Loading...
HomeMy WebLinkAbout25G - COLLECTION AGENCY SVCSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 6, 2009 TITLE: AGREEMENT FOR COLLECTION AGENCY SERVICES (SPEC. NO. 09-028) ~~,^ ~~-Y ~l ~~' `< - CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15i Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve and authorize the City Manager and Clerk of the Council to execute the attached agreement with American Capital Enterprises, Inc. for a two- year period with provisions for three one-year renewals, for collection agency services, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The City of Santa Ana account receivables categories include water service, police false alarms, code enforcement, traffic tickets, paramedic services, and Police and Fire Department billable time for emergency cost recovery. In general, accounts receivables are assigned to the collection agency when the billings are 60 to 90 days past due and staff has already attempted several contacts, including sending past-due letters and initiating telephone calls. Annually, approximately 5,000 accounts are sent to the collection agency at a recovery rate of 33%. On May 5, 2009, the City conducted a formal Request for Proposal process to solicit offers from qualified firms to provide services to collect past due City accounts. A summary of the RFP solicitations and the proposals received were as follows: 16 Request For Proposals issued 6 Proposals received The proposals were reviewed by a committee composed of City staff. An evaluation of proposals compared six criteria: (1) overall ability to provide services, (2} fees and charges related to level of work proposed, (3) professional qualifications of firm and personnel, (4) ability of firm to commit required personnel to handle scope of work, (5) historic collections performance, (6) quality of references and result of interviews. 25G-1 Agreement for Collection Agency Services July 6, 2009 Page 2 Based on the evaluation of proposals by committee, the following is the ranking of service proposals: FIRM RATING 1. American Capital Enterprises, Inc. 97.3% 2. CB Merchant Services ~~ 7% 3. Transworld Systems, Inc. 62.3% 4. Southwest Collection Service, Inc. 56.3% 5. Credit Management Control, Inc. 49.0% 6. Lemore Services Inc. 34.0% American Capital Enterprises, Inc. (ACE) has provided collection and accounts receivable management services for 32 years, and served City of Santa Ana for the past 14 years. The fee rate for ACE is 20 percent for standard accounts and 35 percent for accounts requiring legal action. ACE fees are contingent upon successful collection. FISCAL IMPACT As payment for service is contingent upon successful collection, American Capital Enterprises, Inc. will share in the total revenue recovered from their collection efforts. There is no direct fiscal impact on any expenditure accounts of the City or its related agencies. ~-{ ~ !~ Francisco Gutierrez ~~ Executive Director Finance & Management Services Agency FG/KM/09-028 25G-2 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 6`h day of July, 2009 by and between American Capital Enterprises, Inc., a California corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of debt collection. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In 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 miscellaneous accounts receivable billings assigned by City, as set forth in Consultant's Proposal dated May 12, 2009, on file in the Santa Ana Purchasing Division. 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: (i) Standard accounts 20% (ii) Accounts requiring legal action 35%. 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. 25G-3 6. Retain from first monies collected on a legal account, its advanced costs. 7. Remit to City all monies, less commission, by the 20`h day of the month following collection. 8. Provide written 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: 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. 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 miscellaneous accounts receivable claims to Consultant. 2. Use its best efforts to verify any disputed amount. 3. Warrant the accounts assigned to Consultant are first placements (no collection agency has attempted to contact the debtor by letter service or otherwise) and understands the commission rates herein are based on this representation. 2. COMPENSATION a. Consultant shall retain commission on all monies collected on assigned accounts as set forth in Section 1, SCOPE OF SERVICES. 3. TERM This Agreement shall commence on July 1, 2009 and terminate on June 30, 2011, unless terminated earlier in accordance with Section 12, below. This Agreement may be extended for up to three additional one-year terms at the option of the City. 25G-4 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor 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. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Due to the nature of services provided, Commercial General Liability insurance is not required. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. Professional Liability (Errors & Omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material respect without thirty (30) days prior written notice to the City. 25G-5 e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section l of this Agreement. 7. 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. 8. 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 manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in 25G-6 person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of Finance and Management Services City of Santa Ana 20 Civic Center Plaza (M-17) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-5414 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: American Capital Enterprises, Inc. 42145 Lyndie Lane, Suite 212 Temecula, California 92591 Telefacsimile (909) 695-3763 A party may change its address by giving notice in writing to the other party. Thereafter, 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 telefacsimile, 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. 10. 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 of this Agreement shall prevail. This Agreement may not 25G-7 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 nor 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 are not embodied herein. 11. 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. 12. TERMINATION This Agreement may be terminated by either party upon thirty (30) days written notice of termination. Upon termination, the Executive Director of Finance and Management Services may require Consultant to deliver to the City all work product 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. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION -VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. 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 arise out of, in connection with or by reason of this Agreement. 25G-8 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow 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 PATRICIA E. HEALY Clerk ofthe Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER AMERICAN CAPITAL ENTERPRISES, INC. By: Laura Sheedy Assistant City Attorney RONALD G. MATHESON President Tax ID# 25G-9 25G-10