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HomeMy WebLinkAboutContract 39231 (2)STATE OF TEXAS § COUNTY OF TARRANT § G�TY SECRETARY 3 =®NTRACT 140. AGREEMENT FOR PROFESSIONAL COLLECTION SERVICES THIS AGREEMENT FOR PROFESSIONAL COLLECTION SERVICES (Agreement) is made and entered into by and between the City of Fort Worth (City), a home - rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and Linebarger Goggan Blair & Sampson, L.L.P. (Contractor), a Texas law firm, acting by and through its duly authorized Managing Partner. 1. Scope of Services (a) In General Contractor covenants and agrees, with good faith and due diligence, to perform professional collection services on all debts and accounts receivable referred to Contractor by the City's Municipal Court Services Department pursuant to this Agreement (Services). Services shall include all activities and functions generally required of a professional firm in the business of collecting delinquent fines, fees, restitution, and other debts and costs for a municipality. At a minimum, Contractor shall: 1. Make at least three (3) contacts within a 6-month period from the date the Contractor receives the referral data from the City. 2. Make at least one (1) written contact with the debtor via postal services within 60 days of receiving the referral data from the City, unless the Contractor receives written approval from the Director of Municipal Court Services to waive this requirement. The format and language of all written correspondence shall be expressly approved by the City. 3. Make at least one (1) telephone contact with the debtor within thirty (30) days of receiving the referral data from the City unless the Contractor receives written approval from the Director of Municipal Court Services to waive this requirement. The general format of all telephone scripts shall be expressly approved by the City. For purposes of this section, "contact" shall mean exhausting (subject to the limitations established by Section 1(b)) all available means to communicate with the debtor using the postal service, telephone, or any other method that is reasonably accessible to the Contractor. (b) Limitations on Contact No contacts will be made in person by the Contractor to the debtor. Any and all written or telephone contacts shall cease upon notice from the City that the referral has been withdrawn or that the underlying case has been handled in some way that precludes contact. No contacts shall be made after the effective date of termination or expiration of this Agreement. (c) Allocation of Costs Contractor shall bear all costs associated with its collection efforts, including, but not limited to, personnel salaries, document reproduction and mailing costs, mileage charges, costs of postal or other delivery service, and charges for telephone and internet service. (d) Standards of Care and Conduct All services provided by the Contractor hereunder shall be performed with the degree of care and skill ordinarily exercised under similar circumstances by competent members of the debt collection services profession in the State of Texas, and Contractor shall be responsible for all services provided hereunder. Contractor shall perform all duties and services and make all decisions called for under this Agreement promptly and without unreasonable delay and will give its obligations under this Agreement such priority as is necessary to cause the Services to be timely and properly performed. In communicating with debtors, Contractor shall make no promises or offers of delay or stay of execution of any unpaid citation or warrant, nor shall Contractor enter into any agreement purporting to authorize a delay of payment, suspension of warrant, or suspension of fine owed. (e) Training of Personnel Contractor is responsible for the hiring, training, and supervising of all personnel necessary for the performance of this Agreement. Contractor hereby represents, promises, and warrants to the City that Contractor is financially solvent and possesses sufficient experience, authority, personnel, and working capital to complete the Services. (f) Reports and Information from Contractor Contractor shall prepare and provide to the City reports once each calendar quarter documenting the performance of Services by the Contractor under this Agreement. The report shall be submitted to the Director of Municipal Court Services in the months of April, July, October, and January, in a Microsoft Excel Spreadsheet electronic format Agreement for Professional Collection Services Page 2 of 18 (.xls) format and contain all information for the preceding calendar quarter as required herein. The reports shall indicate the number of new referrals received by the Contractor from the City during the preceding three months as well as the total number of referrals on which any activity occurred during the preceding three months ("active referrals"). For each active referral, the report shall include: the debtor/defendant's name and date of birth; the Municipal Court case number(s); the City- reported case amount(s) due; and the number, types, and date(s) of any contacts made ("active referral information"). In addition, if the Contractor received any direct payments from debtors during the preceding three months, the report shall indicate the total amount of such payments and for each such payment shall include all of the active referral information as well as the amount of payment(s) due to Contractor. In addition, at least once per quarter the Contractor shall provide the City with any updated debtor contact information that the Contractor has obtained; this information shall be furnished on portable electronic media in an Extensible Markup Language (.xml) format. Further, Contractor shall provide such information on its activities concerning the referred debts and accounts receivable as may be reasonably requested by the Director of Municipal Court Services or that person's designee. 2. Term; Termination a) Primar�m The primary term of this Agreement shall be for a period of twelve (12) months beginning August 1, 2009, and ending July 31, 2010, unless terminated sooner in accordance with this Section. Between August 1 and September 30, 2009, the parties shall exchange information to conduct testing of the information sharing and collections process. Actual collection efforts shall begin on October 1, 2009. os n addition to the primary term, the City may, at its discretion, renew this Agreement for up to two additional, one-year renewal periods on the same terms and conditions by providing written notice to Contractor at least ninety (90) days before the end of the then - current term. I c) Termination at Will City may terminate this Agreement at any time, with or without cause, by giving thirty (30) days' written notice to the Contractor. Following receipt of the notice, the Contractor will continue to perform collection services under the terms of this Agreement through the effective date of termination. Within one month of the effective date of Agreement for Professional Collection Services Page 3 of 18 termination, Contractor shall provide City with a final statement showing a detailed history of each referred debt and account receivable that remains outstanding. d) Termination for Cause In the event of breach of any the provisions of this Agreement by Contractor, City may terminate this Agreement immediately by giving written notice to Contractor. 3. Referrals (a) General Referral Criteria The City may, in its discretion and pursuant to the criteria listed herein, refer to the Contractor debts and accounts receivable (such as unpaid fines, fees, court costs, forfeited bonds, or restitution) ordered paid by the Fort Worth Municipal Court or by a hearing officer serving the City under Chapter 682 of the Texas Transportation Code. No debt or account receivable will be referred to the Contractor until such amount is more than 60 days past due. For purposes of this Agreement, an amount is considered more than 60 days past due if it remains unpaid on the 61 st day after the date on which the debt or account receivable must be paid in full as determined by the court or hearing officer. (b) Addition of Collection Service Fee In accordance with Article 103.0031(b) of the Texas Code of Criminal Procedure, prior to making a referral to the Contractor, the Fort Worth Municipal Court Services Department shall calculate and assess a thirty percent (30%) collection fee on all eligible debts and accounts receivable. For purposes of calculating and assessing the collection fee, the eligible debt or account receivable shall not include a charge imposed pursuant to Chapter 706 of the Texas Transportation Code. For purposes of this Agreement, an eligible debt or account receivable is one that is more than 60 days past due and that relates to an offense that occurred on or after June 18, 2003. A debt or account receivable is not eligible if it relates to an offense that occurred prior to June 18, 2003. Both eligible and non -eligible debts and accounts receivable may, in the City's discretion, be referred to the Contractor for collection services. (c) Limits on Referrals No debt or account receivable shall be submitted to the Contractor if such amount relates to a "JV" case or any other case involving an individual who is less than eighteen (18) years of age. In the event such a debt or account receivable is inadvertently referred to the Contractor, the Contractor shall immediately notify the City, and the debt or account receivable shall be withdrawn. Agreement for Professional Collection Services Page 4 of 18 The City shall retain complete discretion regarding the number and types of debts and accounts receivable to be submitted to the Contractor for collection services. (d) Character and Use of Referred Information City makes no express or implied warranty to the Contractor regarding the accuracy of any data provided on any referred debt or account receivable, nor does it make any express or implied warranty concerning the value or collectability of any such debt or account receivable. All information supplied by the City to the Contractor shall be kept confidential and disclosed to Contractor's employees only on a needAo4mow basis for use solely for the purpose of performance of the Services. Disclosure of information by Contractor or its employees to a debtor or spouse of a debtor shall occur only in accordance and compliance with applicable debt -collection laws and regulations. (d) Withdrawal of Referrals The City may at any time and in its sole discretion withdraw any debt or account receivable that was previously referred to the Contractor. (e) Method of Making Referrals All data regarding debts and accounts receivable being referred to the Contractor shall be provided on portable electronic media in an Extensible Markup Language (.xml) format, or through an interface with the City's case management system. If the City opts to enhance or upgrade Municipal Court's electronic document management software to include a collections module, the City and Contractor shall negotiate in good faith to amend this Agreement to allow for use of data compatible with such module. On or before October 1, 2009, the City shall provide Contractor with an initial group of referrals, which shall include all eligible debts and accounts receivable that were outstanding as of December 31, 2008. The Contractor shall not contact more than Fifty Thousand (50,000) individual debtors/defendants per month, unless prior approval is obtained from the Director of the Municipal Court Services Department. Thereafter, at least once every three months City shall provide Contractor with new referrals and updated information on existing referrals, including notice of withdrawals. The City shall provide the Contractor with daily updates on any activity for cases that have been referred. (e) Payments by Debtors In all written and telephone contacts, the Contractor shall instruct debtors to make all payments and direct all inquiries regarding the debts and accounts receivable and their associated cases to the City of Fort Worth Municipal Court Services Department at the following address: Agreement for Professional Collection Services Page 5 of 18 A.D. Marshall Public Safety & Courts Building 1000 Throckmorton Street Fort Worth, Texas 76102-63 82 (817)392-6700 The Contractor shall not solicit or accept any payment from a debtor. If the Contractor receives any payment, the Contractor shall immediately remit the full amount of such payment to the Municipal Court Services Department at the address listed above. If Contractor receives a payment related to an active warrant, Contractor shall require the debtor to execute a waiver releasing and absolving the City of liability for any actions that might occur between the time of payment to Contractor and the time such payment is received by the City and entered into City records. 4. Consideration (a) In General In exchange for providing the Services detailed above, the Contractor shall be entitled to that portion of the thirty percent (30%) collection fee assessed in accordance with Section 3(b) of this Agreement and Article 103.0031(b) of the Texas Code of Criminal Procedure that is actually received by the City. (b) Limitations on Collection Fee No collection fee shall be assessed, collected, or paid to Contractor for any debt or account receivable that is not "eligible" as that term is defined in Section 3(b) of this Agreement, nor shall any collection fee be assessed, collected, or paid to Contractor on a charge imposed pursuant to Chapter 706 of the Texas Transportation Code. In accordance with Article 103.0031(d) of the Texas Code of Criminal Procedure, if the court or hearing officer of original jurisdiction has determined the debtor is indigent, or has insufficient resources or income, or is otherwise unable to pay all or part of the underlying fine or costs, the debtor is not liable for and the Contractor shall not receive the collection fees. City is under no obligation to pay collection fees under these circumstances. If, for any reason, the City receives less than the full amount of a debt or account receivable (including all fines, fees, restitutions, administrative and court costs, any other court -ordered or hearing -officer -ordered debt or cost, and the collection fee), the allocation to the Texas Comptroller, the City, and the Contractor shall be reduced proportionately in accordance with Article 103.0031(e) of the Texas Code of Criminal Procedure. Agreement for Professional Collection Services Page 6 of 18 Pursuant to Article 103.0031(b) of the Texas Code of Criminal Procedure, no collection fee shall apply or be paid to the Contractor if (i) the underlying case has been dismissed by a court or hearing officer of competent jurisdiction or (ii) underlying amounts have been satisfied through time -served credit or community service. City is under no obligation to pay collection fees under these circumstances. In the event an eligible debt or account receivable is settled partially through time -served credit and partially through monetary payment, the collection fee shall apply to the portion of the debt that is paid, and the Contractor shall be entitled to such collection fees to the extent they are actually received by the City. (c) Payments to Contractor City shall make payments to the Contractor once per calendar quarter of all collection fees that have been imposed under Section 2(b) of the Agreement and that have been actually received by the City. These payments will be accomplished in coordination with the quarterly payments made to the State of Texas by City. Quarterly payments from the City shall be accompanied by a report in a Microsoft Excel Spreadsheet (.xls) format documenting referrals that were resolved in the preceding three months. For referrals that were resolved by full or partial payment, the report shall include the following information: the debtor/defendant's name and date of birth, the Municipal Court case number(s), the original City -reported case amount(s) due, the amount of money actually received (including any modified case amount(s) due), and the amount of payment being remitted to Contractor. For referrals that were resolved by any non -monetary means (including but not limited to, dismissal, a finding of indigence, and debtor/defendant serving jail time), the report shall include the following information: the debtor/defendant's name and date of birth, the Municipal Court case number(s), the original City -reported case amount(s) due, and a brief explanation of the non -monetary resolution. (d) Additional Consideration In addition to providing Services under this Agreement, Contractor agrees to: 1. Pay the City Twenty -Five Thousand Dollars ($25,000.00) no later than October 1 of each year this Agreement is in effect for use by the City for promotional and special enforcement efforts associated with collection of debts and accounts receivable. 2. Pay the City Fifteen Thousand Dollars ($15,000.00) no later than October 1 of each year this Agreement is in effect for use by the City for supplemental law enforcement services during Warrant Round -Ups or special initiatives as designated by the City Marshal. 3. Develop, maintain, and host an on-line Internet payment portal capable of processing electronic funds transfers from a bank or credit card account of a Agreement for Professional Collection Services Page 7 of 18 debtor/defendant directly to one or more specifically designated City accounts. No payment processed through such portal shall be passed through or deposited in any account belonging to or associated with the Contractor. These payments shall be made out of Contractor's separate funds and not from any monies that Contractor receives as compensation under this Agreement. These payments shall be due and payable regardless of whether Contractor's collection efforts result in any recovery of the accounts receivable or of Contractor's fee. 5. Agreement Administrator The Director of Municipal Court Services shall serve as administrator of this Agreement for the City and is authorized to act on behalf of and bind the City with respect to all day-to-day matters related to administration of this Agreement. However, the Director of Municipal Court Services is not authorized to execute this Agreement, any amendment hereto, or any assignment hereof, such action shall require the signature of the City Manager or an Assistant City Manager in order to be binding on the City. All Services shall be coordinated with and performed to the satisfaction of the Director of Municipal Court Services, who may meet with Contractor on a monthly basis to reconcile all collected accounts. For purposes of this Agreement, the term "Director of Municipal Court Services" shall also include that person's authorized representative. Agreement for Professional Collection Services Page 8 of 18 6. Indemnification and Release Contractor covenants and agrees to indemnify, hold harmless, and defend the City, its officers, agents, and employees from any and all claims or suits for property damage or loss and/or personal injury (including death) to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of the work and services to be performed hereunder by Contractor, its officers, agents, employees, or subcontractors, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE OFFICERS, AGENTS, OR EMPLOYEES OF THE CITY. Contractor covenants and agrees to indemnify, hold harmless, and defend the City, its officers, agents, and employees from any and all claims or suits or for any expense arising out of or in connection with, directly or indirectly, the collection services performed under this Agreement WHETHER OR NOT SAID LOSS, DAMAGE, LIABILITY, OR EXPENSE IS A RESULT OF THE ALLEGED NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS, OR EMPLOYEES. This indemnity shall include without limitation any reasonable and necessary attorney's fees for the defense of any claim hereunder including any appeal of said claims. The Indemnity provision of this Agreement shall have no application to any claim or demand that is the result of the sole negligence or fault of the City, its officers, agents, or employees. In the event that litigation is initiated against the City by a defendant contacted by the Contractor in the collection activity of the Contractor, then the Contractor agrees to represent the City in such litigation as a part of the services compensated in this Agreement. In addition, by executing this Agreement, Contractor releases the City, its officers, agents, and employees from any liability for property damage or loss and/or personal injury (including death) incurred during performance of this Agreement. 7. Insurance and Bonding Contractor shall take out and maintain such policies of insurance and bonds as may be required by the City for Contractor's operations under this Agreement. At present, such insurance and bonding shall consist of at least the following: Workers' Compensation Insurance Contractor must provide Workers' Compensation/Employer's Liability insurance for all of its employees and, in the event any work is subcontracted, Contractor will require each subcontractor to provide Workers' Compensation insurance in accordance with the requirements of the City, including Coverage B. Minimum coverage amounts for Workers' Compensation/Employer's Liability insurance are as follows: Agreement for Professional Collection Services Page 9 of 18 $10000 — Bodily Injury by Disease per employee $500,000 — Bodily Injury by Disease aggregate $100,000 —Bodily Injury by Accident Professional Liability Insurance Contractor is required to procure insurance providing the following minimum coverage amounts. $1,000,000 —per claim or event $1,000,000 —annual aggregate Any deductible will be the sole responsibility of the Contractor and may not exceed $50,000 without the written approval of the City. The retroactive or prior acts date of such coverage shall not be after the effective date of this Contract. This policy will provide coverage for all claims the Contractor may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Contractor's professional services required under the contract, and include an extended reporting period provision of a minimum of three (3) years following completion of the work. General Requirements Applicable to All Insurance: • Certificates of insurance shall be delivered to the City of Fort Worth prior to commencement of work, addressed to the attention of Sue Haupt, Risk Management, 1000 Throckmorton Street, Fort Worth, Texas 76102. • The City's Risk Manager shall have the right to review and evaluate Contractor's insurance coverage and to make reasonable requests for deletion, revision, or modifications of particular policy terms, conditions, limitations, or exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decision, or the claims history of the industry and/or of the Contractor. Contractor shall comply with such requests as a condition precedent to the effectiveness of this Agreement. Contractor shall be afforded ninety (90) days to implement such changes, provided, however, that no change shall be required where policy provisions are established by law or regulations binding upon the Contractor, its insurer, or the policy underwriter. • The City, its officers, employees, and servants shall be endorsed as an additional insured on each insurance policy required under this Agreement with the exception of Contractor's worker's compensation insurance policy. Agreement for Professional Collection Services Page 10 of 18 • Each insurance policy shall be endorsed to provide the City a minimum thirty (30) days' notice of cancellation, non -renewal, and/or material change in policy terms or coverage. • Each certificate shall be signed by an agent authorized to bond coverage on behalf of the insured, be complete in its entirety, and show complete insurance carrier names as listed in the most -recent A.M. Best Property & Casualty Guide. • All policies shall include a Waiver of Subrogation (Rights of Recovery) in favor of the City of Fort Worth. • Any deductible in excess of $5,000.00, for any policy that does not provide coverage on a first -dollar basis, must be acceptable to and approved by the City's Risk Management Division • Contractor's insurance policies shall each be endorsed to provide that such insurance is primary protection and that any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery • The insurers for all policies must be licensed and/or approved to do business in the State of Texas. Except for workers' compensation, all insurers must have a minimum rating of A VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If an insurer's rating does not meet the minimum requirement, written approval of Risk Management is required. • If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. • Unless otherwise stated, all required insurance shall be written on an "occurrence basis." If coverage is underwritten on a "claims made" basis, the retroactive date shall be coincident with or prior to the date of this Agreement, and the certificate of insurance shall state that the coverage is "claims made" and indicate the retroactive date. • All insurance coverage shall be maintained for the duration of this Agreement and for three (3) years following completion of the services or for the warranty period, whichever is longer. • Contractor shall annually provide the City's Risk Management Division with current certificates of insurance to evidence coverage in accordance with this Agreement. Agreement for Professional Collection Services Page 11 of 18 • Policies shall contain no exclusions by endorsements that nullify the required lines of coverage or that decrease the limits of coverage unless such endorsements have been approved in advance, in writing by the City's Risk Manager. • With the exception of worker's compensation insurance, the City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups in lieu of traditional insurance. Prior to employing such alternative coverage, Contractor must obtain City's written approval. • City shall not be responsible for the direct payment of insurance premium costs for Contractor's insurance. • During any term of this Agreement, Contractor shall report to the Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a property loss. • Contractor's liability shall not be limited to the specified amounts of insurance required herein. • Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. Employee Dishonesty Bond Contractor shall provide an employee dishonesty bond in an amount of at least One Million Dollars ($1,000,000.00) per event, to run in favor of the City as its interest may appear. For a bond to be acceptable it must be executed by a corporate surety authorized to do business in the State of Texas and otherwise acceptable to the City. Performance Bond or Irrevocable Standby Letter of Credit Before commencing work under this Agreement, Contractor shall furnish City with a performance Bond or Irrevocable Standby Letter of Credit in the amount of Fifty Thousand Dollars ($50,000.00) guaranteeing Contractor's performance of the terms and conditions of this Agreement. For a letter of credit to be acceptable it must be irrevocable and be issued by a federally insured (FDIC) banking institution with a debt rating of "lA" or higher by the FDIC, "A" or higher by Standard & Poor's, or "A" or higher by Moody's Investors, or a comparable rating by a comparable rating system acceptable by the City. For a bond to be acceptable it must be issued by a corporate surety authorized to do business in the State of Texas and otherwise acceptable to the City. Agreement for Professional Collection Services Page 12 of 18 8. Independent Contractor Contractor shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, or employee of the City. Contractor shall have exclusive control of, and the exclusive right to control, the details of the work performed hereunder and all persons performing same, and Contractor shall be solely responsible for the acts and omissions of its officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between the City and Contractor, their respective officers, agents, employees, subcontractors, or any of them. The doctrine of respondeat superior shall have no application as between City and Contractor. 9. Compliance with Law In performing collection services hereunder, Contractor shall comply at all times with all Federal, state, and local laws, regulations, and ordinances (including policies of the City) that in any manner affect the Contractor or the Services, including in particular those related to debt collection. In accordance with Section 7 of this Agreement, Contractor shall indemnify and hold harmless the City, its officers, agents, employees, and separate contractors against any claim arising from the alleged violation of such a law, ordinance, or regulation by the Contractor, its officers, agents, employees, directors, owners, or separate contractors. 10. Permits Contractor shall obtain, at its expense, any necessary permits from any governmental authority for the performance of the services hereunder. 11. Records, Statements, Reports For a period of three (3) years after final payment under this Agreement or any subcontract, Contractor and its permitted subcontractors shall keep and maintain accurate records relating to activity on debts and accounts receivable referred by the City to Contractor. 12. Right to Audit (a) Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any books, documents, papers, and records of the Contractor involving transactions relating to this Agreement. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. Agreement for Professional Collection Services Page 13 of 18 (b) Contractor further agrees to include in any subcontractor agreements hereunder a provision to the effect that Subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subagreement, have (i) access to and the right to examine any books, documents, papers and records of such subcontractor, involving transactions relating to the subagreement; and (ii) access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. (c) Nothing herein shall be construed as limiting City's rights of access to any examination of books, documents, papers, and records that may exist independently of this provision. 13. Notices Notices required or allowed to be provided hereunder shall be sufficient if forwarded to the other party by hand -delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party shown below: Agreement for Professional Collection Services Page 14 of 18 Charles W. Daniels, Assistant City Manager City of Fort Worth 1000 Throckmorton St. Fort Worth, Texas 76102 (817) 392-6183 Stephen T. Meeks, Managing Partner Linebarger Goggan Blair & Sampson, LLP 100 Throckmorton, Suite 300 Fort Worth, Texas 76102 (817) 317-9515 Such notice shall be deemed to have been received on the third day after it was deposited with the United States Postal Service, directed to the last known address of the other party, with applicable postage charges prepaid. 14. Force Majeure If either party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. 15. M/WBE Participation Contractor agrees to comply with the City's Minority/Women's Business Enterprise (M/WBE) Ordinance and any subsequent amendments thereto by committing to five percent (5%) M/WBE participation. 16. Assignment With the exception of subcontracting work to enable Contractor to comply with MIWBE requirements of this Agreement, Contractor may not assign or transfer any interest in the Agreement nor delegate the performance of any duties hereunder without the written consent of the City Manager or an Assistant City Manager. Any such attempted assignment without prior written consent shall be void. Consent of the City to an assignment shall not relieve the Contractor of liability in the event of default by its assignee. Agreement for Professional Collection Services Page 15 of 18 17. Nondiscrimination As a condition of this Agreement, Contractor covenants that it will take all necessary action to insure that in connection with any work under this Agreement, the Contractor, will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex or physical handicap unrelated to job performance, either directly or indirectly or through contractual or other arrangements. 18. Choice of Law; Venue This Agreement shall be construed in accordance with law of the State of Texas. Should any action at law or in equity arise, directly or indirectly, out of the terms of this Agreement, venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 19. Parties Bound This Agreement shall be binding upon and inure to the benefit to the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. Each undersigned signatory represents and warrants that he or she is the duly authorized representative of the party on whose he or she is signing and is authorized to execute this Agreement. Nothing herein shall be construed as creating a personal liability on the part of any City officer, employee, or agent. 20. Severability In the event any one or more of the provisions contained in this Agreement should for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 21. Amendment No amendment, modification, or alteration of the terms hereof shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. Agreement for Professional Collection Services Page 16 of 18 22. Rights and Remedies Cumulative The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive that party's right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise. 23. Waiver of Default No waiver by either party hereto of any default or breach of any term, condition, or covenant of this Agreement shall be deemed to be a waiver of any other breach of the same or any other term, condition, or covenant contained herein. 24. Governmental Powers Both parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. 25. Headings Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 26. Entire Agreement This written instrument (together with any attachments, exhibits, and appendices) constitutes the entire understanding between the parties concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. [SIGNATURES APPEAR ON FOLLOWING PAGE] Agreement for Professional Collection Services Page 17 of 18 tp EXECUTED in multiple originals on this, the day of , 2009. CITY OF FORT WORTH, TEXAS Assistant City Manager Date Signed: ATTEST: Witty secretary AND APPROL VED�E�;S�O FORM GA Denis'E':. McElroy`) Assistant City Aft rney M&C C-23565 LINEBARGER GOGGAN BLAIR & SAMPSON, L.L.P. Onx Managing Partner Date Signed: g % WITNESS: Agreement for Professional Collection Services Page 18 of 18 M&C Review Page 1 of 2 Official site of the City of Foit Worth, Texas i' COUNCIL ACTION: Approved on 6/2/2009 -Ord. No. 18645-06-2009 DATE: 6/2/2009 REFERENCE NO.: C-23565 LOG NAME: 38COURTCOLLECT CODE: C TYPE: CONSENT HEARING: NO SUBJECT: Authorize a Professional Services Contract with Linebarger Goggan Blair and Sampson, LLP, for Collection of Delinquent Parking and Criminal Citations and Adoption of Ordinance Amending Chapter 10 of the City Code to Permit Collections of Fees for Delinquent Amounts Ordered by a Hearing Officer RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to negotiate and execute a contract with the law firm of Linebarger Goggan Blair and Sampson, LLP, for the collection of delinquent civil parking and criminal citations; 2. Authorize the contract to begin August 1, 2009, and expire July 31, 2010, with two one year renewal options; and 3. Adopt the attached ordinance amending Ordinance No. 15144 and authorizing the addition of collection fees in the amount of 30 percent on debts and accounts receivable such as unpaid fines, fees, court costs, forfeited bonds and restitution ordered paid by the Municipal Court or by the hearing officer appointed under Chapter 682 of the Texas Transportation Code. DISCUSSION: In an effort to improve collection of delinquent civil parking and criminal citations, the Municipal Court Services Department issued a request for proposal (RFP) for collection services on August 14, 2008. Third party collection services were previously discontinued in September 2005, to prepare for the implementation of the Court View case management system. Eleven proposals were received and evaluated by a team composed of staff from Municipal Court, Finance, Internal Audit and the M/WBE Office. A thorough review of the proposals was conducted using the following criteria: collection rates, cost to the City of Fort Worth, qualifications and experience, completeness and quality of the response, M/WBE compliance and staff and technology resources. Based on the evaluations and interviews, staff recommends negotiating and executing a contract with Linebarger Goggan Blair and Sampson, LLP, at no direct cost to the City. Article 103.0031 of the Code of Criminal Procedure allows the City Council to enter into a collections contract with a third party and to authorize the addition of a 30 percent collection fee on certain types of debts referred for collection. On June 25, 2002, the Fort Worth City Council adopted Ordinance No. 15144, which authorized imposition of the collection fee on court -ordered debts. Staff recommends amending that ordinance to conform with changes in State law and to authorize imposing the collection fee on amounts ordered to be paid by the City's hearing officer, who is appointed under Chapter 682 of the Transportation Code, so that delinquent parking citations would also be subject to the collection fee. Imposing a 30 percent fee on delinquent debts referred to a third http://apps.cfwnet.org/council�acket/mc_review.asp?ID=11832&councildate=6/2/2009 9/23/2009 M&C Review Page 2 of 2 party collector allows for compensation of the collector by the defendant rather than through direct expenditure of City funds. Under the proposed contracts delinquent amounts with an offense date on or after June 18, 2003, that are subject to the 30 percent fee would be referred to the collection agency. Defendants would receive collection notices indicating amounts due (including the collections fee) and would make payments directly to the Municipal Count. If less than full payment is received, amounts due to the collection agency would be reduced proportionately. The Municipal Court will be responsible for processing payments made by defendants and for tracking and monitoring activity and reconciling the collection fee due to Linebarger Goggan Blair and Sampson, LLP: Linebarger Goggan Blair and Sampson, LLP, is in compliance with the City's M/WBE Ordinance by committing to five percent M/WBE participation on this project. The City's goal on this project is five percent. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers Submitted for City Manager's Office bv: Originating Department Head: Additional Information Contact: ATTACHMENTS 38COURTCO__LLECT_Ord..doc FROM Fund/Account/Centers Charles Daniels (6183) Deidra Emerson (6711) Deidra Emerson (6711) http://apes.cfwnet.org/council�acket/mc_review.asp?ID=11832&councildate=6/2/2009 9/23/2009