Agreement with Ray Klein Page 1 of 19
Rev. 07-01-18
EBIX Insurance No. S200005097
AGREEMENT FOR SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
RAY KLEIN, INC. DBA PROFESSIONAL CREDIT
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Ray Klein, Inc. DBA Professional Credit, a Washington corporation (Contractor). City and Contractor may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”
RECITALS
A. City desires to secure the services (“Services”) more fully described in Exhibit A, entitled “Scope of Services”;
B. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide Services of the quality and type which meet objectives and requirements of City; and, C. The Parties have specified herein the terms and conditions under which such Services will be provided and paid for.
The Parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A – Scope of Services
Exhibit B – Schedule of Fees
Exhibit C – Insurance Requirements
This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions Agreement with Ray Klein Page 2 of 19
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of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on May 1, 2023 and terminate on April 30, 2028. The City, at its sole discretion, reserves the right to extend this Agreement for up to two (2) additional two-year terms through April 30, 2032.
3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.
4. WARRANTY
Contractor expressly warrants that all Services covered by this Agreement shall conform to the specifications and requirements of this Agreement . Contractor agrees to promptly correct any incomplete, inaccurate or defective Services at no further cost to City when those incomplete, inaccurate or defective Services are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct the Services, City may make corrections or replace materials or Services and charge Contractor for the cost incurred by City.
5. QUALIFICATIONS OF CONTRACTOR - STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor’s representations regarding its skills and knowledge. Contractor shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
6. COMPENSATION AND PAYMENT
In consideration for Contractor’s complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled “SCHEDULE OF FEES.”
7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than thirty (30) days’ prior written notice to Contractor.
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B. Termination for Default. If Contractor fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Contractor.
C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) calendar days after the notice of termination, Contractor will deliver to City all City information or material that Contractor has in its possession, but Contractor shall retain copies of any information that it is required by law or regulation to maintain.
8. COLLECTION SERVICES SPECIAL PROVISIONS
A. Compliance to Laws. Contractor shall provide the Services hereunder in accordance with all ethical collection practices and all applicable Federal, state, and local laws including, but not limited to, the Fair Debt Collections Practices Act, Federal Equal Credit Opportunity Act, Collection Agency Act, California Robbins-Rosenthal Fair Debt Collection Agency, California’s Consumer Credit Reporting Agencies Act, Fair and Accurate Credit Transaction Act, and the Consumer Credit Protection Act.
B. Data Security. Contractor must secure, protect at all times, and implement commercially reasonable measures to prevent unauthorized access to any personal identifying information, financial account information, and other information which City marks “confidential” (collectively, “Confidential Information”), whether in electronic format or hard copy. At a minimum, Contractor must encrypt and password-protect electronic files, store and process Confidential Information only in North America, and adhere to any security applicable standards. Applicable standards may include, but not be limited to, National Institute for Standards and Technology CSF/800- 14/800-53/800-82, International Organization for Standardization 1504/27001/27002, International Society for Automation ISA-62443 series, Payment Card Industry Data Security Standards (PCI-DSS), Underwriters Laboratory, Health Insurance Portability and Accountability Act, Federal Risk and Authorization Management Program FedRAMP, US Department of Justice/Federal Bureau of Investigation Criminal Justice Information Services Security Policy.; provided, however, Contractor shall comply with the standard most protective of the Confidential Information. Contractor’s duty to protect the Confidential Information shall not be limited to where Contractor stores it.
C. Records Destruction. When Confidential Information, regardless of its format, is no longer required by Contractor to execute the work required by this Agreement or is no longer required to be maintained by Contractor to comply with any law or regulation, the information must be redacted or Agreement with Ray Klein Page 4 of 19
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destroyed through appropriate and secure methods, to ensure the information cannot be viewed, accessed, and reconstructed.
D. Payment Card Industry (PCI) Data Security Standards. Contractor represents and warrants that for as long as the Contractor serves as the merchant-of-record for credit or debit card transactions in connection with the Services provided under this Agreement, the software and services used for processing credit and debit card transactions shall be compliant with standards established by the Payment Card Industry Security Standards Council (PCI SSC). In the case of a third-party application selected by Contractor, the application will be listed as PA-DSS compliant throughout the term of this Agreement. Except for the negligent actions or omissions of the City, Contractor acknowledges and agrees that it is responsible for the security of all cardholder data. Contractor agrees to indemnify, defend, and hold City, its officers, employees, and agents and its employees and agents, harmless for, from and against any and all claims, causes of action, suits, judgments, assessments, costs (including reasonable attorneys' fees) and expenses arising out of or relating to any loss of customer payment card or identity information processed, managed, retained or maintained by Contractor, including but not limited to fraudulent or unapproved use of such payment card or identity information. Contractor shall, upon written request, furnish proof of compliance with PCI DSS within 10 business days of City’s request.
Regardless of written request, the Contractor shall provide the proper Attestation of Compliance (AOC), which can be found on the PCI SSC website, annually. Contractor agrees that, notwithstanding anything to the contrary in the Agreement, the City may terminate the Agreement immediately without penalty upon notice to the Contractor in the event Contractor fails to maintain compliance with the PCI DSS or fails to comply with the provisions of this Section 8. If Contractor systems connect to or interface with City systems, the City agrees to promptly implement upon written request from Contractor, at City’s expense, changes to the City systems that Contractor reasonable requests and believes are necessary or prudent to ensure Contractor’s compliance with the PCI DSS.
E. Internal Controls. Contractor shall maintain SOC2 Type II certification throughout the term of this Agreement and shall provide the annual SOC2 Type II compliance reports upon City’s request.
F. Data Breach Notification. A “Data Breach” means: the unauthorized or unlawful access, acquisition, or destruction of Confidential Information as defined in paragraph 8(B). Contractor shall notify City in writing of any Data Breach within two (2) days of becoming aware of such Data Breach.
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9. ASSIGNMENT AND SUBCONTRACTING
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Contractor shall not hire subcontractors without express written permission from City.
Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it.
10. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
11. INDEPENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as employee(s) of City. Contractor has full rights to manage its employees in their performance of Services under this Agreement.
12. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.
13. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contractor may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.
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14. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or Services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Contractor shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.
Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City’s reporting requirements to the State and other agencies with respect to Contractor’s Services hereunder.
15. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney’s fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Contractor pursuant to this Agreement – including claims of any kind by Contractor’s employees or persons contracting with Contractor to perform any portion of the Scope of Services. However, the obligation to indemnify and defend shall not apply if such liability is ultimately adjudicated or agreed upon by the Parties in resolution of a potential, pending, or ongoing claim of any kind, to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.
B. Contractor’s obligation to protect, defend, indemnify, and hold harmless in full City and City’s employees, shall specifically extend to any and all employment-related claims of any type brought by employees, contractors, subcontractors or other agents of Contractor, against City (either alone, or jointly with Contractor), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.
C. To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act (“Act”) and/or any other similar federal or state law, Contractor warrants that it is meeting its Agreement with Ray Klein Page 7 of 19
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obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor’s responsibilities under the Act.
16. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
17. WAIVER
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City’s review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
18. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Finance Department
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected] and
[email protected]
And to Contractor addressed as follows:
Ray Klein Inc., DBA Professional Credit
Attn: General Counsel
400 International Way
Springfield, OR 97477
and by e-mail at [email protected]
The workday the e-mail was sent shall control the date notice was deemed given.
An e-mail transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.
19. COMPLIANCE WITH LAWS
Contractor shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to “The Code of the City of Santa Clara, California” (“SCCC”). In particular, Contractor’s attention is called to Agreement with Ray Klein Page 8 of 19
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the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Contractor has read and agrees to comply with City’s Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).
20. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.
21. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
22. NO USE OF CITY NAME OR EMBLEM
Contractor shall not use City’s name, insignia, or emblem, or distribute any information related to Services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
23. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
24. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
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25. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.
26. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form: Dated:
Office of the City Attorney
City of Santa Clara
Office of the City Manager
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
RAY KLEIN, INC. DBA PROFESSIONAL CREDIT
a Washington corporation
Dated:
By (Signature):
Name: Ginger Patmore
Title: Chief Financial Officer
Principal Place of
Business Address:
400 International Way
Springfield, OR 97477
Email Address: [email protected]
Telephone: (360) 567-4987
“CONTRACTOR”
March 22, 2023
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EXHIBIT A
SCOPE OF SERVICES
1. GENERAL
1.1. Under this Agreement, Contractor shall provide full-service collection services for unpaid and delinquent utility and general Accounts Receivable accounts, including Business License Taxes, (hereinafter “Accounts”) referred by the City.
1.2. To the extent not inconsistent with this Agreement and this Exhibit, the City’s SOQ 21-22-73 (including subsequent updates) and Consultant’s proposal response submitted on July 18, 2022 are hereby incorporated by reference herein, and shall supplement this Scope of Services and be subject to the terms and conditions of the Agreement.
2. ACCOUNT SERVICES
Contractor shall, in the collection of Accounts:
2.1. Designate a primary and secondary contact representative for the City.
2.2. Meet with City staff to facilitate transition of Accounts from the previous collector.
2.3. Send acknowledgement to the City within ten (10) calendar days of account placement via the same method that the account was submitted.
2.4. Handle and process all communications with debtors via email, text, calls, etc.
2.5. Notify the City of payment plan arrangements with customers at least monthly.
2.6. Not accept as settlement in full, on any assigned account, any amount less than the full amount as originally assigned by City without the express written consent of City.
2.7. Employ skip tracing and other standard collection techniques to locate debtors.
2.8. Utilize the State of California Franchise Tax Board Interagency Intercept Program to recover past due debt upon City request and/or approval.
2.9. Endorse payment instruments received on Accounts.
2.10. Collect and process all payments, including credit card or check payments.
2.11. Advise the City of any Accounts deemed uncollectible and provide information regarding the determination.
2.12. File bankruptcy claims on behalf of the City, as necessary.
2.13. Report all uncollected Accounts to the major credit bureaus unless an Account is excluded from such reporting.
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2.14. Remove an Account from all major credit bureaus when applicable and/or at the request of the City if the City determines that an error has been made, and provide a copy of the removal notification to the City.
2.15. Deposit all payments into a trust account established for the City.
2.16. Return specific Accounts that have not been collected after six months of assignment upon the City’s request, unless there is a payment plan, litigation has commenced, or Contractor has obtained a judgment. City may also require Contractor to return specific Accounts assigned in error within a reasonable period after assignment.
2.17. Decide whether to place a claim in litigation; however, Contractor must obtain prior City approval of the rates for legal representation.
2.18. Periodically advise the City on updates/changes to federal and state law related to credit, debt, and collection practices.
2.19. Meet with the City quarterly, or other frequency as requested by the City, to review the City’s existing internal procedures and provide suggestions on how to improve internal recovery efforts, and to discuss and review Contractor’s performance under the Agreement.
3. REPORTING REQUIREMENTS
3.1. Contractor shall provide at a minimum the following reports in an electronic and/or hard copy format on a daily, weekly, monthly, quarterly, and/or annual basis:
3.1.1. A monthly report with acknowledgment of new Accounts submitted and the status of each Account, including account number, customer name, amount received, date of last payment, adjustments, reason for adjustments, balance due and any actions taken on the Account. If an Account is deemed uncollectible, information regarding this determination shall be included in the report.
3.1.2. A quarterly financial summary report due following the last calendar day each March, June, September, and December. The report shall include, at a minimum, total receipts, net accounts receivable, total accounts receivable, collection percentage, and collection fees.
3.1.3. An annual financial summary report as of each June 30 (City’s fiscal year end) including, at a minimum, total receipts, net accounts receivable, total accounts receivable, collection percentage, and collection fees. The annual report shall be submitted to the City no later than each July 31.
3.2. The City may require Contractor to supply separate reporting for Utility accounts and/or provide the ability for the City to identify, distinguish, and separately report Utility accounts from Account Receivable accounts, utilizing the Contractor’s online system.
3.3. Contractor shall make available to the City reports similar to those delivered to the Contractor’s other clients.
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4. CUSTOMER SERVICE
Contractor shall have live representatives available to answer City staff and customer debtor calls at a minimum Monday through Friday, except on holidays, during reasonable business hours and on Saturday mornings.
5. ONLINE PORTAL
5.1. Contractor shall provide 24/7 access for debtors to access/manage their accounts, make payments, and set up payment plans based on the City’s guidelines.
5.2. Contractor shall provide 24/7 access to the City to all account information including to observe consumer interactions; read collector notes; perform account management; run standard and ad-hoc reports; search account information including payments, dollars collected, asset searches, credit reporting, and any other relevant account details; and perform administrative tasks.
6. TRANSITION SERVICES
Upon termination or expiration of the Agreement, Contractor will:
6.1. Destroy all hard copy account information.
6.2. Continue to forward all payments sent to it by any Account to the City. If payment is forwarded to the City within 60 calendar days of expiration or termination of the Agreement, the City will pay Contractor the fee identified in Exhibit B. If Contractor forwards payment to the City after 60 calendar days of expiration or termination of this Agreement, Contractor will no longer be due, nor the City pay, a fee.
7. RECORDS RETENTION
Maintain complete records of each Account referred by the City, including all correspondence, documents, accounting records, transactions, working papers, and a detailed log of all collection records. Records shall be maintained for a minimum of four (4) years following termination of this Agreement.
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EXHIBIT B
SCHEDULE OF FEES
1. MAXIMUM COMPENSATION
There is no maximum compensation under this Agreement. Contractor will accept all Accounts referred by the City on a contingency fee basis, understanding that compensation will be paid only from monies collected by Contractor.
2. FEE SCHEDULE
Contractor’s collection fees are calculated as a percentage of the referred balance, as set forth below, and shall not apply to late fees, interest, or any other penalties or fees the City may impose. Amount actually recovered may be greater than or less than the referred balance.
Referred Balances Fee1
Accounts with referred balances of $00.01 - $9,999.99 18% Accounts with referred balances of $10,000 and higher 13% Accounts that are pursued with Legal collection methods2 25% 1In no event shall the City be responsible for any fees that exceed the actual amount recovered from the debtor.
2Contractor shall only pursue legal collections on Accounts approved by the City. In addition to its collection fee of 25%, Contractor shall be reimbursed for its legal expenses, filing fees and court costs from the monies collected on the respective Account, provided that the City has approved such expenses.
3. REMITTANCE TO THE CITY
Contractor shall remit payment, net of fees, to the City by the 15th calendar day of each month for monies collected the previous month. Monies collected on specific Accounts (e.g., Utility Accounts and general accounts receivable) shall be segregated and remitted in accordance with City instructions. Contractor shall include a statement showing debtor's name in alphabetical order, account number, date collected, amount collected, whether paid to City or to Contractor, collection fees, and any balance due on the account with each remittance.
The City shall retain the option, at its sole discretion, to change remittance to gross of fees. The City shall notify Contractor in writing at least 30 calendar days prior to such change. Contractor shall provide the City an invoice for its fees following the end of each month.
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EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Contractor’s indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Contractor’s insurance. The minimum coverages, provisions and endorsements are as follows:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
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B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned (if any), non-owned and hired autos.
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of one million dollars ($1,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS’ COMPENSATION
1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers’ Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. PROFESSIONAL LIABILITY
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Contractor. Covered services as designated in the policy must specifically include work performed under this agreement. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim or two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorney’s Office.
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E. CYBER LIABILITY
Contractor agrees to purchase and maintain throughout the term of this Agreement technology/professional liability insurance, intellectual property infringement, and data protection liability insurance (cyber liability) covering liabilities for financial loss resulting or arising from acts, errors, or omissions, in connection with the Services provided under this Agreement:
• intellectual property infringement arising out of software and/or content (excluding patent infringement and misappropriation of trade secrets); • breaches of security;
• violation or infringement of any right privacy, breach of federal, state, or foreign security and/or privacy laws or regulations;
• data theft, damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, identity theft, theft of personally identifiable information or confidential corporate information, transmission of a computer virus or other type of malicious code; and participation in a denial of service attack on a third party
with a minimum limit of $3,000,000 each and every claim and in the aggregate.
Such insurance must address all of the foregoing without limitation if caused by an employee of the Contractor or an independent contractor working on behalf of the Contractor in performing services under this Agreement. Policy must provide coverage for wrongful acts, claims, and lawsuits anywhere in the world.
F. COMMERCIAL CRIME
Contractor agrees to purchase and maintain throughout the term of this Agreement commercial crime Insurance coverage for loss of money, securities and other tangible property belonging to the City resulting directly from a fraudulent or dishonest act of Contractor’s employees while performing work for the City in a minimum amount of not less than $2,000,000 per occurrence and in the aggregate.
G. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor’s work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85, Agreement with Ray Klein/Exhibit C – Insurance Requirements Page 17 of 19 Rev. 07-01-18
or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor’s insurance.
3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non- renewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through E of this Exhibit C, above.
H. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance Agreement with Ray Klein/Exhibit C – Insurance Requirements Page 18 of 19 Rev. 07-01-18
documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
I. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.
J. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.
Upon City’s request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be provided by email to: [email protected].
Or by mail to:
EBIX Inc.
City of Santa Clara – Finance Department
P.O. Box 100085 – S2
Duluth, GA 30096
Telephone number: 951-766-2280
Fax number: 770-325-0409
Agreement with Ray Klein/Exhibit C – Insurance Requirements Page 19 of 19 Rev. 07-01-18
K. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.