CM-09-12-241CITY OF ROUND ROCK AGREEMENT
FOR PROFESSIONAL CONSULTING SERVICES
WITH AMERICAN MUNICIPAL TAX-EXEMPT COMPLIANCE
This Agreement for Professional Consulting Services (hereinafter referred to as the
"Agreement") shall recite the contractual terms whereby the City of Round Rock, Texas (herein
referred to as the "City") engages American Municipal Tax -Exempt Compliance (herein referred
to as "Amtec" or the "Consultant") to perform, by way of illustration and not limitation, the
following services:
Provision of necessary investment arbitrage calculation services for all long-term
bonds issued by the City of Round Rock which are subject to the 1986 Tax
Reform Act, as amended.
This Agreement is made by and between the City of Round Rock, a Texas home -rule
municipal corporation, whose offices are located at 221 East Main Street, Round Rock, Texas
78664-5299, and American Municipal Tax -Exempt Compliance, whose offices are located at
124 LaSalle Road, West Hartford, Connecticut 06107.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City 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 City'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.
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City 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, City agrees
to pay Consultant a total sum not to exceed Four Thousand Nine Hundred and No/100 Dollars
($4,900.00) per contract year 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 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 City and/or advising City 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 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 City Council or City
Manager action, Consultant's total compensation hereunder shall not exceed $4,900.00 per
contract year. This amount represents the absolute limit of City's liability to Consultant
hereunder unless same shall be changed by additional Supplemental Agreement, and City shall
pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's
professional fees for work done on behalf of City.
Not -to -Exceed Total for Payment for Reimbursable Expenses: No reimbursable expenses
are authorized or allowed 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 City or denied.
Supplemental Agreements: The terms of this Agreement may be modified by written
Supplemental Agreement hereto, duly authorized by City Council or City Manager action, if City
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
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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 City 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 City 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 City.
Should additional backup material be requested by City, Consultant shall comply
promptly. In this regard, should City determine it necessary, Consultant shall make all records
and books relating to this Agreement available to City for inspection and auditing purposes.
If City has any dispute with work performed, then City 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 City with an appropriate credit.
Payment of Invoices: City 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, City 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 City or because of amounts which City has a right to withhold under this Agreement or state
law. City 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: City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to City 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 City has been reduced to judgment by a court.
1.05 REQUIRED REPORTS
Consultant agrees to provide City 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 City with any necessary oral presentations of
such detailed interim and final written reports, at City's designation and at no additional cost to
City.
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1.06 LIMITATION TO SCOPE OF WORK
Consultant and City 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 City retains absolute discretion and authority for all funding decisions, such decisions to be
based solely on criteria accepted by City 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 City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City 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 City to Consultant will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed or the date City 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 City in the event:
(1) There is a bona fide dispute between City 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 City from
making a timely payment with federal funds; or
(4) The invoice is not mailed to City in strict accordance with any instruction on the
purchase order relating to the payment.
1.09 TERMINATION
(3)
This Agreement may be terminated for any of the following conditions:
(1)
By City 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.
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(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 City 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. City 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 City terminates this
Agreement for default on the part of the other party, then City 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 City, the cost to City of employing another firm to complete the useable
work, and other factors will affect the value to City 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 City 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 City's employee. Consultant's
employees or subcontractors are not City'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 City 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.
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
Consultant or its employees or subcontractors shall perform services required
hereunder, and City shall not hire, supervise, or pay assistants to help Consultant.
Neither Consultant nor its employees or subcontractors shall receive training from
City in skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
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(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 City.
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 City 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 City 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 City at the expiration of this Agreement.
1.13 WARRANTIES
Consultant warrants that all services performed hereunder shall be performed consistent
with generally prevailing professional and 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 City, 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.
City 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.
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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 under this Agreement. City 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, City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that City 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 City of Round Rock, 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 City 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 CITY REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Cheryl Delaney, Director of Finance
221 East Main Street
Round Rock, Texas 78664
Telephone: 512-218-5445
Email: cdelaney@,round-rock.tx.us
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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:
William M. Pascucci
President, Amtec
124 LaSalle Road
West Hartford, CT 06107
Notice to City:
City of Round Rock
City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
City Attorney's Office
Stephan L. Sheets, City Attorney
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 City 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,
City 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.
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City 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 City if its failure to
perform or its substantial delay in performance is due to City'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.
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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.
City 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.
CITY OF ROUND ROCK, TEXAS
By:
Printed N
Title:
Date Signe
FOR CITY, ATTEST:
By:
Sara L. White, City Secretary
FOR CITY, • P •ROVED AS T
By:
Stepha L. Sheets, City Attorney
AMERICAN M�� UNICIPAL TAX-EXEMPT COMPLIANCE (AMTEC)
By: I`�W �!.
Printed Name: reopka,tia 14. tdi”
Title: in Lt. Prert.�.,,ti}�
Date Signed: It ct d
I0
DATE: November 30, 2009
SUBJECT: City Manager Approval — December 4, 2009
ITEM: Consider executing an agreement for arbitrage calculation services with,
American Municipal Tax -Exempt Compliance (AMTEC).
Department:
Staff Person:
Finance
Cheryl Delaney, Finance Director
Justification: This arbitrage calculation services agreement will ensure the City is in
compliance with all arbitrage rebate requirements contained in Section 148 of the Internal
Revenue Code of 1986 (as revised) and related Treasury Regulations. The City is required to
perform arbitrage calculations on its various outstanding bond issuances and debt service
accounts to verify compliance with Section 148 of the Internal Revenue Code of 1986 (as
revised) and related Treasury Regulations. These calculations are quite complex and require
specific knowledge of the regulations and different calculation methods to determine whether
any tax liability exists. The City utilized the best value evaluation process to determine that
Amtec provides the best value for the City.
Strategic Plan Relevance:
8.0 — Maintain and enhance public confidence, satisfaction and trust in City Government.
Funding:
Cost: $24,500
Source of funds: Various General Obligation Bonds
Outside Resources (if applicable): N/A
Public Comment (if applicable): N/A
UPDATED APRIL 2008
5/12/2009
Request for City Council/City Manager Action
City Council; City Manager
Submit completed form for all City Manager and City Council approvals.
Department Name: Finance Department
Contact Person: Cheryl Delaney / Misty Gray
Project Mgr/Resource: Elaine Wilson
Project Coordinator:
Assigned Attorney: J. Kay Gayle
City Council or City Manager Approval Date:
Agenda Wording
FriAdministraii ir�t L e ONLY
DEL
Received: ( J!ll}a Iv4,�r
Tag a: y-Oq- �I-2 1
Original Documents Received:
Project Name: Arbitrage Calculation Services
ContractorNendor: AMTEC, American Municipal Tax -Exempt Compliance
Funding Source:
Additional funding Source:
Amount: $24,500.00
12/4/2009
Account Number: Interest eamings in various bond funds
Consider executing an agreement for arbitrage calculation services with American Munidpal Tax -Exempt Compliance (AMTEC).
Finance Information
Is Funding Required? Yes I No
Initial Construction Contract
Construction Contract Amendment q
Change Order
11jChange in Quantity uUnforeseen Circumstances
Q Initial Professional Services Agreement
Supplemental Professional Service Agreement #
Purchasing/Service Agreement
Purchase Order
Item(s) to be purchased
0 Other (Please dearly identify action on lines below)
Arbitrage Calculation Services
Amount
$24,500.00
Reauired for Submission of ALL City Council and City Manager Items
Project Mgr. Sigoe'tur
Dept. Director Signature:
`City Attorney Signature:
City Manager Signature:
Da
Dete; -;
Date: i a- Li -01
Date: la -4-01
*City Attorney signature is required for aN items.
REVISED 12/2/2009
LEGAL DEPARTMENT APPROVAL FOR CITY COUNCIL/CITY MANAGER ACTION
Required for Submission of ALL City Council and City Manager Items
Department Name: FINANCE
Project Mgr/Resource: ELAINE WILSON
Council Action:
LI ORDINANCE
Agenda Wording
City Manager Approval
AGREEMENT FR Project Name: CALCULATION SERVIICESRAGE
AMERICAN M
ContractorNendor: COMPLIANCEUNICIPAL TAX-EXEMPT
El RESOLUTION
CMA Wording
Consider executing an agreement for arbitrage calculation services with American Municipal Tax -Exempt Compliance (AMTEC).
Attorney Approval
Attorney
Notes/Comments
Date
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Updated 6/3/08