HomeMy Public PortalAbout019-2014 - Sanitary - HJ UmbaughPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into this 1 3 hday of Akw ot, , 2014 and re-
ferred to as Contract No. 19-2014, by and between the City of Richmon , Indiana, a municipal
corporation acting by and through its Board of Sanitary Commissioners (hereinafter referred to as
the "City") and H.J. Umbaugh & Associates, 8365 Keystone Crossing, Suite 300, Indianapolis,
IN 46240-2687 (hereinafter referred to as the "Contractor").
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to provide annual Local Government Financial Assurance testing
at the New Paris Pike Landfill.
The proposal of Contractor is attached hereto as Exhibit "A", which Exhibit is dated January 17,
2014, consists of six (6) pages, and is hereby incorporated by reference and made a part of this
Agreement. Contractor shall perform all work and provide all services described on Exhibit "A."
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the
provisions, terms, or conditions of this Agreement, this Agreemen, shall be controlling.
Contractor shall perform all work herein in a timely manner, conforming to all applicable profes-
sional standards.
The Contractor shall furnish all labor, material, equipment and services necessary for the proper
completion of all work specified.
No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance and/or
warranties;
2. The City is in receipt of any required affidavit signed by Contractor in
accordance with Indiana Code 22-5-1.7-11(a)(2);and
3. A purchase order has been issued by the Purchasing Department.
SECTION IL STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of
the City of Richmond. The Contractor shall provide, at its own expense, competent supervision
of the work.
SECTION III. COMPENSATION
City shall pay Contractor a sum not to exceed Four Thousand Five Hundred Dollars and Zero
Cents ($4,500.00) for performing all work described herein in a satisfactory and proper manner.
SECTION IV. TERM OF AGREEMENT
This Agreement shall become effective when signed by all parties and shall continue in effect
until completion of the project.
Contract No. 19-2014
Page 1 of 6
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in
part, for cause, at any time by giving at least five (5) working days written notice specifying the
effective date and the reasons for termination which shall include but not be limited to the follow-
ing:
a. failure, for any reason, of the Contractor to fulfill in a timely manner and/or competent
manner its obligations under this Agreement,
b. submission by the Contractor to the City of reports that are incorrect or incomplete in
any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make prorated payment for all work
performed prior to the date this Agreement is terminated, but shall be relieved of any other re-
sponsibility herein.
This Agreement may also be terminated, in whole or in part, by mutual Agreement of the par-
ties by setting forth the reasons for such termination, the effective date, and in the case of
partial termination, the portion to be terminated.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to per-
son or property or any other claims which may arise from the Contractor's conduct or perform-
ance of this Agreement, either intentionally or negligently; provided, however, that nothing con-
tained in this Agreement shall be construed as rendering the Contractor liable for acts of the City,
its officers, agents, or employees. Contractor shall as a prerequisite to this Agreement, purchase
and thereafter maintain such insurance as will protect it from the claims set forth below which
may arise out of or result from the Contractor's operations under this Agreement, whether such
operations by the Contractor or by any sub -contractors or by anyone directly or indirectly em-
ployed by any of them, or by anyone for whose acts the Contractor may be held responsible.
Coverage
A. Worker's Compensation &
Disability Requirements
B. Employer's Liability
C. Comprehensive General Liability
Section 1. Bodily Injury
Section 2. Property Damage
Limits
Statutory
$100,000
$1,000,000 each occurrence
$2,000,000 aggregate
$1,000,000 each occurrence
Page 2 of 6
D. Comprehensive Auto Liability
Section 1. Bodily Injury
Section 2. Property Damage
E. Comprehensive Umbrella Liability
$1,000,000 each person
$1,000,000 each occurrence
$1,000,000 each occurrence
$1,000,000 each occurrence
$1,000,000 each aggregate
F. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence
$2,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall,
before commencing work under this Agreement, provide the City a certificate of insurance, or a
certificate from the industrial board showing that the Contractor has complied with Indiana Code
Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore
subject to another state's worker's compensation law, Contractor may choose to comply with all
provisions of its home state's worker's compensation law and provide the City proof of such
compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law.
SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIRE-
MENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work
eligibility status of all newly hired employees of the contractor through the Indiana E-Verify
program. Contractor is not required to verify the work eligibility status of all newly hired
employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify
program no longer exists. Prior to the performance of this Agreement, Contractor shall pro-
vide to the City its signed Affidavit affirming that Contractor does not knowingly employ an
unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor vio-
lates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty
(30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy
the violation within the thirty (30) day period provided above, the City shall consider the
Contractor to be in breach of this Agreement and this Agreement will be terminated. If the
City determines that terminating this Agreement would be detrimental to the public interest
or public property, the City may allow this Agreement to remain in effect until the City pro-
cures a new contractor. If this Agreement is terminated under this section, then pursuant to
IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages.
Page 3 of 6
SECTION VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged
in investment activities in Iran. In the event City determines during the course of this
Agreement that this certification is no longer valid, City shall notify Contractor in writing of
said determination and shall give contractor ninety (90) days within which to respond to the
written notice. In the event Contractor fails to demonstrate to the City that the Contractor has
ceased investment activities in Iran within ninety (90) days after the written notice is given to
the Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-
16.5. In the event the City determines during the course of this Agreement that this certifica-
tion is no longer valid and said determination is not refuted by Contractor in the manner set
forth in IC 5-22-16.5, the City reserves the right to consider the Contractor to be in breach of
this Agreement and terminate the agreement upon the expiration of the ninety (90) day period
set forth above.
SECTION IX. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting
on behalf of Contractor or any sub -contractor shall not discriminate against any employee
or applicant for employment to be employed in the performance of this Agreement, with
respect to hire, tenure, terms, conditions or privileges of employment or any matter di-
rectly or indirectly related to employment, because of race, religion, color, sex, disability,
national origin, or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
That in the hiring of employees for the performance of work under this Agree-
ment of any subcontract hereunder, Contractor, any subcontractor, or any person
acting on behalf of Contractor or any sub -contractor, shall not discriminate by
reason of race, religion, color, sex, national origin or ancestry against any citizen
of the State of Indiana who is qualified and available to perform the work to
which the employment relates;
2. That Contractor, any sub -contractor, or any person action on behalf of Contractor
or any sub -contractor shall in no manner discriminate against or intimidate any
employee hired for the performance of work under this Agreement on account of
race, religion, color, sex, national origin or ancestry;
That there may be deducted from the amount payable to Contractor by the City
under this Agreement, a penalty of five dollars ($5.00) for each person for each
calendar day during which such person was discriminated against or intimidated
in violation of the provisions of the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all money
due or to become due hereunder may be forfeited, for a second or any subsequent
violation of the terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or in-
timidation shall be considered a material breach of this Agreement.
Page 4 of 6
SECTION X. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of
its rights or obligations hereunder without the prior written consent of the other party. Any such
delegation or assignment, without the prior written consent of the other party, shall be null and
void. This Agreement shall be controlled by and interpreted according to Indiana law and shall
be binding upon the parties, their successors and assigns. This document constitutes the entire
Agreement between the parties, although it may be altered or amended in whole or in part at any
time by filing with the Agreement a written instrument setting forth such changes signed by both
parties. By executing this Agreement the parties agree that this document supersedes any previ-
ous discussion, negotiation, or conversation relating to the subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit
arising out of this Contract must be filed in said courts. The parties specifically agree that no ar-
bitration or mediation shall be required prior to the commencement of legal proceedings in said
Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other ac-
tion in any alternative forum, venue, or in front of any other tribunal, court, or administrative
body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right
Contractor may have to bring such suit in front of other tribunals or in other venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has
been duly authorized by his or her principal to execute this Contract.
In the event of any breach of this Agreement by Contractor, and in addition to any other damages
or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this
Agreement, including but not limited to, City's reasonable attorney's fees.
In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement
arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
Page 5 of 6
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of
the day and year first written above, although signatures may be affixed on different dates.
"CITY"
THE CITY OF RICHMOND,
INDIANA by and through its
Board of Sanitary Commissioners
Sue Miller, President
Date:
APPROVED:
Sarah"L. Hutton, Mayor
Date: d� L
"CONTRACTOR"
H. J. UMBAUGH AND ASSOCIATES
By:
���T 1_ ,//j
(Printed Name)
Title: 'Opa Iq
Date: a I l /l q
Page 6 of 6
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H. J. Umbaugh & Associates
Certified Public Accountants, LLP
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Suite 300
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Indianapolis, IN 46240-2687
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Phone:317-465-1500
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January 17 2014
It's all about experience.
Ms. Tammy Glenn, Controller
City of Richmond
50 North 51h Street
Richmond, IN 47374-4203
Re: Agreement for Annual Financial Assurance Test — New Paris Landfill
Dear Tammy:
You have requested that H.J. Umbaugh & Associates, Certified Public Accountants, LLP (the
"Firm") provide to the Richmond Sanitary District, Indiana (the "Client') those services more fully set
forth in Exhibit A hereto (the "Services").
Fees and Costs
Fees charged for work performed are generally based on hourly rates, as set forth in Exhibit B,
for the time expended, a fixed amount or other arrangement as mutually agreed upon as more appropriate
for a particular matter. Hourly rates for work performed by our professionals vary by individual and
reflect the complexity of the engagement.
In addition to fees, we also charge for various ancillary services, for which you will be invoiced.
Such charges may include long distance telephone charges, photocopying, facsimile transmission,
computer research, mileage, travel expenses and other similar charges specifically applicable to the
engagement.
Disclosure of Conflicts of Interest with Various Forms of Compensation
The Municipal Securities Rulemaking Board (MSRB) is expected to require us, as your municipal
advisor, to provide written disclosure to you about the actual or potential conflicts of interest presented by
various forms of compensation. Exhibit C sets forth the potential conflicts of interest associated with
various forms of compensation. By signing this letter of engagement, the signee acknowledges that
he/she has received Exhibit C and that he/she has been given the opportunity to raise questions and
discuss the matters contained within the exhibit with the municipal advisor.
Billing Procedures
Normally, you will receive a monthly statement showing fees and costs incurred in the prior
month. Occasionally, we may bill on a less frequent basis if the time involved in the prior month was
minimal or if arrangements are made for the payment of fees from bond proceeds. The account balance is
due and payable on receipt of the statement and we reserve the right to charge 1% interest per month for
outstanding unpaid balances over thirty (30) days from the date of billing. Once our representation has
been concluded or terminated, a final billing will be sent to you. If requested to provide an estimate of
our fees for a given matter, we will endeavor in good faith to provide our best estimate, but unless there is
a mutual agreement to a fixed fee, the actual fees incurred on any project may be less than or exceed the
estimate. Any questions or errors in any fee statement should be brought to our attention in writing
within sixty (60) days of the billing date.
Ms. Tammy Glenn, Controller
Re: Agreement for Annual Financial Assurance Test — New Paris Landfill
January 17, 2014
Page 2
Termination
Both the Client and the Firm have the right to terminate the engagement at any time after
reasonable advance written notice. On termination, all fees and charges incurred prior to termination
shall be paid promptly.
Accountants' Opinion
In performing our engagement, we will be relying on the accuracy and reliability of information
provided by Client personnel. We will not audit, review, or examine the information. Please also note
that our engagement cannot be relied on to disclose errors, fraud, or other illegal acts that may exist.
However, we will inform you of any material errors and any evidence or information that comes to our
attention during the performance of our procedures that fraud may have occurred. In addition, we will
report to you any evidence or information that comes to our attention during the performance of our
procedures regarding illegal acts that may have occurred, unless they are clearly inconsequential. We
have no responsibility to identify and communicate significant deficiencies or material weaknesses in
your internal control as part of this engagement.
The responsibility for auditing the records of the Client rests with the Indiana State Board of
Accounts and the work perfonned by the Firm shall not include an audit or review of the records or the
expression of an opinion on financial data.
Client Responsibilities
It is understood that the Firm will serve in an advisory capacity with the Client. The Client is
responsible for management decisions and functions, and for designating an individual with suitable skill,
knowledge or experience to oversee the services we provide. The Client is responsible for evaluating
adequacy and results of the services performed and accepting responsibility for such services. The Client
is responsible for establishing and maintaining internal controls, including monitoring ongoing activities.
Additional Services
Exhibit A sets forth the scope of the Services to be provided by the Firm. From time to time,
additional services may be requested by the Client beyond the scope of Exhibit A. The Firm may provide
these additional services and be paid at the Firm's customary fees and costs for such services. In the
alternative, the Firm and the Client may complete a revised and supplemented Exhibit A to set forth the
additional services (including revised fees and costs, as needed) to be provided. In either event, the terms
and conditions of this letter shall remain in effect.
E-Verify Program
The Finn participates in the E-Verify program. For the purpose of this paragraph, the E-Verify
program means the electronic verification of the work authorization program of the Illegal Immigration
Reform and Immigration Responsibility Act of 1996 (P.L. 104-208), Division C, Title IV, s.401(a), as
amended, operated by the United States Department of Homeland Security or a successor work
authorization program designated by the United States Department of Homeland Security or other federal
agency authorized to verify the work authorization status of newly hired employees under the
immigration Reform and Control Act of 1986 (P.L. 99-603). The Firm does not employ any
"unauthorized aliens" as that term is defined in 8 U.S.C. 1324a(h)(3).
Ms. Tammy Glenn, Controller
Re: Agreement for Annual Financial Assurance Test — New Paris Landfill
January 17, 2014
Page 3
Municipal Advisor Registration
The Firm is a Municipal Advisor registered with the Securities and Exchange Commission and
the Municipal Securities Rulemaking Board. As such, the Firm is providing certain specific municipal
advisory services to the Client. The Firm is neither a placement agent to the Client nor a broker/dealer.
The offer and sale of any Bonds shall be made by the Client, in the sole discretion of the Client,
and under its control and supervision. The Client agrees that the Firm does not undertake to sell or
attempt to sell the Bonds, and will take no part in the sale thereof.
Other Financial Industry Activities and Affiliations
Umbaugh Cash Advisory Services, LLC ("UCAS") is a wholly -owned subsidiary of the Firm.
UCAS is registered as an investment adviser with the Securities and Exchange Commission under the
federal Investment Advisers Act. UCAS provides non -discretionary investment advice with the purpose
of helping clients create and maintain a disciplined approach to investing their funds prudently and
effectively. UCAS may provide advisory services to the clients of the Firm.
UCAS has no other activities or arrangements that are material to its advisory business or its
clients with a related person who is a broker -dealer, investment company, other investment adviser or
financial planner, bank, law firm or other financial entity.
If the foregoing accurately represents the basis upon which we may provide Services to the
Client, we ask that you execute this letter, in the space provided below setting forth your agreement.
Execution of this letter can be performed in counterparts each of which will be deemed an original and all
of which together will constitute the same document.
If you have any questions, please let us know.
Very truly yours,
H.J. Umbaugh & Associates
Certified Public Accountants, LLP
By:
Robert J. Clifford, Principal
The undersigned hereby acknowledges and agrees to the foregoing letter of engagement.
Richmond Sanitary District, Indiana
Date: // / By: c"Az
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EXHIBIT A
Services Provided
Scope of Services
Article I. Preliminary Financial Planning
Gather historical financial information for the City of Richmond for the two to three prior
years, including the landfill operations. Also obtain copies of State Board of Accounts
Audits and any available bond rating reports for the City and landfill; obtain copies of
ordinances and/or resolutions dealing with the landfill operations in regard to rates and
charges for revenue generation, including but not limited to, tipping charges and copies
of any contracts with private haulers, as well as any other miscellaneous revenue sources.
Obtain budgets for the City landfill for 2014 and beyond for operational expenses and
capital improvements. Discuss with landfill operator and engineer the useful life of
landfill cells currently utilized and the timing of closure activity. Obtain information from
City representatives, landfill operator, and/or consulting engineers in terms of estimated
capital and operating costs for closure and post -closure activities. Gather any other
relevant information required to address the Financial Assurance Test requirements as
outlined in the Administrative Code.
Article II. Financial Plan and Financial Assurance Test Development
Utilizing the historical and prospective financial and operational data gathered from
representatives of the City of Richmond, develop pro forma cash flow analysis for the
landfill that would include the anticipated closure and post -closure activities. In this
regard, summarize the financial information from the City of Richmond and other
resources to make the financial calculations and ratios as required by the Administrative
Code to meet Financial Assurance Test requirements. Meet the City of Richmond
representatives to review the reports and answer any questions.
Article III. Approval of Financial Assurance Test and submission to IDEM
Finalize reports in regard to the operations of the landfill and the Financial Assurance
Test requirements for submission to the City of Richmond to be utilized by the City in
execution of the Financial Assurance Test and submission to IDEM.
EXHIBIT B
Fees
The Firm's fees for the Scope of Services in Article I, Article II, and Article III will not exceed
Four Thousand Five Hundred Dollars ($4,500).
Standard Hourly Rates by Job Classification
01/01/2014
Senior Partners / Principals
$300.00
to
$500.00
Partners / Principals
$210.00
to
$350.00
Managers
$165.00
to
$275.00
Accountants/Financial Analysts
$90.00
to
$200.00
Paraprofessional Staff
$90.00
to
$150.00
Support Personnel
$60.00
to
$105.00
• Billing rates are subject to change periodically due to changing requirements and
economic conditions. Actual fees will be based upon experience of the staff assigned and
the complexity of the engagement.
EXHIBIT C
Disclosure of Conflicts of Interest with Various Forms of Compensation
The forms of compensation for municipal advisors vary according to the nature of the engagement and
requirements of the client, among other factors. Various forms of compensation present actual or
potential conflicts of interest because they may create an incentive for an advisor to recommend one
course of action over another if it is more beneficial to the advisor to do so. This exhibit discusses
various forms of compensation and the timing of payments to the advisors.
Fixed fee. Under a fixed fee form of compensation, the municipal advisor is paid a fixed amount
established at the outset of the transaction. The amount is usually based upon an analysis by the client and
the advisor of, among other things, the expected duration and complexity of the transaction and the
agreed -upon scope of work that the advisor will perform. This form of compensation presents a potential
conflict of interest because, if the transaction requires more work than originally contemplated, the
advisor may suffer a loss. Thus, the advisor may recommend less time-consuming alternatives, or fail to
do a thorough analysis of alternatives. There may be additional conflicts of interest if the municipal
advisor's fee is contingent upon the successful completion of a financing, as described below.
Hourly fee. Under an hourly fee form of compensation, the municipal advisor is paid an amount equal to
the number of hours worked by the advisor times an agreed -upon hourly billing rate. This form of
compensation presents a potential conflict of interest if the client and the advisor do not agree on a
reasonable maximum amount at the outset of the engagement, because the advisor does not have a
financial incentive to recommend alternatives that would result in fewer hours worked. In some cases, an
hourly fee may be applied against a retainer (e.g., a retainer payable monthly), in which case it is payable
whether or not a financing closes. Alternatively, it may be contingent upon the successful completion of a
financing, in which case there may be additional conflicts of interest, as described below.
Fee continent upon the completion of a financing or other transaction Under a contingent fee form
of compensation, payment of an advisor's fee is dependent upon the successful completion of a financing
or other transaction. This form of compensation presents a conflict because the advisor may have an
incentive to recommend unnecessary financings or financings that are disadvantageous to the client. For
example, when facts or circumstances arise that could cause the financing or other transaction to be
delayed or fail to close, an advisor may have an incentive to discourage a full consideration of such facts
and circumstances, or to discourage consideration of alternatives that may result in the cancellation of the
financing or other transaction.
Fee paid under a retainer agreement. Under a retainer agreement, fees are paid to a municipal advisor
periodically (e.g., monthly) and are not contingent upon the completion of a financing or other
transaction. Fees paid under a retainer agreement may be calculated on a fixed fee basis (e.g., a fixed fee
per month regardless of the number of hours worked) or an hourly basis (e.g., a minimum monthly
payment, with additional amounts payable if a certain number of hours worked is exceeded). A retainer
agreement does not present the conflicts associated with a contingent fee arrangement (described above).
Fee based upon principal or notional amount and term of transaction Under this form of
compensation, the municipal advisor's fee is based upon a percentage of the principal amount of an issue
of securities (e.g., bonds) or, in the case of a derivative, the present value of or notional amount and term
of the derivative. This form of compensation presents a conflict of interest because the advisor may have
an incentive to advise the client to increase the size of the securities issue or modify the derivative for the
purpose of increasing the advisor's compensation.
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