COLLECTION AGENCY SERVICES AND FEE AGREEMENT
COLLECTION AGENCY SERVICES AND FEE AGREEMENT
THIS AGREEMENT is made on the /S-a- day
of = ' in the year 2005,
betwe The City of Clearwater, FL, a
municipal corpration existing under the laws of
the State of Florida, P. O. Box 4748,
Clearwater, Florida 33758-4748 hereinafter
referred to as ("Creditor") and Citation
Management, a division of Professional Account
Management LLC, 633 W. Wisconsin Avenue,
Suite 1600, Milwaukee, WI 53203, hereinafter
referred to as ("Agency''). The parties intend
by this Agreement to provide for the collection
of delinquent parking fines and penalties
pursuant to the code of ordinances of the City
of Clearwater and Florida State Statutes. In
the furtherance of this purpose, the parties do
hereby agree to the following terms and
conditions, specified herein as defined in the
Request For Proposal (#22-05) Addenda to the
RFP #22-05 dated April 18, 2005, Citation
Management's response to the RFP #22-05
dated April 26, 2005 and Citation
Management's letters dated June 16 and June
30, 2005.
WITNESSETH
WHEREAS, Creditor desires Agency to
undertake the collection of Creditor's accounts
and other evidences of indebtedness from time
to time (hereinafter collectively referred to as
"Debt(s)"), in the manner and under the terms
and conditions hereinafter set forth; and,
WHEREAS, the parties contemplate a future
course of dealing as Creditor and Agency and
desire to set forth and define their respective
rights, obligations and liabilities in this
Agreement.
NOW, THEREFORE, in consideration of the
promises and mutual agreements as stated
herein, the parties agree as follows:
SECTION 1.
Creditor Performance
1.1 Authority to Collect. Creditor hereby
authorizes Agency to use any legal means to
collect the Debts placed with Agency by
Creditor.
1.2 Ownership of Debts. The Creditor shall
maintain ownership of all Debts placed with
Agency for collection under this Agreement.
Creditor maintains legal rights and title to
these accounts unless other arrangements are
made in writing between the Parties.
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1.3 Creditor's Right to Legal Process.
Creditor in its sole discretion shall decide
whether to pursue the collection of a Debt
through the legal process, which may include
the hiring of an attorney at law. Such
attorney, if hired, shall be the Creditor's
attorney. The Creditor shall make all decisions
regarding litigation, garnishment, or other
legal process, including but not limited to any
issues pertaining to the statute of limitations.
Agency shall not be responsible or liable in any
respect for the performance of such attorney.
1.4 Creditor's Duty to Provide
Information. The Creditor agrees to provide
the Agency with all information it has obtained
regarding each Debt placed under this
Agreement. It is the obligation of the Creditor
to provide the Agency with any information it
has regarding the bankruptcy, death, legal
disability or other defenses (including a statute
of limitations defense) which may prohibit or
delay the collection of the Debt or in anyway
impact the ability of the Agency to collect the
Debt.
1.5 Creditor Warranties. Creditor warrants
that the Debts placed with Agency have been
reviewed by Creditor prior to transfer to the
Agency in accordance with this Agreement and
that the balances reported to Agency are
correct, that all obligors on the Debts have
been disclosed and that all disputes and
defenses of debtors have been reported to
Agency to the best of Creditor's knowledge.
1.6 Notice of Dispute. The Creditor shall
inform the Agency in writing, or by such other
means as the parties may expressly agree
from time to time, of any Debts subject to this
Agreement that have been disputed. Disputes
under this provision include both oral and
written indications or statements by the debtor
or any third party that the Debt is in dispute,
and includes but is not limited to a request for
validation of the Debt. If such dispute is made
in writing, Creditor shall also notify Agency of
the date of the writing and provide Agency
with the original dispute or a copy thereof.
1.7 Creditor's Continuing Duty. Creditor
has a continuing obligation to provide Agency
with the information required in paragraph 1.6
of this Agreemer.t during the time such Debt is
placed with Agency for collection as well as any
time that the Agency is furnishing information
to a credit reporting agency about the Debt.
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1.8 Authorization to Receive Payment
and Endorse Instruments. Creditor
authorizes and appoints Agency to collect and
receive for Creditor all sums of money due or
payable to Creditor for Debts placed with
Agency for collection or credit reporting.
Agency shall have authority to receive
payment in cash, check or money order, and
shall have authority to endorse checks, drafts,
money orders and other negotiable
instruments which may be received in
payment. All sums collected will be deposited
into a Trust Account as required by law at a
financial institution designated by the Agency.
The Agency will be responsible for all costs
related to the Trust Account. All checks,
drafts, money orders and other negotiable
instruments will be made payable to the
Agency. Agency will remit gross funds
collected, less return payment items, on a
weekly basis via EFT (Electronic Funds
Transfer) .
1.9 Authorization to Investigate. Creditor
expressly authorizes Agency to perform
investigatory services in relation to the
ordinary debt collection activities it performs
for Creditor.
SECTION 2.
Aaencv Performance
2.1 Agreement to Collect. Agency agrees
to provide debt collection services to treditor
in compliance with all applicable laws,
regulations, licensing requirements and
bonding requirements.
2.2 Documentation of
Accounts/Financial Reporting. Agency
shall provide Creditor with regular, detailed
reports of its collection activity regarding each
Debt. The reports shall include the principal
amount of the Debt; all amounts collected to
date including any allowable fees, costs and
interest; all dispute information; requests for
validation by debtor; agreements by the debtor
regarding future payments, bankruptcy, death
or legal disability of the debtor; the amount
deposited to the Trust Account and the amount
remitted to any attorney. Payment reports
shall be prepared and submitted by Agency to
Creditor on a weekly and monthly basis.
2.3 BILLING AND PAYMENT
PROCEDURES
Agency shall provide the Creditor on a monthly
basis with a statement and fee analysis that
accurately reflects the fees earned during the
Confidentiai
preceding period. Fees earned by the Agency
will be based on the rates specified in Section
4.1 of this agreement applied to the amount of
funds deposited into the Trust Account during
the previous month. Agency will invoice the
Creditor on a monthly basis and the Creditor
will issue payment via a check or electronic
payment to the Agency. Payment terms will
be net 20 days from invoice date. A 1.5%
service charge per month will be assessed on
any balance 60 days or greater in age. The
Creditor shall either approve or reject the
statement and fee analysis. If these
documents are rejected by the Creditor,
Agency will be notified, and both parties shall
use their best efforts to resolve the disputed
items.
2.4 Credit Reporting. Agency will report
information regarding any Debt placed with it
for collection in accordance with this
Agreement to the following Consumer
Reporting Agencies: Equifax, Experian and
Trans Union. Agency agrees to comply with
the Fair Credit Reporting Act (FCRA) and all
applicable state and federal laws in making
such reports.
2.5 Adherence to ACA Code. Agency will
abide by the standards set by the American
Collectors Association, Inc. (ACA), which
includes the ACA Code of Ethics and the ACA
Code of Operations.
2.6 Insurance and Bond Coverage.
Agency will maintain at least the minimum
level of insurance and bond coverage which is
required by ACA and state law in all
jurisdictions in which it is engaging in collection
activity to collect Debts placed with it by the
Creditor.
2.7 Licenses and Certificates of
Authority. Agency will maintain all licenses
and certificates of authority which are required
by law in each state in which it is engaging in
regulated collection activity with regard to
Debts placed with it by Creditor.
2.8 Trust Account. Agency warrants that it
will maintain a trust account as required by
any state law or regulation in which it is
engaging in collection activity to collect Debts
placed with it by the Creditor.
2.9 Methods of Debt Collection. Agency
shall use only ordinary and reasonable
collection efforts as permitted by law and shall
comply at all times with the Fair Debt
Collection Practices Act (FDCPA), the Fair
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Credit Reporting Act (FCRA) and all other
applicable state, federal and local laws and
regulations.
SECTION 3.
Leaal Process
3.1 Decision Making Authority. Creditor
reserves the right to decide whether Debts
shall be placed in litigation, including Debts
subject to a forwarding agreement. In keeping
with this authority, Creditor may authorize
Agency in writing to retain an attorney for
Creditor on prescribed terms and to commence
litigation in the name of the Creditor.
3.2 Authority and Role of Attorney. An
attorney selected by Agency under paragraph
3.1 for this purpose, shall be considered
Creditor's attorney. Creditor may authorize
Agency in writing to conduct correspondence
with any such attorney and to receive
payments made by the debtor on its behalf.
However, notwithstanding any agreement to
the contrary, the conduct of the attorney shall
at all times be subject to the control of
Creditor, and the attorney may report directly
to Creditor or indirectly to Creditor through the
Agency.
3.3 Attorneys Fees. The attorney shall
charge an agreed fee to Creditor directly or the
attorney may be authorized to deduct it from
the proceeds collected. Either Agency or the
attorney may advance necessary legal costs as
allowed by law, but Creditor agrees to
reimburse the appropriate party for any
disbursements thus made to the extent that
money is not recovered in an amount sufficient
to cover these disbursements. When the
attorney collects a Debt in whole or in part,
attorney may deduct fees and remit the
balance to Agency which shall be authorized to
deduct the agreed commission and
disbursements, before remitting the balance to
Creditor.
3.4 Forwarded Claims. Creditor reserves
to itself the decision whether any forwarded
Debt shall be placed in litigation, and may
appoint in writing such other collection agency
as its agent to retain an attorney and
commence litigation.
SECTION 4.
Fees and Remuneration
4.1 Contingency Fee. The cost of the
collection services described in this Agreement
Confidential
shall be based upon a contingency fee. A Debt
placed for collection with Agency or with an
attorney to obtain judgment or otherwise
satisfy payment of this account, shall be
subject to a collection fee of 28% of the
unpaid balance for first placed accounts and
380/0 for legal accounts. This amount shall be
in addition to any other costs incurred directly
or indirectly by Agency or Creditor's attorney
to collect amounts owed under this Agreement
such as court costs, sheriff's fees, and interest,
late fees, investigatory fees, credit reporting
fees, etc.).
4.2 Authority to Advance Costs and
Expenses. Creditor authorizes Agency to
advance amounts for court costs, fees on any
litigation or legal proceeding which creditor has
authorized and costs which relate to the
collection of Creditor's Debts. Creditor
authorizes Agency to retain amounts equal to
such costs and fees on Debts it collects as
reimbursement for Agency's expenditures.
4.3 Reimbursement of Costs and
Expenses. If Agency advances the payment
of any costs or expenses authorized by
Creditor by way of this Agreement or any other
and an insufficient amount of money is
collected by Agency on that particular Debt to
reimburse Agency for the expenditure; Creditor
shall reimburse Agency for all such costs and
expenses not covered by the amount collected
on the Debt. If paid by Agency, said amounts
shall be construed as additional costs of
collection.
4.4 Authorization to Add Interest and
Fees. Creditor authorizes Agency to add
interest, charges, civil penalties, litigation and
process fees, court costs and such other
expenses relating to the collection of Debts as
provided by law or contract and to collect this
amount from the debtor.
4.5 Attorney Fees. Creditor authorizes
Agency to add attorney fees to the principal
debt in an amount not to exceed that
permitted by law in the jurisdiction in which
the debtor is located or by contract, and to
collect such attorney fees from the debtor as
permitted by law. Any amount of attorney fees
collected shall be the property of the Creditor.
However, any amount of attorney fees
collected shall be part of the total amount
collected upon which the Agency's fee is based.
4.6 NSF and Disputed Payments. In the
event that any payment previously reported to
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the client is returned as NSF or reversed as
disputed, agency will reverse the amount of
such payment. All Agency fees taken on such
payment shall be reversed from the current
month's billing statement.
SECTION 5.
Riaht Of Creditor To Withdraw Accounts
5.1 Terms of Withdrawal. Creditor
may request the return of any and all accounts
which it has placed with Agency within thirty
(30) calendar days of written demand. Agency
agrees to return all such accounts to Creditor
along with a financial record of the accounts
including amounts collected, commission
retained, additional fees, interest and charges
added to account as authorized by Creditor,
and a detailed account of any amount of
money Agency has expended on behalf of
Creditor which Agency is seeking to retain.
Creditor authorizes Agency to retain all
commissions on those accounts to which
Agency is entitled under this Agreement and to
retain all costs and expenses which Agency has
expended on behalf of Creditor.
SECTION 6.
Termination and Notice
6.1 Term of Agreement. This period of
performance under this Agreement shall be for
three (3) years to coincide with the separate
processing agreement and shall become
effective upon execution by both parties. The
term of the agreement may then be
automatically renewed annually fortwo (2)
additional one (1) year periods at the
Creditor's option with the written mutual
agreement of both parties, after the initial
three (3) year period.
6.2 Termination. Either party may
terminate this Agreement for any reason.
Notice of termination shall be provided by
mailing such notice to the non-canceling party
by U.S. Mail at its last known business
address. In the event of termination of this
Agreement, the Creditor shall pay all
commissions, as herein agreed, on debts that
have been collected through the end of the
Agency's business day on the date of notice of
termination.
Agency shall remit balances due to Creditor
under the terms of this Agreement and provide
a detailed report to Creditor of collection
activity up to and including the date of
termination within thirty (30) calendar days of
receipt of notice of termination.
6.3 Notice. Except as otherwise expressly
provided herein, any notice required or desired
to be served, given or delivered hereunder
shall be in writing and shall be deemed to have
been validly served, given or delivered, (a)
forty-eight (48) hours after deposit in the U.S.
Mail, with proper postage prepaid, certified
return receipt requested; or (b) one (1)
business day after delivery to a reputable
overnight delivery service; or (c) upon delivery
by courier or in person to the following
addresses:
If to Creditor: City of Clearwater
Attention: Parking Manager
100 South Myrtle Ave
Clearwater, FL 33758
If to Agency: Citation Management
A division of
Professional Account
Management LLC
633 W. Wisconsin Avenue
Suite 1600
Milwaukee, WI 53203
SECTION 7.
Hold Harmless
7.1 Creditor Representations. Creditor
agrees to comply with all applicable laws
regarding the subject matter of this
Agreement, to at all times act in good faith,
and to indemnify and hold Agency harmless for
all acts or omissions committed by Creditor
and for all alleged wrong doings which create
legal or other liability.
7.2 Agency Representations. Agency
agrees to comply with all applicable laws
regarding the subject matter of this
Agreement, to at all times act in good faith,
and to indemnify and hold Creditor harmless
for all acts or commission committed by
Agency and for all alleged wrongdoings which
create legal or other liability.
SECTION 8.
Governina Law
8.1 Applicable Law. This Agreement is
made pursuant to the laws of the State of
Confidentiai
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Florida and shall be construed in accordance
with those laws.
8.2. Arbitration. Any controversy arising
out of or related to this Agreement or the
breach thereof shall be settled by arbitration in
accordance with the Rules of the American
Arbitration Association (AAA) in Milwaukee,
Wisconsin. Another location for arbitration
under the Rules of AAA may be chosen if
mutually agreed by the parties. This contract
shall be deemed to be a written agreement to
arbitrate any controversy between the parties
as outlined herein. The consideration given by
the parties as described in this contract shall
be deemed consideration adequate to support
this agreement to arbitrate.
A judgment upon the award rendered by the
arbitrators may be entered in any court having
jurisdiction thereof in accordance with
Wisconsin law except as otherwise provided
herein. Any arbitration shall be conducted by a
retired judge hired from Resolute Systems
Inc., or a successor entity (collectively,
"Resolute"). The arbitrators shall have all
powers of a court of law in the relevant
jurisdiction. Such powers shall include but
shall not be limited to: (a) the power to issue
temporary restraining orders and injunctions;
(b) the power to award damages; (c) the
power to issue subpoenas; and (d) the power
to issues all orders and to take all actions
necessary to enforce their jurisdictions as
provided by law.
The identity of the arbitrator shall be agreed
upon by the parties. In the absence of an
agreement, one (1) arbitrator shall be selected
by Resolute under its standard selection
procedures using any reasonable and fair
method.
An award in arbitration shall be final and
binding upon the parties and enforceable under
law.
The prevailing party in any arbitration
proceeding herein shall be awarded its costs
and expensed including reasonable attorney
fees. For purposes of this contract, a
"prevailing party" shall be the party awarded
any nonmonetary relief sought or more than
fifty percent (50%) of the monetary damages
sought.
SECTION 9.
Miscellaneous
9.1 Modification. This Agreement shall be
modified only by written instrument signed by
duly authorized representatives of both parties.
9.2 Nonwaiver. The failure of either party to
insist, in anyone or more instance, upon the
performance of this Agreement, or the failure
to exercise any right or privilege herein
conferred, shall not be construed as a waiver
of any such covenant, conditions, rights, or
privileges, but the same shall continue and
remain in full force and effect.
9.3 Counterparts. This Agreement may be
executed by the parties hereto in separate
counterparts, each of which when so executed
and delivered shall be an original, but all such
counterparts shall together constitute one and
the same instrument. Each counterpart may
consist of a number of copies hereof, each part
signed by less than all, but together signed by
all the parties hereto.
9.4 Authorization. Those signing below
warrant that they are representatives of the
parties and are authorized to enter into this
Agreement, and are acting pursuant to a
resolution of their respective boards of
directors, if such resolution is required, prior to
entering into such agreement.
Confidential
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....,. , ..
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day first
written above.
CITATION MANAGEMENT, A DIVISION OF
PROFESSION ACC N M AGEMENT
LLC
By
Its:
Countersigned:
CITY OF CLEARWATER, FLORIDA
~K~
~nk V. Hibbard /
Mayor
Confidential
B;:~ .. B. e II
~O City Man ge,
Attest:
~~ Ift-"M~
I2rtJ Cyn i E. Goudeau
1) - City Clerk
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