COLLECTION AGENCY SERVICES AND FEE AGREEMENTCOLLECTION AGENCY SERVICES AND FEE AGREEMENT
This Service Agreement is made by and
between Citation Management, a division of
Professional Account Management LLC, a
Duncan Solutions Company, 633 W. Wisconsin
Avenue, Suite 1600, Milwaukee, WI 53203,
hereinafter referred to as "Contractor" and The
City of CLEARWATER, FL, a municipal
corporation existing under the laws of the
State of Florida, P. O. Box 4748, Clearwater,
Florida 33758-4748, hereinafter referred to as
"City" and entered into this (U?' day
Of? pik"bax , 2010. 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 (#11-10), Addenda
(Questions and Answers) to the RFP #11-10,
Duncan's response to the RFP #11-10 dated
May 4, 2010 and Duncan's letter dated July 8,
2010.
1.3 City's Right to Legal Process. City
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 City's attorney. The City shall
make all decisions regarding litigation,
garnishment, or other legal process, including
but not limited to any issues pertaining to the
statute of limitations. Contractor shall not be
responsible or liable in any respect for the
performance of such attorney.
1.4 City's Duty to Provide Information.
The City agrees to provide the Contractor with
all information it has obtained regarding each
Debt placed under this Agreement. It is the
obligation of the City to provide the Contractor
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 Contractor to collect the Debt.
WITN ESSETH
WHEREAS, City desires Contractor to
undertake the collection of City'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 City and Contractor 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.
City Performance
1.1 Authority to Collect. City hereby
authorizes Contractor to use any legal means
to collect the Debts placed with Contractor by
City.
1.2 Ownership of Debts. The City shall
maintain ownership of all Debts placed with
Contractor for collection under this Agreement.
City maintains legal rights and title to these
accounts unless other arrangements are made
in writing between the Parties.
1.5 City Warranties. City warrants that the
Debts placed with Contractor have been
reviewed by City prior to transfer to the
Contractor in accordance with this Agreement
and that the balances reported to Contractor
are correct, that all obligors on the Debts have
been disclosed and that all disputes and
defenses of debtors have been reported to
Contractor to the best of City's knowledge.
1.6 Notice of Dispute. The City shall inform
the Contractor 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, City shall also notify Contractor of
the date of the writing and provide Contractor
with the original dispute or a copy thereof.
1.7 City's Continuing Duty. City has a
continuing obligation to provide Contractor
with the information required in paragraph 1.6
of this Agreement during the time such Debt is
placed with Contractor for collection as well as
any time that the Contractor is furnishing
information to a credit reporting Contractor
about the Debt.
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1.8 Authorization to Receive Payment
and Endorse Instruments. City authorizes
and appoints Contractor to collect and receive
for City all sums of money due or payable to
City for Debts placed with Contractor for
collection or credit reporting. Contractor 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
Contractor. The Contractor 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 Contractor. Contractor will remit gross
funds collected, less return payment items, on
a weekly basis via EFT (Electronic Funds
Transfer).
1.9 Authorization to Investigate. City
expressly authorizes Contractor to perform
investigatory services in relation to the
ordinary debt collection activities it performs
for City.
SECTION 2.
Contractor Performance
2.1 Agreement to Collect. Contractor
agrees to provide debt collection services to
City in compliance with all applicable laws,
regulations, licensing requirements and
bonding requirements.
2.2 Documentation of
Accounts/ Financial Reporting. Contractor
shall provide City 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 Contractor
to City on a weekly and monthly basis.
2.3 BILLING AND PAYMENT
PROCEDURES
Contractor shall provide the City on a monthly
basis with a statement and fee analysis that
accurately reflects the fees earned during the
preceding period. Fees earned by the
Contractor 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.
Contractor will invoice the City on a monthly
basis and the City will issue payment via a
check or electronic payment to the Contractor.
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 City shall either
approve or reject the statement and fee
analysis. If these documents are rejected by
the City, Contractor will be notified, and both
parties shall use their best efforts to resolve
the disputed items.
2.4 Credit Reporting. Contractor 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. Contractor 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. Contractor
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.
Contractor 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
City.
2.7 Licenses and Certificates of
Authority. Contractor 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 City.
2.8 Trust Account. Contractor 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 City.
2.9 Methods of Debt Collection.
Contractor 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 (FORA) and all other
applicable state, federal and local laws and
regulations.
SECTION 3.
Leaal Process
3.1 Decision Making Authority. City
reserves the right to decide whether Debts
shall be placed in litigation, including Debts
subject to a forwarding agreement. In keeping
with this authority, City may authorize
Contractor in writing to retain an attorney for
City on prescribed terms and to commence
litigation in the name of the City.
3.2 Authority and Role of Attorney. An
attorney selected by Contractor under
paragraph 3.1 for this purpose, shall be
considered City's attorney. City may authorize
Contractor 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 City, and the attorney may report
directly to City or indirectly to City through the
Contractor.
3.3 Attorneys Fees. The attorney shall
charge an agreed fee to City directly or the
attorney may be authorized to deduct it from
the proceeds collected. Either Contractor or
the attorney may advance necessary legal
costs as allowed by law, but City 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 Contractor which shall be authorized
to deduct the agreed commission and
disbursements, before remitting the balance to
City.
3.4 Forwarded Claims. City reserves to
itself the decision whether any forwarded Debt
shall be placed in litigation, and may appoint in
writing such other collection Contractor 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
shall be based upon a contingency fee. A Debt
placed for collection with Contractor or with an
attorney to obtain judgment or otherwise
satisfy payment of this account, shall be
subject to a collection fee of twenty-three
percent (23)% of the unpaid balance. This
amount shall be in addition to any other costs
incurred directly or indirectly by Contractor or
City'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. City authorizes Contractor to
advance amounts for court costs, fees on any
litigation or legal proceeding which City has
authorized and costs which relate to the
collection of City's Debts. City authorizes
Contractor to retain amounts equal to such
costs and fees on Debts it collects as
reimbursement for Contractor's expenditures.
4.3 Reimbursement of Costs and
Expenses. If Contractor advances the
payment of any costs or expenses authorized
by City by way of this Agreement or any other
and an insufficient amount of money is
collected by Contractor on that particular Debt
to reimburse Contractor for the expenditure;
City shall reimburse Contractor for all such
costs and expenses not covered by the amount
collected on the Debt. If paid by Contractor,
said amounts shall be construed as additional
costs of collection.
4.4 Authorization to Add Interest and
Fees. City authorizes Contractor 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. City authorizes
Contractor 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 City.
However, any amount of attorney fees
collected shall be part of the total amount
collected upon which the Contractor'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, Contractor will reverse the amount of
such payment. All Contractor fees taken on
such payment shall be reversed from the
current month's billing statement.
SECTION 5.
RiahtOf City To Withdraw Accounts
5.1 Terms of Withdrawal. City may
request the return of any and all accounts
which it has placed with Contractor within
thirty (30) calendar days of written demand.
Contractor agrees to return all such accounts
to City along with a financial record of the
accounts including amounts collected,
commission retained, additional fees, interest
and charges added to account as authorized by
City, and a detailed account of any amount of
money Contractor has expended on behalf of
City which Contractor is seeking to retain. City
authorizes Contractor to retain all commissions
on those accounts to which Contractor is
entitled under this Agreement and to retain all
costs and expenses which Contractor has
expended on behalf of City.
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 for two (2)
additional one (1) year periods at the City'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 City shall pay all commissions,
as herein agreed, on debts that have been
collected through the end of the Contractor's
business day on the date of notice of
termination.
Contractor shall remit balances due to City
under the terms of this Agreement and provide
a detailed report to City 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 City: City of Clearwater
Attention: Parking Manager
100 South Myrtle Ave,
Ste 221
Clearwater, FL 33756-5520
If to Contractor: Citation Management
A division of
Professional Account
Management LLC, a Duncan
Solutions Company
633 W. Wisconsin Avenue
Suite 1600
Milwaukee, WI 53203
SECTION 7.
RoW Harmless
7.1 City Representations. City 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 Contractor harmless for all acts or
omissions committed by City and for all alleged
wrong doings which create legal or other
liability.
7.2 Contractor Representations.
Contractor 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 City harmless for all
acts or commission committed by Contractor
and for all alleged wrongdoings which create
legal or other liability.
SECTION 8.
Governing_ Law
8.1 Applicable Law. This Agreement is
made pursuant to the laws of the State of
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?1/
Florida and shall be construed in accordance
with those laws.
8.2. Dispute Resolution. Any controversy
arising out of or related to this Agreement or
the breach thereof shall be settled in a court of
competent jurisidiction in Pinellas County,
Florida.
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 any one 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.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day first
written above.
CITATIO ANAGEMENT, A DIVISION OF
CITY OF CLEARWATER, FLORIDA
Frank V. Hibbard
Mayor
Ap rov4to-:
Camilo Soto
Assistant City Attorney
By: /9c Al.., lam B. Horne II - (:2a-z:?4e! City Manager
Attest:
, epauxab" cut
Rosemarie Call
City Clerk
C-1 OF rj/,T
_ a
ACCOUNT MANAGEMENT
AL
LLC, A N SOLUTIONS COMPANY
By
PROF Countersigned:
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