GM-11-02-25-010 BRUSHY CREEK REGIONAL UTILITY AUTHORITY AGREEMENT
FOR PROFESSIONAL CONSULTING SERVICES WITH
PATTERSON CAPITAL MANAGEMENT dba PATTERSON & ASSOCIATES
This Agreement shall recite the contractual terms whereby the Brushy Creek Regional
Utility Authority (hereinafter referred to as the `BCRUA") engages Patterson Capital
Management dba 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, 221 East Main
Street, Round Rock, Texas 78664-5299, and Patterson Capital Management dba Patterson &
Associates, 301 Congress Avenue, Suite 570, Austin, Texas 78701.
RECITALS:
WHEREAS, the BCRUA has determined there is a need for the delineated services; and
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.
At the BCRUA's sole option, this Agreement may be renewed for three (3) 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.
00213053/jkg
64A4- 11- 02 -2T-OW
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 a separate binder titled Exhibit "A," and is 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.
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
2
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.
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 hereunder
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.
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
3
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 I 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;
(3) The terms of a federal contract, grant, regulation, or statute prevent the BCRUA
from making a timely payment with federal funds; or
(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.
4
(3) By either party for failure by the other to perform the services set forth herein in a
satisfactory manner, such 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.
(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.
5
(7) 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.
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 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.
6
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.
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:
Chris Lippe, P.E., BCRUA General Manager
221 East Main Street
Round Rock, Texas 78664
Telephone: (512) 844-7419
Facsimile: (512) 218-7097
Email: clippe@bcrua.org
7
1.20 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 Stephan L. Sheets
BCRUA AND TO: Attorney at Law
221 East Main Street 309 East Main Street
Round Rock,TX 78664 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.
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
8
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 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 manner
according to generally accepted business practices.
9
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.
BRUSHY CREEK REGIONAL UTILITY AUTHORITY
By:
Printed Name: Mitch-V-trH� C V S 14 P006
Title: PresiderA
Date Signed: 2 - 2 > I
AST:
$9'—
Ju1n,B. eovnnan, Be Fd-SeGrdar-y,
FOR BCRU4,fAPPRZOVE AS TO FORM:
By:
Step an L. Sheets, Attorney
PATTERSON CAPITAL MANAGEMENT dba PATTERSON & ASSOCIATES
By:
Printed N e:
Title: DEArr
Date Signed: o? -�-
10