Ordinance No. 8,462981124 -11
ORDINANCE NO. 8462
® AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE
A CONTRACT WITH STATE MUNICIPAL SERVICES, INC., FOR THE COLLECTION OF
OUTSTANDING CITY OF BAYTOWN WARRANTS; AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN, THE SUM OF FORTY -FIVE THOUSAND AND NO/] 00 DOLLARS
($45,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR
THE EFFECTIVE DATE THEREOF. "
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City
Manager and the City Clerk of the City of Baytown to execute and attest to a contract with State Municipal
Services, Inc., for the collection of outstanding City of Baytown warrants. A copy of said contract is attached
hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to State Municipal
Services, Inc., of the sum of FORTY -FIVE THOUSAND AND NO /I00 DOLLARS ($45,000.00), pursuant to the
contract.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated § 252.048,
the City Manager is hereby granted general authority to approve any change order involving a decrease or an
increase in costs of FIFTEEN THOUSAND AND NO/] 00 DOLLARS ($15,000.00) or less, subject to the provision
that the original contract price may not be increased by more than twenty-five percent (25 %) or decreased by more
than twenty -five percent (25 %) without the consent of the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by the City Council
of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown
this the 24th day of November, 1998.
PETE C. ALFARO, Mayor
ATTEST:
LEEN P. HALL, City Clerk
APPROVED AS TO FORM:
iffACIO RAMIREZ, SR. C' y Attorney
cA MyDocuments\ CounciRMeetingsWovember \CoIIectOutstandingCityWarranu .doe
CONTRACT FOR THE COLLECTION OF
OUTSTANDING CITY OF BAYTOWN WARRANTS
STATE OF TEXAS §
COUNTY OF HARRIS §
This Collection Services Agreement, hereinafter known as "Agreement," is made and entered
into this 25`h day of November, 1998, by and between the City of Baytown, a municipal corporation
located in Harris and Chambers Counties, Texas, hereinafter known as the "City," and State
Municipal Services, Inc., a Texas corporation, hereinafter known as the "Company."
I. DEFINITIONS
As used in this Agreement, the following words and phrases are defined to mean:
City: means and refers to the City of Baytown, Texas, and all attendant boards,
agencies, commissions and related bodies, along with their respective
officers, agents and employees.
City Manager: means the City Manager of the City of Baytown or his designated
representative.
Company: means State Municipal Services, Inc., its volunteers, officers, directors, agents,
employees and assigns.
Representative of
the Company: means Michael A. DiNapoli, Vice President & Director of Operations, or his
duly designated representative.
II. COMPANY'S OBLIGATIONS
1. General: The Company is hereby authorized to collect outstanding Class C
Misdemeanor Warrants ( "Warrants ") issued by the City of Baytown and made available to the
Company in a professional, ethical, and lawful manner via the mail, telephone or any other means
which the Company deems appropriate.
2. Payment of Collections: The Company hereby agrees to remit any and all funds
collected as a result of this Agreement to the City on or before the tenth (10'h) day of each month
• throughout the term of this Agreement. Additionally, at such time, the Company agrees to submit
Collection Services Agreement, Page I
EXHIBIT A
® a complete and accurate report detailing its collection efforts during the period and during the term
of the contract, which report shall include, but not be limited to, an accounting of the cases and
docket numbers cleared, the monies and the date collected, the cases in which a partial payment has
been received, the outstanding accounts to be collected, and any other information which the City
may reasonably require. The report shall be in a form and format approved by the City.
•
3. Form of Collections: The Company will use its best efforts to ensure that all monies
collected will be in the form of a cashier's check or money order made payable to the order of the
City. Personal checks and cash payments will be discouraged.
III. CITY'S RIGHTS AND DUTIES
1. Exclusivity of Services: During the term of this Agreement, the City agrees not to refer
its warrants to any other party for the purpose of collecting the same. However, both the Company.
and the City agree that nothing contained herein shall prohibit the City's Police Department, any
other public law enforcement agency or court personnel to serve or collect a Warrant, for the City
expressly reserves the right for the above - enumerated persons to collect Warrants.
2. City's Records of Collections Subject to Agreement: City will maintain a daily record
of the warrants and bills which have been assigned to the Company and collected and/or paid to the
City. Such report shall be made available to the Company upon request.
3. Other Available Information: The City will provide, through the Municipal Court, current
lists of outstanding warrants subject to this Agreement, along with out -of- town/out -of -state
addresses, including the names, dates of birth, home addresses, and telephone numbers, and business
addresses and telephone numbers, which the City may have in its open records.
4. Warrants Subject to Agreement: The City may, in its sole discretion, assign sixty (60)
day past -due warrants with local addresses to the Company for collection. Additionally the City may
at any time assign to the Company such other warrants as it deems advisable and in the best interest
of the City.
IV. TERM
1. initial Term: This Agreement shall be in effect and shall continue for an initial term of one
year from and after the date of this Agreement is executed by the City, unless sooner terminated
under the provisions of this Agreement.
2. Renewal Period: At the City's sole option, the Agreement may be renewed for three (3)
additional twelve (12) month periods. The services provided under this Agreement may be subject
to price adjustment at the time of the renewal based on the compensation provided for herein plus
Collection Services A -,reement, Page 2
® an inflation factor equal to the increase in the Consumer Price Index for the United States for the
prior calendar year as published by the United States Government.
is
3. Extension: Additionally, the Company understands and agrees that, upon the City's
written request, the Agreement may be extended for a period of time not to exceed two (2) months
after the expiration of the initial term or any renewal thereof for the same compensation as the initial
term or the renewal period immediately preceding the extension. Nothing contained herein,
however, shall obligate the City during the extension period to renew and/or relet an agreement for
collection services with the Company.
V. COMPENSATION FOR SERVICES
I . Fees: The Company shall receive, as compensation for services to be rendered under this
Agreement, a fee equal to fifteen percent (15 %) of all funds and bills collected or NA for each
case cleared, which has been turned over to the Company. A case cleared shall mean payment of the
fine in full or the posting of a bond, and such definition expressly excludes the arrest or
imprisonment of an individual.
2. Invoices and Records Submitted: Company wiII send an invoice along with other billing
information and substantiating documentation to the City each month indicating the amount
allegedly due. The City shall make the payment which the City deems in its sole discretion is
appropriate within thirty (30) days of the later of the receipt of the invoice or the receipt of the money
due the City for the invoice period.
VI. INDEPENDENT CONTRACTOR
It is mutually understood and agreed that nothing in this Agreement is intended or shall be
construed as in any way creating or establishing the relationship of partners or co- partners between
the parties hereto, or as constituting the Company as an agent or representative of the City for any
purposes or in any manner whatsoever. The relationship of the Company to the City shall be that
of an independent contractor.
VII. PARTIAL PAYMENTS
Company may propose a payment plan for Individuals with outstanding warrants. Such
payment plan shall consist of not more than two payments if the overall fine is $125.00 or less and
not more than four payments for any fine in excess of $125.00.
Collection Services Agreement, Page 3
i
VIII. ACCESS TO COMPANY'S RECORDS AND FINANCIAL INFORMATION
Company will keep its records on a computer and will post payments on a daily basis. City
can contact Company from 7:00 a.m. to 6:00 p.m. Monday through Friday, exclusive of City
holidays concerning any and all Warrants. Furthermore, the City shall have the right through its
agents and employees to audit and examine at all reasonable times, the Company's books and
financial and operational records which may be reasonably required by the City in order to enforce
the terms of this Agreement or to evaluate the Company's performance. Financial records will be
maintained with such adequacy so as to allow identification of the source of all revenue and
expenditures related to this Agreement. The Company shall make copies of information as and when
requested by the City at no additional charge to the City.
IX. INDEMNIFICATION
THE COMPANY AGREES TO AND SHALL INDEMNIFY, HOLD
HARMLESS, AND DEFEND THE CITY, ITS OFFICERS AGENTS AND
EMPLOYEES, (HEREINAFTER COLLECTIVELY REFERRED TO AS THE
"CITY ") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY
KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS,
AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON,
OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE WORK DONE OR SERVICES PERFORMED BY
THE COMPANY PURSUANT TO THIS AGREEMENT, THE CONDUCT OR
MANAGEMENT OF THE COMPANY'S BUSINESS OR ACTIVITIES, OR
FROM ANY ACT OR OMISSION BY THE COMPANY, WHERE SUCH
INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT
NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY. IT
IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE
COMPANY AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH IS INDEMNITY BY THE COMPANY TO INDEMNIFY
AND PROTECT THE CITY FROM THE CONSEQUENCES OF THE CITY'S
OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING
CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE.
FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL HAVE NO APPLICATION TO ANY INJURY, DEATH
OR DAMAGE WHERE THE INJURY, DEATH OR DAMAGE RESULTS
FROM THE SOLE NEGLIGENCE OF THE CITY UNMIXED THE
NEGLIGENCE OF ANY OTHER PERSON OR ENTITY. IN THE EVENT
Collection Services Agreement, Page 4
0
THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY
BY REASON OF ANY OF THE ABOVE, THE COMPANY FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING
BY LEGAL COUNSEL ACCEPTABLE TO THE CITY.
It is agreed by both parties hereto that the indemnity provision hereinabove shall survive the
expiration or termination of this Agreement.
X. NOTICE
All notices required to be given hereunder shall be given in writing either by telecopier,
overnight, or facsimile transmission, certified or registered mail at the respective addresses of the
parties set forth herein or at such other address as may be designated in writing by either party.
Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the
following addresses:
Company
State Municipal Services, Inc.
Attn: Michael A. DiNapoli
Vice President Director of Operations
5601 Bridge Street
Fort Worth, TX 76112
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
XI. TIME OF THE ESSENCE
Both the Company and the City acknowledge that time is of the essence in this Agreement.
XII. LIQUIDATED DAMAGES
Both the Company and the City agree that time is of the essence in the payment of all monies
due the City pursuant to this Agreement and that the time allotted for each monthly payment
described herein is reasonable times for the payment of each, taking into consideration all conditions,
including, but not limited to, the economic environment and conditions prevailing in the City of
Collection Services Aereement, Page 5
® Baytown. The City and the Company understand and agree that a breach of this Agreement as to
time of payment will cause damage to the City and further agree that such damage cannot be
accurately measured and that ascertainment will be difficult. Therefore, as part of the consideration
for the awarding of this Agreement, the parties agree that for each and every calendar day any
payment due hereunder or any portion thereof remains delinquent as set forth in this Agreement, the
City may charge and the Company shall pay, as part of the monthly collection amount owed, the sum
of one hundred dollars ($100) as minimum liquidated damages. However, the foregoing agreement
as to liquidated damages constitutes only an agreement by the City and the Company as to the
minimum amount of damages which the City will sustain in any event by reason of the Company's
failure to make payments within specified time periods. Should the City suffer damage over and
above the minimum amount specified by reason of the Company's failure to timely pay in strict
accordance with this Agreement, the City may recover such additional amount. The City will have
the right to recover such amount from the Company; all such remedies shall be cumulative and the
City shall not be required to elect any one nor deemed to have made an election by proceeding to
enforce any one remedy.
XIII. INSURANCE
The Company shall at all times during this Agreement maintain in full force and effect
insurance as provided herein and which meets the minimum amounts listed below. A certificate of
insurance, or a copy of the insurance policies, shall be furnished to the City and shall provide that
the City shall receive thirty (30) days' prior written notice before any change or cancellation of any
Policy.
(1) Commercial general liability :This coverage must have an aggregate of $2,000,000
with a minimum of $1,000,000 per occurrence.
(2) Statutory workers' compensation: This coverage must comply with all statutory
amounts as required by Texas law and shall include a Waiver of Subrogation on behalf of the City.
(3) Automobile Liability: This coverage shall have combined single limits of $500,000,
or limits of $100,000 /$300,000 /$100,000 are acceptable. All automotive coverage is to include all
owned and hired autos, if applicable.
(4) All policies are to be of the occurrence form.
(5) Should any insurance required by this Agreement lapse, the Company shall
immediately cease all operations as of the time and date of such lapse, and shall not resume any
operations until authorized in writing by the City. If the lapse period extends fifteen (15) days, this
Agreement shall automatically terminate with no notice to the Company required and the Company
shall be in breach of this Agreement.
(6) The City of Baytown shall be named as an ADDITIONAL INSURED on said policies
• of insurance. The Company shall provide the City with a certificate evidencing the City of Baytown
Collection Services Agreement, Page 6
as ADDITIONAL INSURED for coverage after award of bid and prior to the performance of any
services pursuant to this Agreement.
(7) All insurance carriers providing coverage should have an A.M. Best rating of A or
higher and be licensed to do business in the State of Texas.
(8) All certificates of insurance required herein shall be provided to the City as soon as
practical and in no event later than ten (10) days prior to the performance of any services by the
Company under this Agreement.
XIV. BOND REQUIRED
Both the Company and the City agree that the Company will execute and deliver to the City
a fidelity bond in an amount of at least $50,000 to protect the City against fraud, embezzlement or
misappropriation of public funds by the Company. The parties hereto expressly agree that this
Agreement shall not be in effect until such bond is furnished to and approved by the City. The cost
of the premium for the bonds shall be borne by the Company. The bond required herein must be
issued by a reliable surety company authorized to do business in the State of Texas. No other bonds
shall be required.
XV. TERMINATION
The City, besides all other rights or remedies it may have, shall have the right to terminate
this Agreement without cause upon thirty (30) days' written notice from the City Manager to the
Company of the City's election to do so. Furthermore, the City may immediately and without notice
terminate this Agreement if the Company breaches this Agreement. A breach of this Agreement
shall include, but not be limited to, the following:
(a) failing to pay insurance premiums, liens, claims or other charges;
(b) failing to pay any payments due the City, State or Federal Government from the
Company or its principals, including, but not limited to, any taxes, fees, assessments,
liens, or any payments identified in this Agreement;
(c) the institution of voluntary or involuntary bankruptcy proceeding against the
Company;
(d) the dissolution of the Company;
(e) the violation of any provision of this Agreement; and/or
(f) the abandonment of the Agreement or any portion thereof and discontinuance of the
Company's services or any portion thereof.
Upon delivery of any notice of termination required herein, the Company shall discontinue
all services in connection with the performance of the Agreement and shall proceed to cancel
promptly existing orders and contracts insofar as such orders or contracts are chargeable to the City
• pursuant to this Agreement.
Collection Services Agreement, Pale 7
Within ten (10) days after receipt of the notice of termination, the Company shall forward
all revenues collected to date and submit a final statement showing in detail the services
satisfactorily performed.
XVI. COMPLIANCE WITH RULES AND REGULATIONS
The Company shall comply with all rules, regulations, and laws of the United States of
America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they
now exist or may hereafter be enacted or amended.
XVII. SALE OF INTEREST
The Company may not sell, transfer or assign all or part interest in its rights or obligations
under this Agreement to another party or parties without the prior express written approval of the
City Manager of such sale or assignment, nor shall Company assign any monies due or to become
due to it hereunder without the previous consent of the City Manager. The City may require any
records or financial statements necessary in its opinion to ensure such sale or assignment will be in
the best interest of the City; however, the City hereby reserves the right to withhold its consent for
any reason or no reason whatsoever.
XVIII. NON - WAIVER
Failure of either party hereto to insist on the strict performance of any of the agreements
herein or to exercise any rights or remedies accruing thereunder upon default or failure of
performance shall not be considered a waiver of the right to insist on and to enforce by an
appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or
remedy occurring as a result of any future default or failure of performance.
XIX. GOVERNING LAW
This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas and the City, regardless of the place of its execution or
performance. The place of making and the place of performance for all purposes shall be Baytown,
Harris County, Texas.
Collection Services Mreement, Page 8
0 XX. SEVERABILITY
•
All parties agree that should any provision of this Agreement be determined to be invalid or
unenforceable, such determination shall not affect any other term of this Agreement, which shall
continue in full force and effect.
XXI. CONDITIONS BEYOND CONTROL
Neither the City nor the Company. shall be required to perform any term, condition or
covenant of this Agreement so long as performance is delayed or prevented by force majeure, which
shall mean acts of God, drought, floods, material or labor restrictions by any governmental authority,
and any other cause not reasonably within the control of either party in which, by the exercise of due
diligence, the City or the Company is unable to prevent or overcome.
XXII. VENUE
This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas and the City, regardless of the place of its execution or
performance. The place of making and the place of performance for all purposes shall be Baytown,
Harris County, Texas.
XXIII. NO RIGHT TO ARBITRATION
Notwithstanding anything to the contrary contained in this Agreement, the City and the
Company hereby agree that no claim or dispute between the City and the Company arising out of or
relating to this Agreement shall be decided by any arbitration proceeding, including, without
limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any
applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act,
provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this
provision, the Company consents to be joined in the arbitration proceeding if the Company's
presence is required or requested by the City of complete relief to be recorded in the arbitration
proceeding.
XXIV. MISCELLANEOUS PROVISIONS
This Agreement shall not bestow any rights upon any third party, but rather, shall bind and
benefit the Company and the City only.
Collection Services Agreement, Page 9
This Agreement contains all the agreements of the parties relating to the subject matter
hereof and is the full and final expression of the agreement between the parties. This Agreement
shall not be amended or modified without the express written consent of both parties hereto.
The parties agree that this Agreement shall not be construed in favor of or against any party
on the basis that the party did or did not author this Agreement.
XXV. AUTHORITY
The officers executing this Agreement on behalf of the parties hereby represent that such
officers have full authority to execute this Agreement and to bind the party he/she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one and
the same Agreement on the 2 day of � , 1998,the date of execution by
the City Manager of the City of Baytown.
COMPANY
Signature
1iC-�A,L
Printed Name
Title
CITY OF BAYTOWN:
BOBBY ROUNTVEE, City Manager
ATTEST:
ILEEN P. HALL, City Clerk
Collection Services Agreement,Page 10
APPROVED AS TO FORM:
kCf4ACIO RAMIREZ, SR., C' Attorney
STATE OF TEXAS §
COUNTY OF HARRIS 1 §\
Before me,Z c Oe,�--Y—'N-- ,the undersigned notary ublic,on this day
personally appeared ac(_ D,pG _---,in his/her capacity as J),« rr�St�Q �
offp�12 (Yl yn1r��.a1, cv� , on behalf of such corporation,
known to me;
proved to me on the oath of ; or
proved to me through his current
(description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person)
(✓ one)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that
he/she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this day of herPmU=�n 11998.
"�=`-�" Notary Public in and for the State of
CAvER
RtC;�1P.FG Texas
OF TEXAS
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Collection Services Agreement,Page 11