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HomeMy WebLinkAbout6I(2) Master Agency AgreementCrowe Horwath~. Crowe Horvath LLP Independanl Member Crowe Horvrath 4ntemational February 1, 2010 Mr. Don Inks City of South Bend- Community & Economic Development 1200 County-City Building 227 W. Jefferson Blvd South Bend, Indiana 46601 Dear Mr. Inks: 10 West Market Street, Suite 2000 Indianapolis, Indiana 46204-2975 Tel 317.632.1100 Fax 317.635.6127 www.crowehorwath.com DRAFT The purpose of this letter is to formulate a mutually acceptable agreement for 2010 between the City of South Bend -Community & Economic Development Office ("CED Office') and Crowe Horvath LLP ("Crowe") pursuant to which Crowe will perform certain professional services for the CED Office as directed by CED Office management or its representatives. The effective date of this agreement and the attached Crowe Engagement Terms (Attachment A) is as of the date of signing by the CED Office. This agreement will be used as a basis for assigning individual projects for Crowe to provide services to the CED Office on an as assigned basis. However, the agreement does not guarantee that any assignments will be given to Crowe, and each project performed will be subject to approval by the CED Office. Services provided by Crowe under this agreement would include, but not be limited to, general consulting services related to: A. Accounting Assistance. Crowe is available to provide accounting assistance to the CED Office to determine current balances and outstanding obligations of the CED Office and each of its TIF Funds. In addition, Crowe is available on an as needed basis to advise the CED Office on accounting and financial reporting issues as they arise. Total fees will typically not exceed $15,000 without prior written permission of the CED Office. B. Financial Advisory. Crowe is available to provide financial advisory services to the CED Office. Financial advisory services are defined as assistance in the preparation of estimates and projections and the preparation of documents necessary to secure borrowing for tax anticipation warrants, bonds, loans, lease-purchase agreements and other financing arrangements as necessary for the issuance of debt or debt-related instruments by the CED Office. Financial advisory services also include the design, negotiation and implementation of economic development incentives as requested by the CED Office. Fees per financing Mr. Don Inks City of South Bend -Community & Economic Development February 1, 2010 Page 2 will typically not exceed $40,000 per issuance without prior written permission of the CED Office. C. Other Consulting Assistance. Crowe is available to provide other consulting assistance to the CED Office. Other consulting assistance is defined as assistance with financial or operational issues for the CED Office that does not fall within the categories of Accounting or Financial Advisory. Such assistance could include contract negotiations, TIF Neutralization Worksheets, New Market Tax Credits assistance, TIF area assistance and other operational issues that are not clearly included in one of the other categories above. The fees for these engagements will typically not exceed $45,000. Fees In the event additional services are needed for a special project which is outside of general services outlined above, fees shall be billed for the hours expended on the project presented below: Partner/ Director $ 260 - 390 Sr. Manager 155 - 290 Manager 120 -155 Staff 90 - 120 Out -of-pocket expense At Cost Crowe will provide services in accordance with the attached Engagement Terms using qualified consultants to supervise all services provided. The consultants expected to provide these supervisory services are Michael A. Claytor, Tom Guevara and Herschel Frierson. Direct services may be provided by other Crowe consultants or certified public accountants acceptable to the CED Office. Compensation, including reimbursement for expenses, shall be billed based on each project assigned to Crowe. The method of computing compensation may be based on hourly charges at Crowe's normal hourly rates applicable to governmental services, on a flat fee basis or on any other basis agreed to by the CED Office for specific projects assigned. Crowe will be acting in an individual capacity while performing services for the CED Office and will not, unless otherwise indicated, be acting as agents, employees, partners, joint ventures or associates of the CED Office Mr. Don Inks City of South Bend -Community & Economic Development February 1, 2010 Page 3 Crowe will assist the CED Office in the allocation of its fees among Funds and Accounts by providing in its billings an estimated allocation of its compensation related to the CED Office or other functions so that fees may be charged to the proper appropriation or function of government. Enclosed are two copies of this agreement. If the terms and conditions are agreeable to the CED Office, please sign and return one of the copies to Crowe. CROWE HORWATH LLP CITY OF SOUTH BEND -COMMUNITY & ECONOMIC DEVELOPMENT By Michael A. Claytar, Partner Date: Crome HonawtG LLP:} an independent memher of Crowe Iloni~alL Intrrnotinnal, a S'uiu rrrr•'n. EacG member~rm nJCiaYe Honvatb Internationa/ is a separate and independent legal entitj. Crowe l lana~atb LLP and its a~li<ztes arc not respon.nble or liable jor any aiL~ or omininns oJCrowe Nornatb International or any otlxt member of Crone Hnrn~atb Internatrana! and speciftcall ~ disclaim any and oll responsibilil7~ nr GabiGty,(or acts or nmisaon.r o f Gan.~e Hau~arL Internatrona! or arP• ofL~rr member of Crone Hornatb International Crone Horn~atb International doer not mnder any projes~ional.renice.~ and doer not bare an nnnerrbip arpartnersbip intrrert in Crowe Horn~atb L[,P. Crane Horwatb International and itr otlxr member firma are nol re.+pondble or Gable far anp arts or omie.dons of Crone I Ionnatb 11.P and speditcal~~ disclaim any' and al! rrs/wnvlnlitp or Gabilit~• Jor arty nr omi.caonr of Gone Honc~alb LIJ'. ATTACHMENT A Crowe Engagement Terms Crowe Horwath LLP ("Crowe') wants you to understand the basis under which we offer our services to you and determine our fees, as well as to clarify the relationship and responsibilities between your organization and ours. These terms are part of our engagement letter and apply to all future services, unless a specific engagement letter is entered into for those services. We specifically note that no advice we may provide should be construed to be investment advice. YOUR ASSISTANCE -For us to provide our services effectively and efficiently, you agree to provide us timely with the information we request and to make your employees available for our questions. You will also provide our personnel with access to the Internet (if available). The availability of your personnel and the timetable for their assistance are key elements in the successful completion of our services and in the determination of our fees. Completion of our work depends on appropriate and timely cooperation from your personnel; complete, accurate, and timely responses to our inquiries; and timely communication by you of all significant accounting and financial reporting matters of which you are aware. If for any reason this does not occur, a revised fee to reflect the additional time or resources required by us will be mutually agreed upon, and you agree to hold us harmless against all matters that arise in whole or in part from any resulting delay. If circumstances arise that, in our professional judgment, prevent us from completing this engagement, we retain the right to take any course of action permitted by professional standards, including declining to express an opinion or issue other work product or withdrawing from the engagement. THIRD PARTY PROVIDER - We may use athird-party service provider in providing professional services to you which may require our sharing your confidential information with the provider. If we use athird-party service provider, we will enter into a confidentiality agreement with the provider to require them to maintain the confidentiality of your confidential information. The terms of our engagement letter and these engagement terms shall apply to any third party provider. CONFIDENTIALITY - We will maintain the confidentiality of your confidential information in accordance with professional standards. You agree not to disclose any confidential material you obtain from us without our prior written consent, except to the extent such disclosure is an agreed objective of this engagement. Your use of our work product shall be limited to its stated purpose and to your business use only. We retain the right to use the ideas, concepts, techniques, industry data, and know-how we use or develop in the course of the engagement. You agree to the use of fax, email, and voicemail to communicate both sensitive and non-sensitive matters; provided, however, that nonpublic personal information regarding your customers or consumers shall not be communicated by unencrypted email. CONSUMER PRIVACY - In order to provide the services called for in this engagement, you may be disclosing to us certain nonpublic personal information regarding your accounts, customers, and consumers. To the extent permitted by law, we will not disclose any such nonpublic personal information except to you and our employees and agents. However, in circumstances that fall under an exception in the regulations "Privacy of Consumer Financial Information' implementing the Gramm-Leach-Bliley Act, we may disclose or use such nonpublic personal information in the ordinary course of business to carry out the services in ATTACHMENT A (Continued) this engagement. We have implemented and will maintain physical, electronic and procedural safeguards ("Safeguards") reasonably designed to protect the security, confidentiality and integrity of, to prevent unauthorized access to or use of, and to ensure the proper disposal, of nonpublic personal information regarding your customers or consumers. We further agree that the Safeguards shall meet the objectives of the Interagency Guidelines Establishing Information Security Standards, adopted by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of Thrift Supervision, as they currently exist, or as they may be amended from time to CHANGES - We may periodically communicate changes in laws, rules, or regulations to you. However, you have not engaged us to and we do not undertake an obligation to advise you of changes in laws, rules, regulations, industry or market conditions, your own business practices, or other circumstances, except to the extent required by professional standards. PUBLICATION -You agree to obtain our specific permission before using our report or our firm's name in a published document, and you agree to submit to us copies of such documents to obtain our permission before they are filed or published. NO PUNITIVE OR CONSEQUENTIAL DAMAGES -Any liability of Crowe to you shall not include any special, indirect, consequential, incidental, punitive, or exemplary damages or loss nor any lost profits, savings, or business opportunity. LIMIT OF LIABILITY -The provisions of this section establishing a limit of liability will not apply if, as determined in a judicial proceeding, we performed our services with gross negligence or willful misconduct. Our engagement with you is not intended to shift risks normally borne by you to us. With respect to any services or work product or this engagement in general, the liability of Crowe and its personnel shall not exceed the fees we receive for the portion of the work giving rise to liability. A claim for a return of fees paid shall be the exclusive remedy for any damages. This limitation of liability is intended to apply to the full extent allowed by law, regardless of the grounds or nature of any claim asserted. This limitation of liability shall also apply after termination of this agreement. INDEMNIFICATION FOR THIRD-PARTY CLAIMS -The provisions of this section for indemnification will not apply if, as determined in a judicial proceeding, we performed our services with gross negligence or with willful misconduct. Our engagement with you is not intended to shift risks normally borne by you to us. In the event of a legal proceeding or other claim brought against us by a third party, you agree to indemnify and hold harmless Crowe and its personnel against all costs, fees, expenses, damages, and liabilities, including defense costs and legal fees, associated with such third-party claim arising from or relating to any services or work product that you use or disclose to others or this engagement generally. This indemnification is intended to apply to the full extent allowed by law, regardless of the grounds or nature of any claim asserted. This indemnification shall also apply after termination of this agreement. NO TRANSFER OR ASSIGNMENT OF CLAIMS - No claim against Crowe, or any recovery from or against Crowe, may be sold, assigned or otherwise transferred, in whole or in part. ATTACHMENT A (Continued) TIME LIMIT ON CLAIMS - In no event shall any action against you or Crowe, arising from or relating to this engagement letter or the services provided by Crowe relating to this engagement, be brought after the earlier of 1) two (2) years after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or 2} the expiration of the applicable statute of limitations or repose. RESPONSE TO LEGAL PROCESS - If we are requested by subpoena, other legal process, or other proceedings to produce documents pertaining to you and we are not a named party to the proceeding, you will reimburse us for our professional time, plus out-of-pocket expenses, as well as reasonable attorney fees we incur in responding to such request. MEDIATION - If a dispute arises,. in whole or in part, out of or related to this engagement, or after the date of this agreement, between you or any of your affiliates or principals, and Crowe, and if the dispute cannot be settled through negotiation, you and Crowe agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its mediation rules for professional accounting and related services disputes before resorting to litigation or any other dispute-resolution procedure. The results of mediation shall be binding only upon agreement of each party to be bound. Costs of any mediation shall be shared equally by both parties. JURY TRIAL - In the unlikely event that differences concerning our services or fees arise between us that are not resolved by mutual agreement or mediation, you and we agree to waive a trial by jury to facilitate judicial resolution and save the time and expense of both parties. LEGAL AND REGULATORY CHANGE -The scope of services and the fees for the services covered by the accompanying letter are based on current laws and regulations. If changes in laws or regulations change your requirements or the scope of our work, you and we agree that our fees will be modified to a mutually agreed-upon amount to reflect the changed level of our effort. NON-SOLICITATION -You and we acknowledge the importance of retaining key personnel. Accordingly, both parties agree that during the period of this agreement and for one year after its expiration or termination, neither party will solicit any personnel of the other party for employment without the written consent of the other party. If an individual becomes an employee of the other party, the other party agrees to pay a fee equal to the individual's compensation for the prior full twelve-month period to the original employer. AFFILIATES -Crowe Horvath LLP is an independent member of Crowe Horvath International, a Swiss verein. Each member firm of Crowe Horvath International is a separate and independent legal entity. Crowe Horvath LLP and its affiliates are not responsible or liable for any acts or omissions of Crowe Horvath International or any other member of Crowe Horvath International and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Horvath International or any other member of Crowe Horvath International. Crowe Horvath International does not render any professional services and does not have an ownership or partnership interest in Crowe Horvath LLP. Crowe Horvath International and its other member firms are not responsible or liable for any acts or omissions of Crowe Horvath LLP and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Horvath LLP.