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HomeMy WebLinkAbout12 - Professional Services Agreement for the Collection of Delinquent AccountsTO: FROM: CITY OF NEWPORT BEACH City Council Staff Report May 14, 2019 Agenda Item No. 12 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Dan Matusiewicz, Finance Director - 949-644-3123, dmatusiewicz@newportbeachca.gov PREPARED BY: Evelyn Tseng, Revenue Manager, etseng@newportbeachca.gov PHONE: 949-644-3153 TITLE: Professional Services Agreement for the Collection of Delinquent Accounts ABSTRACT: In order to enhance the City's revenue collections, the City requires professional collection agency services to pursue unpaid and delinquent account receivables. Following a Request for Proposals (RFP) selection process, staff recommends that the City Council execute the Professional Services Agreement with Ray Klein, Inc., dba Professional Credit Service, a Washington company (Contractor), for professional services. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Authorize the Mayor to execute the attached Agreement in an amount not to exceed $500,000 over a five-year term with Ray Klein, Inc., dba Professional Credit Service, a Washington company, for professional services. FUNDING REQUIREMENTS: No budget amendment is required with this agreement. After sending delinquent accounts to collection, the contractor receives a portion (18%) of the delinquent balances recovered as an offset to the revenues collected. 12-1 Professional Services Agreement for the Collection of Delinquent Accounts May 14, 2019 Page 2 DISCUSSION: The City bills for a wide variety of services, including but not limited to: utility bills, transient occupancy tax, false alarm fines, miscellaneous permit fees, business license fees, property damage, property rents, jail booking fees, fees associated with emergency response, miscellaneous police fees, returned checks, special event fees and emergency transportation fees. The City generally requires payment on the date due, which is typically 30 days from the date of notice. Depending on the nature of the billing, there are various levels of customer outreach before an account is sent to collections. For example, utility customers are contacted no less than five times before water is shut-off. Further, utility customers are not sent to collections unless the customer has closed the account and has not paid the balance due for at least 90 days. Most other types of general billings receive monthly reminders but are then sent to collections after 90 days. The Finance Department conducted a Request for Proposal (RFP) for collections services. The RFP was published using the City's on-line bidding site, Planet Bids. Nine proposals were received, reviewed and scored by an evaluation panel comprised of staff from the Finance and Fire Departments. Selection criteria included the firm's qualifications, experience, fees, references, services and ability to meet the City's needs with regard to collections and customer service. Of the nine proposals, the evaluation panel identified and scored five as possessing the requisite technical expertise, relevant experience and qualifications to be considered for award. The evaluation panel invited these five proposers to an interview where each group was given an opportunity to describe their qualifications and experience. Following this first interview, the panel removed two from further award consideration. The three remaining finalists were invited to a second panel interview where each proposer was asked to provide detail about their collections methodology and provide a demonstration of their collections system and software. Both interviews were scored by the evaluation panel and the scores were incorporated into the overall evaluation process. Concurrently, the City's Purchasing staff compared the pricing received from each finalist and compared the pricing based on the proposed service fee. The proposed service charge percentage for each finalist, as well as the results of the proposal review and interviews are shown in the following table: 12-2 Penn Credit Professional States Corp. Credit Recovery Service Systems Proposal 76.67 83.11 65.56 Score First 78.00 82.67 76.33 Interview Score 12-2 Professional Services Agreement for the Collection of Delinquent Accounts May 14, 2019 Page 3 Second 66.67 71.33 62.33 Interview Score Cost Score 72.00 100.00 90.00 (Proposed (25%) (18%) (20%) Service Charge %) Total Score 293.34 337.11 294.22 Based on a comprehensive review by the evaluation panel, Professional Credit Service was unanimously recommended for collections services. The selection was based on the professional quality of the organization, commitment to customer service, willingness to customize services required by the City and competitive pricing for the collection services. The contractor also provides collection services for the City of Anaheim and City of Garden Grove. Staff is requesting a five (5) year agreement, which would terminate the agreement on May 31, 2024. The City bills for approximately $105 million for various services annually, and staff estimates that each year, approximately $1,250,000 may become uncollectible prior to collection agency efforts. Some services (e.g., emergency medical and jail booking) are harder to collect on than others, such as utility billing. City staff and the contractor estimate a collection rate on uncollectible balances that range from 10% to 42% depending on the type of incident/service, which could result in annual Contractor fees of approximately $94,500 ($1,250,000 x 42% optimistic collection rate x 18% contractor fee) annually on the high end. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Professional Services Agreement 12-3 ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT WITH RAY KLEIN, INC. DBA PROFESSIONAL CREDIT SERVICE FOR DELINQUENT ACCOUNT COLLECTIONS SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 14th day of May, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and RAY KLEIN, INC., a Washington corporation doing business as ("DBA") Professional Credit Service ("Consultant"), whose address is 12204 SE Mill Plain Blvd., Suite 101, Vancouver, Washington 98684, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide delinquent account collections services ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on May 31, 2024, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work")_ City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to 12-4 completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Five Hundred Thousand Dollars and 001100 ($500,000.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the dates of service, a brief description of the Services performed, and the total amount requested. Consultant shall also provide detailed reports, in addition to the monthly invoice, such as, a monthly cash receipt report, or alternate reports as requested by City, showing the amount, date, and organization paid, by debtor. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Ray Klein, Inc. DBA Professional Credit Service Page 2 12-5 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Rob Nestell to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Finance Department. City's Revenue Manager or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. Ray Klein, Inc. DBA Professional Credit Service Page 3 12-6 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City_ Consultant Ray Klein, Inc. DBA Professional Credit Service Page 4 12-7 shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. Ray Klein, Inc. DBA Professional Credit Service Page 5 12-8 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. iE-Joil«ZoI:I;1U]=I.111I,1411 VA All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. Ray Klein, Inc. DBA Professional Credit Service Page 6 12-9 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services 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 charged to 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 City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. Ray Klein, Inc. DBA Professional Credit Service Page 7 12-10 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at- Attn: Revenue Manager Finance Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Rob Nestell Ray Klein, Inc. dba Professional Credit Service 400 International Way, Suite 200 Springfield, OR 97477 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and Ray Klein, Inc. DBA Professional Credit Service Page 8 12-11 identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Ray Klein, Inc. DBA Professional Credit Service Page 9 12-12 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Ray Klein, Inc. DBA Professional Credit Service Page 10 12-13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 5. 2 • I °t CITY OF NEWPORT BEACH, a California municipal corporation Date: By: ( qr) By: A ron C. Harp I S,1,• Diane B. Dixon City Attorney Mayor ATTEST: Date: Leilani I. Brown City Clerk CONSULTANT: RAY KLEIN, INC., a Washington corporation doing business as ("DBA") PROFESSIONAL CREDIT SERVICE Date_ By: G. Scott Purcell Chief Executive Officer Date: Joseph R. Hawes Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Ray Klein, Inc. DBA Professional Credit Service Page 11 12-14 EXHIBIT A SCOPE OF SERVICES City shall designate debts for collection by Consultant in City's sole discretion. Consultant's services shall include: 1. Reviewing, enforcing and complying with the applicable provisions of the City's municipal code and ordinances; 2. Providing acknowledgement to City of accounts placed with Consultant within ten (10) business days of placement; 3. Making contacts with debtors under the Consultant's name; 4. Mailing collection letters as approved by the City; 5. Employing skip -tracing and other standard techniques to locate debtors, and providing corrected addresses and other account information to the City; 6. Combining assigned accounts to common debtors for consolidated collection purposes; 7. Providing a Customer Service Call Center with a toll free number to assist debtors in resolving their accounts, with Consultant's employees interacting with debtors in a professional and respectful manner during all deliberations and dealings; 8. Forwarding valid disputes to the City for review and possible dismissal as necessary; 9. Establishing payment plans as necessary, in accordance with parameters set by the City for Consultant to accept payment plans; 10. Transferring funds electronically and be able to receive accounts on a daily basis, Monday through Friday; 11. Providing a remittance processing center to receive debtor payments and deposit into City account; 12. Depositing all collected funds within forty-eight (48) hours of receipt to City designated bank account; 13. Providing Social Security numbers on accounts obtained by Consultant, as necessary, where authorized by applicable law; 14. Adjusting the receivable record within forty-eight (48) hours of any information transferred by City; Ray Klein, Inc. DBA Professional Credit Service Page A-1 12-15 15. Reporting outstanding receivables, where authorized by law, to a nationally available credit history reporting database (credit bureau) at no additional fee to City; 16. Reporting delinquent accounts to the three major credit bureaus, when permitted by law and in accordance with criteria that may be set by the City, at no additional cost to the City, including updates of previously reported information and corrections to reported information; 17. Providing management reports in electronic and hardcopy format (pdf and excel/csv), on a daily, weekly, or monthly basis, as directed by the City, including but not necessarily limited to: 17.1. Monthly cash receipt file and report — a listing of all payments by debtor name (last name first), designated City account reference number, amount owed, date paid, payment amount, and such other information as City may request; 17.2. Monthly new accounts acknowledgement report — listing of debtors, with City's account reference number, amount and total number and dollar value of accounts referred, 17.3. Monthly spreadsheet detailing the current status of each account, including a brief recap of Consultant's efforts to collect the funds; 17.4. Monthly performance analysis report — the liquidation rate of all accounts, including monthly collection total, collections to date, account referral to date, fees earned by Consultant and gross funds returned to the City, including but not limited to, monthly recovery rate per referral and accumulative totals of recovery on a monthly and ongoing basis, and track revenue received by referred month as well as by month paid; 18. Working with City to implement collection programs for other types of debt, as needed; 19. Providing a website portal for City staff to review the status and history of accounts in collections in real time, including but not limited to, bifurcating HIPAA protected accounts as directed by City; 20. Providing a dedicated staff liaison to the City who will be the City's primary contact with the Consultant; 21. Acknowledgement that Consultant shall not have full rights to the accounts and shall only be able to pursue collections on the City's behalf; 22. Acknowledgement that Consultant shall not have authority to accept a compromise settlement on any account without the written consent of the City; Ray Klein, Inc. DBA Professional Credit Service Page A-2 12-16 23. Acknowledgement that Consultant shall maintain accurate records of all transactions, and that the City shall perform periodic audits to ensure that all amounts collected are accurately reported and remitted; 24. Acknowledgement that, where authorized by law, City shall add Consultant's fee to the unpaid debt prior to forwarding to Consultant; 25. Cease work on, and return all documentation pertaining to, any account previously assigned by the City when requested by the City; 26. Using due diligence and employing such lawful means, methods, and procedures as Consultant, in its judgment, discretion, and experience, believe will best effect the collection of accounts, including but not limited to, collection letters, telephone calls, adequate periodic follow up attempts and skip tracing; 27. Providing debtors with reasonable options to make payments, including for example, checking accounts, credit cards, debit cards, secured payment websites, pay by telephone, and a lockbox or other physical location to accept mailed payments; 28. Participating in the State of California's Interagency Intercept Collection Program on the City's behalf when requested by City, to assign, follow up, update, or remove accounts for payment in accordance with the Interagency Intercept Collection Program; 29. Communicating with City personnel as needed to (i) request supporting documentation to assist in carrying out the services to be provided under the Agreement, (ii) report any issues or other information that the City should be made aware of, and (iii) discuss any topic Consultant believes is prudent; 30. Ensuring funds collected on the City's behalf are placed in a secure account and deposited in a timely manner; 31. Providing City with a periodic list of recommended accounts for forwarding to attorneys for legal collections, including when Consultant determines that a debtor has adequate assets, employment, and/or other resources by which to pay a debt but has not satisfactorily cooperated to make payment or abide by a mutual payment agreement; 32. Providing legal collection services, upon the prior express written consent of the City, and at no additional cost to the City, such as filing civil lawsuits, recording civil judgments or other records, debtor examinations, enforcement of civil judgments, including but not limited to, service of process, legal fees, and any other costs; Ray Klein, Inc. DBA Professional Credit Service Page A-3 12-17 33. Acknowledgement that the City reserves the right to select, at no cost to Consultant, City legal counsel to provide legal collection services, such as filing civil lawsuits, recording of civil judgments, and enforcement of civil judgments, at the sole discretion of the City; 34. Requesting written approval from the City prior to filing any legal action in the rendition of the services under this Agreement; 35. Complying with the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788 et seq.; 36. Complying with the Fair Credit Reporting Act, 15 USC §§ 1681 et seq.; 37. Complying with the California Consumer Credit Reporting Agencies Act, Civ. Code §§ 1785.1 et seq.; 38. Complying with the Service members Civil Relief Act, 50 USC §§ 3901 et seq.; 39. Complying with the Telephone Consumer Protection Act, 47 USC §227 et seq.; 40. Complying with the Health Insurance Portability and Accountability Act (HIPAA), 45 C.F.R. § 164.512 et seq., and the Confidentiality of Medical Information Act, Cal. Civ. Code §§ 56 et seq., and all other laws, rules, and regulations applicable to the confidentiality of patient medical information, including where necessary, entering into a Business Associate Agreement with the City for protection of confidential patient medical information; 41. Complying with the City's Municipal Code, and all other laws, rules, or regulations applicable to the Services to be performed pursuant to this Agreement; and 42. Ensuring legal compliance in the collection of the City's debt, including but not limited to, advising the City on recommended policies, programs and procedures. Ray Klein, Inc. DBA Professional Credit Service Page A-4 12-18 EXHIBIT B SCHEDULE OF BILLING RATES All amounts to be collected by Consultant on behalf of the City pursuant to this Agreement shall be determined by the City in its sole and absolute discretion. Consultant shall not increase any amount to be collected without prior written approval of the City. Consultant shall charge the City a flat fee of eighteen percent (18%) of either.. the amount successfully collected by Consultant OR the amount of the original debt, whichever is lesser. This shall be the only compensation to Consultant for all Work performed in accordance with this Agreement, including all reimbursable items and any other costs and fees whatsoever. In the event that the City requests Consultant cease to collect a debt under legal action, Consultant may charge the City the costs Consultant has incurred up to but not to exceed 25% of the original debt. The City may request Consultant cease to collect a debt not under legal action at any time, at no cost to the City. Costs of collection shall only be added to any debt in the City's sole and absolute discretion, where authorized by law, in an amount approved by the City, and upon the prior written approval of the City. Consultant's fee shall be based on the amount of the debt before costs of collection are added. Ray Klein, Inc. DBA Professional Credit Service Page B-1 12-19 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Ray Klein, Inc. DBA Professional Credit Service Page C-1 12-20 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Ray Klein, Inc. DBA Professional Credit Service Page C-2 12-21 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Ray Klein, Inc. DBA Professional Credit Service Page C-3 12.22