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HomeMy WebLinkAboutC-2179AGREEMENT BETWEEN UNIQUE MANAGEMENT SERVICES, INC. AND THE CTTY OF ARCADIA FOR MATERIAL RECOVERY SYSTEM PARTIES AND DATE This Agreement is made and entered into this St day of it-dij 2005, by and between the City of Arcadia ( "City ") and Unique Management Services, Inc. ( "UMS "). RECITALS 1. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose. 2. UMS desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. UMS represents that it is experienced in serving as a collection agency, on behalf of libraries, to recover material and monies. UMS services numerous libraries and is licensed in the State of California. 3. City desires to engage UMS to render collection services as set forth in this Agreement. AGREEMENT TERMS 90 DAY NO RISK TRIAL The City understands that it will be allowed to submit past due patron accounts for ninety (90) days from the date when the first accounts are submitted. Although UMS prefers that accounts be submitted no more than sixty (60) days past due, accounts will be accepted up to ninety (90) days past due. All accounts must have $25.00 balances or greater. The City understands that if the City is pleased with results and satisfied with the service at the conclusion of the 90 day trial, the City will be billed based upon the fees shown below for accounts processed during the trial. At the end of 90 days, if the City is not completely satisfied, the City may discontinue the service with no cost for the patron accounts processed. INITIAL PLACEMENT AND SECONDARY PLACEMENT The City hereby assigns accounts to UMS for collection. The City may withdraw them at any time UMS may proceed with whatever steps are necessary for collection of the accounts. The City warrants to UMS the accuracy of the information furnished to them on accounts submitted. The City understands that the City will be billed once per month for the previous month's total submissions at the rate of $8.95 for each submission if data is submitted electronically. RVPU6U2MC\696573.1 Page 1 of 8 GUARANTEE UMS guarantees not to charge in collection fees more than the amount of money recovered plus amounts waived. The City understands that UMS will make adjustments to invoices for the difference between collection fees and the total money received plus amounts waived on accounts submitted to keep the service budget neutral. (See Conditions Section, below.) TERM This Agreement may be canceled by either party upon sixty (60) days written notice. Payment terms are net receipt of invoice. CONDITIONS UMS does a reconciliation to verify budget neutrality and make adjustments on a quarterly basis. To qualify for budget neutrality guarantee, library must have an acceptable fine structure as determined by UMS, library must submit accounts with fines only balances, accounts submitted must contain a $10.00 processing fee, and be no more than sixty (60) days past due at time of submission. Signature below indicates that UMS has determined fine structure is acceptable. SERVICE Older Accounts The City understand that the City will be permitted to submit accounts up to three years past due on a one time basis. If the number of accounts to be processed is substantial, they may be submitted on a staggered schedule. If the Library starts the clean up within one hundred and twenty (120) days after the 90 -Day trial ends, UMS agrees to process these older accounts for the same price /fees utilized during the 90 -Day trial. Also, the current guarantee will remain in effect for the clean up accounts even though they will be more than sixty (60) days past due as long as the other parameters remain the same. Minimum balance may be lowed at any time. If the Library decides to start processing older accounts (more than 90 days overdue) during the 90 -Day trial, the Library agrees to pay the UMS fees stated in the 90 -Day Trial Agreement for all older accounts processed. All other terms and conditions of UMS' agreement with the Library will remain in effect. CONSUMER RIGHTS UMS hereby warrants and agrees to comply with all applicable local, state, and federal laws, RVPUB \RMG \696573.1 Page 2 of 8 0 rules and regulations, including but not limited to all consumer rights and protection laws. INDEPENDENT CONTRACTOR The Services shall be performed by UMS or under its supervision. UMS will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains UMS on an independent contractor basis and not as an employee. UMS retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of UMS shall also not be employees of City and shall at all times be under UMS's exclusive direction and control. UMS shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. UMS shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. INSURANCE UMS shall not commence the Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, UMS shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. UMS shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the UMS, its agents, representatives, employees or subcontractors. UMS shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. UMS shall maintain limits no less than: (1) General Liability: One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. The insurance policies shall contain the following provisions, or UMS shall provide endorsements on forms supplied or approved by the City to add the following provisions to the RVPUB \RMG \696573.1 Page 3 of 8 r insurance policies: The General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the Services or operations performed by or on behalf of the UMS, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the UMS's scheduled underlying coverage. Any insurance or self - insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the VMS's insurance and shall not be called upon to contribute with it in any way. The Workers' Compensation and Employers Liability Coverage shall provide that the insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the UMS. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. Any deductibles or self - insured retentions must be declared to and approved by the City. UMS shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the UMS shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A: VII, licensed to do business in California, and satisfactory to the City. UMS shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. RVPUB \RMG \696573.1 Page 4 of 8 INDEMNITY UMS shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any negligent acts or omissions or willful misconduct of UMS, its officials, officers, employees, agents, UMSs and contractors arising out of or in connection with the performance of the collection services or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. UMS shall defend, at VMS's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. UMS shall pay and satisfy any such judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. UMS shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. UMS's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents or volunteers. DELIVERY OF NOTICE All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: City UMS City of Arcadia Unique Management Services, Inc. 20 West Duarte Road 119 E. Maple St. Arcadia, CA 91006 Jeffersonville, IN. 47130 Attn: Janet S orleder Attn: Richard A. Neal Sr. Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. ENTIRE AGREEMENT This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties. RVPUB \RMG \696573.1 Page 5 of 8 GOVERNING LAW This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. TIME OF ESSENCE Time is of the essence for each and every provision of this Agreement. SUCCESSORS AND ASSIGNS This Agreement shall be binding on the successors and assigns of the Parties. ASSIGNMENT OR TRANSFER UMS shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. CONSTRUCTION; REFERENCES; CAPTIONS Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to UMS include all personnel, employees, agents, and subcontractors of UMS, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. AMENDMENT; MODIFICATION No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. WAIVER No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given Rvrue%RMCw96573.1 Page 6 of 8 or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. NO THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of any right or obligation assumed by the Parties. INVALIDITY; SEVERABILITY If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. AUTHORITY TO ENTER AGREEMENT UMS has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. COUNTERPARTS This Agreement may be signed in counterparts, each of which shall constitute an original. [SIGNATURES ON FOLLOWING PAGE.] RVPUMRM0\696573.1 Page 7 of 8 CITY OF ARCADIA 10 WnD GMs William R. Kelly City Manager Attest: 1 By: Y VAIK l I IWC.yl� City Clerk Approved as to form: S..P 1'a� Best Best & Krieger LLP City Attorney Stephen P. Deitsch UNIQUE MANAGEMENT SERVICES By:� � Representative Concur: \ (� an t Sporl er ire for of library & Museum Services RVPUB\RMG%696573.1 Page 8 of 8