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HomeMy WebLinkAbout09-15-2003 Item VIII-B-1.pdfCITY OF U_ URN WASHINGTON AGENDA BILL APPROVAL FORM Agenda Subject: Resolution No. 3631 Date: September 4, 2003 Department: Attachments: Budget Impact: Finance Resolution No. 3631 Administrative Recommendation: City Council adopt Resolution No. 3631. Background Summary: In the past, cemetery clients have inquired into the possibility of purchasing funeral arrangements in advance of the actual need. The City has not had the mechanism in place to provide this service and manage the funds. American Funeral & Cemetery Trust Services makes this service possible. It is a master trust created to assist cemeteries, as a common trust fund, to receive and manage client funds pursuant to pre- arrangement sales contracts. N0915-1 A3.16.5 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Airport ❑ Human Resources ❑ Hearing Examiner ❑ Finance ❑ Building ❑ M&O ❑ Human Services ❑ Municipal Serv. ❑ Cemetery ❑ Mayor ❑ Library Board ❑ Planning & CD ❑ Finance ❑ Parks ❑ Park Board ❑ Public Works ❑ Fire ❑ Planning ❑ Planning Comm. ❑ Other ❑ Legal ❑ Police ❑ Public Works Action: Committee Approval: ❑ Yes ❑ No Council Approval: ❑ Yes ❑ No Call for Public Hearing Referred to Until Tabled Until Councilmember: Singer Staff: Coleman Meeting Date: September 15, 2003 Item Number: VIII.B.1 AUBURN* MOR -E THAN YOU IMAGINED RESOLUTION NO. 3631 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF AUBURN AND AMERICAN FUNERAL AND CEMETERY TRUST SERVICES FOR THE PURPOSE OF ADMINISTIRING AND MANAGING CLIENT FUNDS PAID TO THE CITY PURSUANT TO PRE -ARRANGEMENT SALES CONTRACTS FOR COLLECTIVE INVESTMENT IN A MASTER TRUST. WHEREAS, the City of Auburn desires to offer to cemetery clients the opportunity to purchase cemetery arrangements in advance of the actual need; and WHEREAS, American Funeral and Cemetery Trust Services provides this service by administering and managing client funds pursuant to pre- arrangement sales contracts for collective investment in a master trust. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH RESOLVES THAT; Section 1. The Mayor and City Clerk of the City of Auburn are herewith authorized to execute an Agreement for the purpose of administering and managing client funds paid to the City pursuant to pre -arrangement sales contracts for collective investment in a master trust between the City of Auburn and American Funeral and Cemetery Trust Services. A copy of said Agreement is attached hereto, designated as Exhibit "A" and incorporated by reference in this Resolution. -------------------------- Resolution No. 3631 August 6, 2003 Page 1 of 2 Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This Resolution shall take effect and be in full force and effect upon passage and signature hereon. DATED and SIGNED this 18th day of August, 2003. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam City Clerk 91 iel B. Hel Attorney ------------------------- Resolution No. 3631 August 6, 2003 Page 2 of 2 EXHIBIT A AGREEMENT FOR ADMINISTRATION AND MANAGEMENT OF CEMETERY PRE -ARRANGEMENT SALES CONTRACTS THIS AGREEMENT made and entered into on this day of , 2003, by and between the CITY OF AUBURN, a municipal corporation of the State of Washington, hereinafter referred to as "City" and AMERICAN FUNERAL & CEMETERY TRUST SERVICES, 10575 SW Cascade Ave. #110, Tigard, OR 97223-4363, hereinafter referred to as "Agent". WHEREAS, the City's Mountain View Cemetery is licensed in the State of Washington and the Agent, American Funeral & Cemetery Trust Services, is a master trust created to assist cemeteries, as a common trust fund, to receive and manage client funds paid to Cemetery Authority pursuant to a pre -arrangement sales contract; and WHEREAS, the City and the Agent recognize that the aggregation of pre - need funds between cemeteries is advantageous to the cemeteries and their clients for rate and earning purposes; and WHEREAS, the Agent will act on behalf of the City as an agent for administration and management of deposits of funds for the Cemeteries pursuant to a master trust agreement: Now, therefore, IT IS AGREED: (1) Scope of Services. The Agent is hereby designated as the agent for the City to administer and manage, as the agent for the City, client funds paid to the City pursuant to pre -arrangement sales contracts for collective investment in a master trust. It is understood and agreed that the Agent will perform in a good and professional manner to negotiate and contract to invest such funds with an investment advisor registered with the Securities and Exchange Commission and the State of Washington pursuant -to the Investment Advisor's Act of 1940, which contract shall comply with all laws and regulations and the City's contractual agreements with clients that pertain to Pre -Arrangement Sales Contracts. It is understood and agreed that state law permits the aggregation of all of the City's guaranteed and non -guaranteed pre -arrangement sales contracts together and that both types of pre -arrangement sales contracts will be aggregated into the Agent's sub -fund for Washington pre- -------------------------------------------- Agreement for Administration and Management of Cemetery Pre -Arrangement Sales Contracts August 4, 2003 Page 1 of 6 arrangement sales contracts for management as required by Washington law. The Agent is hereby granted the authority, on behalf of the City to negotiate all terms and conditions of a Depository Agreement with an insured financial institution and to administer the common trust funds as the Agent shall deem appropriate, acting in its own good discretion. (2) Agent's Representation. The Agent hereby represents and warrants that he has all necessary licenses and certifications to perform the services provided for herein, and is qualified to perform such services. (3) Acceptable Standards. The Agent shall be responsible to provide, in connection with the services contemplated in this Agreement, work product and services of a quality and professional standard acceptable to the City. (4) City's Responsibility. The City shall do the following in a timely manner so as not to delay the services of the Agent: a. Designate in writing a person to act as the City's representative with respect to the services. The City's designee shall have complete authority to transmit instructions, receive information, interpret and define the City's policies and decisions with respect to the services. b. Furnish the Agent with all information, criteria, objectives, schedules and standards for the services provided for herein. (5) Forms. The City agrees that it will use only Pre -Arrangement Sales Contract forms approved by the Agent and the Washington Department of Licensing, Cemetery Unit. (6) Compensations. Fees for the services of the Agent and its agents relating to the guaranteed funds and non -guaranteed funds shall be paid only from the income generated by trust deposits under management by the Agent. It is understood and agreed by and between the parties that, with respect to Agreement for Administration and Management of Cemetery Pre -Arrangement Sales Contracts August 4, 2003 Page 2 of 6 trust deposits arising out of pre -arranged cemetery contracts, the fees for the payment of trust administration, investments, management services and advice is governed by the laws of the State of Washington and this contract shall not be implemented so as to cause those laws to be violated by either party. The Agent shall receive, as compensation for its services, a fee from the earnings of the Trust. Fees are calculated based upon the face amount of the pre -need contracts in trust during the year, payable monthly. It is understood that the amount of the fees may change from time to time depending upon costs of services in the management of trust deposits. The Agent agrees that it will not change the fees without giving the City sixty (60) days prior written notice of its intent to do so. (7) Cancellation. This agreement may be cancelled by either party upon sixty (60) days prior written notice. In the event of cancellation by either party, all funds deposited previously to the Agent from pre -arranged cemetery sales contracts shall remain on deposit and be withdrawn pursuant to the terms of the pre -arrangement sales contract. (8) Notices. All notices or communications permitted or required to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in person or deposited in the United States mail, postage prepaid, for mailing by certified mail, return receipt request, and addressed, if to a party of this Agreement, to the address for the party set forth above, or if to a person not a party to this Agreement, to the address designated by a party to this Agreement in the foregoing manner. (9) Insurance. The Agent shall be responsible for maintaining, during the term of this Agreement and at its sole cost and expense, the types of insurance coverages and in the amounts described below. The Agent shall furnish evidence, satisfactory to the City, of all such policies. During the term hereof, the Agent shall take out and maintain in full force and effect the following insurance policies: a. Professional liability insurance with minimum liability limits of $100,000.00. Agreement for Administration and Management of Cemetery Pre -Arrangement Sales Contracts August 4, 2003 Page 3 of 6 (10) Indemnification. The Agent shall indemnify and hold harmless the City and its officers, agents and employees, or any of them from any and all claims, actions, suits, liability, loss, costs, expenses, and damages of any nature whatsoever, by any reason of or arising out of the negligent act or omission of the Agent, its officers, agents, employees, or any of them relating to or arising out of the performance of this Agreement. If a final judgment is rendered against the City, its officers, agents, employees and/or any of them, or jointly against the City and the Agent and their respective officers, agents and employees, or any of them, the Agent shall satisfy the same to the extent that such judgment was due to the Agent's negligent acts or omissions. (11) Assignment. Neither party to this Agreement shall assign any right or obligation hereunder in whole or in part, without the prior written consent of the other party hereto. No assignment or transfer of any interest under this Agreement shall be deemed to release the assignor from any liability or obligation under this Agreement, or to cause any such liability or obligation to be reduced to a secondary liability or obligation. (12) Parties in Interest. This Agreement shall be binding upon, and the benefits and obligations provided for herein shall .inure to and bind, the parties hereto and their respective successors and assigns, provided that this section shall not be deemed to permit any transfer or assignment otherwise prohibited by this Agreement. This Agreement is for the exclusive benefit of the parties hereto and it does not create a contractual relationship with or exist for the benefit of any third party, including contractors, sub- contractors and their sureties. (13) Cost to Prevailing Party. In the event of such litigation or other legal action, to enforce any rights, responsibilities or obligations under this Agreement, the prevailing parties shall be entitled to receive its reasonable cost and attorney's fees. Agreement for Administration and Management of Cemetery Pre -Arrangement Sales Contracts August 4, 2003 Page 4 of 6 (14) Applicable Law. The Agreement and the rights of the parties hereunder shall be governed by the interpreted in accordance with the laws of the State of Washington and venue for any action hereunder shall be'in of the county in Washington State in which the property or project is located, and if not site specific, then in King County, Washington; provided, however, that it is agreed and understood that any applicable statute of limitation shall commence no later that the substantial completion by the Agent of the services. (15) Captions, Headings and Titles. All captions, headings or titles in the paragraphs or sections of this Agreement are inserted for convenience or reference only and shall not constitute a part of this Agreement or act as a limitation of the scope of the particular paragraph or sections to which they apply. As used herein, where appropriate, the singular shall include the plural and vice versa and masculine, feminine and neuter expressions shall be interchangeable. Interpretation or construction of this Agreement shall not be affected by any determination as to who is the drafter of this Agreement, this Agreement having been drafted by mutual agreement of the parties. (16) Severable Provisions. Each provision of this Agreement is intended to be severable. If any provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this Agreement. (17) Entire Agreement. This Agreement contains the entire understanding of the parties hereto in respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties with respect to such subject matter. (18) Acceptance. This agreement shall become effective upon acceptance of an original signed and dated by an authorized representative of the City and the Agent. Acceptance shall occur when the agreement is dated and signed by an authorized authority of the Agent. Agreement for Administration and Management of Cemetery Pre -Arrangement Sales Contracts August 4, 2003 Page 5 of 6 CITY OF AUBURN AMERICAN FUNERAL & CEMETERY TRUST SERVICES Peter B. Lewis, Mayor ATTEST: Dani Daskam City Clerk APPROVED AS TO FORM: Daniel B. Heid, City Attorney -------------------------------------------- Agreement for Administration and Management of Cemetery Pre -Arrangement Sales Contracts August 4, 2003 Page 6 of 6 Name: Title: AFCTS Firm #: