R-09-12-17-8H1 - 12/17/2009RESOLUTION NO. R -09-12-17-8H1
WHEREAS, the City of Round Rock, Texas (the "City") is a
participating and founding member of the Brushy Creek Regional
Utility Authority, Inc., (the "BCRUA"), and
WHEREAS, the BCRUA desires to enter into an agreement with
Patterson & Associates for investment advisory services, Now
Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the City Council hereby authorizes the Brushy Creek
Regional Utility Authority to enter into an Agreement with Patterson
& Associates for Professional Consulting Services, a copy of same
being attached hereto as Exhibit "A" and incorporated herein for all
purposes.
The City Council hereby finds and declares that written notice
of the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to
the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered
and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 17th day of December, 2009.
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Secretary
0:\wdox\SCC1nts\0112\0905\MUNICIPAL\R91217H1.DOC/rmc
BRUSHY CREEK REGIONAL UTILITY AUTHORITY AGREEMENT
FOR PROFESSIONAL CONSULTING SERVICES
WITH PATTERSON & ASSOCIATES
This Agreement shall recite the contractual terms whereby the Brushy Creek Regional
Utility Authority (hereinafter referred to as the `BCRUA") engages Patterson & Associates
(hereinafter referred to as "Patterson" or the "Consultant") to perform, by way of illustration and
not limitation, the following services:
Provision of investment advisory services to provide nondiscretionary portfolio
management services for the BCRUA's investment portfolio including, but not limited to,
the execution of securities purchases and sales for the BCRUA's funds, investment
advice, investment reporting, and review of the BCRUA's Investment Policy and
procedures.
This Agreement (hereinafter referred to as the "Agreement") is made by and between the
Brushy Creek Regional Utility Authority, a Texas local government corporation, whose offices
are located at 221 East Main Street, Round Rock, Texas 78664-5299, and Patterson &
Associates, whose offices are located at 301 Congress Avenue, Suite 570, Austin, Texas 78701.
and
RECITALS:
WHEREAS, the BCRUA has determined that there is a need for the delineated services;
WHEREAS, the BCRUA desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The initial term of this Agreement shall be until full and satisfactory completion of the
work specified herein is achieved, but not later than twelve (12) months from the effective date
of this Agreement.
00176877/jkg
EXHIBIT
11AI
At the BCRUA's sole option, this Agreement may be renewed for four (4) additional
twelve (12) month periods from the expiration date of the initial term, only upon the express
written agreement of both parties and only provided Consultant has performed each and every
contractual obligation specified in this Agreement.
The BCRUA reserves the right to review the Agreement and contractual relationship at
any time, and may elect to terminate same with or without cause or may elect to continue.
1.02 CONTRACT AMOUNT; AND SCOPE OF WORK DELINEATION
In consideration for the professional services to be performed by Consultant, the BCRUA
agrees to pay Consultant a total sum not to exceed Thirty Thousand and No/100 Dollars
($30,000.00) in payment for services and the Scope of Work deliverables as delineated hereafter:
For purposes of this Agreement Consultant has issued its Statement of Work. Such
Statement of Work is entitled "Proposal for Investment Advisory Services; RFP No. 09-028;
August 18, 2009" and is attached as Exhibit "A" and incorporated herein by reference for all
purposes. This Agreement, including all exhibits, shall evidence the entire understanding and
agreement between the parties and shall supersede any prior proposals, correspondence or
discussions.
Consultant shall satisfactorily provide all services described under the attached Statement
of Work within the contract term specified in Section 1.01. Consultant's undertakings shall be
limited to performing services for the BCRUA and/or advising the BCRUA concerning those
matters on which Consultant has been specifically engaged. Consultant shall perform its services
in accordance with this Agreement, in accordance with any appended exhibits, in accordance
with due care, and in accordance with prevailing consulting industry standards for comparable
services.
1.03 PAYMENT FOR SERVICES; PAYMENT FOR REIMBURSABLE EXPENSES;
SUPPLEMENTAL AGREEMENTS
Not -to -Exceed Total for Payment for Services: Unless subsequently changed by
additional Supplemental Agreement to this Agreement, duly authorized by action of the BCRUA
Board, Consultant's total compensation hereunder shall not exceed $30,000.00. This amount
represents the absolute limit of the BCRUA's liability to Consultant hereunder unless same shall
be changed by additional Supplemental Agreement, and the BCRUA shall pay, strictly within the
confines of the not -to -exceed sum recited herein, Consultant's professional fees for work done
on behalf of the BCRUA.
Reimbursable Expenses: Reimbursable expenses are not authorized under this
Agreement.
Deductions: No deductions shall be made for Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
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Additions: No additions shall be made to Consultant's compensation based upon claims
associated with this Agreement, whether paid by the BCRUA or denied.
Supplemental Agreements: The terms of this Agreement may be modified by written
Supplemental Agreement hereto, duly authorized by the BCRUA Board, if the BCRUA
determines that there has been a significant change in (1) the scope, complexity, or character of
the services to be performed; or (2) the duration of the work. Any such Supplemental
Agreement must be executed by both parties within the period specified as the term of this
Agreement. Consultant shall not perform any work or incur any additional costs prior to the
execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for
extra work done or materials furnished unless and until there is full execution of any
Supplemental Agreement, and the BCRUA shall not be responsible for actions by Consultant nor
for any costs incurred by Consultant relating to additional work not directly authorized by
Supplemental Agreement.
1.04 TERMS OF PAYMENT
Invoices: To receive payment, Consultant shall prepare and submit a series of monthly
detailed invoices to the BCRUA for services rendered. Each invoice for professional services
shall detail the services performed, along with documentation. All payments to Consultant shall
be made on the basis of the invoices submitted by Consultant and approved by the BCRUA.
Should additional backup material be requested by the BCRUA, Consultant shall comply
promptly. In this regard, should the BCRUA determine it necessary, Consultant shall make all
records and books relating to this Agreement available to the BCRUA for inspection and
auditing purposes.
If the BCRUA has any dispute with work performed, then the BCRUA shall notify
Consultant within thirty (30) days after receipt of invoice. In the event of any dispute regarding
the work performed, then and in that event Consultant shall either (a) satisfactorily re -perform
the disputed services or (b) provide the BCRUA with an appropriate credit.
Payment of Invoices: The BCRUA reserves the right to correct any error that may be
discovered in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of invoices, the BCRUA shall endeavor to
pay Consultant promptly, but no later than the time period required under the Texas Prompt
Payment Act described in Section 1.08 herein. Under no circumstances shall Consultant be
entitled to receive interest on payments which are late because of a good faith dispute between
Consultant and the BCRUA or because of amounts which the BCRUA has a right to withhold
under this Agreement or state law. The BCRUA shall be responsible for any sales, gross receipts
or similar taxes applicable to the services, but not for taxes based upon Consultant's net income.
Offsets: The BCRUA may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to the BCRUA from Consultant,
regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise
and regardless of whether or not the debt due to the BCRUA has been reduced to judgment by a
court.
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1.05 REQUIRED REPORTS
Consultant agrees to provide the BCRUA with any necessary detailed interim and final
written reports, together with all information gathered and materials developed during the course
of the project. Additionally, Consultant agrees to provide the BCRUA with any necessary oral
presentations of such detailed interim and final written reports, at the BCRUA's designation and
at no additional cost to the BCRUA.
1.06 LIMITATION TO SCOPE OF WORK
Consultant and the BCRUA agree that the scope of services to be performed is generally
enumerated in Exhibit "A." Notwithstanding anything herein to the contrary, the parties agree
that the BCRUA retains absolute discretion and authority for all funding decisions, such
decisions to be based solely on criteria accepted by the BCRUA which may be influenced by but
not be dependent on Consultant's work.
1.07 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of the BCRUA's current revenues only. It is understood
and agreed that the BCRUA shall have the right to terminate this Agreement at the end of any of
the BCRUA's fiscal years if the BCRUA Board does not appropriate funds sufficient to purchase
the services as determined by the BCRUA's budget for the fiscal year in question. The BCRUA
may effect such termination by giving Consultant a written notice of termination at the end of its
then -current fiscal year.
1.08 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to be
made by the BCRUA to Consultant will be made within thirty (30) days of the date the BCRUA
receives goods under this Agreement, the date the performance of the services under this
Agreement are completed or the date the BCRUA receives a correct invoice for the goods or
services, whichever is later. Consultant may charge interest on an overdue payment at the "rate
in effect" on September 1 of the fiscal year in which the payment becomes overdue, in
accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt
Payment Policy does not apply to payments made by the BCRUA in the event:
(1) There is a bona fide dispute between the BCRUA and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that
causes the payment to be late; or
(2) There is a bona fide dispute between Consultant and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late;
The terms of a federal contract, grant, regulation, or statute prevent the BCRUA
from making a timely payment with federal funds; or
(3)
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(4) The invoice is not mailed to the BCRUA in strict accordance with any instruction
on the purchase order relating to the payment.
1.09 TERMINATION
This Agreement may be terminated for any of the following conditions:
(1) By the BCRUA for reasons of its own, with or without cause, and not subject to
the mutual consent of any other party, such written termination notice to be given
to the other party not less than thirty (30) days prior to termination.
(2) By mutual agreement and consent of the parties, such agreement to be in writing.
(3) By either party for failure by the other party to perform the services set forth
herein in a satisfactory manner, such termination notice to be given in writing to
the other party.
(4) By either party for failure by the other party to fulfill its obligations herein.
(5) By satisfactory completion of all services and obligations described herein.
Should the BCRUA terminate this Agreement as herein provided, no fees other than fees
due and payable at the time of termination shall thereafter by paid to Consultant. The BCRUA
shall pay Consultant for all uncontested services performed to date of notice of termination.
If either party defaults in performance of this Agreement or if the BCRUA terminates this
Agreement for default on the part of the other party, then the BCRUA shall give consideration to
the actual costs incurred by Consultant in performing the work to the date of default. The cost of
the work that is useable to the BCRUA, the cost to the BCRUA of employing another firm to
complete the useable work, and other factors will affect the value to the BCRUA of the work
performed at the time of default.
The termination of this Agreement and payment of an amount in settlement as set forth
above shall extinguish all rights, duties, and obligations of the BCRUA and the terminated party
to fulfill contractual obligations. Termination under this section shall not relieve the terminated
party of any obligations or liabilities which occurred prior to cancellation.
1.10 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the BCRUA's employee. Consultant's
employees or subcontractors are not the BCRUA's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and the BCRUA agree to the following
rights consistent with an independent contractor relationship:
(1) Consultant has the right to perform services for others during the term hereof.
(2) Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
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(3)
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and the BCRUA shall not hire, supervise, or pay assistants to help
Consultant.
(5)
Neither Consultant nor its employees or subcontractors shall receive training from
the BCRUA in skills necessary to perform services required by this Agreement.
(6) The BCRUA shall not require Consultant or its employees or subcontractors to
devote full time to performing the services required by this Agreement.
Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of the BCRUA.
(7)
1.11 NON -SOLICITATION
All parties hereto agree that they shall not directly or indirectly solicit for employment,
employ, or otherwise retain staff of the other during the term of this Agreement.
1.12 CONFIDENTIALITY; AND MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by the BCRUA for use by
Consultant in connection with services to be performed under this Agreement, and any and all
data and information gathered by Consultant, shall be held in confidence by Consultant as set
forth hereunder. All parties agree to hold all confidential information in the strictest confidence
and not make any use thereof other than for the performance of this Agreement.
Notwithstanding the foregoing, the parties recognize and understand that the BCRUA is subject
to the Texas Public Information Act and its duties run in accordance therewith.
Any and all materials created and developed by Consultant in connection with services
performed under this Agreement, including all trademark and copyright rights, shall be the sole
property of the BCRUA at the expiration of this Agreement.
1.13 WARRANTIES
Consultant warrants that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be performed in a
professional and workmanlike manner. Consultant shall re -perform any work not in compliance
with this warranty.
1.14 INDEMNIFICATION
Consultant agrees to hold harmless, exempt, and indemnify the BCRUA, its officers,
agents, directors, servants, representatives and employees, from and against any and all suits,
actions, legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities
and claims of any character, type, or description, including but not limited to any and all
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expenses of litigation, court costs, attorneys fees and all other costs and fees incident to any work
done as a result hereof.
The BCRUA agrees to hold harmless, exempt, and indemnify Consultant, its officers,
agents, directors, servants, representatives and employees, from and against any and all suits,
actions, legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities
and claims of any character, type, or description, including but not limited to any and all
expenses of litigation, court costs, attorneys fees and all other costs and fees incident to any work
done as a result hereof
In no event shall either party be liable to the other for special or consequential damages,
statutory or otherwise.
1.15 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties hereunder without the other's prior written approval.
1.16 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services hereunder. The BCRUA will not do the following:
(1)
Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
(3)
Withhold state or federal income tax from any of Consultant's payments.
If requested, the BCRUA shall provide Consultant with a certificate from the Texas State
Comptroller indicating that the BCRUA is a non-profit corporation and not subject to State of
Texas Sales and Use Tax.
1.17 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall comply with all
applicable federal and state laws, the Charter and Ordinances of the member cities, as amended,
and all applicable rules and regulations promulgated by local, state and national boards, bureaus
and agencies. Consultant shall further obtain all permits, licenses, trademarks, copyrights, and
the like required in the performance of the services contracted for herein, and same shall belong
solely to the BCRUA at the expiration of the term of this Agreement.
1.18 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required hereunder.
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1.19 DESIGNATION OF THE BCRUA REPRESENTATIVE
The BCRUA hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
1.20
221 East Main Street
Round Rock, Texas 78664
Telephone:
Facsimile:
Email:
NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
Linda T. Patterson
Patterson & Associates
301 Congress Avenue
Austin, TX 78701
Notice to the BCRUA:
General Manager
BCRUA
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets
Attorney at Law
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of
routine communications between representatives of the BCRUA and Consultant.
1.21 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
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1.22 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including any appended exhibits, constitute
the entire agreement between the parties and supersede all previous communications,
representations, and agreements, either written or oral, with respect to the subject matter hereof.
No modifications of this Agreement will be binding on any of the parties unless acknowledged in
writing by the duly authorized governing body or representative for each party.
1.23 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator,
The BCRUA shall select one mediator and Consultant shall select one mediator and those two
mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees,
associated with the mediation shall be shared equally by the parties.
The BCRUA and Consultant hereby expressly agree that no claims or disputes between
the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute.
1.24 ATTORNEY FEES
In the event that any lawsuit is brought by one party against any of the other parties in
connection with this Agreement, the prevailing party shall be entitled to seek to recover its
reasonable costs and reasonable attorney fees.
1.25 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to the BCRUA if its
failure to perform or its substantial delay in performance is due to the BCRUA's failure to timely
provide requested information, data, documentation, or other material necessary for Consultant
to perform its obligations hereunder.
1.26 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
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way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion of
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this Article shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
1.27 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a mariner according to generally accepted business practices.
1.28 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
The failure of a party to exercise any right hereunder shall not operate as a waiver of said
party's right to exercise such right or any other right in the future.
Time is of the essence to this Agreement. Consultant understands and agrees that any
failure of Consultant to complete the services due under this Agreement within the agreed term
as delineated in Section 1.01 herein will constitute a material breach of this Agreement.
The BCRUA agrees to provide Consultant with one (1) fully executed original of this
Agreement document.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered as one original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
[Signatures appear on the following page]
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BRUSHY CREEK REGIONAL UTILITY AUTHORITY
By:
Printed Name:
Title:
Date Signed:
ATTEST:
By:
BCRUA Board Secretary
FOR THE ' UA, PPRO ED AS TO FORM:
By:
J
Stepha L. Sheets, Attorney
PATTERSON CAPITAL MANAGEMENT
By:
Printed Nan4e: ,L/AJQ/J ,//52L)
Title: R2r-S/064/7
Date Signed:
//-O�
DATE: December 8, 2009
SUBJECT: City Council Meeting — December 17, 2009
ITEM: 8H1. Consider a resolution authorizing the Brushy Creek Regional Utility Authority
(BCRUA) to enter into an agreement with Patterson Capital Management dba
Patterson & Associates, Inc. for Investment Advisory Services.
Department:
Staff Person:
Justification:
Water and Wastewater Utilities
Michael Thane, P.E., Director of Utilities
This agreement authorizes Patterson Capital Management to serve as the BCRUA's investment advisor.
Investment advisory services provide portfolio management services for the BCRUA's investments which
include the execution of securities purchases and sales for the BCRUA's funds, investment advice,
investment reporting, and review of the BCRUA's Investment Policy and procedures.
Strategic Plan Relevance:
8.0 — Maintain and enhance public confidence, satisfaction and trust in City Government.
27.0 — Ensure there is adequate, affordable and safe water supply.
Funding:
Cost: BCRUA total share not -to -exceed $30,000 (Round Rock's share not -to -exceed $8,001)
Source of funds: BCRUA Bond Proceeds
Outside Resources: Cities of Cedar Park and Leander
Public Comment: N/A