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HomeMy WebLinkAbout2003-160ORDINANCE NO. 400J-4/ 0 CONSIDER ADOPTION OF AN ORDINANCE AWARDING A CONTRACT FOR THE OUTSOURCING OF CUSTOMER CALLS FOR CONNECTION, DISCONNECTION, OR TRANSFER OF UTILITY SERVICES AS PROVIDED BY ENHANCED OUTSOURCE SOLUTIONS, INC., AS AWARDED BY THE STATE OF TEXAS BUILDING AND PROCUREMENT COMMISSION THROUGH THE QUALIFIED INFORMATION SERVICES VENDOR (QISV) CATALOGUE PROGRAM; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 303 1 -ENHANCED OUTSOURCE SOLUTIONS, INC. IN AN AMOUNT NOT TO EXCEED $48,390). WHEREAS, the City Council of the City of Denton has heretofore adopted Resolution 92- 019 pursuant to Section 2157.067 of the Texas Government Code and Sections 271.082 and 271.083 of the Texas Local Government Code which authorizes the City to participate in the State Purchasing Building and Procurement Commission Qualified Information Service Vendor Catalogue Purchase Method provided for in Subchapter B of Chapter 2157 of the Texas Government Code (the "QISV Catalogue"); and WHEREAS, the herein described vendor is a qualified vendor in the QISV Catalogue and the contract authorized by this ordinance is in the best interests of the City and complies with the requirements of Subchapter B of Chapter 2157 of the Texas Government Code as a QISV Catalogue purchase; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered purchase order for materials, equipment, supplies, or services, shown in the "File" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 3031 Enhanced Outsource Solutions, Inc. $48,390 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the Building and Procurement Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Building and Procurement Commission, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the General Services Commission, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to the General Services Commission, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above numbered items set forth in the subject purchase orders, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved purchase orders or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY EdMI-1011-1-1 APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY 2-ORD-File 3031 SERVICES AGREEMENT FOR CALL CENTER -UTILITIES CUSTOMER SERVICE THIS AGREEMENT is made and entered into as of the day of 2003, by and between the City of Denton, Texas, a Texas municipal core ration, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Enhanced Outsource Solutions, Inc., with its office at 3923 Morse Street, Denton, Texas 76208, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described project: The Project shall include, without limitation, the providing of call center telephone services for the processing of telephone calls from City of Denton utility customers for connection and disconnection of utility services in accordance with OWNER's Requirements attached hereto and made a part hereof as Exhibit "A" ("Owner's Requirements") and the Statement of Work attached hereto and made a part hereof as Exhibit `B" (the "Statement of Work"). In the event of a conflict between this Agreement, the Owner's Requirements and the Statement of Work they will control in the following order: 1. Agreement 2. Owner's Requirements 3. Statement of Work ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform all services necessary to complete the Project in accordance with the Owner's Requirements and the Statement of Work in a professional manner. ARTICLE III PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issuance of a notice to proceed by the OWNER, and shall remain in force through September 19, 2003, including additional services, if any, and any required extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee. ARTICLE IV COMPENSATION A. COMPENSATION TERMS: CONSULTANT shall be compensated at the rate of $.60 per talk minute for shared representatives and at the rate of $20.00 per hour for dedicated representatives (the "Compensation"). Upon demand from OWNER, CONSULTANT shall provide verification of the actual minutes and hours used prior to the OWNER making payments to CONSULTANT. OWNER reserves the right to withhold payment until it has had an opportunity to audit the records of CONSULTANT to determine if the actual billing of services accurately reflects the actual minutes and hours used. CONSULTANT has a duty to keep full and complete records that adequately document the time used. B. BILLING AND PAYMENT: For and in consideration of the services to be performed by the CONSULTANT, and subject to the terms and condition herein, the OWNER agrees to pay the Compensation to the CONSULTANT within 30 days of receiving a monthly statement, for services satisfactorily completed for the previous month of services. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the Compensation, without first having obtained written authorization from the OWNER. C. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by Page 2 the rate of one percent (1 %) per month from the said sixtieth (60`h) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges. However, nothing herein shall require the OWNER to pay the late charge of one percent (1%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation." ARTICLE V INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE VI INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE VII INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. Page 3 B. Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident.. C. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE VIII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed prior to the date of termination, in accordance with Article IV "Compensation." Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE IX RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. Page 4 ARTICLE X NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: Enhanced Outsource Solutions Attention: President 3923 Morse Street, Suite 106 Denton, Texas 76208 To OWNER: City of Denton (Name and Title) 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE XI ENTIRE AGREEMENT This Agreement, including the exhibits attached hereto, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE XII SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. hi such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XIII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. Page 5 ARTICLE XIV DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XV PERSONNEL A. The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the tern of this Agreement. B. All services required hereunder will be performed by the CONSULTANT or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. ARTICLE XVI ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER. ARTICLE XVII MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE XXII MISCELLANEOUS A. CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that OWNER Page 6 shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. OWNER shall give CONSULTANT reasonable advance notice of intended audits. B. This Agreement is fully performable in Denton County, Texas. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. C. CONSULTANT shall commence, carry on, and complete the services provided for in this Agreement with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the services, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. D. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project and the services provided for in this Agreement, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement. E. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULT has executed 's Agreement through its duly authorized undersigned officer on this the � day of t�Q. 2003. , TEXAS MICHAEL A.CMDUFr VT)fi MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY Page 7 APPROVED AS TO LEGAL FORM: HERB ERT L. P UTY, ITY ATTORNEY BY: WITNESS: m Ownez OUTSOURCES Page 8 Exhibit A CALL CENTER OUTSOURCE REQUIREMENTS- UTILITIE5 CUSTOMER SERVICE Due to high call volume during the months of May -August, Utilities Customer Service is seeking a third party vendor to take the move in/move out requests by phone. The following is a list of requirements: ❑ The vendor must have trained resources to perform the following processes: • Research customers by name, drivers license, social security number ■ Research address for outstanding balance or previous termination of services for non-payment ■ Recognize the need for a lease agreement • Verify account holder before conducting business ■ Explain security deposit requirements, letters of credit, and co-signer information ❑ The vendor must maintain an average wait time not to exceed 60 seconds. G ❑ The vendor will provide daily reporting to include: • Number of calls taken • Average wait time ■ Total talk time ■ Type of calls taken ❑ Site visits by Utilities Customer Service conducted as necessary u Utilities Customer Service may update procedures and training as necessary. For questions, please contact Therese Martinez at 940 349-8226 or Therese.Martinez(a2cityofdenton.com Exhibil B E0 Statement of week For the City of Denton Utilities Pardee to Apreatnerit This Statement of Work (8t "is adored Into between Enhanced Oub aaee Solutions. Ina. P O Box 100, Denton, Texas 76202, and the City of Denton Uai0es, 601E Hickory SI., Ste F, Denton, Texas ?SM as of May 1, 2003. Terms TWO SOW Is VBW onty If the Statement of Work nag bean algnW. Enhancod outeource Solutions, Inc. agrees to provide services as deffaW In this SOW. Con6ant This SOW twnsiats of this signature pope and the follmN" secuorm • ExecuWeSummaty • Buelneaa Ana"is • Cost of Services • Payment Tama and Condisone Signawras In Whneas Whereof the authorised nnwasenlativa9 of the padles hei O; ilaY@:Cgased'thI6t3OW to be duly executed: YQ Arne. Fbx iSu�rzsMoa�b'. ;>#`: 3M Aftwie ww I saw 1e6 1 owti0.n, TSOM 762cs www..an.nc.doutsoaraer�, Stdomwd of Work For the CRY of Denton Utilities Executive Summary The CRY of Denton UMOS I$ seelft a professional firm to outsoume Its deny oudcow COUS for oonnecOofkftmmcfiMorM~Oftgftservices. This SOW shows how Enhanced Outsource Soludone, Inc will provide outsourdne options 90 enable the Chy of Denton UNNO to after* ffwme its cap Center Memmas, whoa Mestft the needs of rig Matomers and incress" Its MOMW W*kdl6n ra"s. Our service delivery process Is based on a DLqwvaiy — Development — Deft" approach, which OHM us to PMVId9 DOnton with to best al"Mr Wnted soluftn. Each step VAI MQUW a Won -off *w the claoWtated CRY of Denton U001lies contact Person. Enhanced Oulsource Solutions WU ftWWd to parbleft WIM SM City or Denton UMOS In providing Wft custornots with outstant". corninunlWommed customer service. Business Andrals Denton Is a colege cmvmmi4r with s&,Aw requests pmWJM esolt time the setnester diampas TItMMs I)MBIts Mae pd=lgy to MWftUCh AtOW And DeCW2wMMUP Jenusry. As budgets dgtftn, #0 Idea of 90ft new poWoos is becon" Artually knpossible Ealwow Oulsounce So Clal tyke20 OdOMW 00 vdwft and PWAN On Gly wn the InlWmahort needed to supply the MftWVAbWWWAW IrMSIdOnflaftcats beprovided Mtwo ways. They ere es follow; • Enter cAftater ve"W loftmMon ftwo an provided by the My of Denton. Enh&ACod OOM.t*." In product testing to ensure q*MI am • Sdw of"stomwft nupiest Info=000#0 1, MMOMM. fbrpntd arcia condition for 11311www solularts WE FvvIdo the cam of Smile" 1whour ALSO Pwtallitth"aft". P Rient "alb tidelme '00Z"C�*kmMoss mod" onds wor I IIHNkl T- r ill "Whisue date of Be stalonot . .. ..... pl- UOWTAVNAd I" CN& TAM I MUP"d 9WA94-aw SM MMS Sweat I Suft 106 1 DWOM TeM 70es www4rAwleaduftourimmm EQ5 6laaement of Work For the City of Denton MUSS Pricing Addendum Holl"tatad Cost of Services Shared mpvw&Mvas will be avalb" to Me City of Denton for M partatk time mimae. To 80,660 minutes x SAO a $48,390 or Dedicated wpr9senWjm are ava k* at $20.00 per hour 8 Mp 0$20=$70,400 is tes f Dwdr , Taco MOV STATE OF TEXAS § COUNTY OF DENTON § CONFIDENTIALITY AGREEMENT THIS CONFIDENTIALITY AGREEMENT dated as of June S3 2003 ("Agreement') is by and between the CITY OF DENTON, TEXAS, a Texas Municipal Corporation (the "City of Denton") and the ENHANCED OUTSOURCE SOLUTIONS, INC., 3923 Morse Street, Denton, Texas 76208 (the "Interested Party"). The City of Denton and the Interested Party are acting by and through their duly authorized officials, representatives and officers, and are collectively referred to herein as the "Parties" and are individually referred to herein as a "Party." WHEREAS, this Agreement is ancillary to and is connected with and related to that one certain "Services Agreement for Call Center -Utilities Customer Service" ("Services Agreement') entered into by and between the City of Denton, Texas and the Interested Party; and WHEREAS, in order to allow the Interested Party to perform the Services Agreement with the City of Denton, Texas regarding the Interested Party providing call center telephone services for the processing of telephone calls from City of Denton Utility customers for connection and disconnection of utility services, in accordance with the requirements contained in Exhibits "A" and `B" of the Services Agreement; the Interested Party will come into and will need to utilize certain confidential information as well as "Public Power Information" protected by state law from public disclosure in connection with certain Denton Municipal Electric ("DME") calls and inquiries; the Interested Party will also come into and will need to utilize certain confidential information in connection with handling Denton Municipal Utility calls and inquiries; and WHEREAS, the Interested Party is interested in performing the services set forth in the preceding paragraph, pursuant to contract with the City of Denton, but will require confidential and confidential information from DME, in the form of the confidential information as well as "Public Power Information" in order to perform the services properly and completely; and WHEREAS, the City of Denton, is willing to disclose its confidentiality requirements respecting the calls which Interested Party is expected to receive, and disclosing what Public Power Information is relevant to telephone calls which Interested Party is expected to make, receive, or conduct pursuant to this Agreement, which is protected from public disclosure by the Public Power Exception provisions of the Texas Government Code (Chapter 552), for the sole purpose of Interested Party performing services for the City of Denton, but for no other purpose; subject however, to the terms and conditions set forth in this Agreement. -1- NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto AGREE as follows: Section 1. Confidentiality (a) Confidential Information The Interested Party acknowledges and agrees that any and all information or documents, furnished to it in connection with this Agreement, specifically including the above - referenced Denton Municipal Utilities customer list, and "Confidentiality Requirements Related to Telephone Contractor" and other information relating to the City of Denton's Utility system, whether oral, written or in some other form (collectively, the "Confidential Information") furnished to the Interested Party or its Representatives (as defined below) at any time by the City of Denton or its Representatives in connection with the performance of services under the "Services Agreement for Call Center -Utilities Customer Service" (the "Services Agreement") is proprietary and confidential in nature. The Interested Party shall not disclose the contents of the Confidential Information to any party except the Interested Party's Representatives on a need -to -know basis. Representatives shall mean a party's own directors, employees, affiliates, representatives, legal counsel and/or financial advisors (collectively, the "Representatives"). The Interested Party shall ensure that all of its Representatives to which disclosure of the Confidential Information is made, shall comply with the terms and conditions of this Agreement. The Interested Party and its Representatives shall not use the Confidential Information for any purpose other than in performing telephone services relevant to the Services Agreement. In dealing with the Confidential Information, the Interested Party and its Representatives shall use at least the same confidentiality procedures, but not less than a reasonable degree of care, that the Interested Party uses within its organization with respect to its own proprietary information. (b) Confidentiality of Information The Interested Party and its Representatives agree not to disclose to any person or entity any information about the Confidential Information or any other conditions or matters relating thereto, including, but not limited to, the fact that they have received the Confidential Information and are utilizing the information in performing the services provided for in the Services Contract. Without limiting the foregoing, the Interested Party agrees that it will not issue or cause to be issued any press release or otherwise make any public comment regarding the information or any other facts relating thereto. Nor will Interested Party sell, alienate, disclose, give, or otherwise transfer the Confidential Information, in any form whatsoever, to any other party for any reason at any time. The Interested Party will immediately notify the City of Denton in writing of any unauthorized disclosure to third parties that the Interested Party discovers, and the Interested Party shall use its best efforts to prevent any further disclosure of the Confidential Information. To the extent that there is an unauthorized disclosure, in addition to the remedies set forth below, the City of Denton shall have the right to -2- terminate this Agreement and the Services Contract at its sole discretion, without further notice. (c) Information in the Public Domain The obligations of the Interested Party and its Representatives with respect to the Confidential Information pursuant to the Agreement shall not apply to any such information; (a) that is generally available to the public or otherwise in the public domain, other than as a result of disclosure by the Interested Party or its Representatives or by virtue of a breach of the Agreement; (b) that was available to the Interested Party or its Representatives on a non -confidential basis prior to its disclosure under this Agreement; or (c) is approved for release by written authorization of an authorized officer of the City of Denton. (d) Disclosure Required by Law If the Interested Party or any of its Representatives becomes legally compelled, by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or similar process, to disclose any of the Confidential Information, the Interested Party or its Representatives, as the case my be, shall provide the City of Denton with immediate telephonic notice and prompt prior written notice of such requirement so that the City of Denton may seek a protective order or other appropriate remedy, or waive compliance with the terms of this Agreement. If so required or permitted to disclose the Confidential Information, the Interested Party or its Representatives, as the case may be, shall be furnished only that portion of the Confidential Information which the Interested Party or its Representatives, as the case may be, is advised by counsel is legally required, and to exercise it best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information. In any event, neither the Interested Party nor any of its Representatives will oppose any action by the City of Denton to obtain an appropriate protective order to other assurance that confidential treatment will be accorded to the Confidential Information. Section 2. Ownership All Confidential Information shall remain the property of the City of Denton, Texas as the case may be, and the Interested Party acknowledges and agrees that it intends to, and shall rely upon any and all of the Confidential Information as being true and complete information, in performing the services under the Services Contract. Section 3. Return of Confidential Information The hnterested Party and its Representatives shall destroy or return to the City of Denton all Confidential Information, and all copies the Interested Party and its Representatives have made of the Confidential Information, electronically or otherwise, and all copies of any summaries, analysis, compilations, studies, extracts thereof or any other documents prepared by the Interested Party or its Representatives containing or verifying any Confidential Information, on the first to occur of. (i) the time when the Interested Party advises the City of Denton that the services provided for in the Services Contract are -3- complete; or (ii) the City of Denton in its sole discretion, at any time, for cause, requests the Interested Party to destroy or return such Confidential Information. Any oral Confidential Information shall be kept confidential pursuant to Section 1 hereof. The Interested Party acknowledges and agrees that the City of Denton, in its sole discretion, can terminate discussions and negotiations with the Interested Party at any time and demand the prompt return of all Confidential Information. Section 4. Remedies (a) Equitable Remedies The Interested Party agrees and acknowledges that the Confidential Information, as it exists from time -to -time of this Agreement is reasonable and necessary to protect the legitimate interests of the Parties, and that a violation or threatened violation of any of the terms of the this Agreement by the Interested Party or any of its Representatives would cause immediate and irreparable injury and harm to the business of the City of Denton, for which damages would be inadequate compensation. Accordingly, the Interested Party acknowledges, consents, stipulates and agrees that in the event of any such violation or threatened violation by the Interested Party or any of its Representatives, the City of Denton shall be entitled to commence an action for preliminary, temporary, and permanent injunctive relief or other equitable relief, and neither the Interested Party nor its Representatives shall interpose any objection that such relief is inappropriate. (b) Indemnification The Interested Party and its Representatives shall indemnify and hold the City of Denton harmless from and against any and all causes of action, liabilities, losses, expenses (including attorney's fees and the cost of enforcing this indemnity) arising out of or resulting from any violation or breach by the Interested Party or its Representatives of the covenants and agreements contained herein, and shall use its best efforts to prevent any further unauthorized disclosure of Confidential Information. (c) Notice The Interested Party shall notify the City of Denton as soon as the Interested Party becomes aware of any disclosure of Confidential Information not authorized by this Agreement and any other breach or violation of the provisions hereof. Section 5. Miscellaneous If any term or provision of this Agreement is to any extent held invalid or unenforceable, the remaining terms of the Agreement will not be affected thereby, but each term and provision of the Agreement will be valid and enforceable to the fullest extent permitted by law. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas. Venue of any action arising out of, or respecting this Agreement shall lie in Denton County, Texas. In the event of any legal action or proceeding arising out of this Agreement, if a court of competent jurisdiction determines that the Interested Party or its Representatives have breached this Agreement, then any form of legal or -4- equitable relief may be granted by the court. Interested Party acknowledges that the City of Denton may assign its rights and obligations under this Agreement with the consent of the Interested Party. Any assignment by the Interested Party of this Agreement without the prior consent of the City of Denton shall be void. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof. No delay or failure in exercising any rights, remedy, or power hereunder shall operate as a waiver thereof, nor shall any partial exercise thereof preclude any other or further exercise thereof of the exercise of any other right or remedy hereunder. This Agreement may be executed in any number of counterparts, but all of such counterparts shall together constitute but one Agreement. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the parties hereto. No modification or amendment to this Agreement shall be effective unless approved in writing by each of the Parties hereto. The Interested Party and its Representatives hereby agree to submit to personal jurisdiction in the County of Denton, State of Texas. Section 6. Term of Agreement Except as required by law or unless otherwise agreed to in writing by the City of Denton, this Agreement shall remain in force and effect for one (1) year from the date of its execution. IN WITNESS WI-IEREOF, this Confidentiality Agreement has been executed by the following duly authorized representatives and officers of the Parties and is effective as of the date first written above. "CITY OF DENTON" A Texas Municipal Corporation ATTEST: JENNIFER WALTERS, CITY SECRETARY 21-1irmll-I 11 APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: -5- "INTERESTED PARTY" ENHANCED OUTSOURCE SOLUTIONS, M kv\ ck ^ A4-0 Irt!i,(b,e - ATTEST: BY: DNA APPROVED AS TO LEGAL FORM: S:\Our Documents\Contracts\03\DMU-Enhanced Outsource Solutions, Inc- Confidentiality Agreement 2003.doc M2