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HomeMy WebLinkAboutContract 40633 CITY SECRETARY CONTRACT NO.� ,_ PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between CITY OF FORT WORTH ("City"), a home rule municipal corporation of the State of Texas, acting by and through Karen L. Montgomery, its duly authorized Assistant City Manager, and LINEBARGER GOGGAN BLAIR & SAMPSON, LLP ("Attorney"), a Texas limited liability partnership, acting by and through Barbara M. Williams, its duly authorized partner. 1. SCOPE OF SERVICES. Attorney hereby agrees to provide City with professional services for the purpose of(i) collection of all delinquent property taxes, including penalty and interest, (ii) collection of delinquent hotel and motel taxes, (iii) filing of related bankruptcy claims, and (iv) collection of other miscellaneous delinquent accounts, as defined in Exhibit "A". Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A", Statement of Work, more specifically describing the services to be provided hereunder. Attorney shall provide to City a quarterly performance report in the same or substantially same format as that attached in Exhibit "B", Performance Report, attached hereto and incorporated for all purposes incident to this Agreement, as such format and content may be amended from time to time by agreement of the parties. 2. TERM. This Agreement shall commence upon July 1, 2010 ("Effective Date") and shall expire on June 30, 2015, unless terminated earlier in accordance with the provisions of this Agreement. This Agreement, under the same terms and conditions as the initial contract period, may be renewed for up to five one-year renewals at City's sole discretion. 3. COMPENSATION. As allowed by law, City agrees to pay Attorney as compensation for all services provided under this Agreement as follows: (a) fifteen percent (15%) of the amount of all 2002 and previous years delinquent taxes, penalty and interest collected and paid to the collector of taxes during the term of this Agreement; and (b) twenty percent (20%) of the amount of all 2003 and subsequent year delinquent taxes, penalty and interest collected and paid to the collector of taxes during the term of this Agreement. All compensation set forth above shall become the property of Attorney at the time payment of the attorney fees are made to the collector of taxes. City shall pay said funds to Attorney monthly by check. 4. TERMINATION. 4.1. Termination for Convenience City or Attorney may terminate this Agreement at any time and for any reason by providing the other party with 45 days written notice of termination. ,`VCR' H T 4.2 Termination for Cause City may terminate this Agreement if Attorney fails to cure a material breach, which substantially impairs the value of the contract as a whole, within thirty (30) calendar days of receipt of written notice being given by City. If more than thirty (30) calendar days are required to cure such default or breach, a reasonable time in excess of said days may be established, provided both parties agree in writing as to the time period to be substituted. In the event such default or breach is not cured within a specified time, City may terminate this Agreement upon thirty (30) calendar days written notification. 4.3 Rijzht to Assurance Whenever City has reason to question Attorney's intent to perform, City may demand that Attorney give written assurance of Attorney's intent to perform. In the event a demand is made, and no assurance is given within ten (10) calendar days, City may treat this failure as an anticipatory repudiation of this Agreement. 4.4 Non-appropriation of Funds In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Attorney of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.5 Duties and Obligations of the Parties In the event that this Agreement is terminated prior to the end of the term or any renewal period, City shall pay Attorney for services actually rendered up to the effective date of termination and Attorney shall continue to provide City with services requested by City and in accordance with this Agreement up to the effective date of termination. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Attorney hereby warrants to City that Attorney has made full disclosure in writing of any existing or potential conflicts of interest related to Attorney's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Attorney hereby agrees immediately to make full disclosure to City in writing. Attorney, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by City as confidential and shall not disclose any such information to a third party without the prior written approval of City. Attorney shall store and maintain City information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City information in any way. Attorney shall notify City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. Attorney agrees that City shall, until the expiration of three(3)years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of Attorney involving transactions relating to this Agreement at no additional cost to City. Attorney agrees that City shall have access during normal working hours to all necessary Attorney facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give Attorney reasonable advance notice of intended audits. Attorney further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that City shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Attorney shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of City. Subject to and in accordance with the conditions and provisions of this Agreement, Attorney shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Attorney acknowledges that the doctrine of respondeat superior shall not apply as between City, its officers, agents, servants and employees, and Attorney, its officers, agents, employees, servants, contractors and subcontractors. Attorney further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Attorney. 8. INDEMNIFICATION AND RELEASE. ATTORNEY COVENANTS AND AGREES TO, AND DOES HEREBY RELEASE, INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, OR LAWSUITS OF ANY CHARACTER, NAME AND DESCRIPTION BROUGHT FOR OR ON ACCOUNT OF ANY PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO ATTORNEY'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, UNLESS CAUSED BY THE INTENTIONAL CONDUCT OF CITY, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Attorney shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment, the assignee shall execute a written agreement with City and Attorney under which the assignee agrees to be bound by the duties and obligations of Attorney under this Agreement. Attorney and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If City grants consent to a subcontract, the subcontractor shall execute a written agreement with Attorney referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of Attorney under this Agreement as such duties and obligations may apply. Attorney shall provide City with a fully executed copy of any such subcontract. 10. INSURANCE. Attorney shall provide City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $2,000,000 Aggregate (b) Automobile Liability $1,000,000 Each accident on a combined single limit basis or $250,000 Bodily injury per person $500,000 Bodily injury per person per occurrence $100,000 Property damage Coverage shall be on any vehicle used by Attorney, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non- owned (c) Worker's Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease -per each employee $500,000 Disease -policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of$100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee (d) Professional Liability (Errors &Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability(CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made, and maintained for the duration of the contractual agreement and for two(2)years following completion of services provided. An annual certificate of insurance shall be submitted to City to evidence coverage. 10.2 Certificates Certificates of Insurance evidencing that Attorney has obtained all required insurance shall be delivered to City prior to Attorney proceeding with any work pursuant to this Agreement. All policies except Professional Liability shall be endorsed to include a Waiver of Subrogation on behalf of the City. Automobile and General Liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of City to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30)days notice of cancellation or reduction in limits of coverage shall be provided to City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Attorney's insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to City Attorney at the same address. 11. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS. Attorney agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If City notifies Attorney of any violation of such laws, ordinances, rules or regulations, Attorney shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Attorney, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Attorney's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Attorney, its personal representatives, assigns, subcontractors or successors in interest, Attorney agrees to assume such liability and to indemnify and defend City and hold City harmless from such claim. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To City: To ATTORNEY: City of Fort Worth Linebarger Goggan Blair& Sampson, LLP Attn: City Manager Attn: Stephen T. Meeks 1000 Throckmorton 100 Throckmorton, Suite 300 Fort Worth TX 76102-6311 Fort Worth, Texas 76102 Facsimile: (817)392- With a Copy to: City of Fort Worth Attn: City Attorney 1000 Throckmorton Fort Worth, TX 76102-6311 Facsimile: (817) 392-8359 14. SOLICITATION OF EMPLOYEES. Neither City nor Attorney shall, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers. 16. NO WAIVER. The failure of City or Attorney to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of City's or Attorney's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action,whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. City and Attorney shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. AMENDMENTS/MODIE ICATIONS/EXTENSIONS. No extension, modification or amendment of this Agreement shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. 23. DOCUMENTS INCORPORATED. The Request for Proposals for Legal Collection of Delinquent Revenue, RFP No. 10- 0347, Issued March 4, 2010 by City ("RFP"), and Attorney's response to the RFP under a cover letter dated April 15, 2010 ("RFP Response"), is hereby incorporated by reference and made a part of this Agreement. In the event of a conflict between this Agreement and the RFP or RFP Response, this Agreement controls. 24. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between City and Attorney, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 25. SIGNATURE AUTHORITY. The person signing this Agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. 26. M/WBE. Attorney agrees to meet City's M/WBE goal of 20% of the base bid value of this Agreement. Attorney shall, during the term of this Agreement, provide City with quarterly reports detailing their progress toward meeting the requirement for M/WBE participation. City shall have a right of access to any and all books, records and documents which relate to M/WBE attorneys and subcontractors in order to audit and verify the information contained in the quarterly reports. Attorney shall include in all M/WBE subcontracts a similar provision allowing City access to sub-contractor's books, records and documents for these purposes. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have executed this Agreement in counterparts this 30'h day of June, 2010. CITY OF FORT WORTH: ATTORNEY: By. Karen L. Montgomery, Barbara M. Williams, Partner Assistant City Manager �Q// D ATTEST: QQ Fa �a�e By. Poo, City Secretary boo° o v° Acy a 00000° '*Y �y APPROVED AS TO FORM AND LEGALITY: ��j By: �C City Attorney CONTRACT AUK /T(HORIZATION: M&C: Date Approved: U IN WITNESS WHEREOF,the parties hereto have executed this Agreement in counterparts this 30`h day of June,2010. CITY OF FORT WORTH: ATTORNEY: By: a 5 Karen L. Montgomery, harbara M. Williams,Partner Assistant City Manager ATTEST: By: City Secretary APPROVED AS TO FORM AND LEGALITY: By: City Attorney CONTRACT AUTHORIZATION: M&C: Date Approved: OFF Exhibit "A" Statement of Work Scope of Services Required 1. To enforce by suit or otherwise the collection of all delinquent taxes, including penalty and interest. Suits going to judgment shall include all relevant delinquent taxes not otherwise protected. For ad valorem taxes, before a lawsuit is filed or property seized, the County Tax Office must review for compliance and verification with the records kept in that office. 2. To notify County Tax Office, Tarrant Appraisal District or other appropriate parties or governmental agencies/departments of errors, double assessments, name and address corrections or any other discrepancies coming to Attorney's attention. 3. To intervene on behalf of City in all suits for taxes hereafter filed by any taxing unit on property located within City and having delinquent taxes due and owing. 4. To represent City in regard to any ad valorem tax matters in such courts as State and Federal District Courts, Bankruptcy Courts and all State and Federal Appellate Courts. 5. To report as requested on the status of all unresolved delinquent accounts referred to Attorney that are one year or older and to provide information concerning (1) the status of the account; (2) the reasons why the case has not been concluded; (3) whether or not a lawsuit was filed and, if not, why not; and (4) what further action Attorney is contemplating. 6. To receive data from the County Tax Office of delinquent tax accounts and from that data make the necessary demand mailings, telephone contacts, suit filings, or reducing such to a conclusion that results in all applicable taxes, interest, penalties and fees being paid. 7. To have the capacity to accurately calculate all necessary interest, penalties, and fees based upon the various dates of delinquency, pre- and post- petition bankruptcies, date of judgment, delinquent installments, failure to make second-half payments, deferrals and abatements, delinquencies having certain exemptions and all other various calculations necessary to arrive at the correct amount of the tax lien subject to foreclosure. 8. To provide City quarterly performance reports as outlined in Exhibit "B" and other special management reports as required. 9. To file and pursue all bankruptcy claims, amended claims, and administrative claims, and to represent City of Fort Worth at all hearings, appeal adverse decisions, and to pursue taxes, penalties, interest and fees, including hotel and motel occupancy taxes, that were not discharged or are not dischargeable. 10. To file, serve and administer tax warrant seizures and storage thereof until sale or settlement of the delinquent account. IL To enter and delete suit numbers and bankruptcy case numbers on the County Tax Office computer through remote application in Attorney's office. To supply reports as requested to monitor and audit data entries. 12. To provide information on any address changes to the County Tax Office so that the County Tax Office can submit the changes to the Tarrant Appraisal District for entry. 13. To immediately notify the County Tax Office of dismissal or discharge of litigation that prohibited tax billings. 14. To receive and research returned County Tax Office mailings because of inaccurate names and/or addresses, update the County Tax Office computer as needed and in a timely fashion, and provide the Tarrant Appraisal District with written notification of the new owner/address information. 15. To operate and maintain an automated interface between Attorney's computers and the County Tax Office's computers. The interface must have sufficient capability to access the County Tax Office database to provide the necessary inquiries, updates and taxpayer assistance. Any equipment installed in the Attorney's office to achieve such capability are at the sole cost of Attorney, and must, in all instances, be compatible with the County Tax Office software and hardware and have the approval of the County Tax Office before any installation. Use of a web browser to access the County Tax Office web site may also meet this requirement. 16. To maintain a database of the accounts referred to Attorney, the current status of how each account is being pursued, and the date of each activity, including but not limited to demand mailings, telephone contacts and suit status information. The interface referenced above should allow and provide the County Tax Office, as City's tax collector, complete access to the database. Access should allow multiple terminals within the County Tax Office to inquire simultaneously and the Attorney's equipment must support and be compatible with the County Tax Office software and hardware configuration. Any costs of needed hardware/software to allow for existing County Tax Office terminals to access the Attorney's database shall be at the sole expense of Attorney. 17. To utilize print and electronic advertising to promote the payment of ad valorem taxes, impending deadlines, and the potential of litigation. 18. To ensure that tax payments are to be directed to the County Tax Office and all payments from taxpayers are to be made payable to the Tarrant County Tax Assessor/Collector. 19. To clear any major mass mailing effort through the County Tax Office for review of the data's accuracy. 20. To prepare documents and seek injunctions to enjoin hotels/motels from operating in City of Fort Worth, after other methods of collecting hotel occupancy taxes have failed, as prescribed by Section 351.004 of the Texas Tax Code. 21. To enforce by suit or otherwise the collection of all delinquent Public Improvement District assessments, penalties and interest and to treat in all regards these delinquent assessments as delinquent property taxes are treated as delineated in the previous sections. 22. To pursue collection of all delinquent taxes from available funds paid into the court registry in condemnation proceedings. 23. To enforce by suit or otherwise the collection of other delinquent revenue accounts that may include delinquent weed liens and other revenues, as referred to Attorney by City. 24. To expedite the processing of certain delinquent tax accounts at the request of City. 25. To offset the City by contributing the City's cost of collection to Tarrant County. Exhibit "B" Performance Report QUARTERLY REPORT FOR CITY OF QUARTER FORT WORTH CURRENT YEAR a. Number of City's delinquent tax accounts handled by Attorney b. Amount of delinquent taxes due for accounts in(a)above. c. Dollar amount of delinquent taxes collected by Attorney in the current calendar year d. Number of delinquent tax suits filed e. Number of tax suits collected on f. Amount of delinquent taxes due on accounts for which suits were filed g. How many tax seizures performed h. Amount of taxes due in seizures i. Amount of taxes collected as a result of seizures j. Number of properties in bankruptcy handled k. Amount of delinquent taxes due from property in bankruptcy 1. Amount of delinquent taxes collected through bankruptcy m. Amount of hotel/motel occupancy taxes turned over to Attorney for collection n. Amount of hotel/motel occupancy taxes collected o. Amount of other miscellaneous revenue collected, e.g., Code liens or PIDs,