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HomeMy WebLinkAbout20122415.tiff RESOLUTION RE: APPROVE AGREEMENT FOR TAX LIEN SALE SERVICES AND AUTHORIZE CHAIR TO SIGN - REALAUCTION.COM WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with an Agreement for Tax Lien Sale Services between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Treasurer's Office, and RealAuction.com, commencing upon full execution, and ending September 10, 2013, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Agreement for Tax Lien Sale Services between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Treasurer's Office, and RealAuction.com be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 10th day of September, A.D., 2012. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: e ean P. Con , Chair Weld County Clerk to the B rd f illiam F. Garcia, Pro-T m BY: / 7 Deputy Clerk the Board' .f 2,Oi) i!-' d. • bar ra Kirkmeyer APP AS T M: a vi E. Long oun y orney Douglas ademacher Date of signature: 1/2g e ° Li jam_/ 2012-2415 /f) 3 . "- '9 TR0026 Memo TREASURER'S OFFICE John Lefebvre, i„.,.......... . Treasurer \i..... �� gip" 1400 North 17th Ave siN v�Yr! -- (( P.O Box 458 _ _ -a-U N T z Greeley, CO 80634 970-353-3845 Fax 970-304-6435 From: John Lefebvre To: BOCC Date: August 27, 2012 Subject: Real Auction Contract Background Real Auction has been the county vendor for our online tax lien sales since 2006. Initially there were three vendors bidding for this work. One has since gone out of business. It was the opinion of our ACS representative at the time that Real Auction was the only competitor who could do a proper job of handling the County's online tax lien sale. Denver did an RFP at the time and Real Auction was the designed winner. Weld County then added on to that bid to select Real Auction. The contract has since expired and needs to be renewed. Real Auction handles all but two of the county's who do online auctions of tax liens in Colorado. The fee they charge by statute is passed straight through to the tax lien buyer and ultimately paid off by the redemption of the tax lien if there is redemption. Our Eagle Treasurer software was built to interface with this product and selecting any other vendor would require a rewrite of that interface which would be costly to the county. Furthermore we remain happy with this vendor and their pricing has remained competitive. Therefore we ask the BOCC to approve this vendor to do our 2012 online tax sale. 2012-2415 Memorandum Concerning Agreement with Realauction.com, Inc. for 2012 Tax Lien Auction This year's online tax lien certificate auction will commence October 8, 2012. The bidders will be allowed to submit bids on that date. The actual preparations for the auction begin in September when the Treasurer's Office sends the files to the vendor. It is the intention of the Treasurer's Office to submit the Attached Agreement to the Board of County Commissioners for its approval on Monday, September 10, 2012. This vendor has provided its on-line auction services to Weld County for a number of years, as outlined in the Memorandum written by Weld County Treasurer, John Lefebvre. Weld County has successfully conducted its online auction of tax liens utilizing the services of this vendor since 2006. There is no cost to the County using the services of Realauction.com, Inc., as all expenses are passed to the purchasers of the tax liens. Please advise Renee Fielder if a work session is required prior to the presentation of this Agreement to the Board on September 10, 2012. Approve Request BOCC Agenda Work Session Sean Conway lr Bill Garcia (AA Barbara Kirkmeyer Dave Long Doug Rademacher `I] AGREEMENT FOR SERVICES This Agreement made this _4_ day of September 2012, between the County of Weld, State of Colorado, whose address is 1150 "O" Street, Greeley, Colorado, 80631 ("County"), and Realauction.com, L.L.C. ("Contractor"), for Internet-based electronic processing of bid information related to the auction sale of County's Tax Certificates, on the following terms: 1. Length of Agreement; Cancellation; Termination Upon Default. A. The term of this Agreement shall terminate one year from the above date. B. Termination for Default or Breach: This Agreement may be terminated by either party upon the failure of the other to comply with any provision or requirement of this Agreement, provided that written notice of such failure is given to the defaulting party and is not cured within thirty (30) days of the date of receipt of written notice. A party's decision not to take action upon failure of the other party to perform shall not be construed as a waiver of the ability of non-breaching party to take additional action at a later date and time. 2. Services to be Provided by Contractor. A. The Contractor shall furnish Internet Auction Services for tax certificates for the County. The County generally posts approximately 2500 delinquent tax accounts notices; however the County provides no guarantee of quantity. B. The Contractor shall provide a host server for the Web Site. As used herein, the term "Web Site" shall mean an Internet web site that Contractor will make available to County under this Agreement. The Web Site will utilize Contractor's proprietary software, which is capable of accepting and processing competitive bids for Tax Certificates to be issued by Client. The County acknowledges that the Contractor's Server may not be dedicated exclusively to the Web Site. The Contractor shall use its best efforts to make the Web Site available during all business hours and shall not schedule planned maintenance downtime to occur during business hours. C. During each auction, the Contractor shall provide Auction Administrator(s) and the technical support necessary to facilitate the County's conduct of online auction sales of tax certificates. D. Contractor will assist County with the following: i. Auction set-up. County will select the auction format; e.g., sealed, proxy, etc., to be used, auction start date, end date and batch size as well as the auction's administration and execution, including but not limited to management or retrieval of user registration information and auction results. ii. Granting and denying various degrees of access privileges to users and 1 County's employees to the Web Site. Before any County representative is given privileges to access the Web Site and its information, County must provide Contractor with written authorization directing Contractor to give such employees such authority. iii. Monitoring network performance while auctions are in progress. iv. Providing technical support to resolve questions related to hardware, software or network problems encountered by the County or third party users. v. Providing telephone and on-site training sessions for County personnel designated by the County as having a thorough knowledge of the transactions to be consummated through the use of the Web Site at times to be mutually determined. vi. Providing personal and telephonic support during normal business hours for the handling of bidder and County questions relating to the general operation of the Web Site. On-site support may also be provided at the County's request. Such on-site support shall be reasonable and at times mutually agreed upon by County and Contractor. E. Contractor will include on the Web Site terms and conditions, with appropriate disclaimers, which third party users (i.e., participants in auctions/bidders) will be required to give assent. Each party will have the right to reasonably approve the terms and conditions or disclaimers that are included within the Web Site. F. The Contractor may, in its sole discretion, provide additional ancillary services through the Web Site to third party users that are intended to assist such third party users in evaluating any or all of the Tax Certificates to be sold. Such services may include without limitation: Hyperlinks on the Web Site to third party sites that contain additional information about the delinquent accounts or properties that are the subject tax sale; and ii. Analytical tools, such as search, sort, upload, download and other report customization features. If such services are offered by Contractor thru Web Site, these services shall be provided at no charge to the bidders and auction participants. G. Contractor shall record and maintain records of all activity occurring on the Web Site, and shall retain these records for a period of 5 years from the date of each auction. H. Contractor shall ensure that the Web Site is capable of providing the following functions: 2 Accepting, processing and displaying bid information and other data related to auctions of tax certificates. ii. Accepting, processing and maintaining an ID number and password from users before users enter any auction, which they may obtain free of charge by simply registering on the Site. iii. Providing users with the means for reviewing the list of all tax certificates being offered for sale, along with, to the extent available, tax roll data and appraiser information with respect to the applicable properties. iv. Providing users with the means to bid and to withdraw bids on tax certificates. v. Permitting the use, at the County's election, a proxy bidding system, whereby a user will submit the minimum rate that he/she would be willing to receive for the applicable tax certificate. The Contractor's software will act on the bidder's behalf, submitting only the maximum rate necessary to win the bidding for any given Certificate, but in no event less than the minimum rate specified by the bidder. When the auction is over, third party users will see only the higher of the minimum rate submitted by each bidder or their winning bid vi. Allowing users to view auction results after they are approved for release by County. vii. Allowing Contractor's Auction Administrators and County's internal auction administrators (the "County Auctioneers") to observe auctions in progress and retrieve information immediately upon completion of each auction, and to release the final results of auctions so that they can be viewed by all users with authorized access to the Web Site. viii. Enabling the County's Auction Administrators, or the Contractor Auction Administrator at County's direction, to establish and modify auction parameters; to modify registration information pertaining to a particular third party user or County user; and to limit or prohibit a user's access privileges to the site. County will provide Contractor with the names of County personnel who are permitted to access and/or authorize modifications. In the event County directs Contractor to effect such modifications, County will be required to give Contractor reasonable advance notice before such modifications are to go into effect. 3. Cooperation by County. Notwithstanding any other provision herein, the County shall: 3 A. Notify Contractor of the actual date scheduled for each tax certificate sale on the Web Site at least 45 days prior to such date, and provide Contractor with all information concerning the properties for which tax certificates are being offered at auction at least 30 days prior to the date of each auction. B. Providing Contractor with the names, titles and contact information for all County employees who will have decision-making authority of any kind in the auction process or access to the Contractor's Web Site, as well as the names and contact information of all County employees who are responsible for processing Contractor's requests for payment and supporting documentation. C. The Web Site shall bear County's name and such other trade dress (e.g., logos, introductory statement from the County etc.) as reasonably directed by the County. The County acknowledges and agrees that every page of the Web Site may display the Contractor's name and company logo. D. County will reasonably cooperate with Contractor to ensure that Contractor has access to and is provided with all the information it needs to effectuate the tax certificate auctions described in this Agreement and for preparation and delivery of the Contractor's requests for payment. The information provided will include the initial data load and timely updates of certificates that have been redeemed, purchased or transferred. 4. Payment for Services. A. The Contractor will be paid for the Contract amount upon invoices submitted to the County by the Contractor on a monthly basis. B. In consideration of the Services set forth in this Agreement, County shall pay (or cause to be paid) the following fees to Contractor in the manner described: For each individual Tax Certificate sold on the Web Site, County shall pay to Contractor ten dollars ($9.00). i. For each individual Tax Certificate that is sold in error or cancelled, Contractor will receive no fee. C. The Contractor's request for payment shall be supported by reports or other documents reasonably required by the County, and shall show the Contractor's County Contract number, and the Contractor's federal identification number, in addition to any other information that may be required by the County. Additionally, all requests for payment shall have attached a copy of the original bill, containing an original signature of an authorized representative of the Contractor. Requests for payment shall be submitted not more than once every thirty days, to an address, department and/or individual designated by the County. D. Unless otherwise provided on Contractor's invoice or other Instructions 4 that Contractor provides subsequent to the execution of this Agreement, payments shall be made to: Realauction.com, LLC Attn: Lloyd McClendon 861 SW 78th Ave., Suite 102 Plantation FL, 33324 E. Contractor shall not be obligated to provide any Services hereunder in the event County is more than 60 days delinquent in paying any invoices, provided, however, that Contractor has advised the County Tax Collector in writing that it will cease performing services unless delinquent invoices are paid in full. 5. Limited Warranty; Disclaimer of Implied Warranties; Limitation of Liability; Consequential Damages or Incidental Damages. A. Contractor warrants that the Web Site, when provided with accurate and properly formatted data by County and other third party users, and when accessed by properly functioning software and equipment of third party users, will perform substantially as required in order to facilitate County's online auction sales of tax certificates. Contractor will, at no charge to County, make corrections to the Web Site so that the Web Site performs substantially as required, and will use its best efforts to make such corrections available within 24 hours, provided that County reports to Contractor any failures or defects in the Web Site and provides Contractor with information sufficient to correct such failure or defect. In the event Contractor is not able to make such corrections available within 24 hours, the Contractor's chief executive officer and/or chief operating officer will confer with County to advise County with respect to the status of problem resolution and anticipated time of correction. B. Except for the express limited warranty set forth in the preceding section of this Contract, Contractor makes no warranty, representation, promise or guarantee, either express or implied, statutory or otherwise, with respect to the Web Site or the Services provided hereunder, including their quality, performance, merchantability or fitness for a particular purpose, or whether any of the transactions to be conducted using the Web Site comply with any applicable federal, state, county or other law or regulations. Contractor will have no responsibility for any actual or purported loss resulting from damages associated with the auction format (e.g., Proxy Bidding) selected by County for any particular auction conducted on the Web Site. In no event will Contractor be liable for indirect, special, incidental, economic, cover, consequential, tort or other damages (including without limitation damages or costs relating to the loss of profits, business, goodwill, data or computer programs, even if advised of the possibility of such damages), without regard to the legal theory of such damages, arising out of the use of or inability to use the Web Site or the services provided hereunder. Except as provided in this paragraph, in no event will Contractor's liability to County arising out of or related to this Contract exceed the fees earned by Contractor under this Contract during the twelve month period immediately 5 preceding the date that the event giving rise to Contractor's liability occurred. Notwithstanding the foregoing, Contractor's liability to County arising out of claims brought against Contractor pursuant to Paragraph (a) above will be no greater than $1,000,000 in the aggregate. 6. Confidentiality; Proprietary Information. A. The format in which Contractor stores data provided by County will be proprietary to Contractor. County's retrieval and use of the data compiled by Contractor on the Web Site shall be limited to County's internal use only, and County agrees that it will not, unless otherwise required by law, transmit to third parties, or permit other third parties to access the data in the format and compilation created by Contractor. B. County acknowledges that with respect to bidders who provide minimum bids as part of the Web Site's proxy bidding feature, Contractor will be deemed the agent of such bidders in so far as bidders have provided such minimum bids. Such minimum bids will be the confidential information of the bidder, which Contractor will be required to maintain, and which contractor will not release except as required by law. C. Except upon prior written approval by the County, the Contractor, or its subcontractors, shall not furnish or disclose to any person and/or organization, any non-public information that County designates as confidential. D. It is expressly understood and agreed that the software used to develop and operate the Web Site; any related materials and documentation provided by Contractor, including without limitation information related to security or other technical aspects of the Web Site; and the non-public pages of the Web Site constitute a valuable proprietary product and trade secret of Contractor embodying substantial creative efforts and confidential information, ideas, and expressions (collectively for the purposes of this section "Contractor's Confidential Information"). County agrees to hold all such Contractor's Confidential Information in strictest confidence and take such steps as are reasonably necessary to protect the confidentiality of the Contractor's Confidential Information and other materials designated by Contractor as confidential. Such steps shall include, without limitation, refraining from taking any action in derogation of Contractor's ownership rights and taking actions similar to those taken by County with respect to protecting other third party confidential information in its possession. County shall not disclose or otherwise make available the Contractor's Confidential Information in any form to any person except to those employees of County or Contractor who need access to the information to facilitate County's authorized use of the Web Site. Nothing herein shall be construed, however, to prohibit County from making any disclosures required of County pursuant to any legal process or request from any governmental authority having jurisdiction over County, or from making disclosure required by Colorado law, provided however that prior to disclosure to any such governmental authority, County shall provide notice to Contractor in order to enable Contractor to seek relief. 6 E. Each party agrees to treat any information they receive that is submitted to the Web Site by third party users, including without limitation, deposit amounts, social security numbers, federal tax identification numbers, etc., in accordance with applicable law and the "privacy policy" set forth in the related link on the Web Site. Contractor will not change the "privacy policy" without County's consent, which will not be unreasonably withheld. 7. Limited Agency Created; No Third Party Beneficiaries Intended. For the purpose of providing auction services for the delinquent tax auction and other services specifically described herein, Contractor shall be an agent of the county and shall be required to take direction from the county as to the mechanism and effectuation of the sale. Other than with the respect to the handling of the delinquent tax auction and other services described herein, Contractor acknowledges that it does not have the authority to act on behalf of the County or its agencies. Contractor's personnel shall not be employees of the County. There are no intended third party beneficiaries, including without limitation any users of the Web Site described herein. 8. Force Majeure. Delay in performance or non-performance of any obligation contained herein shall be excused to the extent such failure or non- performance is caused by force majeure. For purposes of this Contract, "force majeure" shall mean any cause or agency preventing performance of an obligation which is beyond the reasonable control of either party hereto, including without limitation, fire, flood, sabotage, embargo, strike, explosion, labor trouble, accident, riot, acts of governmental authority (including, without limitation, acts based on laws or regulations now in existence as well as those enacted in the future ), and delays or failure in obtaining raw materials or transportation, acts of God, telephone line outages, Internet traffic slowdowns (including any Internet transmission problems incurred by either County's or Contractor's Internet service provider), down computer networks, down hardware, (head crashes, operating system hang-ups and the like), software or operating systems failure caused by a virus or other denial of service attack, and electricity outages. A party affected by a force majeure shall, upon notice to it of the force majeure, promptly notify the other party by the quickest means available, explaining the nature and expected duration thereof, and shall act diligently to remedy the interruption or delay if it is reasonably capable of being remedied. 9. Entire Understanding; Amendments. This Agreement, together with the attached "Special Provisions", constitutes the entire understanding and agreement between the parties hereto with respect to its subject matter and supersedes all prior or contemporaneous agreements, representations, warranties and understandings of such parties, whether oral or written. This Agreement may only be amended by a separate document, signed by both parties. 10. Place of Execution; Governing Law; Venue. This Agreement shall be deemed to be executed in Weld County, State of Colorado, regardless of the Contractor's domicile, and shall be interpreted and construed in accordance with the laws of the State of Colorado. The Contractor agrees that the venue for any and all claims between the parties arising from this Agreement shall be in the state courts in and for Weld County, Colorado. 7 11. Severability. If this Contract contains any provision found to be unlawful, the same shall be deemed to be of no effect and shall be deemed stricken from this Contract without affecting the binding force of this Contract as it shall remain after omitting such provision. IN WITNESS WHEREOF, the parties have executed this Agreement this day of September, 2012. For Realauction.com, L.L.C.: Printed Name: Marc D Thomashaw Title: Managing Member ATTEST: 'fiBOARD OF COUNTY CLERK TO THE BOARD COMMISSIONERS OF WELD COUNTY, COLORADO / By: /1/2, By: .� —� Deputy Clerk to e Board y°-- Sean Conway, Chairman 1861 �. SEP 1 02012 8 Special Provisions PRIORITY OF INTERPRETATION: The provisions of this Agreement shall govern the relationship between County of Weld, State of Colorado, whose address is 1150 "O" Street, Greeley, Colorado, 80631 ("County") and Realauction.com, L.L.C., ("Contractor"). Should conflict in any provisions of this Agreement and any exhibits thereto be identified, the priority of interpretation of the Agreement shall be as follows: 1. The Special Provisions incorporated within the Agreement; 2. The terms and provisions of this Agreement 1. Board of County Commissioners of Weld County Approval: This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 2. Effect of Special Provisions: These Special Provisions govern the relationship between Weld County and Contractor. Any provision, statutory, regulatory or otherwise incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall be invalid and unenforceable in any action at law, whether by way of complaint, defense or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Agreement and the Agreement shall remain in full force and effect to the extent it remains capable of execution. Should conflict in any provisions of this Agreement and any exhibits thereto be identified, the priority of interpretation of the Agreement shall be as follows: 1. The Special Provisions incorporated within the Agreement; 2. The terms and provisions of this Agreement. 3. Fund Availability: Financial obligations of the County payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. By execution of this Agreement, County does not warrant that funds will be available to fund this Agreement beyond the current fiscal year. 4. Governmental Immunity: No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 5. Independent Contractor: Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Contractor shall be solely responsible for its acts and those of its agents and employees for all acts performed pursuant to this Agreement. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of County. Contractor and its employees and agents are not entitled to unemployment insurance or workers' compensation benefits through County and County shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes (if applicable) incurred 1 pursuant to this Agreement. Contractor shall not have authorization, express or implied, to bind County to any agreement, liability or understanding, except as expressly set forth in this Agreement. Contractor shall have the following responsibilities with regard to workers' compensation and unemployment compensation insurance matters: (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law and (b)provide proof thereof when requested to do so by Weld County. 6. Compliance with Law: Contractor shall strictly comply with all applicable federal and State laws, rules and regulations in effect or hereafter established, including without limitation, laws applicable to discrimination and unfair employment practices. 7. Choice of Law: Colorado law, and rules and regulations established pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. 8. Binding Arbitration Prohibited: County does not agree to binding arbitration by any extra judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 9. Software Piracy Prohibited: State, county or other public funds payable under this Agreement shall not be used for the acquisition, operation or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this Agreement and any extensions thereof, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If County determines that Contractor is in violation of this provision, County may exercise any remedy available at law or equity or under this Agreement, including, without limitation, immediate termination of the Agreement and any remedy consistent with Federal copyright laws or applicable licensing restrictions. 10. Employee Financial Interest/Conflict of Interest. C.R.S. §§24-18-201 et seq. and §24- 50-507: The signatories to this Agreement aver that to their knowledge, no employee of Weld County has any personal or beneficial interest whatsoever in the service or property which is the subject matter of this Agreement. Contractor has no interest and shall not acquire any interest direct or indirect, which would in any manner or degree with the performance of Contractor's services and Contractor shall not employ any person having such known interests. During the term of this Agreement, Contractor shall not engage in any in any business or personal activities or practices or maintain any relationships which actually conflict with or in any way appear to conflict with the full performance of its obligations under this Agreement. Failure by Contractor to ensure compliance with this provision may result, in County's sole discretion, in immediate termination of this Agreement. 11. No Third Party Beneficiary Enforcement: It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not 2 included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 13. Attorneys Fees/Legal Costs: In the event of a dispute between County and Contractor, concerning this Agreement, the parties agree that County shall not be liable to or responsible for the payment of attorney fees and/or legal costs incurred by or on behalf of Contractor. 3 Hello