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2013-153ORDINANCE NO. 2� 13- i s 3 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE,�A PROFESSIONAL SERVICES AGREEMENT , WITH SAWKO & BURROUGHSF�, FOR PROFESSIONAL SERVICES RELATED TO COLLECTION OF DELINQUENT TAXES ON BEHALF OF THE CITY OF DENTON; AND ESTABLISHING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION l: The City Manager is hereby authorized to execute a Professional Services Agreement with Sawko & Burroughs, bL� in substantially the form attached and incorporated herein by reference. pC SECTION 2: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the %i�� day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APP VED A TO LEGAL FORM; ANITA BURGESS, CITY ATTORNEY ,, BY: s:\our documentslordinances\I3ldelinquen[ tax collection ordinance.doc �� � � ��/.�1 ,. , � ..� f7''. �• CONTRACT FOR TAE COLLECTION OF DELINOUENT PROPERTY TAXES THE STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT is made and entered into by and between the City of Denton, 215 East McKinney, Denton, Texas 76201 (hereinafter, "CITY"), acting herein by and through its governing body, and the Law Firm of Sawko & Burroughs, PC, 1172 Bent Oaks Drive, Denton, Texas 76210 (hereinafter, "FIRM"). 1. EMPLOYMENT OF FIRM CITY agrees to employ, and does hereby employ, FIRM as an independent contractor. FIRM hereby agrees to enforce, by suit or otherwise, the collection of a11 delinquent taxes, penalties, and interest owing to CITY. All references herein to CITY shall also incorporate reference to CITY's contract with Denton County, Texas to collect t�es. A. FIRM shall initiate collection on current and prior year delinquencies as of July 1, 2013, and shall initiate collection on subsequent delinquencies as of each subsequent July lst anniversary. B. With respect to delinquent personal property taxes only, FIRM shall have the option to initiate collection on March lst of the year in which they become delinquent; however, CITY shall nat o�ve FIRM a fee on current year delinquent personal property taxes collected bet�ueen March 1 St and June 30�', unless attorney fees are collected pursuant to Tex. Prop. T� Code §33.48. C. FIRM shall perForm a11 those services set forth in CITY's Request for Proposals ("RFP") dated August 19, 2008 and FIRM's response to the RFP dated September 10, 2008, which are on file in the office of the Purchasing Agent and made a part hereof, as if written word for word herein and as further set forth in a contract between CITY and FIRM dated November 4, 2008, and in an extension to said contract dated May 3, 2011 and a separate contract dated July 1, 2012. D. The terms of this Contract control over the terms and conditions of the attached e�iibits, in the event of a conflict. FIIZM hereby agrees to perform these services with diligence and in accordance with the highest professional standards customarily associated with such services in the State of Texas. 2. PROVISION OF INFORMATION CITY agrees to furnish its delinquent tax information to FIRM on all property within the boundaries of CITY, including name, identity, location of necessary parties, and property descriptions. Page 1 3. INVESTIGATION AND ASSISTANCE FIRM agrees to investigate the address of each taxpayer, and the location of the property, where such information may be incorrect on the delinquent tax record. FIRM shall bring to the attention of the appropriate tax official of CITY any errors, double assessments, discrepancies, or inaccuracies detected by FIRM in the delinquent tax record. FIRM further agrees to provide CITY any advice or assistance in updating the t� rolls. 4. COLLECTION Upon initial receipt of computer readable delinquent t� records, FIRM agrees to initiate collection of the full amount due from each taxpayer. Within a reasonable time frame, but not more than 60 days from FIRM's receipt of the delinquent tax recards, FIItM hereby agrees to send, by first class mail, a notice of delinquency to each and every delinquent taxpayer, requesting said t�payer to remit the full amount due and owing to CITY, except in cases where the taxes have been deferred or rnade the basis of a lawsuit against the Denton County Appraisal District to determine value. 5. REVIEW AND AUTHORIZATION TO SUE Following transmittal of the notice of delinquency as specified above, FIRM will aggressively pursue collection, in anticipation of litigation. CITY shall have absolute discretion over the decision to file suit. Transmittal of the delinquent tax information from CITY to FIRM shall constitute authorization to file suit, following the mailing of the initial notice of delinquency. Upon written notice, CITY may, at any time, withc�raw authorizat�on to file suit. CITY may at any time withdraw authorization to foreclose and sell the property, and said withdrawal shall be in writing. 6. LITIGATION RESPONSIBILITIES A. FIRM agrees to commence litigation, prosecute, and reduce to judgment all delinquent accounts, including all pending lawsuits that FIRM deems to warrant, or upon which CITY has specifically requested action in writing. Each suit filed sha11 seek: personal judgment against the individual taxpayer for all taxes upon which the taxpayer can be held personally liable; penalty and interest; foreclosure of any tax lien which may exist by operation of law; any and all court costs incurred in prosecuting the lawsuit; and any collection fees or attorney fees which the taacpayer is obligated to pay. FIRM shall perform litigation responsibilities and protect CITY's legal remedies, including appeals, preparation of any documents required, post judgment activities, and any other actions necessary in order to collect the delinquent taxes. B. FIRM will assume the representation of CITY in all lawsuits, including all pending lawsuits, involving the collection of delinquent taxes and enforcernent of tax liens, including, but not limited to bankruptcy litigation, claims, and actions required to be filed with federal agencies such as FDIC, FSLIC and RTC, interventions in suits filed on behalf of any other taxing units' current suits, and any other suit or litigation which may involve or relate to the collection of delinquent taxes. FIItM will inform CITY of any counterclaims or cross-actions filed against CITY. Page 2 C. Upon request, FIRM agrees to provide legal advice and assistance to CITY in the acquisition of property for public purpose use, pursuant to the Property Tax Code. 7. TAXPAYER SERVICES In addition to litigation, FIRM further agrees to provide taxpayer service without charge. As such, FIRM agrees: (1) to provide CITY legal advice and written opinions regarding tax matters upon request; (2) to respond to t�payer inquiries and to advise CITY, in writing; and (3) make any recommendations concerning installment payment agreements and settlement agreements proposed by the taxpayer. CITY shall have final determination in acceptance of all installment payments or settlement agreements within parameters established by CITY. FIRM shall have discretion to enter into installment agreements, subject to CITY's prerogative of final determination. In all demand letters and a11 communications with taxpayers, FIRM shall inform and instruct the taxpayer to remit payment to CITY. If remittance is received by FIRM, it must be transmitted in its entirety to CITY and received for processing by 11:30 a.m., the following business day. Checks made payable to FIRIVI shall be endorsed by FIRM to CITY. No check, cash, or money order for payment of delinquent taxes shall be deposited in any FIRM account. 8. PROGRESS REPORTS FIRM agrees to make delinquent tax collection progress reports to CITY monthly and quarterly, in a format containing information requested by CITY's Director of Finance. Progress reports may include, without limitation: a. Number and type of communication with delinquent taxpayers; b. Summary of all delinquent accounts collected; c. Number of suits filed; d. Detailed list of suits filed; e. Nurnber of judgments rendered; f. Detailed list of judgments rendered; g. Number of warrants issued/served; h. Detailed list of bai�liptcies and status of those properties; i. Number of properties submitted to courts for auction; j. Detailed list of properties submitted to courts for auction, with date submitted and most recent status; k. Number of properties sold; and 1. Detailed list of properties sold or reverting to taxing entity because of non-sa1e. Within parameters established at the initiation of the collection program, FIRM shall advise CITY of any case in which FIKM's investigation has revealed that the taxpayer cannot be found, the enforcement of the tax lien cannot be accomplished, or further attempts at tax collection would be futile, and shall provide FIRM's recornmendation regarding the proper disposition of the case. In such cases, CITY shall advise FIRM as to the appropriate disposition of the account. Page 3 9. COMPENSATION A. As compensation for the services rendered hereunder by FIRM, CITY hereby agrees that FIRM may retain 20% of the total amount of all delinquent taYes, penalties, and interest for the tax years covered by this Contract, as authorized by Tex. Prop. Tax Code §6.30(c). Said 20% shall constitute an additional penalty, to defray costs of collection as set forth in Tex. Prop. Tax Code §33.07. All compensation set forth above sha11 become the property of FIRM at the time payment of taxes, penalties, and interest are received by CITY. The 20% collection fee will only be retained on taxes which remain delinquent after July lst of the year on which they became delinquent, pursuant to Tex. Prop. Tax Code §33.07. FIRM shall not be entitled to the aforesaid 20% unless and until FIRM has taken some action in connection with recovering delinquent taxes. The transmittal of a notice of delinquency sha11 constitute sufficient action in order to entitle FIItM to the aforementioned fee. As compensation for the services rendered hereunder by FIRM for the collection of taxes which are not eligible for the additional penalty authorized by Tex. Prop. Tax Code §33.07, and upon which suit has been filed, the compensation shall be reasonable attorney fees approved by the court, not exceeding 15% of the total amount of taxes, penalties, and interest due CITY. In no event shall FIRM be entitled to any fee, unless and until CITY actually collects the delinquent taxes, penalties, interest, court costs, collection costs, or attorney fees from the taxpayer, or from the proceeds of a forced sale or foreclosure. In no event shall FIRM be entitled to any fee, unless said fee is collected by CITY during the term of this Contract, or fee is collected by CITY on accounts upon which FIR.M is attorney of record at the time of judgment. No interest shall accrue on any late payment. B. The compensation set forth in paragraphs 9, 10, and 13 of this Contract shall be the total compens�tion due to FIRM for all services provided pursua�t to this Cantract, and in no event shall FIR.M seek any additional compensation from CITY. 10. COLLECTION OF OTHER DELINQUENT ACCOUNTS FIRM shall, upon written request of City, undertake the collection of delinquent accounts for paving assessment liens, substandard housing demolition liens, and weed liens. The collection of these accounts shall be undertaken on the basis of attorney fees assessed to and collected from the debtors. CITY agrees to pay FIRM, as compensation, all amounts received as attorney fees on delinquent accounts for paving assessment liens, substandard housing demolition liens, and weed liens which are collected as a result of FIltM's collection efforts during the term of this Contract. 11. CONFLICTS OF INTEREST FIRM agrees not to represent any client who has an adversarial position with the City of Denton or engage in any conflict of interest, and agrees to comply fully with the Texas Disciplinary Rules of Professional Conduct (Subtitle G- Texas Government Code) for the duration of this Contract. 12. TERM This Contract sha11 begin on July 1, 2013, and end on June 30, 2016 and may be renewed for not more than two (2) additional one (1) year terms upon agreement of the parties. At the Page 4 � conclusion of the said second renewal, this Contract shall continue in full force and effect from month to month at the option of CITY, unless either party delivers written notice to the other party of its intent to terminate this Contract at least 30 days prior to the date of the intended termination. FIRM shall have an additional six months to reduce to judgment and sale all tax collection lawsuits filed and collect all bankruptcy claims filed prior to the termination date, and shall ha�e the exclusive right to compensation of fees earned due to these suits during this six month period. CITY sha11 have the right to sooner terminate this Contract by giving 30 days' written notice of such intention, or in the event of any of the events taking place under Section 33 "Termination of Agreement" of this Contract. In case of such termination, FIRM shall be entitled to receive and retain all compensation due up to the date of said termination. Upon terminarion, FIRM shall imrnediately deliver all files in their entirety to CITY at no cost to CITY. 13. ATTORNEY FEES In eminent domain and other judicial proceedings, FIR.M will be entitled to only those attorney fees awarded by the court, and then only if collected by CITY. In bankruptcy proceedings, FIRM shall be entitled to a fee of 20% of the tax, penalties, and interest actually collected by CITY. FIRM agrees to file and diligently pursue all property tax claims on behalf of CITY in bai�uptcy, eminent dornain, and other judicial or administrative proceedings, whether federal or state in nature. 14. TAX WARRANTS Upon request aud authorization of CITY, FIRM shall prepare and pursue the issuance of tax warrants. FIRM shall then coordinate the seizure of personal property, pursuant to warrant, FIRM shall acco�pany the Tax Collector to th� lacation of the personal pr-operty w�ch is to be seized to insure that all necessary procedures have been followed. 15. SETTLEMENTS No settlements or compromises of taxes, penalties, or interest shall be effected where prohibited by law, and only upon approval by CITY where authorized by law. If a taxpayer requested waiver is upheld as provided by Tex. Prop. Tax Code §33.011, FIR.M will bear the costs of suit if it failed to notify the taxpayer of the delinquency prior to filing of the suit. 16. NOTICE Any notice or other written instnunent required or permitted to be delivered pursuant to the terms of this Contract shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, addressed to CITY or FIRM, as the case may be, at the following addresses: Page 5 CITY City of Denton, Texas ATTN: Director of Finance 215 East McKinney Denton, Texas 76201 FIRM Sawko & Burroughs, PC ATTN: Gregory Sawko 1100 Dallas Drive, Suite 100 Denton, Texas 76205 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. 17. COLLECTION REQUIREMENTS FIRM agrees to collect, between July 1, 2013 and June 30, 2014, not less than 60% of the total dollar value of the adjusted base tax of the 2012 delinquency existing on July 1, 2013, and not less than 30% of the aggregate delinquent tax roll for the prior year. For each subsequent year of this agreement, FIRM agrees to collect, between July lst and June 30th of each year, not less than 60% of the total dollar value of the adjusted base tax from the most recent tax year of the delinquency existing on July lst of each respective year, and not less than 30% of the aggregate delinquent tax roll each 12 months. 18. VENUE The terms, obligations, and requirements of this Contract sha11 be construed in accordance with the laws of th� Stat� of Texas. The obligations and requirements of tl�e parties hereto are performable in Denton County, Texas. Any litigation involving this Contract shall be tried in a court of competent jurisdiction sitting in Denton County, Texas. 19. ACCEPTANCE OF EMPLOYMENT In consideration of the terms, covenants, and mutual agreements hereinabove stated, FIRM hereby accepts the employrnent of CITY, and undertalces the performance of this Contract as above stated. 20. DIRECTIVES All directives between FIRM and CITY sha11 be confirmed in writing. 21. COVENANT NOT TO SUE FIRM further agrees not to bring any cause of action against CITY relative to this Contract. Should FIRM bring any cause of action against CITY, FIRM agrees the liquidated damages shall not exceed $1.00, and the filing of such cause of action shall be considered a material breach of this Contract. Page 6 22. AMEIGUITY Any ambiguity within this Contract shall be liberally interpreted in favor of CITY. 23. ASSIGNMENT The rights and responsibilities of CITY under this Contract may be assigned by the City Council to another governmental unit in Denton County without approval of FIRM. It is understood and agreed that this is a professional services contract, and CITY is contracting far the unique services of FIRM. FIRM's rights and responsibilities under this Contract may not be assigned by FIRM to another law firm or collection agency without written approval of the assignment by the City Council. 24. INDEIVINITY AGREEMENT FIRM shall indemnify, save, and hold harmless CITY and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or ornissions of FIRM or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Contract. Nothing in this Contract shall be construed to create a liability to any person who is not a party to this Contract. Nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of actimn, or litigation filed by �nyone not a party to this Contract, including the defense of governmental immunity, which defenses are hereby expressly reserved. 25. AUDITS CITY shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. FIRM shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, FIRM shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow CITY similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by CITY unless the audit reveals an overpayment of 1% or greater. If an overpayrnent of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by FIRM which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and sha11 constitute, in CITY's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed Page 7 to include drafts and electronic files, even if such dra$s or electronic files are subsequently used to generate or prepare a final printed document. 26. INSURANCE During the performance of the services under this Contract, FIRM shall maintain the following types of insurance, meeting the minimum dollar requirements stated below, with an insurance company licensed to do business in the State of Texas by the State Insurance Commission (or its successor), having a Best Rate Carriers rating of A- or above: Professional liability insurance with limits of not less than $100,000 per occurrence and $300,000 annual aggregate. Automobile and Comprehensive General Liability insurance with bodily injury limits of not less than $1,000,000 for each person and aggregate of $2,000,000 and with property damage limits of not less than $50,000 per accident FIRM shall furnish insurance certificates or insurance policies at CITY's request to evidence such coverages. The Automobile and General Liability insurance policies shall name CITY as an additional insured, to the extent legally possible. All such policies of insurance shall not be canceled or modified without 30 days prior written notice to CITY and FIRM. In such event, FIRM shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. 27. A�2BIT-RAT-�ON AND A�,T-E�t1VATE DISPUTE RESOLU�I()N The parties may agree to settle any disputes under this Contract by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Contract, involving one party's disagreement, may include the other party to the disagreement without the other's approval. 28. ENTIRE AGREEMENT This Confiract, consisting of 11 pages, constitutes the complete and final expression of the agreement of the parties, and is intended as a cornplete and exclusive statement of the terms of their agreements. This Contract supersedes all prior contemporaneous offers, prornises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. 29. COMPLIANCE WITH LAWS FIRM sha11 comply with all federal, state, and locallaws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. Page 8 30. DISCRIMINATION PROffiSITED In performing the services required hereunder, FIRM shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestty, age, or physical handicap. 31. PERSONNEL AND EQUIPMENT A. FIRM represents that it has or will secure, at its own expense, a11 personnel required to perform all the services required under this Contract. Such personnel sha11 not be employees or officers of, or have any contractual relations with, CITY. FIRM shall inform CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Contract. B. All services required hereunder will be performed by FIRM, or under its supervision. � All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. C. FIRM represents that it has or will secure, at its own expense, the hardware, software, and other resources required to perform, all the services required under the terms of this contract in a timely manner. 32. ASSIGNABILITY FIRM shall not assign any i�terest in this Contract, �nd sha11 not transfer any interest in this Contract (whether by assignment, novation, or otherwise) without the prior written consent of CITY. 33. TERMINATION OF AGREEMENT A. Norivithstanding any other provision of this Contract, either party may terminate by giving 30 days advance written notice to the other party. B. This Contract may be terminated, in whole or in part, in the event of either party substantially failing to fulfill its obligations under this Contract. No such termination will be effective unless the other party is given: (1) written notice, delivered by certified mail, return receipt requested, of intent to terminate, setting forth the reasons, specifying the nonperformance, and giving the other party not less than 30 calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Contract is terminated prior to completion of the services to be provided hereunder, FIRM shall immediately cease all services and shall render a final bill for services to CITY within 30 days after the date of termination. CITY shall pay FIRM for all services properly rendered and satisfactorily performed, and for reirnbursable expenses to termination incurred prior to the date of termination, in accordance with Article 9"Compensation". Should CITY subsequently contract with a new consultant for the continuation of services Page 9 outlined in this Contract, FIRM shall cooperate in providing information. FIRM shall turn over all documents prepared or furnished by FIRM, pursuant to this Contract, to CITY on or before the date of termination, but may maintain copies of such documents for its use. 34. MODIFICATION No waiver or modification of this Contract, or of any covenant, condition, or limitation herein contained shall be valid, unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto, out of, or affecting this Contract, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing and duly executed. The parties further agree that the provisions of this section will not be waived unless as herein set forth. 35. INDEPENDENT CONTRACTOR FIRM shall provide services to CITY as an independent contractor, not as an employee of CITY. FIRM sha11 not have or claim any right arising from employee status. 36. MISCELLANEOUS A.. FIRM agrees that CITY shall, until the expiration of three years after the final payment under this Contract, have access to and the right to examine any directly pertinent books, documents, papers, and records of FIRM involving transactions relating to this Contract. FIItM agrees that CITY s�all have access, during norr�al working hours, to all necessary FIRM facilities, and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. CITY shall give FIRM reasonable advance notice of intended audits. B. For the purpose of this Contract, the key person who will perform most of this work hereunder sha11 be Gregory Sawko. However, nothing herein shall lirnit FIRM from using other qualified and competent members of its firm to perform the services required herein. C. EIRM shall commence, carry on, and complete any and a11 projects with all applicable dispatch, in a sound, economical, efficient manner, and in accordance with the provisions hereof. In accomplishing the services hereunder, FIRM shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by CITY. D. CITY shall assist FIRM by placing at FIRM's disposal all available information pertinent to the services outlined in this Contract, including previous reports and any other data relative to the services outlined in this Contract, and arranging for the access thereto. CITY shall make all provisions for FIRM to enter in or upon public and private property as required for FIRM to perform services under this Contract. Page 10 37. TIME OF THE ESSENCE Time is of the essence with respect to all matters covered by this Contract. 38. CAPTIONS The captions appearing at the first of each numbered section are inserted and included solely for convenience, and shall never be considered or given any effect in construing this Contract. This Contract is executed on behalf of CITY by the presiding officer of its governing body who is authorized to execute this instnzment by order heretofore passed and duly recorded in its minutes and by a partner of FIRM who, by execution of this Contract, represents and warrants that he or she has the authority to execute this document on behalf of FIRM. WIT`NESS the signature of all parties hereto in triplicate originals this the � day of " 7,�, , 2013, Denton County, Texas. CITY OF DENTON, S � GEO GE C. CANIl'BELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY B �J OVED AS O LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r BY: , � SAWKO & B�JRROUGHS, PC CEO s:llegallour documentslcontracts113�sawko & bunoughs tax collection contract.doc Page 11