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HomeMy WebLinkAboutC2010-226 - 6/29/2010 - ApprovedLAW FIRM CONTINGENT FEE CONTRACT This Agreement f `Agreernenf~ is made on this the ~ day of ~ , 2010, between City of Corpus Christi, Texas, hereinafter referred to as "Cit}~; and Lineb~Goggan Blair & Sampson, LLP, hereinafter referred to as"Law Firrri; In consideration of the mutual promises herein contained, the parties hereto agree as follows: I. PURPOSE OF REPRESENTATION 1.01 City hereby retains and employs Law Firm for the non-exclusive collection of delinquent accounts in automated red light enforcement hereinafter referred to as`~elinquent Accounts'. An account is delinquent when it remains unpaid after ninety (90) days of the date the violation notice was mailed, and the vehicle owner has not responded to the violation notice. I.02 The Law Firm shall pursue collection methods such as letters regarding the collection of Delinquent Accounts. Exhibit 1 identifies specific tasks to be performed by Law Firm. 1.03 The Law Firm shall provide the City Director of Financial Services with written monthly reports detailing its activities for the preceding month. No settlement agreement of any claim shall be entered into without the approval of the City Director of Financial Services. 1.04 The Law Firm is to call to the attention of the City Director of Financial Services any errors or other discrepancies coming under its observation during the progress of the work. Ownership of information acquired by Law Firm concerning the services performed during this agreement belongs to the City, and Law Firm shall only use such information as needed to perform required services. 1.05 The Law Firm shall direct that all payments be made directly to the local off ce far the City of Carpus Christi contractor for the automated red light traffic enforcement program. 1.06 The Law Firm shall maintain a file for each referred claim which shall be available to the City at all times for inspection. Such file shall contain all data pertinent to the claim to support its disposition. All documents, papers, or records pertaining to a file shall be retained after conclusion of all legal proceedings for disposition as mutually agreed to by the Cites Director of Financial Services and Law firm. II. LAW FIRIvPS FEES AND EXPENSES 2.01 As compensation for services required under this contract, City hereby agrees to pay Law Firm 25% of all Delinquent Accounts which are referred to Law Firm for collection and which are actually collected and paid to fhe City during the term of this contract. A11 such compensation shall become the property of the Law Firm at the time payment of the monies is made to the City. The City shall pay over said funds monthly by check and include a collection report summarizing the Delinquent Accounts for which payment was received by the City. 2010-226 Res. 028660 06/29/10 Linebarger Goggan Blair&Sampson INDEXED 2 2.02 It is understood that if the amount of Law Firm's fees under this Contract are regulated or governed by law, and that law precludes any othex fee arrangement other than the amount set by law or regulation, then the amount payable to Law Firm is limited to the maximum allowed by law. III. REQUIRED RECITALS 3.01 This Agreement is effective only after review and approval by the Comptroller for the State of Texas. 3.02 Law Firm shall keep current and complete written time and expense records that describe in detail the time and money spent each day in performing under this Contract as required by Section 2254.104 (a) Texas Government Code. 3.03 At any time upon request, Law Firm shall permit City, Cites governing officials, the Attorney General far the State of Texas, the State Auditor, or any other appropriate official, to inspect or obtain copies of the time and expense records kept in accordance with Section 3.02, as required by Section 2254.104 {b} Texas Government Code. 3.04 Upon conclusion of any matter for which Law Firm was retained, Law Firrn shall provide City with a complete written statement that describes the outcome of the matter, states the amount of any recovery, shows Law Firm's computation of the amount of the contingent fee, and contains the final complete time and expense records, as required by Section 2254.104(c) Texas Government Code. 3.05 All time and expense records kept in accordance with Section 3.02 are public information subject to required disclosure under Chaptex 552 of the Texas Government Code. Information contained in the time and expense records may be withheld from a member of the public under Section 552.103 of the Texas Government Code only if, in addition to meeting the requirements of Section 552.103 of the Texas Government Code, the chief legal officer or employee of City determines that withholding the information is necessary to protect Cites strategy or position in pending or reasonably anticipated litigation. If any information is withheld in accordance with the Section, City shall segregate said information from information that is subject to required public disclosure. 3.06 Law Firm is responsible for the all expenses, including costs of mailing notices of collection in accordance with Exhibit 1. 3.07 Any subcontracted legal or support services performed by a person who is not associated with Law Firm is an expense subject to reimbursement only in accordance with Subchapter C, Chapter 2254 of the Texas Government Code. 3.08 The amount of the contingent fee and reimbursement of expenses under this Contract will be paid and limited in accordance with Subchapter C, Chapter 2254 of the Texas Government Code. 3 3.09 City and Law Firm agree that this Contract contemplates a series of recoveries, and that each individual recovery will be less than $100,000.00. City and Law Firm agree that if a recovery that exceeds $104,000 is possible, this Contract will not govern those legal services, but rather a different arrangement under Chapter 2254 Texas Government Code will be reached between the parties. 3.10 Payment of fees and expenses by City will be governed by the requirements set Earth in Section 2254.108 of the Texas Government Code. 3.11 The parties may replace this Article III with replacement Article III described in Exhibit 2, upon written determination by Texas Comptroller Office that this contract is not subject to compliance with Chapter 2254 Subchapter C-of-the Texas Government Code. IV. TERM 4.01 The term of this Agreement begins upon date of Comptroller approval, and continues for one year, with three one year renewal periods. If the Comptroller determines that Comptroller approval is not required for this contract, then the term of this Agreement begins upon date of City Council approval. Either party may terminate this Agreement upon sixty (60} days prior written notice. Upon texmination, Law Firm will deliver all pending files on accounts referred to it under this Contract to the City. V. CITY RESPONSIBILITIES 5.01 City shall coordinate Law Firm access to the database of Delinquent Accounts. 5.02 City shall notify Law Firm of any forwarding address an returned mail received by City. City shall enter address changes and updates to City records of Delinquent Accounts. 5.03 City shall respond to incoming telephone calls regarding Delinquent Accounts. 5.04 City in its sole discretion shall determine the accounts for referral to Law Firm for collection under this Agreement. VI. MISCELLANEOUS 6.01 This agreement shall be construed under and in accordance with Texas law, and all obligations of the parties are performable in Nueces County, Texas. 6.02 This Agreement constitutes the sole and only Agreement between the parties and supersedes any prior undertakings or written or oral agreement between the parties respecting the subject matter of this agreement. 6.03 In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, 4 or unenforceability shall not affect any other provisions thereof and this Agreement shall be construed as if such invalid, illegal, ox unenforceable provision had never been contained herein. 6.04 This Agreement may be amended only by written agreement signed by duly authorized representatives of the parties hereto. The City Manager is authorized to execute amendments to the Agreement. 6.05 Law Firm agrees to comply with all applicable Federal, State, and Local laws, including laws related to collections. 6.06 As desired by City, Law Firm agrees to an audit of files maintained by Law Firm pertaining to this Contract. 6.07 Neither party may assign this Agreement without the prior written approval of other party. 6.08 Notice may be sent by certified mail, postage prepared, and is deemed receive on the third day after deposit if sent certified mail. Notice shall be sent as follows: If to City: City of Corpus Christi, Attn: Director of Financial Services, P. 4. Box 9277, Corpus Christi, Texas 7$469-9277. If to Law Firm: Linebarger Goggan Blair & Sampson, LLP, Attn: Paul D. Chapa, Partner, 500 N. Water Street, Suite 1111, Corpus Christi, Texas 78471. 6.09 The Law Firm will not commence work under this Contract until the Law Firm has complied with the insurance requirements set out in the attached Exhibit. 6.10 If the City has not awarded a new contract for the collection of delinquent accounts upon the expiration of this Contract, the contract will continue on a month-ta-month basis, at the current fees, until such time as either party provides the other party with sixty (60) days written notice that it does not wish to continue the contract. This Contract automatically expires on the effective date of a new contract for the collection of Delinquent Accounts . The City will provide written notice of the effective date of the new contract to Law Firm. 6.11 The parties recognize that the continuation of any contract after the close of any fiscal year of the City is subject to appropriations and budget approval providing for such contract item as an expenditure in that budget. The City does not represent that said budget item will actually be adopted, that determination is within the sole discretion of the City Council at the time of adoption of each budget. If the budget item for this Contract is not adopted, City will notify Law Firm and Law Firm may terminate the Contract at the end of the then current fiscal year 5 Agreed to by the City of Corpus Christi and Law Firm: City of Carpus Christi r By: ~ `Angel co ar, City Manager ~•~ ©~~~ Date:.- ~ f~~~/~ NUT[~~IIiILk~ ~'1' Cat1Rt~IL ... ~~„~~~ ~~ Attest ~ By: C'`~ _ SEC~IET'IlRY~4~. Armando Chapa, City Secxet • Approved as to form: "~-i.~-~ ~ . Z ~ f ~ By. ~~~ Lisa Aguilar, As~ ant City Attorney Fox the City Attorney Lin Barger gg lai & Sampson , LLP By: Paul Cha a, P nex Date: 1~ O Exhibit 1 Services Performed by Law Firm Collection of Delinquent Account Mass mailings of delinquent bills as requested by City. Respond to incoming phone calls to Law Firm regarding Delinquent Accounts. Answer correspondence regarding Delinquent Accounts. Law Firm will inform City of any forwarding addresses on returned mail received by Law Firm. 7 Exhibit 2 Revised Article III 3.01 This Agreement is effective only after review and approval by the City Manager. 3.02 Law Firm shall keep current and complete written xeeords that describe in detail the services provided in performing under this Contract. 3.03 At any time upon request, Law Firm shall permit City Manager or designee to inspect or obtain copies of the Law Firm's records kept in accordance with this contract. 3.04 Upon conclusion of any matter far which Law Firm was retained, Law Firm shall provide City with a complete written statement that describes the outcome of the zx~atter, states the amount of any recovery, and shows Law Firm's computation of the amount of the contingent fee. 3.05 Any records kept in accordance with Section 3.02 are public information subject to required disclosure under Chapter 552 of the Texas Government Code. Information contained in the time and expense records may be withheld from a member of the public under Section 552.103 of the Texas Government Code only if, in addition to meeting the requirements of Section 552.103 of the Texas Government Cade, the chief legal officer or employee of City determines that withholding the information is necessary to protect Cit}~s strategy or position in pending or reasonably anticipated litigation. If any information is withheld in accordance with the Section, City shall segregate said information from information that is subject to required public disclosure. 3.06 There is no difference in the method by which the contingent fee will be computed if any matter is settled, tried, or tried and appealed. 3.07 Law Finn. is responsible for the payment of litigation and all other expenses, including costs of mailing notices of collection.. 8 EXHIBIT INSURANCE REQUIREMENTS I. CONTRACTOR'S LIABILITY INSURANCE A. Contractor must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. Contractor must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Contractor must furnish to the Cit}~s Risk Manager two (2) copies of Certificates of Insurance, showing the following minimum coverage by insurance company(s) acceptable to the Cites Risk Manager. The City must be named as an additional insured for the General liability policy. TYPE OF INSURANCE NIINIIVIUM INSURANCE COVERAGE 30-Day Notice of Cancellation, material change, Bodily Injury and Property Damage non-renewal or termination is required on all Per occurrence -Aggregate certificates COMMERCIAL GENERAL LIABILITY $1,000,000 COMBINED SINGLE LIMIT including: 1. Commercial Form 2. Premises-Operations 3. Products) Completed Operations 4. Contractual Liability 5. Independent Contractors PROFESSIONAL LIABILITY to include : $1,000,000 COMBINED SINGLE LIMIT 1. Personal Injury 2. Errors and Omissions C. In the event of incidents /accidents of any kind, Contractor must furnish the Risk Manager with copies of all reports of any claims within ten (10) days of the incident/ accident. II. ADDITIONAL REQUIREMENTS A. Certificate of Insurance: * The City of Carpus Christi must be named as an additional insured on the General liability coverage. * The name of the project must be listed under`~]escription of Operations' * At a minimum, a 30-day written notice of material change, non-renewal, termination or cancellation to the Risk Manager is required. ~.,INEBARGER GOGGAN BLAIR & SAMPSON, I.LP ATTORNEYS AT LAIN 500 NORTH SHORELINE, SUITE i i 11 CORPUS CHRISTI, TEXAS 78471 3611888-6898 FAX 3611$$8-4568 Paul Daniel Chapa, Partner Email: paulc@publicans.com June 30, 2010 Lisa Aguilar Assistant City Attorney Clty of Corpus Chnstl 1201 Leopard Carpus Christi, Texas 78401 REs Contract for Collection of Delinquent Iced Light Camera Accounts Dear Ms. Aguilar: As requested, and in accordance with yesterday's city council action, enclosed please find two (2) original contracts which have been executed by me on behalf of the firm. Also enclosed is a copy of the State Comptroller letter we discussed clarifying that this type of collection contract is exempt from the provisions of Texas Government Code Section 403.0305 which require review by the Comptroller's office of certain contingent fee legal 3erV1Ce5. As always, should you have any questions or desire any additional information please do not hesitate to tali me at your convenience. PDC/dc Encl. TEXAS COMPTROLLER Df PUBLIC ACCOUNTS s ~ ~ ~ ~ C ® ~ ~ S September 23, 2009 The Honorable Thomas D. Williams State Senator, District 4. Texas Senate P.Q+ Box 8069 The ~Naadlands; Te~c~s :7738?8069 Dear S . Thank you for your letter dated dept. 17, 2409, clarifying t}~e intended scope of Texas Goverriinent Code §.403.0345 as adopted by Senate flaar amendment to House Bi113S60, 8~Oth Regular Session. The provisions of §403.0305 relate to-the review by the Comptroller's office of certain contingent fee legal services contracts prior to their execution by certain public entities. The Comptroller's office will not review contrasts entered into by a public agency with .its outside legal- counsel on a contingent fee basis for deii.~iquent accounts receiveable - such as weed liens and paving liens - ox other special assessments, The Comptroller's office has clarified its corresponding instructions and questionnaire accordingly. Enclosed are the updated instructivns_ and~questionnaire• We appreciate your clarification. Sincerely, usan Combs Enclosure cc: Capitol Office WWW,WIPEaOW,STATE.TX.US W,O.SoX 13528 •AUSTfN, TX 78 71 4-35 2 8 • 512-~i63-4444 +TpLF` FREE; I-8O0-$31-54b41 FAX: 512-4fi3-{r.96° REQIfEST P'OY7 REVIEW AND APPROVAL OF II~TITIAI. CONTINGENT FEE LEGAL SERVICES CONTRACT AND/OR RENIC~F'AL OR AMENDMENT OF SUCK CONTRACT; §403.0305, TEX GOVT CODE Instructions: Under §403.0305, Tex Gov't Code, as added by hb3560, 80'h Legislature, 2007, a public agency as defined in §30.003{3}, Texas Water Code, may not en#er into a contract as provided by Subchapter C, Chapter 2254, Tex Gov't Code, without review and approval by the Comptroller of .public Accounts {Comptroller}, A public agency must submit this completed questionnaire and all applicable attachments, including the proposed contingent fee legal services contract, to request the Comptroller's review and approval of the contract. This applies to any contracts requested to be effective on and after September 1, 2407 and any renewals or amendments of such contracts. In conducting these reviews and granting these approvals, the Comptroller shall apply the requirements of Subchapter C, Chapter 2254, Tex Gov't Code, to all requesting public agencies, including those that do not fall within the definition of state governmental entity or are exempt under that subchapter. The e-mail address for submission of the completed questionnaire and all attachments is: contracts c a.s te.tx.us Requesting public agencies must allow a minimum of 30 days from date of submission prior tb the requested effective date of the contract or contract renewal or amendment. Requests submitted without all pertinent information and attachments will be returned without approval and may delay a final review response beyond the initia130 day period. Contracts and contract renewals and amendments subject to these provisions may not be effective until reviewed and approved by the Comptroller. All other requisite reviews, findings and approvals must first be completed prior to submission to the Comptroller for review and approval and must be clearly reflected in the attachments submitted with the request. In addition to the signature and date lines for tho public agency, the contractor and any other applicable entities {such as the Office of the Attorney General), the public agency shall -also include the following ai~er those lines on the last page of the contract or contract renewal or amendment: "APPROVED BY: OFFICE OF THE TEXAS COMPTROLLER OF PUBLIC ACCOUNTS: By: Deputy Comptroller or his designee Date: " Note: Contingent fee contracts subject to the Comptroller's review and approval under these provisions da not include contrasts with bond counsel in connection with the issuance of securities since fees of such counsel da not fall within the definition of contingent fees under Subchapter C, Chapter 2254, Tex Gov't Code, Comptroller of Public Accounts Page ] of 7 Williams, Thomas encl RUSH (G.Mitchell-P.5mith},doe V • ~ Contingent fee contracts subject to the Comptroller's review and approval under these provisions also do nat include contracts entered into by a Iocal government with its outside legal. counsel on a contingent fee basis for the collection of delinquent ad valorem taxes as provided in §6.30, Texas Tax Code, far the collection of delinquent court fines and fees as provided in Article 103.0031, Texas Code of Criminal Procedure. Upda#e::9127~/U9: Contingent fee contracts subject to the ComptrolIer's review and approval under these pror+isions also do not include contracts entered into by a public agency with its outside legal counsel on a contingent fee basis for the collection of delinquent accounts receivable -such as weed liens and paving liens - ar other special assessments, Comptroller of Public Accounts Page 2 of 7 Williams, Thomas ene] RL]SH (G,Mitchell-P.Smith).doc