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|CITY COUNCIL AGENDA ITEM NO. 4
Meeting Date: May 13, 2008
Subject/Title: Adopt a Resolution approving and authorizing the City Manager or her designee to execute a Professional Services Agreement with Contra Costa County on behalf of its Office of Revenue Collection (ORC) for collection services in connection with unpaid amounts owed to the City.
Prepared by: Kerry Breen, Business Services Manager
Submitted by: Pamela Ehler, Director of Finance and Information Systems
Adopt a Resolution approving and authorizing the City Manager or her designee to execute a Professional Services Agreement with Contra Costa County on behalf of its Office of Revenue Collection (ORC) for collection services in connection with unpaid amounts owed to the City.
The City has limited resources and ability to collect on past due accounts. Partnering with the County will allow staff to manage the increase of other cost recovery claims, including the expected increase in citations. The County’s Office of Revenue Collection specializes in collection services for public agencies and they have the resources to collect past due accounts in an efficient manner. They provide similar services for the Cities of Hercules, Clayton and Pleasant Hill.
The recent approval of the new Abatement, Property Maintenance and Rental Inspection Ordinances along with Code Enforcement’s continued efforts to ensure compliance with the existing City Ordinances has resulted in an increase in citations and other cost recovery actions. Unfortunately this has also increased our number of delinquent accounts. Utilizing the services of the ORC will allow the City to enhance our revenue collection efforts. In addition, using ORC to collect on past due accounts will assist the Code Enforcement staff as offenders will realize that they have to pay for their violations and will work to avoid such actions in the future.
The procedures for sending delinquent accounts to collections are outlined in the Collection Policy (City Council/Administrative Policy No.10-15) which is before Council tonight in a separate action.
There is no fiscal impact with this action. The Office of Revenue Collection charges a flat fee of 25% of the amount collected; however, the City will not pay a fee if collection efforts are unsuccessful. In addition, there is a separate action before Council tonight which will allow the City to recover the 25% from those accounts that are assigned to the County for collections.
Exhibit "A" Professional Services Agreement with Contra Costa County’s Office of Revenue Collection
A RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER OR HER DESIGNEE TO EXECUTE A PROFESSIONAL SERVICES AGREEEMENT WITH CONTRA COSTA COUNTY ON BEHALF OF ITS OFFICE OF REVENUE COLLECTION ("ORC") FOR COLLECTION SERVICES IN CONNECTION WITH UNPAID AMOUNTS OWED TO THE CITY
WHEREAS, the City is partnering with the County to assist in the collection of delinquent accounts receivable; and
WHEREAS, the County’s Office of Revenue Collection (ORC) specializes in collection services for public agencies and they have the resources to collect past due accounts in an efficient manner; and
WHEREAS, utilizing the services of the ORC will allow the City to enhance revenue
WHEREAS, the ORC charges a flat fee of 25% of the amount collected – the City will not pay a fee if collection efforts are unsuccessful; and
WHEREAS, the City will recover the 25% fee from those accounts that are assigned to the county for collections.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve and authorize the City Manager or her designee to execute a Professional Services Agreement with Contra Costa County on behalf of its Office of Revenue Collection (ORC) for collection services in connection with unpaid amounts owed to the City of which a copy is attached as Exhibit “A”.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 13th day of May 2008 by the following vote:
AGREEMENT FOR PROFESSIONAL SERVICES
(Contra Costa County)
THIS AGREEMENT, made and entered into this __ day of ___________, 2008 by and between the CITY OF BRENTWOOD, a municipal corporation existing under the laws of the State of California, hereinafter referred to as (City), and Contra Costa County, political subdivision of the State of California for its Office of Revenue Collection (ORC) (County)
A. City desires certain professional services in connection with the collection of certain account receivable accounts that include but are not limited to, Utility Billing, Code Enforcement Citations, Returned Checks, DUI cost recovery and other City receivables.
B. City desires to engage the County to provide these services by reason of its qualifications and experience performing such services and County has offered to provide the required services on the terms and in the manner set forth herein.
C. The County represents that the Office of Revenue Collection (ORC) it is fully licensed and qualified with all professional skills necessary to perform the services described in this Agreement and has special expertise in the performance of Collection Services for public agencies of similar scope and complexity as the Services to be performed under this Agreement.
NOW, THEREFORE, City and County agree as follows:
SECTION 1 – SCOPE OF SERVICES
The scope of services subject to this agreement and to be performed by the County for the City is described in Exhibit “A”, Scope of Services, attached hereto and incorporated herein (the “Services”).
SECTION 2 – COUNTY 'S REPRESENTATIONS AND RESPONSIBILITIES
A. County acknowledges that in entering into this agreement the City is relying upon County's special skills and experience to do and perform the services in reasonable accordance with best standards of professional practice. County agrees to perform the services in accordance with these standards. The acceptance of County's services by City does not operate as a release of County from these obligations.
B. County accepts the relationship of trust and confidence established between it and City by this Agreement. County shall use its best efforts, skill, judgment, and abilities to assist and work with City to perform the Services, to produce the necessary recommendations in a report with the necessary back up, and to further the interests of City in accordance with City's requirements and procedures, each in reasonable accordance with professional standards that apply to County.
C. County shall perform the Services in full compliance with applicable federal, state and local laws and regulations in effect at the time such services are rendered (collectively, "Applicable Laws").
D. County shall be responsible for employing or engaging all persons necessary to perform the Services. All of County's staff shall be qualified by training and experience to perform their assigned tasks. County shall give its personal attention to the fulfillment of the provisions of this Agreement by all of its employees and shall keep the Services under its control. If any employee of County fails or refuses to carry out the provisions of this Agreement in a reasonable manner, or appears to be incompetent, or acts in a disorderly or improper manner, he or she shall be discharged immediately from the work under this Agreement on demand of City.
E. County's services are unique and personal. County shall not assign or transfer any of its interest or obligation under this Agreement without the City's written consent. County shall not subcontract its duties under this Agreement without the City's written consent.
SECTION 3 - INDEPENDENT CONTRACTOR
The services to be provided to the City as set forth in this Agreement shall be provided by County as an independent contractor as defined in Labor Code Section 3353. The County will be under the control of the City as to the result of the work but not the means by which the result is accomplished, and nothing herein contained shall be construed to make County an agent or employee of the City while providing these services. County shall be entitled to no other benefits or compensation except as provided in this Agreement.
SECTION 4 - DUTIES OF COUNTY
A. County's Services shall be furnished as described below and as more particularly described in Exhibit “A”, Scope of Services. Any changes in the Scope of Services must be approved in advance, in writing, by the City Manager or her designee, or if verbally requested by City, confirmed in writing by County within five (5) working days.
B. County shall be responsible for the professional quality, technical accuracy and coordination of all Services. County shall, without additional compensation, correct or revise any errors or deficiencies in its Services.
C. County shall furnish City with every reasonable opportunity for City to ascertain that the Services are being performed in accordance with the requirement and intentions of this Agreement.
SECTION 5 - TERM, PROGRESS AND COMPLETION
A. Unless earlier terminated, the term of this Agreement will commence upon the date first above written and will expire upon completion of the Services by County as provided in Section 8 herein. Each party may terminate the agreement for any reason by providing a 30 day written notice.
B. County shall promptly commence performance of the Services upon execution of this Agreement, and shall diligently pursue performance of the Services on an ongoing basis.
C. Time is of the essence in the performance of this Agreement.
SECTION 6 - PAYMENT
A. City shall pay the County monthly for full and faithful performance of the Services a fee equal to 25% of all amounts collected on assigned accounts, whether collected funds are received directly by City or by County. When payment is received by the City for accounts that were assigned to the County, the City will forward the County their 25% collection fee. In cases in which a Small Claims Court judgment was issued and the County assisted in any manner in the Small Claims Court process, compensation to be paid to the County shall be 25% of all amounts collected.
B. If either party disagrees with any portion of a billing, the disagreeing party, shall promptly notify the other party of the disagreement, and the parties shall attempt to resolve the disagreement. City’s payment of any amounts shall not constitute a waiver of any disagreement and City shall promptly pay all amounts not in dispute.
C. County shall maintain complete and accurate records of accounts that City submits for collection. All such records shall be maintained on a generally accepted accounting basis and shall be clearly identified and readily accessible. City shall have the right to examine and copy such books and records at all times. County shall permit the City to examine and audit those books and records, shall permit the City to make copies of those books and records, and shall permit the City to inspect all work data, documents, proceedings and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. All accounting records shall provide a reasonably understandable breakdown of costs charged to this Agreement.
SECTION 7 - CONFLICT OF INTEREST
County understands that its professional responsibility is solely to City. County warrants to the best of its knowledge that it presently has no interest, and will not knowingly acquire any direct or indirect interest that would conflict with its performance of this Agreement. County shall not knowingly, and shall take reasonable steps to ensure that it does not, employ a person having such an interest in the performance of this Agreement. If after employment of a person, County discovers that it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, County shall promptly disclose the relationship to the City and take such action as the City may direct to remedy the conflict.
SECTION 8 - TERMINATION
This Agreement may be terminated immediately for cause or by either party without cause upon Thirty (30) days’ written notice of termination. Upon termination, County shall be entitled to compensation for services performed up to the effective date of termination. The term of this Agreement shall begin on the date first written above and shall expire on June 30, 2010.
SECTION 9- OWNERSHIP OF DOCUMENTS
A. The material prepared by or on behalf of County under this Agreement including all working documents, and including electronic and paper forms (collectively the "Documents"), shall be and remain the property of the City. County shall deliver all Documents to City upon (1) the date of termination of this Agreement for any reason, or (2) at any time requested by City, upon five (5) days written notice.
B. The Documents may be used by City and its agents, employees, representatives, and assigns, in whole or in part, or in modified form, for all purposes City may deem advisable, without further employment of or payment of any compensation to County; provided, however, that if City uses, or engages the services of, and directs another vendor to use such documents City agrees to hold County harmless from any and all liability, costs, and expenses (including reasonable legal fees and disbursements), relative to claims arising out of matters and/or events which occur subsequent to the termination of this Agreement as a result of causes other than the fault or negligence of County, or anyone for whose acts it is responsible, in preparation of the Documents. County shall not be responsible for deficiencies solely attributable to modifications to the Documents performed by others, or that arise from use of the Documents in connection with a project or site other than that shown in the Documents.
C. All reports, information, data, and exhibits prepared or assembled by County in connection with the performance of its services pursuant to this Agreement are confidential until released by the City to the public, and the County shall not make any of these documents or information available to any individual or organization not employed by the County or the City without the written consent of the City before any such release.
SECTION 10 – INDEMNITY
A. Claims for Professional Liability – County shall, with respect to all Services performed in connection with this Agreement, defend, indemnify, and hold the City of Brentwood, its elected and appointed officers, employees, and volunteers harmless from and against any and all claims, liability, loss, damage, costs, or expenses, including reasonable attorneys' fees, awards, fines, or judgments (collectively, "Claims"), arising from or relating to negligent acts, errors, or omissions in the performance of professional services by County, it’s agents or employees. County shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees.
B. Claims for Other Liability – County shall, with respect to all Services performed in connection with this Agreement, defend, indemnify, and hold the City of Brentwood, its elected and appointed officers, employees, and volunteers harmless from and against any and all liens and Claims by firms or individuals claiming through County , and all Claims for compensation, the death or bodily injury to persons, injury to property, or other loss, damage, or expense arising from or related to the Services of County , its subcontractors, agents or employees. County shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees.
SECTION 11 – INSURANCE
The County, as a political subdivision of the State of California, has a comprehensive self-insurance program to cover its general automobile exposure, as well as, its obligations under workers compensation laws of the State of California. County will provide the City with written evidence of its self insurance program prior to this agreement being fully executed.
SECTION 12 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of same or of any other term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement of any applicable law or ordinance.
SECTION 13 - COSTS AND ATTORNEYS FEES
Attorney fees in an amount not exceeding Eighty Five Dollars ($85.00) per hour per attorney, and in total amount not exceeding Five Thousand Dollars ($5,000.00), shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of the agreement. The above $5,000 limit is the total of attorneys’ fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this agreement that neither party shall have to pay the other more than $5,000 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this agreement.
SECTION 14 - NON-DISCRIMINATION
County warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither County nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
SECTION 15 - MEDIATION
Should any dispute arise out of this Agreement, either party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request or as soon as reasonably practicable. The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first requesting mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 16 - LITIGATION
Either party shall testify at the other party’s request if litigation is brought against one party in connection with County's services under this agreement. Unless the action is brought by, one of the parties to this Agreement or is based upon the actual or alleged negligence or other wrongdoing of one of the parties to this Agreement, the requesting party shall compensate the other party for time spent in preparation for testimony, testimony, and travel at County's standard hourly rates at the time of actual testimony.
SECTION 17 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To City: City of Brentwood
150 City Park Way
Brentwood, CA 94513 Attn: Pamela Ehler, Director of Finance and Information Systems
To County: Contra Costa County
Office of Revenue Collection
2530 Arnold Drive, Suite 350
Martinez, CA 94553 Attn: J.W. Jefferson, Director
SECTION 18 – AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between City and County and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument signed by both City and County.
All Exhibits referenced in or attached to this Agreement are incorporated herein by this reference.
SECTION 19 – GOVERNING LAW
This agreement shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, City and County have executed this agreement the day and year first above written.
CITY OF BRENTWOOD County of Contra Costa
Donna Landeros, City Manager
Title: Director, Revenue Collection
ATTEST: Print Name: J.W. Jefferson
Margaret Wimberly, CMC, City Clerk
APPROVED AS TO FORM:
Damien B. Brower, City Attorney
SCOPE OF SERVICES
County shall provide collection services for bona fide accounts (justly owing, due and unpaid) assigned to County by City, except that in connection with assigned accounts, County will not provide any legal advice or legal representation, and will not file, prepare or prosecute legal actions in Municipal or Superior Court on behalf of City, or perform any legal work respecting the collection of judgments obtained by City. Such services will include, but not be limited to, asset searching, process servicing, state tax intercept, and use of high-tech collection and skip tracing equipment and credit bureau information. Subject to the omission of legal services expressed above, County will perform all acts necessary to effect collection on assigned accounts.
County cannot represent the City in Small Claims Court. Therefore the City must represent itself to the Court for assigned accounts which the County recommends to take to small claims and City decides to take to small claims. The County will prepare small claims complaints for City’s signature. Upon receiving signed small claims complaints, County will file the complaint and serve the notices. All other legal activity, including the procurement of a judgment, will be assumed by the City. Once a judgment is received, the City may assign it to the County for collection, subject to the limitation on legal services expressed above.
County will use collection efforts that are reasonable and consistent with all applicable laws, including the Fair Debt Collection Practices Act (FDCPA) and State of California’s Collection Practices Act under California Civil Code Section 1788, and the general reputation of the City and County. The City shall provide information, data, and documents as reasonably requested by County, for the purposes of verification of an assigned debt as required by law, to respond to inquires from a debtor on an assigned debt, evaluation of collection options, and collection of the assigned debt. If City fails to provide such information within a reasonable time frame, County may elect to deem the assigned account uncollectible.
The City will not assign an account for collection to the County for an amount less then $25.00
The City will not assign an account to the County if the collection is four (4) years from the service, invoice or bill date.
Prior to any collection account assignment to the County, the City will first attempt to collect on their accounts according to the City’s Collection Policy. Once the City has determined that the account should be assigned to the County, it will prepare the documents required by the County and submit the collection item to the County as a collection account.
County may not forward or reassign any of the City’s assigned accounts to another collection agency.
If the County is presented with a settlement by the debtor, the County is authorized to accept no less then Seventy-Five percent (75%) of the debtor’s unpaid balance. Settlement offers above $5,000.00 dollars must have City approval prior to acceptance. County is authorized to accept and administer a payment plan from a debtor, the term of which may be solely determined by the County All monies received under the payment plan, is bound by the same compensation as indicated in Section 6 of this Agreement.
City agrees that each account assigned to County may be placed with a credit reporting agency by the County for inclusion to an individual’s credit file and reported as a derogatory item for the times and in the manner allowed under Fair Credit Reporting Act and applicable State Fair Credit Reporting Acts. The City reserves the right to have the County direct an item that was assigned for collection be deleted from an individual’s credit file due to an error by either the City or the County. County may as it determines appropriate, issue any such corrections or deletions of information reported to credit reporting agencies.
The County shall report each month to City all assigned accounts that received payments and the fees associated with those collections. The County shall report payments that are made for assigned Utility accounts separate from those payments made for all other City assigned accounts.
The County shall report each quarter to City all accounts deemed by County to be uncollectible and shall provide a brief statement of the reasons therefore. County shall return all accounts deemed uncollectible to the City within thirty (30) days of the quarterly report, identifying the account as uncollectible, and County shall not be entitled to a commission for any sums thereafter collected by City on such accounts. If County makes a recommendation to City for reactivation of an account previously deemed uncollectible, City may again assign such an account to County. County shall be entitled to a commission for any sums thereafter collected by County on such reassigned account.
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441