HomeMy WebLinkAboutCAG2021-163 - Original - Linebarger Goggan Blair & Sampson, LLP - Collection Services Contract - 06/01/2021ApprovalOriginator:Department:
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rev. 200821
FOR CITY OF KENT OFFICIAL USE ONLY
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* Memo to Mayor must be attachedn/a pass through
OK to sign, 3/24/2021, TW.
CAG2021-163
PROFESSIONAL SERVICES CONTRACT
THIS CONTRACT is made and entered into by and between the CITY OF KENT , hereinafter
referred to as "CLIENT," and LINEBARGER GOGGAN BLAIR & SAMPSON, LLP,
hereinafter referred to as "FIRM" for the collection of accounts receivable owed to CLIENT
through its Kent Municipal Court ("COURT"). This contract creates an attorney-client
relationship between CLIENT and FIRM.
I
FIRM RETAINED
CLIENT agrees to employ and does hereby employ FIRM to enforce the collection of accounts
receivable owed to CLIENT through its couRr pursuant to the terms and conditions described
in this contract. This contract superiedes all prior oral and written agreements between the parties,
and can only be amended if done so in writing and signed by all parties. Furthermore, this contract
cannot be transferred or assigned by either party without the written consent of all parties'
II
TERM AND TERMINATION
The term of this contract shall commence June 1,202I and will continue until terminated. Either
party may, without cause, terminate this contract by giving the other party sixty (60) days' written
notice of termination.
III
REF'ERRAL OF ACCOUNTS
CLIENT agrees to refer COURT accounts to FIRM for collection, as CLIENT deems appropriate,
by electronic medium, in a format and frequency to be agreed upon by the parties' CLIENT will
provide FIRM with copies of, or access to, the information and documentation necessary to
effectuate the services tirat are subject to this contract. CLIENT represents that, to the best of its
knowledge, the information provided or made available will be current and accurate, and that no
account or account debtor *itt U. subject to any bankruptcy stay, discharge or proceeding at the-
time of referral. FIRM shall use account information provided by CLIENT for the purposes of
account collection only, and shall keep all such information confidential from any third party
without express written authority from CLIENT. FIRM will provide CLIENT with status reports
in the frequency and manner agreed upon by the parties. FIRM shall not report to the credit
reporting agencies.
IV
ACCOUNT CANCELLATION
The CLIENT may cancel and recall an account from FIRM's collection efforts at any time without
any cost incurred-. Upon return of any accounts, neither party will have any obligation to the other
CO
party to this contract with regard to the returned accounts. CLIENT recognizes that collection
efforts by FIRM at any level, but particularly efforts involving legal proceeding such as
garnishment, will often prompt a debtor to contact CLIENT and seek to pay directly to CLIENT
only the original amount owed (i.e,, without paying the added collection fees). CLIENT agrees to
exercise caution when recalling accounts with a payment plan or legal proceedings.
V
INDEMNIFICATION
FIRM shall indemnifu, hold harmless and defend CLIENT fur, from and against all liabilities,
losses and/or costs, including legal expenses and attorney's fees, arising from demands, claims or
suits for damages or relief of any nature, which may arise as a result of FIRM's negligence in its
performance of the services described in this contract. CLIENT shall indenrnify, hold harmless
and defund FIRM for, llom and against all liabilitieso losses and/sr costs, including legal expenses
and attorney's fees, arising from demands, claims or suits for damages or relief of any nature,
which may arise fTom CLIENT's negligence, its lhilure to comply with any representation or
provision of this contract (including providing inaccurate account information to FIRM), or from
FIRM complying with any specific instruction or requirement of CIIENT. The indemnity
provisions of this contract shall have no application to any claim or demand which results from
the sole negligence or fault of the party seeking irrdemnification, its of'ficers, agents, employees or
contractors. ln the event ofjoint or shared negligence or fault of CLIENT and FIRM, responsibility
and indemnity, if any, shall be apportioned in relation to each party's degree of fault, but without
waiving any defenses of either party. The provisions of this paragraph are intended for the sole
benefit of the parties hereto and are not intended to create or grant any right, contractual or
otherwise, to any other persons or entities.
vt
COM?ENSATION AND REMITANCN
l. Collection Fee$. Time-Paynrent Plans. General Administrativs Order.
a. Fees Assessed as Court Costs. COURT slrall assess as court costs the fees to be
paid for the FIRM's collection services, pursuant to RCW 46.63.110(6Xd) andlor RCWs
3.02.045(5) (or comparable statutes regarding payment plans and referuals from courts of
limited jurisdiction, should the cited statutes be re-numbered and/or amended). Court costs
in an amount equal ta l9o/o of the total sum due, including accruing intersst as may be
authorized under RCW 3.50.100, fiom a debtor to COURT shall be assessed to accounts
not previously assigned to another collection agency and aged one year or less. Court cosls
in an amount equal to260/o of the total sum due, irtcluding accruing interest, from a debtor
to COURT shall be assessed to accounts previously assigned to another collection agency
or aged over one year at the time of assignment. Partial payments shall be pro-rated
between COURT and FIRM in accordanee with these formulas.
By way of example, an offense found committed six months ago that has never been
assigned to a collection agency, and with $100 owing to COUltT, shall be assessed court
costs of $19. The total owing is now $1 19. Upon collection of $l 19, the sum of $100 shall
,
be returned to the COURT and $19 retained by the FIRM; FIRM shall retain 15.97% af
the total sum collected ($19 is 15.97% of $119), and rernit 84.03% to COURT.
On a 26th add-on accounto FIRM shall retain 20.63% of the total sum collected ($?6 is
20.63% of $126), and renrit 79.37% to COURT,
Interest will be rernitted as further explained in the below Section 2- titled "lnterest."
b. Pre-CoU.ect Timq-Payment Program. Debtors With aecounts not previously referred
to FIRM for collection may qualify for a time-payment program that is not snbject to the
percentage fees described in the preceding paragraph. COURT, if it so desires, will refer
debtors to contact FIRM to apply for the progmm and establish the monthly paynent
amounts, under guidelines approved by COURT. Pursuant to RCW 46.63.110(6Xd) (ot
comparable statute regarding payment plans should the cited statute be re-numbered and/or
amended), court costs will be assessed in the amount of $ I 0 for processing an application
(successful or not), and irr the amount of $7 per month per debtor accepted into the program.
This application processing fee and the monthly administratire fte are retained by FIRM.
FIRM will place a monthly renrinder call 7 to 10 days in advance of each payment due date
to the telephone number provided by the debtor.
c. Other Payment Plans. The parties recognize that" for an account not rneeting the
criteria of the Pre-Collect Time-Paymerrt Program, FIRM nray set up a paynent plan if
deemed desirable based on the financial circunrsta:rces of the debtor or as otherwise
directed by COURT. Any civil infraction account referred for colleetion that miglrt later
be subject to a mandatory payment plan as prescribed by statute, will be processed under
this subsection, whether or not the account is recalled and re-assigned to the Firm for
implementation of the payment plan. For any payment plan administered under this
subsection, the percentage fee described above will be the FIRM's compensation, and will
be deemed to have been assessed as court costs under RCW 46.63.110(6Xd) (or
comparable statute regarding payment plans should the cited statute be re-numbered ancl/or
amended). Further, where a mandatory payment plan for civil infi'actions is implemented,
CLIENT may advise FIRM that interest is not to be *ssessed CIn the monetary obligations.
d. Gengral Administrative Order. To effectuate the assessment of court costs for
collection agency services under RCW 46.63.1l0(6xd) and RCW 3.02.0a5(5) (or
comparable statutes should the cited statutes be renumbered and/or amended), COURT
will issue a General Adnrinistrative Order assessing court costs against defendants assigned
to collection, pre-collect time-payment, or other payment plan, suclr 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 fbr servicing.
2. Interest. Unless prohibited by RCW 3.50.100 or otherwise directed by CLIENT, intcrest shall
accrue at l2 percentperannum, orthe highest rate allowed by lawon all unpaid amounts, including
fees and/or court costs assessed for collection agency services; provided that interest shall not be
assessed on accounts referred under the pre-collect time-payment progranl; and provided further
that where a statutorily-mandated payment plan is inrplemented, CLIENT may advise FIRM that
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interest is not to be assessed on the monetary obligations. FIRM agrees to calculate and add
accrued interest to the outstanding account balance as an administrative function at the direction
and instruction of the CLIENT. Accrued interest paid by a debtor shall be shared according to the
formulas outlined above. For example, in the case of a L9Yo add-on account, the CLIENT will
receive 84.A3% of the interest and the FIRM will receive 1597% of the inlerest.
3. Litiegtion and Litirction Costs. No legal action will commence on any acceunt without advance
written permission of the CLIENT. tegal action commenced under this AgreemEnt shall be in the
name of the FIRM and not the CLIENT. The FIRM will promptly advise the CLIENT ifany legal
action is contested. The CLIENT will provide evidence and reasonable assistance as require by the
FIRM to support approved legal actiono including providing witnesses for live testimony, if
requested. Unless otherwise agreed, litigation costs shall be borne by the FIRM and not the
CLIENT, and will be recoverable from the debtor where allowed by applicable law and payable
to FIRM from first monies received frorn the debtor, and prior to calculation and proration of funds
according to the formulas outlined above.
4. Remittanee. All payments shall be directed to the FIRM. FIRM shall remit CLIENT's portion
of collected funds to the CLIENT in a timely manner, and on a schedule agreed upon by the parties;
FIRM shall retain its portion of colleeted funds. Fayments received by CLIENT on a refen'ed
acsount from a source other than FIRM will be promptly reported to FIRM; FIRM will then
account for such payment in its next invoice to CLIENT, and deduct its share of the payment from
the remittance to CLIENT.
vlI
CONCURRANT REPRESENTATION
1. FIRM has specifically advised CLIENT that FIRM's concurrent representation of CLIENT and
other govemment entities (whether cunently represented by FIRM or those govemnrental entities
who may be represented by FIRM in the future) against a corrmon debtor constitutes a potential
conflict of interest. FIRM has advised CLIENT that, provided CLIENT and all participating
entities consent, FIRM intends to "sross packet" claims owed to all the governmental entities
whom FIRM cunently repre$ents and whom FIRM may ultimately represent in thc future against
a common debtor. Altlrough 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 govemmental entities represented by FIRM
(present and/or future). FIRM proposes, with the consent of CLIENT and all participating
govemment entities, to disburse all monetary proceeds recovered from a conmon debtor to each
of the government entities on an equal-share basis, provided that the common debtor has not
disputed any accounls, in which case, f'unds will be applied first to non-disputed accounts. Further,
any fees charged andlor recovered by FIRM as remuneration for the services provided may
constitute charges lor services provide to CLIENT and/or other governmental entities; which
although such fees will not exceed the amounts reflected in the Contract for Professional Services
entered between FIRM and CLIENT, said amounts may overlap with charges and fees pertaining
to other govemmental entities,
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2. FIRM has specifically advised CLIENT that as among the similarly represented governmental
entities there is no right to assert the attomey-client privilege as to communications received by
FIRM in connection with this joint representation.
3. CLTENT acknowledges that it has been fully informed of tho nalure of any cunent andlor
prospective conflict of interest which may exist or arise as a result of the comnon representation
of CLIENT and other govsmmeRtal entities by FIRM against common debtors; that CLIENT has
been provided sufficient opportunity to seek the advice of independent counsel of the CLIENT's
own choosing; and after all due consultations and considerations, CLIENT FIEREBY
EXPRESSLY WAIVES ANY CURRENT ANDIOR PROSPECTIVE CONFLICT OF
INTEREST AND SPECIFICALLY CONSENTS TO FIRM'S REPRESENTATION OF CLIENT
and further directs FIRM to disburse any payments received frorn a common debtor to all of the
govemmental entities represented by FIRM equally.
VIH
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 follorvs, or such other
address as may be hereafter specified 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 508
Gig Harbor, WA 98335
If to CLIINT:
Kent Municipal Court
Margaret Yetter
Court Administrator
1220 Central Avenue South
Kent, WA 98032
Any written notice hereunder shall become effective three (3) business days after the date of
rnailing.
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Ix.
C}IOICE OF LAW
This contract is made and is to be interpreted under the laws of the State of Washington. In the
event that any provision(s) of this contract shall for aay reason be held invalid, illegal or
unenforceableo the invalidity, illegality or unenforceability of that provision(s) shall not affect any
other provision(s) of this contract, and it shall further be construed as if the invalid, illegal or
unenforceable provision(s) had nevcr been a part ofthis contract.
X
COOPERATIVS 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.
XI
THIRD PARTY BENEFICTARIES
This contract is for the benefit of CLIDNT and FIRM. Unless specifically stated, no third-party
beneficiaries are intended to be created or are created under this eontract.
xII
NON.DISCRIMTNATION, COMPLI ANC E
1. FIRM agrees not to discriminate against any employee or applicant for employment or any other
person in the performance of this Agreement because of race, creed, eolor, national origin, marital
status, sex, age, disability, or other circumstanco prohibited by federal, state, or local law or
ordinance, except for a bona fide occupational qualification.
2. FIRM shall comply with all federal, slate, and local laws and ordinances applicable to the
services performed under this Agreement.
XIII.
INSURANCE
The FIRM shall procure and maintain for the duration of this Agreement, insurance against claims
for injuries to persons or damage to property which may arise from or in connection with the
performance of the services hereunder by the FIRM, its agents, representatives, or employees, in
the types and amounts described below. FIRM's maintenance of insurance as required by this
Agreement shall not be construed to limit the liability of the FIRM to the coverage provided by
such insurance, or stherwise limit the CLIENT's recourse to any remedy available at law or in
equity.
l. Commercial General Liability insurance written with limits no less than $1,000,000 each
occurence, $2,000,000 general aggregate, with coverage at least as broad as ISO occurrence form
6
CC 00 01 and shall cover liability arising from premises, operations, stop-gap independent FIRMs
and personal injury and advertising ir{ury. The CLIENT shall be named as an additional insured
under the FIRM's Commercial Csneral Liability insurance policy with respect to lhe work
performed for the CLIENT using an additional insured endorsement at least as broad as ISO CG
2A 26.
2. Workers' Compensation coverage as required by the Industrial Insuranse laws of the State of
Washington.
3. Professional Liability insurance appropriate to the FIRM's profession, written with limits no
less than $1,000,000 per claim and $1,000,000 policy aggregate limit.
XIV.
MISCELLANEOUS PROYISIONS
1. Non-Waive-r of Breach. The failure of the CLIENT to insist upon strict perfbrmance of any of
the covenants and agreements contained in this Agreement, or to exercise any optiorl confened by
this Agreement, in one or more instances shall not be construed to be a waiver or relinquishment
of those covenants, agreements or options, and the same shall be and remain in futl force and
effect.
2. Resolution of Disputes. tf the parties are unable to settle any dispute, differense or claim arising
from the parties' performance of this Agreement, the exclusive means of resolving that dispute,
difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiclion
of King County Superior Court, King County, Washington, unless the parties agree in writing to
an alternative dispute resolution process. In any claim or lawsuit for damages arising from the
parties'performance of this Agreement, each party shall pay all its legal costs and attorney's fees
incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any
other recovery or award provided by law; provided, however, nothing in this paragraph shall be
consffued to limit the parties' rights to indemnification under Section V of this Agreement.
3. Assignment. Any assignment of this Agreement by either party without lhe written consent of
the non-assigning party shall be void. If the non-assigning party gives its consent to any
assignment, the terms of this Agreement shall continue in full force and effest and no further
assignment shall be made without additional written consent.
4, Modification. No waiver, alteration, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by a duly authorized representative of the CLIENT
and the FIRM.
5. Entire Agreemeu!. The written provisions and terms of this Agreement shall supersede all prior
verbal statements of any officer or other representative of the FIRM or the CLIENT, and such
statements shall not be effective or be construed as entering into or forming a part of or altering in
any manner this Agreement,
I
6. Public Records Act. The FIRM acknowledges that the CLIENT is a public agency subject to
the Public Records Act codifred in Chapter 42.56 of the Rcvised Code of 'vVashinglon and
documents, notes, emails, and other records prepared or gathered by the flRM in its performance
of this Agreement may be subject to public review and disclosure, even if those records are not
produced to or possessed by the CLIENT. Access to COURT records, however, are not governed
by the Public Records Act, but are instead governed by constitutional law and court rules, To the
extent the Public Records Act is determined to apply to services rendered by the FIRM under this
Agreement, the FIRM agrees to cooperate fully with the CLIENT in satisfying the CLIENT's
duties and obligations under the Public Records Act.
7. City Business License Required, Prior to commencing services under this Agreement, the FIRM
agrees to provide proof of a current City of Kent business license pursuant to Chapter 5'01 of the
Kent City Code.
xv
CONTRACT ACCNPTANCI
In consideration of the terms and compensation herein stated, FIRM hereby accepts said conlract
and agrees to undertake performance of said contract as set-forth above.
This contract is executed on behalf of CLIENT by the undersigned, who is authorized to exeeute
this instrument. This conlract may be executed in any number of counterparts, and each
counterpart shall be deemed an original for all purposes, and all of which will together constitute
this one Agreement. Further, upon executing this Agreement, either party may deliver the
signature page to the other by fax or email and that signature shall have the same force and effect
as if the Agreement bearing the original signature was received in person.
IN WITNESS, the parties hereto execute this Agreement, which shall become effective on the last
date entered below. All acts consistent with the authority of this Agreement and prior to its
effective date are ratified and affrrmed and the terms of this Agreement shall be deerned to have
applied.
CITY OF KENT
Dana Ralph, Mayor
ATTE$T:
Date
By:
Date
I
Kent City Clerk
03/31/2021
03/31/21
APPROVEDASTO FORM:
Kent City Attorney Date
LINEBARGER GOGGAI{ BLAIR & SAMPSON.IiI{r
#&,*J 3' ; L/* z-/
Kevin Underwood
Attomey for the Firm
Date
9
3/24/2021