HomeMy WebLinkAboutHERBERT P. SEARS, CO., INC.INSURANCE ON FILE
WORK MAY PROCEED N-2023-298
UNTIL INSURANCE EXPIRES
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CITY CLERK
DATE; AGREEMENT WITH H.P. SEARS CO., INC
TO PROVIDE COLLECTION AGENCY SERVICES
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CP ien Ha ) THIS AGREEMENT is made and entered into on this 1" day of October, 2023 by and between
Herbert P. Sears, Co., Inc., a California corporation ("Consultant'), and the City of Santa Ana, a
charter city and municipal corporation organized and existing under the Constitution and laws of
o the State of California ("City").
RECITALS
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A. On July 16, 2019, the City entered into Agreement 4A-2019-119 with American Capital
Enterprises ("ACE") to provide collection agency services for the City. On June 28, 2023,
ACE notified the City of issues which affected their business operations and recommended
the transition of services provided in Agreement #A-2019-119.
B. The City desires to retain a new Consultant having special skill and knowledge in the field
of debt collection services as provided in Agreement #A-2019-119. Consultant represents
that it is able and willing to provide such services to the City provided in the
aforementioned agreement.
C. As part of this engagement, Consultant has represented that honor the scope of services
and costs, identified as Exhibits A and B, in Agreement #A-2019-119 for the duration of
this Agreement, as defined below.
C. hi undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
A. Consultant shall provide collection services in connection with overdue receivable
billing assigned by City, as set forth in Exhibit A.
In performing said services, Consultant shall:
1. Make concerted efforts on behalf of the City to collect all past due accounts
assigned to Consultant.
2. Provide services on a contingency basis and retain commission on all monies
collected on assigned accounts, whether paid to City or Consultant, at the
following rates:
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(a.) For all first placement accounts receivable initially placed for
collection with Consultant beginning July 1, 2019:
i. 17% for accounts placed for standard collection;
ii. 30% for accounts requiring City authorized legal action;
iii. 12% for accounts that are part of Early Out Programs placed
for collection with Consultant no more than 120 days from
billing.
(b.) For all second placement accounts receivable initially placed for
collection with Consultant beginning July 1, 2019:
i. 30% for accounts placed for standard collection
ii. 30% for accounts requiring City authorized legal action
(c.) For all second letter service ($20.00 per account).
3. Collect any interest accruing from the date of assignment, if allowed by law.
4. Obtain prior approval from City before initiating any legal action on an account.
5. Advance all legal costs in connection with approved legal action against any
debtor.
6. Retain from first monies collected on a legal account, its advanced costs.
7. Remit to City all monies, less commission, by the 20th day of the month
following collection.
8. Provide written or electronic acknowledgment of account received from City.
9. Mail first notice to debtor within 24 hours of receipt of placement.
10. Provide City with monthly reports summarizing the activity or all accounts
assigned to Consultant, including at a minimum:
(a.) Total dollar value assigned
(b.) Total dollar value collected
(c.) Percentage collected on total dollar value assigned
(d.) Number of account assigned
(e.) Number of accounts on which payments received
(f.) Number of payments received as a percentage of number of accounts
assigned.
11. Allow City to cancel an assigned account at any time for a mistake or an error
in assignment.
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12. Allow City to audit an assigned account at any time.
13. Maintain a valid Collection License and bonding as required by the State of
California, Bureau of Collection and Investigative Services.
14. Provide suggestions on methods to improve collection rates on an ongoing basis.
B. City will:
1. Use reasonable care to assign bonafide accounts receivable claims to
Consultant.
2. Use its best efforts to verify any disputed amount.
Warrant the accounts assigned to Consultant are first placements (no other collection
agency has attempted to contact the debtor by letter service or otherwise in connection with said
debt) and understands the commission rates herein are based on this representation.
2. COMPENSATION
a. Consultant shall retain compensation on all monies collected on assigned accounts as
set forth in Exhibit A in accordance with the rates and charges identified in Exhibit B.
The total amount to be expended during the term of this Agreement shall not exceed
$50,000. Consultant agrees and understands that should the value of this Agreement
exceed the amount of this Agreement, including during any extension period defined
below, that the Agreement may require amendment subject to approval by the City
Council of the City of Santa Ana.
3. TERM
This Agreement shall commence on the date first written above for a one (1) year term
with the option for the City to grant up to a one (1) year renewal, exercisable by a writing by the
City Manager and the City Attorney, unless terminated earlier in accordance with Section 15,
below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent Consultant and not an employee of the City. This Agreement is not intended nor shall
it be construed to create an employer -employee relationship, a joint venture relationship, or to
allow the City to exercise discretion or control over the professional manner in which Consultant
performs the services which are the subject matter of this Agreement; however, the services to be
provided by Consultant shall be provided in a manner consistent with all applicable standards and
regulations governing such services. Consultant shall pay all salaries and wages, employer's social
security taxes, unemployment insurance and similar taxes relating to employees and shall be
responsible for all applicable withholding taxes.
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5. OWNERSHIP OF MATERIALS
This Agreement creates a non-exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or works of
authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or
caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant
shall require all subcontractors to agree in writing that City is granted a non-exclusive and
perpetual license for any Documents & Data the subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right to license any and all
Documents & Data. Consultant makes no such representation and warranty in regard to
Documents & Data which were provided to Consultant by the City. City shall not be limited in
any way in its use of the Documents and Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City's sole risk.
6. INSURANCE (Subject to revision per RMD requirements)
Consultant shall procure and maintain for the duration of the contract insurance against
claims for injuries to persons or damages to property which may arise from or in connection with
the performance of the work hereunder and the results of that work by the Consultant, his agents,
representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00
01 covering CGL on an "occurrence" basis, including products and completed operations,
property damage, bodily injury and personal & advertising injury with limits no less than
$1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate
limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general
aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering any
auto (Code 1), or if Consultant has no owned autos, hired (Code 8) and non -owned (Code
9) autos, with limit no less than $1,000,000 per accident for bodily injury and property
damage. (Not required if Consultant will not be using a vehicle)..
3. Workers' Compensation: insurance as required by the State of California, with
Statutory Limits, and Employers' Liability insurance with a limit of no less than
$1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): applicable to the work being
performed, with a limit no less than $1,000,000 per claim or occurrence and $2,000,000
aggregate per policy period of one year.
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If the Consultant maintains broader coverage and/or higher limits than the minimums shown
above, the City requires and shall be entitled to the broader coverage and/or higher limits
maintained by the Consultant.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds
on the CGL policy with respect to liability arising out of work or operations performed by or on
behalf of the Consultant including materials, parts, or equipment furnished in connection with such
work or operations. General liability coverage can be provided in the form of an endorsement to
the Consultant's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available,
through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later
edition is used).
Primary Coverage
For any claims related to this contract, the Consultant's insurance coverage shall be primary
coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials,
employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers,
officials, employees, or volunteers shall be excess of the Consultant's insurance and shall not
contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except
with notice to the City.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said
Consultant may acquire against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of
subrogation, but this provision applies regardless of whether or not the City has received a waiver
of subrogation endorsement from the insurer.
Self -Insured Retentions
Self -insured retentions must be declared to and approved by the City. The City may require the
Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses
and related investigations, claim administration, and defense expenses within the retention. The
policy language shall provide, or be endorsed to provide, that the self -insured retention may be
satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current
A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
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Verification of Coverage
Consultant shall furnish the City with original Certificates of Insurance including all required
amendatory endorsements (or copies of the applicable policy language effecting coverage required
by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all
policy endorsements to City before work begins. However, failure to obtain the required
documents prior to the work beginning shall not waive the Consultant's obligation to provide them.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the
risk, prior experience, insurer, coverage, or other special circumstances.
INDEMNIFICATION
Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers,
agents, employees, contractors, special counsel, and representatives from liability: (1) for personal
injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including death, and claims for property damage, which may arise from the
negligent operations of the Consultant, its subcontractors, agents, employees, or other persons
acting on its behalf which relates to the services described in section 1 of this Agreement; and (2)
from any claim that personal injury, damages, just compensation, restitution, judicial or equitable
relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and
hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial
or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in
this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant
further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including
fees and costs for special counsel to be selected by the City, regarding any action by a third party
challenging the validity of this Agreement, or asserting that personal injury, damages, just
compensation, restitution, judicial or equitable relief due to personal or property rights arises by
reason of the terms of, or effects arising from this Agreement. City may make all reasonable
decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing,
to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity
shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indemnify the City, its officers, agents, representatives, and
employees against any and all liability, including costs, for infringement of any United States'
letters patent, trademark, or copyright infringement, including costs, contained in the work product
or documents provided by Consultant to the City pursuant to this Agreement.
9. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with respect to
the costs incurred under this Agreement and any services, expenditures, and disbursements
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charged to the City for a minimum period of three (3) years, or for any longer period required by
law, from the date of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of the City to
examine, audit, and make transcripts or copies of such records and any other documents created
pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all
work, data, documents, proceedings, and activities related to this Agreement for a period of three
(3) years from the date of final payment to Consultant under this Agreement.
10. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees that
it shall not use or disclose such information except in the performance of this Agreement, and
further agrees to exercise the same degree of care it uses to protect its own information of like
importance, but in no event less than reasonable care. "Confidential Information" shall include all
nonpublic information. Confidential information includes not only written information, but also
information transferred orally, visually, electronically, or by other means. Confidential
information disclosed to either party by any subsidiary and/or agent of the other party is covered
by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any
information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the
Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant
without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e)
is independently developed by the Consultant without reference to information disclosed by the
City.
11. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any mariner with performance of services specified under this
Agreement.
12. NON-DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status,
sexual orientation, gender identity, gender expression, gender, medical conditions, genetic
information, or military and veteran status, age, national origin, ancestry, or disability, as defined
and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization,
promotion, termination or other employment related activities or any services provided under this
Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all
applicable federal, state and local laws and regulations.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the terms
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of this Agreement shall prevail. This Agreement may not be modified except by written instrument
signed by the City and by an authorized representative of Consultant. The parties agree that any
terms or conditions of any purchase order or other instrument that are inconsistent with, or in
addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each
party to this Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any
party, which is not embodied herein.
14. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement shall
be construed to limit the City's ability to have any of the services which are the subject to this
Agreement performed by City personnel or by other Consultants retained by City.
15. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of
termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to
deliver to the City all work product(s) completed as of such date, and in such case
such work product shall be the property of the City unless prohibited by law, and
Consultant consents to the City's use thereof for such purposes as the City deems
appropriate.
b. Payment need not be made for work which fails to meet the standard of
performance specified in the Recitals of this Agreement.
16. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or
granted by the provisions of this Agreement shall be effective unless it is in writing and signed by
the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or
remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not
similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
17. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. Both parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought or
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any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by fax, communication shall be effective or deemed to have
been given twenty-four (24) hours after the time set forth on the transmission report issued by the
transmitting facsimile machine, addressed as set forth above. For purposes of calculating these
time frames, weekends, federal, state, County or City holidays shall be excluded.
20. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the
power, authority and right to bind their respective parties to each of the terms of
this Agreement, and shall indemnify City fully, including reasonable costs and
attorney's fees, for any injuries or damages to City in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully
set forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
ATTEST:
CITY OF SANTA ANA
e m er L l
erk PtlPe...Gity Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
l
Byg,Ad44
Andrea Garcia -Miller
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
xmm,� oom, ion s:oa oz:u oon
Kathryn Downs, CPA
Executive Director
Finance and Management Service Agency
HERBERT P. SEARS CO., INC.
Christopher Lee Thompson
CEO
#318460v1 Page 10 of 10
Zubiate, Robert
From: City of Santa Ana <certificate-request@ctrax.jdidata.com>
Sent: Wednesday, October 2S, 2023 10:11 AM
To: Gutierrez, Alejandra; Chavez, Alfonso; Guillen, Leslie; Zubiate, Robert
Subject: Internal Notice of Compliance
NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor Herbert P. Sears., Inc.
Name:
Project TBD (099)
Number:
Project Agreement With H.P. Sears Co., Inc To Provide Collection Agency
Name: Services
The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the
insurance requirements. No further action is required at this time.
The compliant coverage(s) are:
TYPE OF INSURANCE
AUTOMOBILE LIABILITY
GENERAL LIABILITY
PROFESSIONAL LIABILITY
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY
Thank you,
City of Santa Ana
Risk Management Division
POLICY EXPIRATION
NUMBER
DATE
72UECPRI932
12/18/2023
51 SBATU2232
05/02/2024
ADC0195900
04/07/2024
51WECDWIIIO
01/15/2024
COI DATE
10/18/2023
10/17/2023
10/20/2023
09/27/2023
FILE NAME
Auto HP SEARS
CERT.pdf
2324 GL - City
of Santa Ana -
REVISED.pdf
E&O ACORD
Form 20231020-
135051.pdf
HP Sears Co -
Cert Holder City
of Santa Ana.pdf
I