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HomeMy WebLinkAboutC06-367 PROFESSIONAL SERVICE AGREEMENT This Professional Service Agreement (hereinafter "Agreement") dated as this ~ day of December, 2006, is between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "County"), and Arbitrage Compliance Specialists, Inc., a service provider with a mailing address of 7400 East Orchard Road, Suite 270, Greenwood Village, Colorado, 80111, (hereinafter "ACS"). WHEREAS, County is in need of a person to provide the services outlined in Section 1.1 hereunder; WHEREAS, ACS has represented that it has the experience and knowledge in the subject matter necessary to carry out the services outline in Section 1.1 hereunder; WHEREAS, County wishes to hire ACS to perform the tasks associated with such services outline in Section 1.1 hereunder; WHEREAS, County and ACS intend by this Agreement to set forth the scope of the responsibilities of ACS in connection with the services and related terms and conditions to govern the relationship between ACS and County in connection with the services. Aereement THEREFORE, based upon the representations by ACS set forth in the foregoing recitals, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: 1. Services Provided: 1.1 ACS will provide to County the professional services necessary to prepare arbitrage compliance computations as required by the Internal Revenue Service for the 200 1 Airport Terminal Revenue Bonds, as described and detailed in Exhibit "A," attached hereto and by this reference made part of this Agreement. (hereinafter "Arbitrage Computation Services "). 1.2 ACS will perform the Arbitrage Computation Services and will prepare arbitrage compliance computations within four weeks of receiving the requisite information from U.S. Bank related to the 200 1 Airport Terminal Revenue Bonds. 1.3 ACS agrees that ACS will not enter into any professional service agreements with third parties that will conflict in any manner with the Arbitrage Computation Services. 2. Term of Agreement: 2.1 This Agreement shall commence upon execution of the Agreement and, subject to the provisions of Section 2.2 hereof, shall conclude upon completion of the arbitrage compliance 1\ . ....... ~"l computations as required by the Internal Revenue Service for the 200 1 Airport Temlinal Revenue Bonds. 2.2 This Agreement may be terminated at any time, in whole or in part as determined by County in its sole discretion. County may terminate this agreement for any reason, with or without cause, and without penalty whatsoever therefore. Such termination will be accomplished by delivery of a Notice of Tennination to ACS, specifying the extent to which performance of the services under this Agreement shall be terminated and the date upon which such termination date shall become effective. 2.3 In the event of any termination of this Agreement, ACS shall be compensated for all hours of work then completed, plus approved expenses. 3. Independent ACS: 3.1 With respect to the provision of the Arbitrage Computation Services hereunder, ASC acknowledges that ACS is an independent ACS providing Services to County. Nothing in this Agreement shall be deemed to make ACS an agent, employee, partner or representative of County. Moreover, this Agreement creates no entitlement to participate in any of the Employee Benefit Plans of County including insurance, paid vacation and recognized holidays. 3.2 The ACS shall not have the authority to, and will not make any commitments or enter into any agreement with any party on behalf of County without the written consent of a senior management representative of County. 4. Remuneration: 4.1 Unless authorized in writing by County, total compensation, including expenses, under this Agreement shall not exceed four thousand, seven hundred and fifty dollars ($4,750), as set forth in Exhibit "A," which is attached hereto and by this reference made palt of this agreement. If authorized by County, additional fees will be invoiced upon the completion of additional services. Fees will be paid within fifteen (15) days of receipt of a proper and accurate invoice from ACS concerning Arbitrage Computation Services. The invoice shall include a description of services performed. Upon request, ACS shall provide County with such other supporting information as County may request. 4.2 No travel expenses are anticipated or will be paid for. 4.3 County will not withhold any taxes from monies paid to the ACS hereunder and ACS agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. 5. Indemnification: 2 5.1 Within the limits allowed by law, ACS shall indemnify County for, and hold and defend the County and its officials, boards, officers, principals and employees harmless from, all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the acts or omissions of, or presentations by, the ACS in the performance of this Agreement. This indemnification shall not apply to claims by third parties against the County to the extent that the County is liable to such third party for such claim without regard to the involvement of the ACS. 6. ACS's Professional Level of Care: 6.1 ACS shall be responsible for the completeness and accuracy of the Arbitrage Computation Services, including all supporting data and other documents prepared or compiled in performance of the Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved the Arbitrage Computation Services shall not relieve ASC of any of its responsibilities. ACS shall perform the Arbitrage Computation Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to specialists, with respect to similar services, in this area at this time. 7. Notices: 7.1 Any notice to be given by any party to the other shall be in writing and shall be deemed to have been duly given if delivered personally, by facsimile transmission or if sent by prepaid first class mail, and for the purposes aforesaid, the addresses of the parties are as follows: (a) Eagle County Finance Department 500 Broadway P.O. Box 850 Eagle, CO 81631 Phone Number: (970) 328-3510 Fax Number: (970) 328-3519 (b) Arbitrage Compliance Specialists, Inc. Attn: Denise M. Grizzle, Account Manager 7400 East Orchard Road, Suite 270 Greenwood Village, CO 80111 Phone Number: (303) 756-5100 Fax Number: (303) 756- 0901 Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the 3 date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. 8. Jurisdiction and Confidentiality: 8.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. 8.2 The ACS and County acknowledge that, during the term of this Agreement and in the course of the ACS rendering the Arbitrage Computation Services, the ACS may acquire knowledge of the business operations of County to the point that the general method of doing business, the pricing of products, the lists of customers and other aspects of the business affairs of County will become generally known and the ACS shall not disclose, use, publish or otherwise reveal, either directly or through another, to any person, firm or corporation, any knowledge, information or facts concerning any of the past or then business operations, pricing or sales data of County and shall retain all knowledge and information which he has acquired as the result of this Agreement in trust in a fiduciary capacity for the sole benefit of County, its successors and assigns during the term of this Agreement, and for a period of five (5) years following termination of this Agreement. 9 Insurance: 9.1 At all times during the term of this Agreement, ACS shall maintain professional liability insurance with a minimum coverage limit of $1,000,000. 9.2 The ASC will maintain general liability, unemployment and workman's compensation insurance on its own behalf, as necessary. 9.3 All insurance required hereby shall be issued by an insurance company or companies authorized to do business in the State of Colorado. 10. Prohibitions on Public Contract for Services: 10.1 ACS shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services; or enter into a contract with a subcontractor that fails to certify to ACS that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. 10.2 ACS shall verify or attempt to verify through participation in the Basic Pilot Verification program, as administered by the United States Department of Homeland Security, that ACS does not employ any illegal aliens. If ACS is not accepted into the Basic Pilot Verification Program prior to entering into a public contract for services, ACS shall apply to participate in the Program every three months until ACS is accepted or the public contract for services has 4 been completed, whichever is earlier. Information on applying for the Basic Pilot Verification Program can be found at: hups:! /www.vis-dhs.com \employenegistration 10.3 ACS shall not use the Basic Pilot Verification Program procedures to undertake employment screening of job applicants while the public contract for services is being pre- fUfWnrl 10.4 If ACS obtains actual knowledge that a Subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, ACS shall be required to: i. Notify the Subcontractor and the County within three days that ACS has actual knowledge that the Subcontractor is employing or contracting with an illegal alien; and ii. Terminate the Subcontract with the Subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the Subcontractor does not stop employing or contracting with the illegal alien; except that ACS shall not terminate the contract with the Subcontractor if during such three days the Subcontractor provides information to establish that the Subcontractor has not knowingly employed or contracted with an illegal alien. 10.5 ACS shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority. 10.6 If ACS violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated, ACS shall be liable for actual and consequential damages to the County. 11. Miscellaneous: 11.1 This Agreement constitutes the entire Agreement between the parties related to its subject matter. It supersedes all prior proposals, agreements and understandings. 11.2 The parties to this Agreement recognize that the services to be provided pursuant to this Agreement are professional in nature and that in entering into the Agreement, County is relying upon the professional services and reputation of ACS. Therefore, this Agreement is personal to the ACS and may not be assigned by ACS. 11.3 This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein 5 or the breach thereof. 11.4 County agrees to provide accurate copies of the various documents required by Exhibit "A," attached hereto and by this reference, made part of the agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: COUNTY OF EAGLE, STATE OF .-~ COLORADO, By and Through Its C ~ c;:~OARD OF COUNTY COMMISSIONERS f 11},"-' ,1'., "-1:. \ ; '::! I :.\\I,\f11 \ ''''1; ~ ~; \ ~~ij' ~t. ! . 1( \,~ ,;{ ^ ...-- 0 "'OLOf'lt<.\)~t' B -,pi Clerk to the Boar of County Commissioners Arbitrage Compliance Specialists, Inc. By: 1);r1~~ e 71 :l< 7ft ( z.) (J//0tb7!:L 1l1aYllt4Vu TItle 0 Q 6 , . December 4,2006 Ms. Cindy Pratis, 1nterim Fmance Director Eagle County 510 Broadway Eagle, Colorado 81631 ARBITRAGE COMPLIANCE SPECIALISTS, INC. Dear Ms. Pratis: CONTROL #3 ENGAGEMENT LETTER FOR ARBITRAGE REBATE REPORT FOR $10.745M SERIES 2001A The purpose of this letter is to propose our engagement to prepare arbitrage compliance computations as required by the United States Treasury, Internal Revenue Service ("IRS") for the following tax-exempt debt. Listed below is the tax-exempt debt requiring computations and Arbitrage Compliance Specialists, Inc. ("ACS") fees to complete this engagement. $10.745M Airport Terminal Project Revenue Bonds, Series 2001A Issue Date: 6/14/01 511, Year IRS Filinf( Computation Period: 6/14/01 - 6/14/06 One-Time Initial Legal Set-Up Review Report Fee (for 1 year period) Extension Fee ($775 per year for reports in excess of 1 year; 4 additional years) TOTAL $ 4000 $1,250 3,100 ~6*BilIlI07 PLEASE NOTE THAT THIS ISSUE HAS REACHED THE 5TH YEAR COM PUT A nON DATE AS OF JUNE 14, 2006. ACCORDINGLY, THE REBATE REPORT WAS REQUIRED TO BE COMPLETED FOR THE IRS WITHIN 60 DA YS OF THIS DATE, OR BY AUGUST 14, 2006 (as per Regulation 148(1)(3)). Document and Data Requirements: Official Statement, IRS Form 8038, Wiring/Closing instructions for fund placement at closing, and investment data uncommingled for all funds and accounts including Debt Service for the computation period listed above (see Notes on next page, 2nd bullet point). Footnotes for pricing: OAn initial set-up is required for each bond issue. Thisfee covers our initial research on the bond issue and legal fees from our in-house tax counsel who determines which funds are subject to arbitrage rebate fJA CS 's fee for complellng alld jillllg Fortll 8038- T 011 51}, Year, I (j}, Year. . Final Year if rebate is owed and applicable, 011- timejiling $395, latejiling $595 · Optional Charges for all Issues. if applicable $150 per hour. Un commingling of allY funds, accounts or investments, as required (approximately $250. $1,000 per year), tran!,ferred proceeds allocations (approximately $250. $500 per year), if required due to certain types of refimdings, if a Spending Exception IS a viable option for this issue, the fee per 6-month report is $},250, which is generally in lieu (unless there is a Reserve Fund) of rebate reports ACS"sfees include one hour of data collection per debt issue, additional hours will be billed at $/50 per hour. 7400 East Orchard Road, Suite 270. Greenwood Village' Colorado' 80111 Phone: (303) 756-5100 (800) 672-9993' Fax: (303) 756-0901 (800) 756-6505' E-Mail: ArbCom@earthlink.net LOCATIONS NATIONWIDE: Greenwood Village, CO I La Jolla, CA I Orlando, FL I Boise, ID I Boston, MA I Durham, NC Las Vegas, NV I Columbus. OH I Oklahoma City, OK I Portland, OR I Nashville, TN I Houston, TX I Salt Lake City, UT I Seattle, WA NOTES TO THE ENGAGEMENT LETTER: · Notification is required in writing (e-mail is preferable) to ACS by you if the tax-exempt debt referenced in this engagement letter bas been or will be refunded, cash defeased or retired. This may accelerate the deadline for the Final IRS filing on the debt. . You agree to provide on a timely basis (within 35 calendar days after the end of a 5th Year, 10th Year or other IRS computation period) various documents and data for IRS compliance calculations to ACS which may include: Official Statement, Tax-Certificate, IRS Form 8038-G, CPA Verification Report, Escrow Agreement, Trust Indenture, Wiring/Closing instructions for fund placement at closing, investment data uncommingled for all funds and accounts including Debt Service, and if the debt is variable verses fixed rate, then also Letter of Credit Agreement, upfront Letter of Credit Fees, variable rate interest and principle payment schedule, and monthly or quarterly Letter of Credit Fees for the computation period listed on the I sI page. · ACS will assume the debt service fund for this issue was used for paying debt service payments and is bona fide and not overfunded, unless we are notified by you in writing (e-mail is preferable). Please review the definition below of a bona fide debt service fund and phone us to discuss the implications regarding arbitrage compliance for this issue. Definition of a bona fide debt service fund (1993 IRS Regulations): · Is used primarily to achieve a proper matching of revenues with principal and interest payments within each bond year; and · Is depleted at least once each bond year, except for a reasonable carryover amount not to exceed the greater of: - the earnings on the fund for the immediate preceding bond year; or - one-twelfth of the principal and interest payments on the issue for the immediately preceding bond year. Example: The bond year end is 8/1. Issue pays interest on 2/1 and 8/1 and principal on 8/1. Tax receipts are directly deposited in the Debt Service Fund from 3/1 through 6/30. Last bond year's principal and interest payments totaled $1.2M. One-twelfth of $1.2M = $ lOOK. Earnings on the fund last year totaled $70K. The balance in the Debt Service Fund on 8/2 of the new year is $ I 50K. The Debt Service Fund is overfunded since the balance on the day after the bond year end was in excess of one-twelfth of last bond year's total principal and interest payments ("greater of' of 2 options). · Yield RestrictionlYield Reduction Payment Reports are required every 5 years if there is a balance of Construction/Project proceeds remaining in excess of the minor portion (the lesser of $]00,000 or 5% of the sale proceeds of the issue) at the end of the Temporary Period, 5th Year, 10th Year, ] 5th Year... ...until the Bonds are Final. In conjunction with this engagement, we will provide the applicable report(s) opining to the arbitrage compliance requirements for the tax-exempt debt referenced in this engagement letter. We appreciate the opportunity to provide assistance to help you comply with your IRS arbitrage compliance requirements. As always, if we may be offurther assistance or if you have any questions, please do not hesitate to call us at (800) 672-9993. Very truly yours, 'tca~c CO;j71c:al;sts, me De~ise M. Grizzle, Account Please acknowledge accepIance of this engagement by signing and faxing this letter in its entirety to Arbitrage Compliance Specialists, Inc. at (800) 756-6505. Attach Business Card here ORfill in information be/ow Accepted by - Signature Print Name Date Title Organization -2-