 2nd day of October, 2001; and, WHEREAS, the best bid for such service was made by DataProse of Irving, Texas, and it should be awarded the bid for the same; and, WHEREAS, the form of the agreement for such service, attached hereto as Exhibit A, should, in all things, be approved, and the Mayor should be authorized to execute the same; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That the bid of DataProse for the printing and distribution of utility bills for the Water Billing Office in the amount of $0.165 per paper bill, be, and the same is hereby, accepted and let conditioned upon said contractor meeting all of the terms and specifications included in the bid documents. Section 3. That the form of the agreement with DataProse, attached hereto as Exhibit A, be, and the same is hereby, approved. Section 4. That the Mayor be, and he is hereby, authorized and directed to execute, on behalf of the City of Paris, the agreement with DataProse, upon the terms and conditions and in the form shown in Exhibit A, attached hereto. Section 5. That this resolution shall be effective from and after the date of passage. PASSED AND APPROVED this 4th day of October, 2001. ATTEST: ~~';.~k'-~~ Mattie Cunningbam, CIty Clerk APPROVED AS TO FORM: DATAprose* Document Title: PRODUcnON AGREEMENT.doc Page 1 of 2 Last Revised: 9/24/013:16:51 PM BILLING SOLUTIONS Smarter Statements @ Better Results This Production Agreement (Agreement) is made and entered into as of the 1st day of November, 2001 (Effective Date), by and between DataProse, Inc., a California Corporation (DataProse), and the City of Paris, organized under the laws of Texas (Client). In consideration of the mutual promises and benefits contained herein, the parties hereby agree as follows: ARTICLE 1 GOODS/SERVICES. DataProse agrees to provide to Client "Paper Bill Presentment and Mailing" services defined herein, and Client agrees that DataProse shall be its exclusive provider of these goods and/or services during the term of this Agreement. ARTICLE 2 COMPENSATION. In full and complete compensation for all goods and/or services provided by DataProse hereunder, Client agrees to pay DataProse according to the rates set forth in Schedule 1.0. DataProse will provide an invoice to Client after each production run. Invoices are due upon presentation and will be considered past due if not paid within 30 days after mailing by DataProse. A monthly late charge will be assessed on statements not paid within thirty (30) days. The late payment charge will be 1-1/2% per month applied to the invoice amount unpaid thirty (30) days after billing to Client. The prices charged by DataProse to Client for the services listed in Article 1 will not be increased during the first year of the term of this Agreement. The prices shall not increase by more than 10% in the 13th month of the contract. All DataProse prices are subject to increase following the initial term of this Agreement, upon written notice to Client. ARTICLE 3 ~. The initial term of this Agreement shall commence as of the Effective Date, and shall continue for one (1) year unless terminated earlier in accordance with provisions found elsewhere in this Agreement. This Agreement shall renew itself for successive one (1) year terms unless written notice of cancellation is received by one party from the other if a party exercises its right to terminate the Agreement at the end of the initial term or at the end of any succeeding one (1) year renewal term by sending written notice of non-renewal to the other party no later than fifteen (15) days before the expiration of the current term. ARTICLE 4 POSTAGE. DataProse will require that Client maintain a permanent postage deposit in connection with this agreement. Client shall deposit in advance with DataProse the initial sum specified on Schedule 2.0 as the permanent deposit. The amount required to be deposited with DataProse may be changed by DataProse on a periodic basis based upon changes in Client's volume, postage usage, or payment history. Client will be notified in writing and in advance if the deposit is changed. Upon termination of this Agreement, DataProse shall return the deposit amount to Client after payment for all Services and postage has been paid by the Client. If this Agreement is terminated due to default of Client, DataProse may apply any of Client's funds it holds against any sum owed by Client to DataProse upon termination of this Agreement. IF CUENT FAILS TO MAINTAIN THE DEPOSIT AT THE ADJUSTED LEVELS, OR IF CUENT FAILS TO MAINTAIN CURRENT STATUS OF ALL INVOICES AS DESCRIBED IN ARTICLE 2, DATAPROSE MAY IMMEDIATELY SUSPEND ITS PERFORMANCE UNDER THIS AGREEMENT AND WILL HOlD CUSTOMER'S MAIL UNTIL THE DEPOSIT IS RECEIVED. ARTICLE 5 DEFAULT. The following shall be considered events of default: (1) Failure of Client to pay for all goods and/or services as provided in this Agreement. In addition to other remedies provided by this Agreement and pursuant to law, DataProse has the right to withhold production and mailing of any further production cycles until Client's account is brought current. (2) Any other breach by Client of a term or condition of this Agreement. (3) Breach by DataProse of any term or condition of this Agreement. ARTICLE 6 TERMINATION FOR DEFAULT. Client or DataProse may terminate this Agreement for an event of default defined above if such default remains uncured fifteen (15) days after written notice of the default has been received from the party declaring the default. ARTICLE 7 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; war, revolution, civil commotion, terrorism, or acts of public enemies; any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing or boycotts. 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). ARTICLE 8 CONFIDENTIALITY. DataProse agrees that any and all data, reports and documentation supplied by Client or its affiliates or third parties on Client's behalf, which are confidential and which are clearly designated as confidential, shall be, subject only to the disclosure required for the performance of DalaProse's obligations hereunder, held in strict confidence and shall not be disclosed or otherwise disseminated by DataProse without the consent of Client. ARTICLE 9 INDEMNIFICATION. Client agrees to indemnify and hold DataProse harmless for any and all claims from any person, firm, or entity whatsoever that may arise in connection with Client's supplying to DataProse the data, reports or other documentation necessary to perform its duties under this Agreement, except that such indemnification shall not extend to any claims that result from action by DataProse, its officers, employees or agents or anyone acting on behalf of DataProse if such action is in violation of one or more terms of this Agreement. ARTICLE 10 WARRANTIES. DalaProse shall provide all goods and/or services in a good and first class workmanlike manner in accordance with the terms specifically set forth in Schedule 1.0. The parties hereto agree that this Agreement is only for the production of goods and/or services. THIS WARRANTY CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE GOODS AND SERVICES TO BE PROVIDED TO CUENT. THE STATED WARRANTY IS IN UEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPUED, INCLUDING, WITHOUT UMITATION, THE WARRANTY OF MERCHANTABIUTY AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. ARTICLE 11 LIMITATION OF LIABILITY. The liability of DataProse with respect to any failure to provide the goods and/or services as required under this Agreement shall in each case be limited to the compensation paid to DataProse for the defective goods or services. DATAPROSE IS NOT UABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFIT OR INCOME, even if DataProse has been advised of the possibility of such loss or damage. This provision will not be affected by DataProse's failure to correct any defect or replace any defective work product to Client's satisfaction. Client has accepted this restriction on its right to recover consequential damages as a part of its bargain with DataProse. Client acknowledges what DataProse charges for its goods and services would be higher if DataProse were required to bear responsibility for Client's damages. ARTICLE 12 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed and interpreted in accordance with the laws of the state of Texas, without giving effect to the principles of choice of laws of such state. The parties each consent to the jurisdiction and venue of the District Court of Dallas County, Dallas, Texas, as to any matters initiated in state court, and to the courts of the District of Texas for any matters initiated in federal court. Page 1 of 2 EXHIBIT A DATAproses Document Title: PRODUCTlON AGREEMENT.doc Page 2 of 2 Last Revised: 9/24/013:16:51 PM BILLING SOLUTIONS Smarter Statements @ Better Results ARTICLE 13 SEVERABILITY. If a court or an arbitrator of competent jurisdiction holds any provision of this agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. ARTICLE 14 WAIVER: MODIFICA nON OF AGREEMENT. No waiver, amendment or modification of any of the terms of this Agreement shall be valid unless in writing and signed by authorized representatives of both parties hereto. Failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either party in one or more instances be construed as constituting a continuing waiver or as a waiver in other instances. ARTICLE 15 ~. All notices must be in writing and if not personally delivered, be sent by facsimile or by first class mail, or by electronic mail. Notices will be effective on the day when delivered, addressed to the other party at the address show in this Agreement. Either party may change the address to which notices are to be sent by giving notice of such a change to the other party. Addresses for purpose of giving notice are as follows: If to DataProse: DataProse, Inc. 1451 North Rice Avenue Suite A Oxnard, CA 93030 Attention: Chief Executive Officer If to Client: City of Paris 135 First SW Paris, TX 75460 Attn: Gene Anderson ARTICLE 16 ENTIRE AGREEMENT. This Agreement and its exhibits constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the production of goods and services for Client by DataProse, and supercedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. ARTICLE 17 ATTORNEY FEES. In the event of any claim, dispute or controversy arising out of or relating to this Agreement, including an action for declaratory relief, the prevailing party in such action or proceeding shall be entitled to recover its court costs and reasonable out-of-pocket expenses not limited to taxable costs, including but not limited to phone calls, photocopies, expert witness, travel, etc., and reasonable attorney fees to be fixed by the court. Such recovery shall include court costs, out-of-pocket expenses and attorney fees on appeal, if any. The court shall determine who is the prevailing party, whether or not the dispute or controversy proceeds to final judgment. If either party is reasonably required to incur such out-of-pocket expenses and attorney fees as a result of any claim arising out of or concerning this Agreement or any right or obligation derived hereunder, then the prevailing party shall be entitled to recover such reasonable out-of-pocket expenses and attorney fees whether or not action is filed. ARTICLE 18 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. The parties hereto execute this Agreement through their duly authorized officers, as of the day and year first written above. DATAPROSE, INC.: By: CUENT: By: Glenn A. Carter, President Date: Title: Schedule 1.0 - Fees for Services Paper Bill (Includes: Data processing and Simplex, 2-color, Laser Imaging, 8.5xll white paper with perf at 3.5" from bottom, # 10 double window envelope, #9 single window reply envelope, folding, Inserting, presorting and delivery to USPS) $0.165 /per Statement Paper Bill Setup Additional Impressions (Includes paper) Additional Inserts Special Programming $0 /Waived $0.05 /Per Impression $0.005 /Per Insert $125.00 /Per Hour Schedule 2.0 - Permanent DeDosit Permanent Deposit Amount (Based on estimated monthly volume of 12,000 bills) $3,250.00 Schedule 3.0 - Performance Guarantee DataProse will deliver clients bills within an average of one (1) Business Day after the applicable Determination Date (as Defined herein). Such average time period will be determined by measuring the number of elapsed Business Days between each respective determination date and the date which a majority amount of the Client's bills were mailed for consecutive three (3) month period. The "Determination Date" is the date which data is received - either via electronic transmission (FTP or modem) or hard copy media (tape or disk) if prior to 12 noon, local time. If data is received after 12 noon, local time, the Determination Date is the Business Day immediately following the date data is received. Page 2 of 2