Exhibit A
SERVICE AGREEMENT
This Service Agreement, effective the 1st day of March, 1999 (the
"Agreement"), is by and between Data-Track Account Services, Inc. with a
principal place of business located at 000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxx Xxxx 00000 (hereinafter "Contractor"); and National Fuel Gas Distribution
Corporation (hereinafter "Distribution Corporation") with its principal place of
business located at 00 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, Distribution Corporation is engaged in providing utility
services and desires to retain Contractor to provide the collection services
described herein, subject to the terms and conditions as set forth herein; and
WHEREAS, Contractor is a licensed and certified collection agency
engaged in the business of providing collection services on business accounts
and desires to provide such services to Distribution Corporation, subject to the
terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants, premises,
conditions, and terms to be kept and performed, the parties hereto agree as
follows:
1. SCOPE OF WORK. Contractor agrees:
(a) That it will faithfully attempt to procure payment on accounts
which are transferred to it for the purpose of collection. Contractor
understands that Distribution Corporation does not warrant the legal
enforceability of any of the accounts transferred.
(b) That in fulfilling its obligations under this contract, it shall
provide the necessary personnel, equipment, and material.
(c) That Distribution Corporation retains sole discretion for the
transferability of all accounts to Contractor. Distribution Corporation has no
obligation or duty to send accounts to Contractor.
(d) That it shall obtain written approval from Distribution
Corporation before commencing legal action on any account. Before such approval
is given, Contractor shall notify Distribution Corporation of the law firm who
will be handling the action.
(e) That only accounts which it submits for legal action are eligible
for settlement. All settlement offers must be forwarded to Distribution
Corporation for approval.
(f) That it shall forward to Distribution Corporation a photocopy of
all judgments obtained on any account.
(g) That it shall advance all court costs necessary in pursuit of its
collection procedures, which amounts shall be reimbursed to Contractor in
accordance with the payment provisions set forth in Section 2 hereof.
(h) That, upon demand, it will return any account or accounts to
Distribution Corporation within twenty (20) days of receipt of said written or
oral demand. Upon receipt of demand for return of any account, Contractor shall
immediately cease all collection activity. Contractor understands and agrees
that Distribution Corporation may make such demand in its sole and exclusive
discretion, with or without reason or cause, and that Contractor shall not be
entitled to receive any fee or compensation for accounts demanded to be
returned.
(i) That it will deposit immediately into an escrow account all
moneys collected on behalf of Distribution Corporation.
(j) That on a monthly basis, it will forward all amounts held in this
escrow account to Distribution Corporation without any setoff or reduction
whatsoever accompanied by a remittance statement prepared in a form and
substance satisfactory to Distribution Corporation. Said amounts and report
shall be received from Contractor no later than fifteen (15) days following the
end of each calendar month.
(k) That, on a monthly basis, it shall prepare and forward to
Distribution Corporation a performance analysis which will summarize the moneys
collected and the amounts remaining due on Distribution Corporation's accounts.
Such monthly performance analysis shall be prepared in a form and substance
satisfactory to Distribution Corporation.
(l) That, on a bi-annual basis (for the six months ended September
30th and March 31st) it shall prepare and forward to Distribution Corporation a
report detailing the status of all accounts held. Such bi-annual report shall be
prepared in a form satisfactory to Distribution Corporation.
(m) That within ten (10) days of the execution of this Agreement,
Contractor shall forward to Distribution Corporation samples of all letters
being used in the collection of Distribution Corporation's accounts. If
Contractor wishes to use any additional collection letters, said letters must be
forwarded to Distribution Corporation for prior approval.
(n) That all records related to Distribution Corporation's accounts
shall be available for inspection by Distribution Corporation during normal
business hours. All information furnished by Distribution Corporation to the
Contractor shall remain the property of Distribution Corporation and shall not
be photocopied or used by the Contractor or any third party without the express
written permission of Distribution Corporation.
2. PAYMENT TO CONTRACTOR:
(a) Subject to Paragraph 2 (b) below, Distribution Corporation, in
consideration for Contractor performing the services set forth herein, agrees to
pay Contractor for services "at cost" as defined in Section 13 and related
regulations of the Public Utility Holding Company Act of 1935, not to exceed the
reasonable cost of performing such services as required by Section 110 of the
Public Service Law of New York and Section 2101 of the Pennsylvania Public
Utility Code, 66 Pa. C.S.A. 2102.
(b) All invoices submitted by Contractor shall be sent to the
attention of Xxxxxx X. Xxxxxx, Assistant Director, Revenue Recovery, Appletree
Business Park, 0000 Xxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 or such other person
designated by Distribution Corporation.
(c) Distribution Corporation shall have the right to determine
whether such invoices submitted by Contractor are true and accurate only as to
the amount of work that is fully and satisfactorily completed.
3. CERTAIN BENEFITS. It is understood that Distribution Corporation
is not required to provide or pay for life, medical, retirement or any other
compensation benefits that might be required of Contractor. Included in the
amounts payable under this Agreement is an amount available to Contractor for
the payment by Contractor for the purchase of the life, medical, retirement and
any other compensation benefits required of Contractor by law, rule, order or
regulation of any governmental agency or authority.
4. TAXES.
(a) Contractor shall be responsible for the payment of any and all
local, state and federal taxes, or other fees, imposed on the amounts made
payable to Contractor as a result of the services rendered hereunder.
(b) Contractor shall be responsible for the withholding and/or
payment of any and all applicable local, state and federal employment, payroll
and/or income taxes associated with any and all of Contractor's employees.
Contractor agrees to indemnify and hold harmless Distribution Corporation for or
from any failure, on the part of Contractor, to withhold or remit such
applicable taxes.
(c) Upon request by Distribution Corporation, Contractor shall
provide documented proof that the above-referenced taxes were paid, as required.
5. TERM OF AGREEMENT. This Agreement shall be in effect and continue
for an initial period of one (1) year from the effective date indicated above
and shall automatically renew for one year terms. Either party shall have the
option to terminate this Agreement at any time, for whatever reason, upon thirty
(30) days written notice. In the event that Contractor fails to perform any of
the terms and conditions of this Agreement, at the option of Distribution
Corporation, the Agreement shall at once cease. Contractor agrees that all
moneys collected on behalf of Distribution Corporation and all records furnished
by Distribution Corporation under the terms of this Agreement shall be
immediately forwarded to Distribution Corporation upon termination of this
Agreement or upon Contractor's business failure, bankruptcy, receivership, etc.
6. INDEPENDENT CONTRACTOR. It is understood and agreed that
Contractor in performing all work hereunder, shall be an independent contractor
and shall be responsible for accomplishing the results contracted for under this
Agreement. As an independent contractor, Contractor is not authorized to make
any contract, agreement, warranty or representation on behalf of Distribution
Corporation.
Neither party shall in any way represent that it is an employer,
employee, agent, partner or legal representative of the other party. This
Agreement creates no relationship of joint venture, partnership, association or
employment between Distribution Corporation and Contractor. Distribution
Corporation assumes no liability for any oral or written representations made by
Contractor. Contractor hereby releases Distribution Corporation from and against
any liability for any act or omission concerning any action undertaken by
Contractor, or its agents, employees or subcontractors, pursuant to this
Agreement.
7. CONTRACTOR INDEMNITY CLAUSE. Contractor will indemnify and hold
Distribution Corporation harmless from and against any and all loss, damage,
injury, suits, penalties, costs, liabilities and expenses (including, but not
limited to, legal expenses, hearing costs or expert fees) arising out of any
claim for loss of or damage to property, including property of Distribution
Corporation or Contractor, liability to or death of any person, including an
employee of Distribution Corporation or Contractor, proximately caused by
Contractor, its officers, employees, subcontractors or other agents, arising out
of or asserted against Distribution Corporation in connection with this
Agreement or any services to be performed by Contractor or Contractor's agents
or subcontractors under this Agreement, including but not limited to failure to
comply with federal, state and local regulations applicable to services to be
performed hereunder, and any claim for loss resulting from Contractor's breach
of the warranties contained in Paragraph 21 hereof.
8. IRS EMPLOYER ID NUMBER. Throughout the term of this Agreement,
Contractor shall provide proof to Distribution Corporation that it has a valid
Employer ID Number issued by the IRS. Contractor shall be responsible for all
fees, if any, in connection therewith, and shall fulfill and maintain all
requirements for such a number.
9. PROHIBITION AGAINST SUBCONTRACTING. Contractor shall not
subcontract out any of the work to be performed by it under this Agreement
without the prior written consent of Distribution Corporation.
10. WORKING FOR OTHERS. Distribution Corporation hereby affirms that
nothing in this Agreement shall limit or restrict Contractor from working for,
or with, any other person or entity during or after the term of this Agreement.
11. TRAINING AND EXPERTISE. Contractor acknowledges that the person
or persons performing the work specified in Paragraph 2 has the requisite
training and expertise necessary to fully and satisfactorily complete their
obligation hereunder. Contractor agrees that if further training or expertise is
or becomes necessary or required to fully and satisfactorily complete their
obligation that Contractor, or the person or persons employed by Contractor,
shall obtain such training or expertise. Contractor further acknowledges that
Distribution Corporation shall have no responsibility or duty to provide any
such training or expertise for Contractor which may be necessary or required of
Contractor in order to fully and satisfactorily complete its obligations,
reasonable fees and costs associated with such training shall be payable as part
of Contractor's "at cost" payment for services.
12. QUALITY OF WORK. Contractor warrants that the services to be
performed by it hereunder shall be accomplished in a manner consistent with the
level of care and skill ordinarily exercised under similar circumstances.
13. INSURANCE. Contractor shall furnish and maintain insurance
coverage, as listed below. Insurance shall be placed with insurance carriers
acceptable to Distribution Corporation. Contractor shall maintain this insurance
at all times during performance of this Agreement. In addition, if insurance is
written on a "claims-made" basis, such insurance shall be maintained by
Contractor for a minimum period of three years after the completion of the
Agreement. Contractor may elect to extend the discovery period under the
existing policy for not less than three years.
Contractor shall require all subcontractors, to the extent such are
permitted, to furnish insurance listed below. Subcontractors shall maintain this
insurance at all times during the performance of subcontractor's services. In
addition, if insurance is written on a "claims-made" basis, such insurance shall
be maintained by subcontractors for a minimum period of three years after the
completion of their services. Subcontractors may elect to extend the discovery
period under the existing policy for not less than three years.
Contractor and any subcontractor shall have National Fuel Distribution
Corporation named as an additional insured under the insurance policies required
below.
Insurance Required
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Workers' Compensation and Employers Liability Insurance - Contractor or
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subcontractor, shall maintain Workers' Compensation and Employer's Liability
Insurance of the state in which the services are to be performed.
a) A Contractor or subcontractor that is a legally permitted and
qualified self-insurer in the state in which services are to be
performed, may furnish proof that it is such a self-insurer in lieu of
submitting proof of insurance.
b) Contractor shall determine if the work to be performed under this
contract requires coverage by any Federal Compensation statutes
including, but not limited to, the Longshoremen's and Harbor Workers'
Compensation Act or Xxxxx Act and provide such coverage.
c) The Commercial Umbrella and/or Employer's Liability limits must be
in an amount not less than the amount for each accident included in the
workers' compensation policy or separately obtained in those states
that do not provide employer liability under the workers' compensation
policy.
(d) Fidelity and blanket crime insurance coverage with limits of
$100,000 per occurrence.
Commercial General and Umbrella Liability Insurance - Commercial general and
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umbrella liability insurance with a limit of not less than $2,000,000 each
occurrence.
Commercial Umbrella Liability Insurance - Commercial umbrella liability
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insurance with a limit of not less than $2,000,000 each occurrence.
Professional Liability Insurance - Professional liability insurance with a limit
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of not less than $1,000,000 each occurrence and aggregate. This is to provide
coverage for claims arising out of the performance of professional services
under this contract and caused by any error, omission, or negligent act for
which Contractor is held liable. Contractor shall maintain this insurance for a
minimum period of five years after the completion of the contract.
(The Professional liability insurance requirement is applicable if the
Contractor or subcontractor performs professional services for any reason as
part of this contract.)
Contractor, or any subcontractor, will not be permitted to bring its employees,
materials, or equipment on the site until National Fuel receives from Contractor
a copy of acceptable certificates of insurance. Such certificates shall state
that the insurance carrier has issued the policies providing for the insurance
specified herein, that such policies are in force, that National Fuel is an
additional insured under the insurance, and that the insurance carrier will give
National Fuel sixty (60) days prior written notice of any material change in, or
cancellation of, such policies. If such insurance policies are subject to any
exceptions to the terms specified herein, such exceptions shall be explained in
full in such certificates. National Fuel may, at its discretion, require
Contractor, or any subcontractor, to obtain insurance policies that are not
subject to any exceptions.
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FAILURE TO MAINTAIN THE INSURANCE COVERAGE PROVIDED HEREIN THROUGHOUT THE LIFE
OF THIS AGREEMENT SHALL CONSTITUTE A BREACH OF THE AGREEMENT. IT IS THE
CONTRACTOR'S OBLIGATION TO PROVIDE NATIONAL FUEL WITH CURRENT CERTIFICATES OF
INSURANCE.
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14. CONFIDENTIALITY. In implementing all phases of this project,
Contractor, its officers, representatives, employees, and any permitted
subcontractors (collectively, the "Authorized Persons"), shall maintain all
information gathered, developed or communicated to the Authorized Persons by
Distribution Corporation in connection with the work performed hereunder (the
"Information") in a confidential manner, whether or not identified as
confidential by Distribution Corporation. Contractor agrees that neither it nor
the Authorized Persons will duplicate, distribute, disclose or otherwise provide
the Information to anyone without prior written authorization of Distribution
Corporation. Upon termination of this Agreement, Contractor agrees to return the
information to Distribution Corporation.
15. COMMUNICATIONS. All notices and other communications under this
Agreement shall be deemed effectively made or given if written and delivered to
the appropriate party at the addresses specified below.
a. With respect to Contractor:
Xxxx X. Xxxxxxxx
Data-Track Account Services, Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
b. With respect to Distribution Corporation:
Xxxxxx Xxxxxx
Revenue Recovery Department
National Fuel Gas Distribution Corporation
Appletree Business Park
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
16. AUDIT. Distribution Corporation shall have the right, upon
reasonable notice, to examine and audit all of Contractor (and any
Subcontractor) xxxxxxxx and all of the backup support data for those xxxxxxxx.
Contractor (and Subcontractors) shall make available said information to
Distribution Corporation, upon request, at the office of Contractor or
Subcontractor.
17. COMPLIANCE WITH APPLICABLE LAWS. Contractor agrees to comply with
all applicable federal, state and local laws, rules, regulations, administrative
and executive orders in its performance under the terms of this Agreement,
including but not limited to the following:
(a) New York General Business Law, Article 29-H, Sections 600 - 603;
(b) Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 et
seq.
(c) Pennsylvania Consolidated Statutes, 18 Pa. C.S.A. Section 7311,
and 73 Pa. C.S.A. Sections 201-1 to 201-8.
18. SOCIAL SECURITY AND FAIR LABOR STANDARDS. Contractor covenants
and agrees that it and any of its subcontractors are bound by and will observe
and perform all duties required under the Social Security Act and the United
States Fair Labor Standards Act, and all other applicable local, state, and
federal laws, ordinances, and regulations.
19. EQUAL EMPLOYMENT OPPORTUNITY. The Equal Employment Opportunity
clause in Section 202, Paragraphs 1 through 7 of Executive Order 11246 as
amended; and Section 503 of Title V, as amended, relative to equal employment
opportunity; and Section 12102 of the Americans with Disabilities Acts of 1990
relating to equal employment opportunities; and the implementing Rules and
Regulations of the Office of Federal Contracts Compliance are incorporated
herein by specific reference.
20. WARRANTY OF AUTHORITY. Contractor warrants that it is authorized
to do business in the State of New York. Contractor further warrants that it is
not subject to any non-competition agreement that would be applicable to this
Agreement and/or the services to be performed hereunder.
21. X0X XXXXXXXX. CONTRACTOR represents and warrants that all
services provided under this Agreement will continue to be provided on a timely
basis without interruption from, into and between the twentieth and twenty-first
centuries, the years 1999 and 2000 and any and all leap years and further
provided that such services shall not be interrupted after the date 12/31/99 or
as a result of the passage or advent of such date.
22. NON-WAIVER. Failure of either party to act or exercise his rights
under this Agreement upon the breach of any other items, hereof, by the other
party shall not be construed as a waiver of such a breach or prevent said party
from thereafter enforcing strict compliance with any or all of their terms
thereof.
23. NON-ASSIGNABILITY. This Agreement may not be assigned without the
express written consent of the other party. Any attempted assignment without
prior written consent shall be wholly void and totally ineffective for all
purposes. Furthermore, Contractor agrees not to delegate any obligation which it
has under this Agreement without the prior written permission of Distribution
Corporation. Any attempted delegation without said permission shall be wholly
void and totally ineffective for all purposes.
24. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York.
25. ENTIRE AGREEMENT. It is understood that the foregoing represents
the entire agreement between the parties hereto. This Agreement shall apply to
all accounts presently held by Contractor and shall supersede all prior
agreements and understandings between Contractor and Distribution Corporation,
whether written or oral, with respect to the subject hereof. Any modification to
this Agreement must be agreed upon in writing. If any provision of this
Agreement is found to be invalid, void, unenforceable or prohibited by the laws
of the State of New York, such invalidation shall not affect the remaining
provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have made and entered into
this Agreement as of the date noted above.
NATIONAL FUEL GAS DISTRIBUTION DATA-TRACK ACCOUNT
CORPORATION SERVICES, INC.
By: /s/Xxxxxx X. Xxxxxxxxxxxx By: /s/Xxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxx Name: Xxxxx X. Xxxxx
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Title: Asst. Vice President Title: Secretary
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Date: March 5, 1999 Date: March 8, 1999
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