HomeMy WebLinkAboutMerchants Association Collection Division, Inc. Collection Services Agreement - 2016 10 13 MASTER COLLECTION SERVICE AGREEMENT
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THIS AGREEMENT is made and entered into on this %I day of OeMb&&R-2016 by and between City of Winter Springs hereinafter"CLIENT")and
Merchants Association Collection Division,Inc.(hereinafter"COLLECTOR").
WHEREAS, CLIENT desires to engage the services of COLLECTOR to collect certain delinquent accounts receivable and other monies due and owing to
CLIENT from certain third party debtors(hereinafter collectively referred to as"accounts")upon the terms and conditions hereinafter set forth;
NOW,THEREFORE,in consideration of the mutual covenants and agreements contained herein,the parties hereto agree as follows;
1. Duties of COLLECTOR: Subject to the terms,conditions and provisions of this Agreement: (a)COLLECTOR shall during the term of this Agreement
accept for collection on behalf of CLIENT such accounts as CLIENT may from time to time refer to COLLECTOR;and(b)By lawful means,COLLECTOR shall
promptly undertake the collection of all such accounts referred by CLIENT to COLLECTOR. In connection with the collection of such accounts,COLLECTOR
shall comply with the Federal Fair Debt Collection Practices Act and such other federal, state and local laws and regulations which may be applicable to the
collection of CLIENT'S accounts.
2. Duties of CLIENT: Subject to the terms, conditions and provisions of this Agreement: (a) CLIENT shall not refer accounts to COLLECTOR, which
accounts, to the best of the client's knowledge, have been or are presently involved in a bankruptcy, receivership or insolvency proceedings; (b) Upon
CLIENT'S referral of its accounts to COLLECTOR, CLIENT shall provide COLLECTOR with sufficient information to identify the accounts referred to
COLLECTOR. Said information shall include,but not be limited to,the name and last known address of the account debtor,the social security number of the
account debtor(if available),the amount of the account and date of last service. CLIENT warrants that all such information provided to COLLECTOR shall,to
the best of the client's knowledge, be true and correct. In the event CLIENT is unable to provide COLLECTOR with such information on an account,
COLLECTOR at its option may return the account to CLIENT; (c) From time to time, COLLECTOR may request from CLIENT such additional information
regarding an account as may be required under the Telephone Consumer Protection Act,Federal Fair Debt Collection Practices Act or other federal,state or
municipal laws, statutes, rules or regulations; which information, if requested, by COLLECTOR, shall include any extrinsic account information needed by
COLLECTOR for the validation,verification or investigation of the account. CLIENT shall provide COLLECTOR with such information within a reasonable time
after COLLECTOR'S request for the same. CLIENT warrants that any such additional information provided to COLLECTOR shall,to the best of the client's
knowledge, be true and correct. In the event CLIENT fails to provide such additional information, COLLECTOR may return the account upon which the
additional information is requested from CLIENT;(d)If CLIENT becomes aware of changes in the account information for an account,referred to COLLECTOR,
then CLIENT shall within a reasonable period of time advise COLLECTOR of those changes; (e)In connection with any account referred to COLLECTOR,
CLIENT shall not undertake independent collection of the account and CLIENT shall not refer or assign the account to any other collection agency until such
time as this Agreement expires or terminates or the subject account is withdrawn by CLIENT in accordance with the provisions of this Agreement;and(f)Within
five(5)business days after CLIENT receives a payment on an account referred to COLLECTOR,CLIENT shall notify COLLECTOR of the same.
3. Indemnify and Hold Harmless:CLIENT shall defend,indemnify and hold COLLECTOR harmless from and against any and all claims,suits,actions,
liabilities,losses,damages,or expenses(including,but not limited to,attorneys fees and court costs)which COLLECTOR incurs or which are asserted
against COLLECTOR by a third party as a result of or arising out of CLIENT's negligence.COLLECTOR shall defend,indemnify and hold CLIENT and
its employees,officers and attorneys harmless from and against any and all claims,suits,actions, liabilities,losses,damages,or expenses(including,
but not limited to,attorneys fees and court costs)which CLIENT incurs or which are asserted against CLIENT by a third party as a result of or arising out
of COLLECTOR'S breach of any of COLLECTOR'S warranties or duties set forth in this Agreement. In all events,the Client shall be permitted to choose
legal counsel of its sole choice,the fees for which shall be reasonable and subject to and included with this indemnification provided herein. The Client's
liability to the Collector under this subsection shall not include punitive damages,or interest for the period before judgment. Additionally,the Client shall
not be liable pursuant to this indemnity to pay a claim or judgment by any one person which exceeds the sum of$200,000.00 or any claim or judgment,
or portions thereof,which,when totaled with all other claims or judgments paid by the Client arising out of the incident or occurrence,exceeds the sum of
$300,000.00. This section 3.shall survive termination of this Agreement.
4. Term of the Agreement: This Agreement shall commence as of the date hereof and shall continue thereafter unless terminated by one party giving the
other party ninety(90)days prior written notice of its intention to terminate the same. This Agreement shall terminate on the ninetieth(90th)day following the
delivery of such written notice. Notwithstanding anything to the contrary elsewhere contained in this paragraph,either party may terminate this Agreement
pursuant to Paragraph 10 of this Agreement in the event of the other party's default under this Agreement.
5. Authority of COLLECTOR to Collect Accounts: COLLECTOR shall have sole and exclusive authority and control over the method and manner of
collecting accounts referred to COLLECTOR by CLIENT. COLLECTOR shall stand in the relationship of an independent contractor to CLIENT. COLLECTOR
shall make no representations to CLIENT'S account debtors that the COLLECTOR occupies any relationship to CLIENT other than that of an independent
contractor. COLLECTOR shall use its own name and letterhead in connection with all communications of COLLECTOR with CLIENT'S account debtors. For
the purpose of implementing COLLECTOR'S collection efforts under this Agreement,CLIENT hereby appoints COLLECTOR as its agent and attorney in fact
with full power and authority only to negotiate and endorse any check payable to CLIENT and received by COLLECTOR in payment of an account.
6. COLLECTOR FEE: For its services performed pursuant to the terms and conditions of this Agreement,COLLECTOR shall be paid a fee by the CLIENT
equal to 20%of the amount whether collected by COLLECTOR or paid directly to CLIENT on each account. SEE ADDENDUMS if applicable— No
7. COLLECTOR"LEGAL"FEE AND COST DEPOSIT:No account shall be referred to Collector's collection attorney for PRE-SUIT collection efforts and/or
SUIT evaluation by the attorney without the prior written authorization of Client. For any account that is referred to COLLECTOR's collection attorney upon
CLIENT's prior written authorization for PRE-SUIT collection efforts and/or SUIT evaluation by the attorney, COLLECTOR shall receive a fee from CLIENT in
the amount of 50% of the amount collected by COLLECTOR and CLIENT after the account is referred to COLLECTOR's attorney. Such increased
COLLECTOR fee of 50%(of amounts collected post-referral to collection attorney)shall wholly cover all attorney's fees(including but not limited to attorney's
fees relating to PRE-SUIT collection efforts,PRE-SUIT evaluation,the initial SUIT filed,judgment proceedings and related,and wage garnishment actions and
related), as well as the entire collection percentage to which COLLECTOR is entitled. Attorney's fees for appeals of any decision are not included in the
contingency fee arrangement and shall not be filed on behalf of the Client without an additional and specific prior written authorization of CLIENT. If
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134 South Tampa Street • P.O. Box 2842 Tampa, FL 33601-2842
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ACA Toll Free:(800) 226-6188 • Fax:(800) 749-7707 • www.sherlogsolutions.com 1
�a Cen.w�.rron..oa�r
"COLLECTOR is unable to provide attorney's services in relation to any appeal.COLLECTOR shah provide CLIENT with referrals to no less than two firms that
handle such appeals, COLLECTOR shad not institute a suit to M;Iect an unpaid a=mjnt W.;Ihout first receiving CLIENT's wrillen authorization for the same.
CLIENT shall cooperate with COLLECTOR in the prosecution of the suit and provide documentation and witness testimony necessary to establish the liability cf
the account debtor. In the event suit on an unpaid account is authorized by CLIENT,CLIENT shall provide to COLLECTOR the sum of$359.00 as a deposit to
cover initial court costs incurred in connection with the prosecution of the suit. CLIENT shall be responsible for all court costs in any au'hued SUIT,
COLLECTOR shall not be obligated to file an authorized suit until such time as CLIENT provides the deposit to COLLECTOR. Any unused cost deposit paid by
CLIENT shaft be timely reimbursed to CLIENT
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134 South Tampa Street , P.O. Box 2842 Tampa, FL 33601.2842
ACA Toil Free:(800)226.6188 • Fax:(800) 749-7707 • vvvvvv.sherlogsolutions,com 2
8. CLIENT'S Withdrawal of an Account: Upon notice to COLLECTOR.CLIENT shall have the right to withdraw from COLLECTOR any account referred to
the COLLECTOR by CLIENT as long as COLLECTOR at the time of CLIENT'S notice has not collected any monies on behalf of CJENT on said account for a
period of sixty(60)successive days prior to the date of CLIENT'S notice of wiihd-awal.
9, Method of Payment of COLLECTOR Fee;: Each month COLLECTOR shall prepare and submit to CLIENT a statement with the name of each account
debtor and the amount collected during the prior month from each listed debtor. Said statement shall also reflect the fee earned by COLLECTOR on each
amount and the amount due CLIENT after the deduction of COLLECTOR'S fee from the amount collected by COLLECTOR or CLIENT. A ong W th sa:d
monthly statement,COLLECTOR shall remit to the CLIENT(via check made payable to CLIENT),the sum reflected on the statement as being the total amount
collected on CLIENT'S accounts less the fees earned by COLLECTOR on said accounts. This statement shall also be deemed an invoice to CLIENT for the
fees due and owing to COLLECTOR,which fees shall be retained by COLLECTOR out of the amounts collected by COLLECTOR as reflected in the monthly
statement. If for any reason the amount of the fees due CCLLECTOR as reflected in the mcnthiy statement exceed the amounts collected by COLLECTOR
and CLIENT from CLIENT'S account debtors, CLIENT ,shall remit the remainder of the fee due and awing to COLLECTOR within thirty (30) days after
COLLECTOR'S submission of the said monthly statement to CLIENT. Any fee which is due COLLECTOR from the CLIENT shall be paid in accordance with
the Florida Prompt Payment Act,
10. Termination f 13efa I In the event that a party defaults in the performance of any of its obligations hereunder,the nor-defaulting party,upon providing
seven(7)days written notice to the defaulting party, may immediately terminate this Agreement if said default is not cured by the defaufting party within said
seven(7)day period.
11. Retention of.Accounts after Termination: in the event this Agreement is terminated for reasons other than COLLECTOR`S defa=ult in its obligations
hereunder, COLLECTOR, on the termination date, shall return all accounts referred by CLIENT to COLLECTOR except COLLECTOR may retain those
accounts wherein partial payments have been received by COLLECTOR from an account debtor at least once during each and every successive two month
period immediatey preceding the termination date_ In regard to such post-termination accounts,COLLECTOR shy I provide month ly reports and payments to
CLIENT and collect its fees until said accounts are paid in full or otherwwise returned to CLIENT pursuant to the terms of this paragraph,
12. Notices: Any notice,request,instruction,or other document.to be given as part of Ibis Agreement shall be in writing and shall be deemed given
under the fol'.owing circumstances: when delivered in person;or three(3)business days after being deposited in the United States Mail,postage prepared,
certified or registered, a the next business day after being deposited with a recognized overnight mail or courier delivery service;or when transmitted by
facsimile or telecopy transmission,with receipt acknowledged upon transmission;and addressed as follows(or to such other person or a:such other address,
of which any party hereto shall have given written notice as provided herein):
To Client:
Kevin L.Smith,City Manager
City of Winter Springs
1126 East State Road 434
!ffinter Springs,Fl, 32708-2799
4017-327.5957(Phone)
407-327-6686(Fax)
To Collector,
Merchants Association Collection Division,Inc,.
Charles E.Greer,Pres'dent
P.O.Box 2842
Tampa,Florida 33601.2842
13. Applicable Law,_Jurisdiction, Venue, Attorneys Fees,_Bindin Effect. Conflicts and Amendments: This Agreem nt and the i nter pretaton and
enforcement of the terms and provisions of this Agreement shall be governed by the laws of the State of Florida. Any suit arising out of the breach of the terms
of this Agreement shall be subject to the jurisdiction of the Florida courts and the venue of any such action shall be in a Florida court of competent Jurisdiction.
tf any dispute conoeming this Agreement arises under Federal law:the venue will be Orlando,F'orida.Any ob ecl ors to jurisdiction ar�d venue are expressly
waived.In the event of any litigation arising out of this Agreement,each party shall bear its own costs and attorney's fees. . This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. The terms and provisions of this Agreement shall control
and prevail as to conflict with any and 0 prior agreements between the parties. The execution of this Agreement by the pasties hereto shall serve to terminate
any and all agreements previously entered between the parties. This Agreement represents the entire and irtegrated Agreement between tine parties and
supersedes all prior negotiations,representations,or Agreements,either oral or written, and all such matters shall be deemed merged into this Agreement.
This Agreement may only be modified or amended by a writing signed by both Client and Collector.
14. Inspection of Records:Pursuant to Section 119.0701,Florida Statutes and other app"icab.'e public records taws,Collector agrees 1`iaf any records,
documents, transactions, writings, papers, letters, computerized information and programs, maps, books, audio or video tapes, films, photographs, data
processing software,writings or other material(s), regardless of the physical form,characteristics,or means of transmission, of Collector related,directly or
irdirecIly,to the services provided to the Client under this Agreement and made or fecelved pursuant to law or ordinance or in connection with the transaction of
official business by the Client,may be deemed to be a public record,whether in the possession or control of Ciient of the Col'ecvor. Said records,documents,
transactions, writings, papers, letters, computerized information and programs, maps, books, audio or video tapes, fi,ms, photographs, data processing
software,writings or other material(s),regardless of the physical form,characteristics,or means of transmission of Collector are subject to the provisions of
Chapter 118,Florida Statutes,and may not be destroyed without the spertfic written approval of the Client's designated custodian of public records.
IF THE COLLECTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,FLORIDA STATUTES,TO THE COLLECTOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,CONTACT THE CUSTODIAN OF PUBLIC RECORDS,THE CITY CLERK,AT(407)327-
5955, CITYCLERKDEPARTMENT r&W,NTERSPRIhGSFL�L.ORC,,112ts EAST STATE ROAD 434,FLORIDA 32708.
Collector is required to and agrees to comply with public records laws.Collector shall keep and maintain all public records required by Client to perform the
services as agreed to here'n. Collector shall provide the Client, upon request from tl^e City Clerk,cofts of the requested records or allow the records to be
inspected or copied within a reasonab'.e time at a cost that does not exceed the cost p,ovlded by law. Collector shall ensure that public records that are exempt
Rev: 04.29.15
134 South Tampa Street • P.O. Box 2842 Tampa, FL 3 3601-2 842
ACA, Free:(800) 226-6188 • Fax:(800) 749-7707 • www.sherlogsolutions.com 3
or confidential and exempt from public records disclosure requirements are not disc'osed except as authorized by law for the duration of the Agreement term.
Upon completion of the Agreement,Collector shall transfer to Client, at no cost,all public records in possession of the Collector, provided the transfer is
requested in writing by the by the City Clerk. Upon such transfer, Collector shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. However,it the City Clerk does nut.request that the public records be transferred,the Collector shall
continue to keep and maintain the public records upon completion of the Agreement and Shall meet all applicable requirements for retaining public records. All
records stored electronically must be provided to Client,upon request from the City Clerk,in a format that is compatible with the information technology systems
of Client, Should the Client not possess public records relating to this Agreement which are requested to be inspected or copied by the Client or any other
person,the Client shall immediately notify Collector of the request and the Collector shall then provide such records to the Client or allow the records to be
inspected or copied within a reasonable time, if the Collector does not comply with a public records request.the Client may enforce this Section to the extent
permitted by law. Collector acknowledges that if the Collector does not provide the public records to the Client within a reasonable time.the Co•iector may be
subject to pena.lies under Section 119.10,Florda Statutes. The Cofleclo*acknowledges that of a civil action is filed against the Coilectc"to compel p oductlor
of public records relatirg to this Agreement, the court may assess and award against Ce"ector the reasonable costs of erforcement, ;nc;ud rig reasonable
attorney fees.All public records in connection with this Agreement shall,at any and all reasonable times du-rg the normal business hours of the Collector,be
open and freely exhibited to the Client for the purpose of examination,audit,or otherwise. Failure by Coliector to groat such pubic access and comply with
public records lays andfor requests shall be grounds for immediate unilateral cancellation of this Agreement by the Client upon delivery of a written notice of
cancellation. If the Collector fails to comply with this Section,and the Client must enforce this Section,or the Client suffers a third party award of attorney's fees
andfor damages for violating Chapter 119,Florida Statutes,due to Collector's failure to comply with this Section,the Client shalt collect from Collector prevailing
party attorney's fees and costs,and any damages incurred by the Client,for enforcing this Section against Collector. And,if applicable,the Client shall also be
entitled to reimbursement of all attorneys'fees and damages which the Client had to pay a third party because of the Collector's€allure to comply with this
Section. The terms and conditions set forth in this Section shall survive the termination of this Agreement.
15. No Assignment. This Agreement shall not be assigned or transferred unless prior written consent is granted by the Client.
16. Severability. It a word,sentence,or paragraph herein shall be declared illegal.unenforceable, or unconstitutional,the said word,sentence, or
paragraph shall be severed from this Agreement• and this Agreement shall be read as if sad illegal,unenforceable, of unconstitutional word, sentence or
paragraph did not exist.
17. Non Waiver. No delay or failure by either party to exercise any right under this Agreement- and no partial or sung'e exercise of that right,shat:
constitute a waiver of that or any other rights,unless otherwise express.y provided herein.
18. Counterparts. This Agreement may be executed in any number of counterparts,each of which when so executed and delivered,shat Lo-origin
but such counterparts shall together constitute but one and the same instrument.
19. Interpretation. Both the City and the Collector have participated in the drafting of all parts of this Agreement. As a result,it is the intent&the
parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter.
20. Sovereign immunity. The City intends to avail itself of the benefits of Section 768.28,Florida Statutes and any other statutes and common law
governing sovereign immunity to the fullest extent possible, Neither this provision nor any other provision of this Agreement shall be construed as a waiver of
the City's right to sovereign immunity under Section 786.28,Florida Statutes,or other limitations imposed on the City's potential liability under state or federal
law, Contractor agrees that City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further,City shall not
be liable for any claim or judgment,or portion thereof,to any one person for over two hundred thousand dollars($200,000.00),or any claim or judgment,or
portion thereof which,when totaied with a!I other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or
occurrence, exceeds three hundred thousand dollars($30Q,WO.03). Nothing in this Agreement;s intended to inure to the benefit of any third party for the
purpose of allowing any claim which would otherwise be barren under the doctrie of sovereign immunity or by operation of law. This paragraph shall survive
termination of this Agreement.
21. Permittee's Signatory. The undersigned person executing this Agreement on behalf of Peimittee hereby represents and warrants that he has the
full authority to sign said Agreement for Permittee and to fully bind Permittee to the terms and conditions set forth in this Agreement.
WITNESS OUR HANDS on the day and year first above written.
"CLIENT"Tax ID#: 59.1026364 "COLLECTOR"
City of Winter Springs Merchants Association Collection Division,Inc,
1126 East Sr 434 P.O.Box 2842
Winter Springs.FL 37708 Tampa,FL 33601.2842 _
f /
Sig`nmure�
Kevin L.Smith Erik Greer
Print Name Print Name
y_ ana e� _ _.___.. _._.__..__...._.____ President
Title v/i Z LIP- Title _ y ___ j
_ate
_.
Date
Rev: 04.2 .t S
134 South Tampa Street P.Q. Box 2842 Tampa, Ft_ 33601-2842
ACA Toll Free:(800) 226-6188 • Fax:(800) 749-7707 www,sherlogsolutions.com 4