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Home My WebLink About20203013.tiffRESOLUTION RE: APPROVE AGREEMENT FOR SERVICES FOR INTERNET AUCTION SERVICES FOR FORECLOSURE PROPERTY SALES AND AUTHORIZE 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 for Internet Auction Services for Foreclosure Property Sales 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, LLC, commencing upon full execution of signatures, 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 for Internet Auction Services for Foreclosure Property Sales 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, 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 5th day of October, A.D., 2020. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: da;‘,„ `ch,;4k. EXCUSED Mike Fr-eman, Chair Weld County Clerk to the Board Co my A torney Date of signature: I Q/13 /2_.o reno, Pro-Tem c c : TR(3L/ RF) II/014/2.0 2020-3013 TR0030 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: Online Auction Solution for the Public Trustee DEPARTMENT: Public Trustee DATE: Friday, September 25, 2020 PERSON REQUESTING: John Lefebvre RECEIVED SEP 3 0 2020 WELD COUNTY COMMISSIONERS Brief description of the problem/issue: I would like to begin conducting the Public Trustee Foreclosure Sales online rather than live. I would like to use the RealAuction product. This software is from a vendor that we are already using — RealAuction — for our tax lien sales. We have used RealAuction since 2006 very successfully. They are the only vendor that has a product in the State of Colorado for online foreclosure sales. Denver has used this product successfully for several years. Eagle County has the same GTS software that Weld uses to interface with this foreclosure product and is about to go live with this combination in the next week or two. This means the standards for the interface will already be worked out. Summit County has selected this vendor for online foreclosures just in the past few weeks. There is no budgetary charge as there is only a statutorily allowed pass through fee on each file of $59 which is paid by the law firm doing the foreclosure. It takes 8 weeks minimum to implement. Current and Horizon Issues: At one of my very first sales we had to have the Greeley Police department send out two officers as we had received threats from the borrower — Mr. Scott — I am sure Bob and Bruce remember him. Required social distancing creates a problem with having enough space to accommodate all potential buyers especially once the moratorium is lifted. There is currently a federal moratorium on foreclosures for Fannie Mae, Freddie Mac and all federal GSEs which comprise the majority of mortgages. The moratorium expires December 31. Colorado is projected to be among the highest foreclosure rates in the USA and Weld is projected to be the highest county one in the State. Advantages of Online Foreclosures: This product would save a lot of staff time. Each week that we have foreclosure sales it takes three of us to deal with the sale for about 3 hours on that day so a total of 9 hours of labor. This would be reduced to lest then one total hour. No need to provide enough room for social distancing. This is not housed on our servers. Being virtual means no issues with physical on -site protests or violence at the sale. All disclosures are made online and acknowledged there. Not a budgetary item with its pass through fee structure. We are not locked in and can change back to a physical sale format at any time if needed. 2020-3013 ia/©FOO71 My questions are: Should this be signed by the BOCC or should I sign it? Bob Choate has reviewed the contract and suggested a minor change on duration. Ryan Rose (IT) — has reviewed and has no issues. Don Warden is supportive. What options exist for the Board? (include consequences, impacts, costs, etc. of options): Do nothing and we will likely have potential social distancing and bottleneck issues for the PT office once the moratoriums are removed on December 31. Recommendation: Approve contract. Approve Recommendation Mike Freeman, Chair Scott K. James Barbara Kirkmeyer Steve Moreno, Pro-Tem Kevin D. Ross Schedule Work Session Other/Comments: ra; REALAUCTION.COM, LLC 861 SW 78TH AVENUE SUITE 102, PLANTATION FLORIDA 33324 AGREEMENT FOR SERVICES This Agreement made this 28th d y of September, 2020, between the Weld County Public Trustee, (Public Trustee), for Wel County, Colorado (County), and Realauction.com, L.L.C. ("Contractor"), for Internet -base electronic processing of bid information related to the auction sale of County's Foreclosure ales, on the following terms: 1. Length of Agreement; Cancellatio ; Termination Upon Default. A. The initial term of this Agr ement shall be for one year from the above date and will automatically renew on its nniversary date for 2 additional one year periods. This Agreement may be terminated with written notice to Contractor with not less than 30 days prior to the renewal 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 Foreclosure Property Sales for Weld County, Colorado. The County has real property that it wishes to sell by online auction on a regular basis, however the County provides no guarantee of quantity or frequency. 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 Real Property to be sold 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 1 sales of real property. D. Contractor will assist County with the following: i. Auction set -up: Proxy bidding style format to be used. Auction's administration and execution indudes 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 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, internet based webinars 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 indude 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 induded within the Web Site. 2 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 Real Property to be sold. Such services may include without limitation: i. Hyperlinks on the Web Site to third party sites that contain additional information about the properties that are the subject of 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: i. Accepting, processing and displaying bid information and other data related to auctions of real property. 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 Properties 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 properties. v. Permitting the use, at the County's election, a proxy bidding system, whereby a user will submit the maximum bid that he/she would be willing to pay for the applicable property. The Contractor's software will act on the bidder's behalf, submitting only the maximum bid necessary to win the bidding for any given Property, but in no event more than the maximum the bidder is willing to pay for said property. vi. Allowing users to view auction results after the completion of the sale. 3 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 display 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: A. Notify Contractor of the actual date scheduled for each property sale on the Web Site at least 45 days prior to such date, and provide Contractor with all information concerning the properties which 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 real property 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 properties that have been purchased. 4 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 foreclosure property that is listed through the foreclosure sale site, the County shall pay to Contractor a fee of $ 59 (fifty nine) dollars. 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 that Contractor provides subsequent to the execution of this Agreement, payments shall be made to: Realauction.com, LLC Attn: Finance Department 861 SW 78"' 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 in writing that it will cease performing services unless delinquent invoices are paid in full. 5 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 real property. 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 antidpated 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, induding 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) for any particular auction conducted on the Web Site. In no event will Contractor be liable for indirect, special, inddental, 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 arising out of claims brought against Contractor pursuant to Paragraph (a) above will be no greater than $1,000,000 in the aggregate. 6 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. 7 E. Each party agrees to treat any information they receive that is submitted to the Web Site by third party users, 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 Benefidaries Intended. For the purpose of providing auction services for the real property 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 real property 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. 8 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. IN WITNESS WHEREOF, the parties have executed this Agreement this day of crVII, , 2020. For Realauction.com, L.L.C.: Printed Name: L I Oycl e. �G L(k ►DarJ Title: MA GI 14 1, 18 9 ATTEST: didibv L Weld County Clerk to the Board BY: Deputy C APPROVED AS TO ' ING: ebiP Contro� Tler APPROVED AS TO FORM; Is J County Attorney 10 BOARD OF COUNTY COMMISSIONERS, WELD COUNTY COLORADO Steve Moreno, Pro-Tem OCT 0 5 2020 APPRO AS TO : S . CE: Head 0.2.0.2o — .50 i36c ) Hello