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HomeMy WebLinkAbout20-042 - Linebarger Goggin Blair & Sampson, LLP - Collection ServicesCity of Tukwila 6200 Southcenter Boulevard, Tukwila WA 98188 Contract Number: CONTRACT FOR SERVICES 20-042 Council Approval N/A This Agreement is entered into by and between the Tukwila Municipal Court, a governmental branch of the City of Tukwila, Washington, a non -charter optional municipal code city, hereinafter referred to as "the Court," and Linebarger Goqqin Blair & Sampson. LLP, hereinafter referred to as "the Contractor," whose principal office is located at Terrace 2, 2700 Via Fortuna Ste. 500, Austin, TX 78746. WHEREAS, the Court has determined the need to have certain services performed for its citizens but does not have the manpower or expertise to perform such services; and WHEREAS, the Court desires to have the Contractor perform such services pursuant to certain terms and conditions; now, therefore, IN CONSIDERATION OF the mutual benefits and conditions hereinafter contained, the parties hereto agree as follows: 1. Scone and Schedule of Services to be Performed by Contractor. The Contractor shall perform those services described on Exhibit A attached hereto and incorporated herein by this reference as if fully set forth. In performing such services, the Contractor shall at all times comply with all Federal, State, and local statutes, rules and ordinances applicable to the performance of such services and the handling of any funds used in connection therewith. The Contractor shall request and obtain prior written approval from the Court if the scope or schedule is to be modified in any way. 2. Compensation and Method of Payment. The Court shall pay the Contractor for services rendered according to the rate and method set forth on Exhibit B attached hereto and incorporated herein by this reference. The total amount to be paid shall not exceed f N/A -no cost to Court] at a rate of IN/Al. 3. Contractor Budaet. The Contractor shall apply the funds received under this Agreement within the maximum limits set forth in this Agreement. The Contractor shall request prior approval from the Court whenever the Contractor desires to amend its budget in any way. 4. Duration of Agreement. This Agreement shall be in full force and effect for a period commencing May 1, 202Q, and ending as Provided in Exhibit A, unless sooner terminated under the provisions hereinafter specified. 5. Jndeoendent Contractor. Contractor and Court agree that Contractor is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither Contractor nor any employee of Contractor shall be entitled to any benefits accorded Court employees by virtue of the services provided under this Agreement. The Court shall not be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Contractor, or any employee of the Contractor. CI, cds CA Revised December 2016 Page 1 6. Indemnification. The Contractor shall defend, indemnify and hold the Public Entity, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the Public Entity. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the Public Entity, its officers, officials, employees, and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Contractors waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 7. Insurance. The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. Contractor's maintenance of insurance, its scope of coverage and limits as required herein shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the Court's recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance. Contractor shall obtain insurance of the types and with the limits described below: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Automobile liability insurance shall cover all owned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and $2,000,000 products -completed operations aggregate limit. Commercial General Liability insurance shall be as least at broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products -completed operations, stop gap liability, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide a per project general aggregate limit using ISO form CG 25 03 05 09 or an equivalent endorsement. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The Court shall be named as an additional insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the Court using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing at least as broad coverage. 3. WorkersCompensation coverage as required by the Industrial Insurance laws of the State of Washington. CA Revised December 2016 Page 2 B. Other Insurance Provision. The Contractor's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance with respect to the Court. Any insurance, self-insurance, or insurance pool coverage maintained by the Court shall be excess of the Contractor's insurance and shall not contribute with it. C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. D. Verification of Coverage. Contractor shall furnish the Court with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. Upon request by the Court, the Contractor shall furnish certified copies of all required insurance policies, including endorsements, required in this Agreement and evidence of all subcontractors' coverage. E. Subcontractors. The Contractor shall have sole responsibility for determining the insurance coverage and limits required, if any, to be obtained by subcontractors, which determination shall be made in accordance with reasonable and prudent business practices. F. Notice of Cancellation. The Contractor shall provide the Court and all Additional Insureds for this work with written notice of any policy cancellation, within two business days of their receipt of such notice. G. Failure to Maintain Insurance. Failure on the part of the Contractor to maintain the insurance as required shall constitute a material breach of contract, upon which the Court may, after giving five business days notice to the Contractor to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the Court on demand, or at the sole discretion of the Court, offset against funds due the Contractor from the Court. 8. Record Keeping and Reporting. A. The Contractor shall maintain accounts and records, including personnel, property, financial and programmatic records which sufficiently and properly reflect all direct and indirect costs of any nature expended and services performed in the performance of this Agreement and other such records as may be deemed necessary by the Court to ensure the performance of this Agreement. B. These records shall be maintained for a period of seven (7) years after termination hereof unless permission to destroy them is granted by the office of the archivist in accordance with RCW Chapter 40.14 and by the Court. 9. Audits and Inspections. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by law during the performance of this Agreement. 10. Termination. This Agreement may at any time be terminated by the Court giving to the Contractor thirty (30) days written notice of the Court's intention to terminate the same. Failure to provide products on schedule may result in contract termination. If the Contractor's insurance coverage is canceled for any reason, the Court shall have the right to terminate this Agreement immediately. it Discrimination Prohibited. The Consultant, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation, the presence of any disability, or any other protected class status under state or federal law, in the selection and retention of employees or procurement of materials or supplies. CA Revised December 2016 Page 3 12. Assignment and Subcontract. The Contractor shall not assign or subcontract any portion of the services contemplated by this Agreement without the written consent of the Court. 13. Entire Aareement: Modification. This Agreement, together with attachments or addenda, represents the entire and integrated Agreement between the Court and the Contractor and supersedes all prior negotiations, representations, or agreements written or oral. No amendment or modification of this Agreement shall be of any force or effect unless it is in writing and signed by the parties. 14. Severabilitv and Survival. If any term, condition or provision of this Agreement is declared void or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. The provisions of this Agreement, which by their sense and context are reasonably intended to survive the completion, expiration or cancellation of this Agreement, shall survive termination of this Agreement. 15. Notices. Notices to the Court of Tukwila shall be sent to the following address: Municipal Court Clerk, City of Tukwila 6200 Southcenter Blvd. Tukwila, Washington 98188 Notices to the Contractor shall be sent to the address provided by the Contractor upon the signature line below. 16. Applicable Law: Venue: Attorney's Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. DATED this 27th day of May , 2020. TUKWILA MUNICIPAL C. RT LINEBARGER GOGGAN BLAIR & SAMPSON, LLP By: Ki A. den Pr siding Judge By: LaTricia Kinlow Court Administrator CA Revised December 2016 Kevin Underwood Attorney for the Firm Page 4 EXHIBIT A SCOPE AND SCHEDULE OF SERVICES FIRM RETAINED TUKWILA MUNICIPAL COURT (the "COURT") agrees to employ and does hereby employ LINEBARGER GOGGAN BLAIR & SAMPSON, LLP (the "FIRM") to enforce the collection of unpaid accounts receivable pursuant to the terms and conditions described in the contract to which this Exhibit A is attached (the "Contract") and its attached Exhibits. The Contract supersedes all prior oral and written agreements between the parties, and can be amended only if done so in writing and signed by all parties. Furthermore, the Contract cannot be transferred, delegated or assigned by either party without the written consent of all parties. The Contract creates an attorney -client relationship between CITY and FIRM. 11 TERM AND TERMINATION The term of the Contract shall commence as stated in the Contract, and will continue until terminated. As stated in the Contract, COURT may terminate the Contract on thirty (30) days' written notice of termination. FIRM may terminate the Contract on sixty (60) days' written notice of termination. 111 REFERRAL OF ACCOUNTS 1. Referral Process. COURT agrees to refer unpaid accounts to FIRM for collection by electronic medium, in a format and frequency to be agreed upon by the parties. COURT will provide FIRM with copies of, or access to, the information and documentation necessary to effectuate the services that are subject to this contract. COURT represents that, to the best of COURT's knowledge, the information provided or made available will be current and accurate, and that no account or account defendant will be subject to any bankruptcy stay, discharge or proceeding at the time of referral. FIRM shall use account information provided by COURT for the purposes of account collection only, and shall keep all such information confidential from any third party without express written authority from COURT. FIRM will provide COURT with status reports in the frequency and manner agreed upon by the parties. Should it become necessary for FIRM to provide computer hardware, software, programming services and/or in-house personnel to COURT, in order for this contract to be performed, a separate agreement and fee structure shall be negotiated and agreed to in writing by both parties hereto. FIRM shall not report accounts to the credit reporting agencies. 2. Pre -Referral Notice. COURT may elect to send a pre -referral notice to defendants, advising that the defendants will be referred to collection if their accounts remain unpaid. At COURT's request, FIRM will generate and mail such notices on COURT's behalf, and at FIRM's expense. CA Revised December 2016 Page 5 IV ACCOUNT CANCELLATION Accounts identified as being in bankruptcy and/or when the account holder is found to be deceased, deemed indigent or otherwise unable to pay, shall be returned. Upon return of these accounts, neither party will have any obligation to the other party to this contract with regard to collection of the returned accounts. COURT recognizes that collection efforts by FIRM at any level, but particularly efforts involving legal proceeding such as garnishment, will often prompt a defendant to contact COURT and seek to pay directly to COURT only the original amount owed (i.e., without paying the added collection fees). COURT agrees to exercise caution when cancelling accounts assigned to collection. V CONCURRENT REPRESENTATION 1. FIRM has specifically advised COURT that FIRM's concurrent representation of COURT and other government entities (whether currently represented by FIRM or those governmental entities who may be represented by FIRM in the future) against a common debtor constitutes a potential conflict of interest. FIRM has advised COURT that, provided COURT and all participating entities consent, FIRM intends to "cross packet" claims owed to all the governmental entities whom FIRM currently represents and whom FIRM may ultimately represent in the future against a common debtor. Although all of the governmental entities represented by, or to be represented by, FIRM have a common interest in the collection of monetary amounts owed by the common debtor, there is a potential conflict regarding the manner in which any proceeds collected from the common debtor are to be disbursed among the various governmental entities represented by FIRM (present and/or future). FIRM proposes, with the consent of COURT and all participating government entities, to disburse all monetary proceeds recovered from a common debtor to each of the government entities on an equal -share basis, provided that the common debtor has not disputed any accounts, in which case, funds will be applied first to non -disputed accounts. Further, any fees charged and/or recovered by FIRM as remuneration for the services provided may constitute charges for services provide to COURT and/or other governmental entities; which although such fees will not exceed the amounts reflected in the Contract for Services entered between FIRM and COURT, said amounts may overlap with charges and fees pertaining to other governmental entities. 2. FIRM has specifically advised COURT that as among the similarly represented governmental entities there is no right to assert the attorney -client privilege as to communications received by FIRM in connection with this joint representation. 3. COURT acknowledges that it has been fully informed of the nature of any current and/or prospective conflict of interest which may exist or arise as a result of the common representation of COURT and other governmental entities by FIRM against common debtors; that COURT has been provided sufficient opportunity to seek the advice of independent counsel of the COURT's own choosing; and after all due consultations and considerations, COURT HEREBY EXPRESSLY WAIVES ANY CURRENT AND/OR PROSPECTIVE CONFLICT OF INTEREST AND SPECIFICALLY CONSENTS TO FIRM'S REPRESENTATION OF COURT and further directs FIRM to disburse any payments CA Revised December 2016 Page 6 received from a common debtor to all of the governmental entities represented by FIRM equally. VI NOTICE For purposes of sending notice under the terms of this contract, all notices shall be sent by certified United States mail, or delivered by hand or by courier, and addressed as follows (or to any updated address that a party so advises the other party of in writing): If to FIRM: Linebarger Goggan Blair & Sampson, LLP Attention: Director of Client Services P.O. Box 17428 Austin, Texas 78760 (or Terrace 2, Suite 500 2700 Via Fortuna Drive Austin, TX 78746) With copy to: Linebarger Goggan Blair & Sampson, LLP Attention: Director of Operations 5801 Soundview Drive, Suite 50B Gig Harbor, WA 98335 If to COURT: LaTricia Kinlow Court Administrator Tukwila Municipal Court 6200 Southcenter Blvd. Tukwila, WA 98188-2544 VII COOPERATIVE PURCHASING The services and terms of this contract are available to other political subdivisions, as to substantially similar categories of unpaid accounts, and as allowed by applicable law. Pursuant to chapter 39.34 RCW, this contract shall be open to intergovernmental cooperative purchasing. VIII THIRD PARTY BENEFICIARIES This contract is for the benefit of COURT and FIRM. Unless specifically stated, no third - party beneficiaries are intended to be created or are created under this contract. CA Revised December 2016 Page 7 EXHIBIT B COMPENSATION AND METHOD OF PAYMENT 1. Fees Assessed as Court Costs. COURT shall assess as court costs the fees to be paid for the FIRM's collection services, pursuant to RCW 3.02.045(5) and/or RCW 46.63.110(6)(d). A fee in an amount equal to 19% of the total sum due, including accruing interest, from a defendant to COURT shall be assessed to accounts not previously assigned to another collection agency and aged one year or less. A fee in an amount equal to 26% of the total sum due, including accruing interest, from a defendant to COURT shall be assessed to accounts previously assigned to another collection agency or aged over one year. By way of example, an account found committed six months ago that has never been assigned to a collection agency, and with $100 owing to COURT, shall be assessed court costs of $19. The total owing is now $119. Upon collection of $119, the sum of $100 shall be returned to the COURT and $19 retained by the FIRM. On a 1 9 % add -on account, FIRM shall retain 15.97% of the total sum collected ($19 is 15.97% of $119), and remit 84.03% to COURT. On a 26% add -on account, FIRM shall retain 22.48% of the total sum collected ($26 is 22.48% of $126), and remit 77.52% to COURT. Partial payments shall be pro -rated between COURT and FIRM in accordance with these calculation formulas. 2. Pre -Collect Time -Payment Program. Defendants with accounts not previously referred to FIRM for collection may qualify for a time -payment program that is not subject to the percentage fees described in the preceding paragraph. COURT, if it so desires, will refer defendants to contact FIRM to apply for the program and establish the monthly payment amounts, under guidelines approved by COURT. Pursuant to RCW 46.63.110(6)(d), court costs will be assessed in the amount of $10 for processing an application (successful or not), and in the amount of $7 per month per defendant accepted into the program. FIRM will attempt a monthly reminder call 7 to 10 days in advance of payment due date. (The parties recognize that, for an account referred for full collection and subject to the percentage collection fee described in the preceding paragraph, FIRM may in its discretion set up payment arrangements if deemed desirable based on the financial circumstances of the defendant; in which case the percentage fee will be the FIRM's compensation; and will be deemed to have been assessed under the statutory provision referenced in this sub -section 2.) 3. General Administrative Order. To effectuate the assessment of court costs for collection agency services under RCW 3.02.045(5) and RCW 46.63.110(6)(d), COURT will issue a General Administrative Order assessing court costs against defendants assigned to collection or pre -collect time -payment, such that no assessment need be made in an individual case file, and addressing any other issues necessary or proper to facilitate the referral of appropriate cases to FIRM for servicing. CA Revised December 2016 Page 8 4. Interest. Interest shall accrue at 12 percent per annum, or the highest rate allowed by law on all unpaid amounts, including court costs assessed for collection agency services; provided that interest shall not be assessed on accounts referred under the pre -collect time - payment program. Should the legal rate of interest be increased above 12%, the parties must agree in writing to any increase under the Contract above 12%. FIRM agrees to calculate and add accrued interest to the outstanding account balance as an administrative function at the direction and instruction of the COURT. Accrued interest paid by a defendant shall be shared according to the formula outlined above. For example, in the case of an account not previously assigned to another collection agency, the COURT will receive 84.03% of the interest and the FIRM will receive 1 5.97c/o of the interest. 5. Advanced Costs. Litigation costs shall be advanced by FIRM on behalf of COURT. Advanced litigation costs and any court -awarded costs, including attorney fees, shall be retained by FIRM from first monies received from the debtor, and prior to calculation and proration of funds according to the formula outlined above. 6. Remittance. All payments shall be directed to the FIRM. FIRM shall remit COURT's portion of collected funds to the COURT in a timely manner, and on a schedule agreed upon by the parties; FIRM shall retain its portion of collected funds. Payments received by COURT on a referred account from a source other than FIRM will be promptly reported to FIRM; FIRM will then account for such payment in its next invoice to COURT, and deduct its share of the payment from the remittance to COURT. CA Revised December 2016 Page 9