by MVBA and the City. This Agreement supersedes all prior oral and written agreements between the

Transcription

1 AGREEMENT FOR COLLECTION OF DELINQUENT MUNICIPAL COURT FINES AND FEES STATE OF TEXAS COUNTY OF WILLIAMSON CITY OF ROUND ROCK THIS AGREEMENT ( hereinafter referred to as the " Agreement") is made and entered into by and between the CITY OF ROUND ROCK, TEXAS, acting herein by and through its governing body, hereinafter referred to as the " City"), and McCREARY, VESELKA, BRAGG AND ALLEN, P.C. hereinafter referred to as " MVBA"). ARTICLE I. Nature of Relationship and Authority for Contract The City agrees to retain and does hereby retain MVBA to provide legal services related to the enforcement of the collection of delinquent municipal court fines, fees, court costs, restitution, debts and accounts receivable and other amounts in accordance with Article , Texas Code of Criminal Procedure (hereinafter referred to as " Fines and Fees"). ARTICLE II. Scope of Services The City agrees to employ and does hereby employ MVBA to provide specific legal services provided herein and enforce the collection of delinquent court Fines and Fees that are subject to this Agreement, pursuant to the terms and conditions described herein. Such legal services shall include but not be limited to recommendations and legal advice to the City to take legal enforcement action; representing the City in any dispute or legal challenge over authority to collect such Fines and Fees; defending the City in litigation or challenges of its collection authority; and representing the City in collection interests in bankruptcy matters; all such legal services to be provided as mutually determined by MVBA and the City. This Agreement supersedes all prior oral and written agreements between the parties regarding the subject matter hereof, and can only be amended if done so in writing and signed by all parties. Furthermore, this Agreement cannot be transferred or assigned by either party without the written consent of the other party. The City may from time to time specify in writing additional actions that should be taken by MVBA in connection with the collection of the Fines and Fees that are the subject of this Agreement. The City further constitutes and appoints MVBA as the City' s attorneys to sign all legal instruments, pleadings, drafts, authorizations and papers as shall be reasonably necessary to pursue collection of the City' s claims. Fines and Fees that are subject to this Agreement are those that are more than sixty ( 60) days past due as of the effective date hereof and those that become more than sixty ( 60) days past due during the /jkg V -I- o3 - -2S - 5

2 term hereof. As used in this Article, " more than 60 days past due" has that meaning assigned by Subsection ( f) of Art , Texas Code of Criminal Procedure [ as amended by Senate Bill 782, 78th Legislature ( 2003), effective Junel8, 2003]. The meaning assigned to the phrase " more than 60 days past due" shall, for the term and purposes of this Agreement, survive any future amendments to, or repeal of, Article , Texas Code of Criminal Procedure, or any parts thereof. The City agrees to provide to MVBA data regarding any Fines and Fees that are subject to this Agreement. The data shall be provided via electronic transmission or magnetic medium in a file format specified by MVBA. The City and MVBA may from time to time agree in writing to modify this format. The City shall provide the data to MVBA not less frequently than monthly, on a date or dates agreed upon by the parties. MVBA shall forward to the City all cashier' s checks or money orders received by MVBA made payable to the City, along with any correspondence from defendants. Cashier' s checks or money orders received by MVBA which are made payable to MVBA will be deposited daily into the MVBA Trust Account. MVBA may collect the amount due from the defendant by credit card or electronic draft, which funds shall be deposited into the MVBA Trust Account. MVBA shall remit to the City, at least semi- monthly, all funds deposited into the MVBA Trust Account which pay the entire balance of a Fines and Fees account, along with an invoice detailing the docket number, name of defendant, amount paid by the defendant to MVBA or directly to the City and the MVBA fee percentage and fees earned for each case. The remittance from MVBA to the City shall include the fees earned by MVBA on the Fines and Fees collected. The City shall be responsible for the posting to the records of the City the payment of all Fines and Fees and accounts receivable collected pursuant to this Agreement. However, upon written direction of the Court, all communications from MVBA to defendants, whether oral or written, shall instruct defendants to forward all monies directly to the City of Round Rock Municipal Court. In spite of instructions to the defendant to the contrary, if MVBA receives any direct payment on any case by a defendant or an agent of a defendant, MVBA will receive and record any such payment made and immediately remit same to the City. ARTICLE III. Indemnification MVBA shall indemnify and hold the City harmless from and against all liabilities, losses and/or costs arising from claims for damages, or suits for losses or damages, including reasonable costs and attorney' s fees, which may arise as a result of MVBA' s performance of the services described in this Agreement. The indemnity provision of this Agreement shall have no application to any claim or demand which results from the sole negligence or fault of the City, its officers, agents, employees or contractors. Furthermore, in the event ofjoint and/ or shared negligence or fault of the City and MVBA, responsibility and indemnity, if any, shall be apportioned in accordance with Texas law and without waiving any defenses of either party. The provisions of this Article are intended for the sole benefit of the parties hereto and are not intended to create or grant any right, contractual or otherwise, to any other persons or entities. 2

3 ARTICLE IV. Compensation For the collection of Fines and Fees, the City agrees to pay to MVBA, as compensation for the legal services rendered, the following fees: 1. For those Fines and Fees imposed against Unadjudicated Offenses that occurred before June 18, 2003, there is no fee due ( 0%) MVBA on the amount collected by the Court on those cases. 2. For those Fines and Fees imposed against Adjudicated Offenses regardless of the date of the offense, and against Unadjudicated Offenses that occurred on or after June 18, 2003, a fee of thirty percent ( 30%) of the amount of the Fines and Fees collected by the Court as provided by Article of the Code of Criminal Procedure on those cases in which the data files are transmitted to MVBA by electronic media. 3. In the event any case is disposed of by acquittal or dismissal, or if the fine, costs and/ or fees are discharged through performance of community service, credit for jail time served, the discretionary removal of a collection fee by the Court or pursuant to of the Code of Criminal Procedure, no compensation shall be paid to MVBA by the City. All compensation due to MVBA shall become the property of MVBA at the time of payment of the fines and fees by the defendant. The City shall pay to MVBA said compensation on a monthly basis by check. ARTICLE V. Return of Certain Accounts MVBA reserves the right to return to the City all accounts not collected within one ( 1) referral by the City, or identified as being in bankruptcy. will have any obligation to the other party to this Agreement. ARTICLE VI. Initial Term and Allowable Extensions year of Upon return of these accounts, neither party The initial term of this Agreement is for three years, beginning on the day of Thereafter, the City reserves the option to extend the initial term of the Agreement for additional one- year periods, with the Agreement automatically continuing thereafter on a month-to-month basis. ARTICLE VII. Termination Either party may, for convenience and without cause, terminate this Agreement at any time by giving the other party written " Notice of Termination of Agreement." Only during the initial term of this Agreement, if a party terminates the Agreement then that party shall grant the receiving party a period of thirty ( 30) days from the date of written notice the opportunity to attempt to cure any unsatisfactory terms, act, omissions or conditions. Should the party receiving notice not remedy the 91

4 unsatisfactory terms, acts, omissions or conditions to the satisfaction of the party giving notice, then the party giving notice may terminate the Agreement. The effective date of any termination by the City shall be sixty ( 60) days from the date the notice of termination was sent in writing by the City; said sixty ( 60) days being deemed adequate for the purpose of MVBA to wind down its affairs with regard to work in progress. In the event of termination by MVBA, the effective date of termination shall be thirty (30) days from the date notice of termination was sent in writing by MVBA. Whether this Agreement expires or is terminated, MVBA shall be entitled to continue to collect any items and to pursue collection of any claims that were referred to and placed with MVBA by the City prior to the termination date or expiration date for an additional ninety ( 90) days following termination or expiration. The City agrees that MVBA shall be compensated as provided herein in Article IV for any such item or pending matter during the ninety ( 90) day period. The City may, in its sole discretion, refer additional accounts to MVBA after the City has given notice of termination to MVBA. At the end of the ninety ( 90) day period, all accounts shall be returned to the City by MVBA. ARTICLE VIII. Intellectual Property Rights The City recognizes and acknowledges that MVBA owns all right, title and interest in certain proprietary software that MVBA may utilize in conjunction with performing the services provided in this Agreement. The City agrees and hereby grants to MVBA the right to use and incorporate any information provided by the City (" City' s Information") to update the databases in this proprietary software and, notwithstanding that City Information has been or shall be used to update the databases in this proprietary software, further stipulates and agrees that the City shall have no rights or ownership whatsoever in and to the software or the data contained therein, except that the City shall be entitled to obtain a copy of such data that directly relates to the City' s accounts at any time. MVBA agrees that it will not share or disclose any specific confidential City Information with any other company, individual, organization or agency, without the prior written consent of the City, except as may be required by law or where such information is otherwise publicly available. It is agreed that MVBA shall have the right to use City Information for internal analysis, improving the proprietary software and database, and generating aggregate data and statistics that may inherently contain City Information. These aggregate statistics are owned solely by MVBA and will generally be used internally, but may be shared with MVBA' s affiliates, partners or other third parties for purposes of improving MVBA' s software and services. ARTICLE IX. Costs MVBA expressly acknowledges and agrees that it will be solely responsible for all costs, either initially or continuing or episodically incurred, which are in any way associated with configuring MVBA' s hardware and software systems to properly interface with the City' s systems in order to transition to the changed collection agency. Such costs may include, but are not limited to, application software, court case management suites, collection agency export interface, system software, license fees, maintenance agreements, and the like.

5 MVBA and the City recognize that certain costs may be incurred in the process of providing any additional services contemplated hereunder or in providing any special litigation services. Except for all costs to interface, which costs are delineated in the paragraph immediately above, the City agrees that all other such costs shall be billed to the City, but that MVBA will either ( i) advance such costs on behalf of the City or, ( ii) when possible, arrange with the vendor or agency providing the service that the costs of services will not be paid unless and until such costs are recovered by the City from the debtor. The City acknowledges that MVBA may provide services with its own employees or with other entities or individuals who may be affiliated with MVBA, but MVBA agrees that any charges for such services will be reasonable and consistent with what the same services would cost if obtained from a third party. The City agrees that upon the recovery of such costs, the City will (i) pay MVBA for any such costs that have been advanced by MVBA or performed by MVBA and ( ii) pay any third party agency or vendor owed for performing such services. ARTICLE X. Notice For purposes of sending notice under the term of this Agreement, all notices from the City shall be sent to MVBA by certified United States mail to the following address: McCreary, Veselka, Bragg & Attention: Harvey M. Allen P. O. Box 1310 Round Rock, Texas Allen, P. C. or delivered by hand or by courier, and addressed to: 700 Jeffrey Way, Suite 100, Round Rock, Texas All notices to the City shall be sent by certified United States mail or delivered by hand or courier, to the following address: City of Round Rock, Texas Attention: Steve Norwood, City Manager 221 East Main Street Round Rock, Texas and to: Round Rock City Attorney Attention: Stephan L. Sheets 309 East Main Street Round Rock, TX ARTICLE XI. Miscellaneous Provisions MVBA may from time to time obtain co -counsel or subcontract some of the Subcontracting. services provided for herein to other law firms or entities. In such cases, MVBA will retain supervisory 5

6 control and responsibility for any services provided by such co -counsel or subcontractors and shall be responsible to pay any compensation due to any such co -counsel or subcontractor. Arbitration. The City and MVBA hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act 9 USC Section 1-14) or any applicable state arbitration statute. Integration. This Agreement contains the entire agreement between the parties hereto and may only be modified in a written amendment, duly executed by the authorized representatives for both parties. Representation of Other Governmental Entities. The City acknowledges and consents to the representation by MVBA of other governmental entities that may be seeking the payment of fines and fees or other claims from the same person( s) as the City. Jurisdiction and Venue. This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. Severability. In the event that any provision( s) of this Agreement shall for any reason be held invalid or unenforceable, the invalidity or unenforceability of that provision( s) shall not affect any other provision( s) of this Agreement, and it shall be further construed as if the invalid or unenforceable provision(s) had never been a part of this Agreement. Multiple Originals. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed an original for all purposes. EXECUTED on this theja2 7day of KL t.,, CITY OF ROUND ROCK, TEXAS By: r1 Alan McGraw, Mayor 2 Date Signed: FOR CITY, ATTEST: By: Sara L. White, City Clerk FOR CIT PPROVED S TO FORM: R. By: p. Sheets, City Attorney C

7 McCREARY, VESELKA, BRAGG & ALLEN, P.C. By: l/ Shelburne J. Veselka Vice President/Atto y at Law Date Signed: Aot4 / 3