HomeMy WebLinkAboutItem VIII-B-1CITY OF :~
WASHINGTON
AGENDA BILL APPROVAL FORM
A.qenda Subiect Date:
Resolution No. 3631 October 10, 2003
Department: Attachments: Budget Impact:
Finance Resolution No. 3631 and Exhibit A
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.
N 1020-2
A3.16.5, O4.4.10
Reviewed by Council & Committees: Reviewed by Departments & Divisions:
[] Arts Col~ission 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 Werks [] Fire [] Planning
[] Planning Col~. [] Other [] Legal [] Police
[] Public Works
Action:
Committee Approval: DYes DNo
Council Approval: DYes DNo Call for Public Hearing / /
Referred to Until / /
Tabled Until / /
Councilmember: Singer Staff: Coleman
Meeting Date: October 20, 2003 Item Number: VIII.B.1
AUBURN * THAN YOU IMAGINED
RESOLUTION NO. 3631
A RESOLUTION OF THE CITY COUNCIL OF THE
WASHINGTON, AUTHORIZING THE MAYOR AND
EXECUTE AN AGREEMENT BETWEEN THE CITY
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.
CITY OF AUBURN,
CITY CLERK TO
Of AUBURN AND
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. LEVVIS
MAYOR
ATTEST:
Danielle E. Daskam
City Clerk
City AttorneYI
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
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
September 18, 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:
Designate in wdting 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.
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 Cemete~j Pre-Arrangement
Sales Contracts
September 18, 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. The fee rate at the inception of this contract is 1.97 percent.
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. The City
Council will consider the fee change and determine whether to continue
the contract at that time.
(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, dudng .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:
Professional liability insurance with minimum liability limits of
$100,000.00.
Agreement for Administration and
Management of Cemetery Pre-Arrangement
Sales Contracts
September 18, 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 adsing 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 wdtten 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.
Aoreement for Administration and
Management of Cemetery Pre-Arrangement
Sales Contracts
September 18, 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, Headin,qs 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 A,qreement.
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
odginal 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
September 18, 2003
Page 5 of 6
CITY OF AUBURN
AMERICAN FUNERAL &
CEMETERY TRUST SERVICES
Peter B. Lewis, Mayor
Name:
Title:
AFCTS Firm #:
ATTEST:
Dani Daskam
City Clerk
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Agreement for Administration and
Management of Cemete~j Pre-Arrangement
Sales Contracts
September 18, 2003
Page 6 of 6
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