HomeMy WebLinkAbout20062216.tiff RESOLUTION
RE: APPROVE AGREEMENT FOR SERVICES AND AUTHORIZE THE CHAIR TO SIGN -
REALAUCTION.COM, LLC
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 Services between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld
County, on behalf of the Office of the Treasurer, and Realauction.com, LLC, commencing
August 14, 2006, 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 Services and between the County of Weld, State of
Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the
Office of the Treasurer, and Realauction.com, LLC, 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 14th day of August, A.D., 2006.
+,t , ;;� BOARD OF C NTY COMMISSIONERS
WELD CO , COLORADO
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Weld County Clerk to the 1W. r" i 'lij 1 ' :"-r David E. Long, Pro-Tem
BY: ,Uil�I r Lcr'ct . /1
Dep t Clerk ter the Board "t- ' )'4,--
Will H. Jer e ��
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Robert D. Masde
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unt torney Al 147 St ,
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o Date of signature: b12'Ile(c
2006-2216
TR0023
00' tR 74--1'8-Ot0
AGREEMENT FOR SERVICES
This Agreement made this 14th day of August 2006, between Weld County, a political
subdivision of the State of Colorado ("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;
however, the County shall have the right to extend this Agreement for a period of one
year at the same price terms described herein, upon giving at least 30 days written
notice to Contractor prior to the first anniversary of the above date. The County shall
have the right to cancel this Agreement at any time, with or without cause, by thirty
(30) days advance written notice to the Contractor. If County cancels the Agreement
within thirty (30) days of a scheduled auction, County will pay Contractor its reasonable
expenses incurred to the date of notification for Services performed pursuant to this
agreement.
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
Weld County, Colorado. The County generally posts approximately 2300 delinquent tax
accounts notices per year and it is projected that two thousand certificates will be sold,
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.
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D. Contractor will assist County with the following:
i. Auction set-up. County will select the following: auction format (e.g.,
sealed, proxy, etc.) to be used, auction start and end date, and batch
size. County will also select their auction administration and execution
requirements, including but not limited to management or retrieval of
user registration information and auction results.
H. Granting and denying various degrees of access privileges to users and
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.
Hi. 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 to this agreement
will have the right to reasonably approve the terms and conditions or disclaimers
that are included within the Web Site.
F. The Contractor may, with County's written approval, 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.
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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:
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.
Hi. 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 maximum amount that
he/she would be willing to pay for the applicable tax certificate.
The Contractor's software will act on the bidder's behalf,
submitting only the maximum amount necessary to win the
bidding for any given Certificate, but in no event more than the
maximum amount specified by the bidder. When the auction is
over, third party users (registered bidders) will see the rates
submitted by each bidder.
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:
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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, however
County shall be able to eliminate any certificates from the preliminary list up to
the day before the first day of the sale.
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 during an auction on the
Web Site, County shall pay to Contractor five dollars ($5.00).
H. For each individual Tax Certificate that is sold in error or is
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. Invoices will be prepared and submitted after the services have been
provided.
D. Unless otherwise provided on Contractor's invoice or other Instructions
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that Contractor provides subsequent to the execution of this Agreement,
payments shall be made to:
Realauction.com, LLC
Att: Lloyd McClendon
861 SW 78th Avenue, 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 Treasurer 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 preceding the date that the event giving rise to Contractor's
liability occurred. Notwithstanding the foregoing, Contractor's liability to County
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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 maximum
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 maximum bids.
Such maximum 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.
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
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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 here in, 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 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.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement this 14th day of
August, 2006.
Isa
For Realauction.com, L.L.C.: .. j/
Printed Name: �.A0 ! e rCCisichel
Title: Ca o
ATTEST: rri"' fai
*sla Ty OF WELD, a political subdivision
r çjJFCoLyDo�e tk to the Board of the
B 3› • ��V'
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By: 1�
D I uty Cle c to t e BQayry �. J. eile, C Tman
is :oard of County Commissioners of the
" r+✓ County of Weld
AUG 1 4 2006
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