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Contract 49927
CIIYSECRETARY aiIC2 CONTRACT N0. PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a Texas home rule municipal corporation, acting by and through Susan Alanis, its duly authorized Assistant City Manager, and MuniCap, Inc. ("Consultant" and "ALC"), a Maryland Corporation, and acting by and through Keenan Rice, its duly authorized President, each individually referred to as a "party" and collectively referred to as the "parties." AGREEMENT DOCUMENTS: The Agreement documents shall include the following: 1. This Agreement for Professional Services; 2. Exhibit A—Statement of Work; 3. Exhibit B- Verification of Signature Authority Form 4. Exhibit C-1 —Consulting and Administration Service Fee Schedule—PID#16 5. Exhibit C-2—Consulting and Administration Service Fee Schedule—PID#17 Exhibits A, B, C-1 and C-2, which are attached hereto and incorporated herein, are made a part of this Agreement for all purposes. In the event of any conflict between the terms and conditions of Exhibits A or B and the terms and conditions set forth in the body of this Agreement,the terms and conditions of this Agreement shall control. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide Public Improvement District (PID) Assessment Plan consulting services, as well as administration services for the set-up of the assessment plan. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. 2. TERM. This Agreement shall begin on December 1, 2016 ("Effective Date") and shall expire on November 30, 2020 ("Expiration Date"), unless terminated earlier in accordance with this Agreement ("Initial Term"). Following the Initial Term, there shall be renewals at the City's sole option (each a "Renewal Term"). The City shall provide Consultant with written notice of its intent to renew at least thirty(30)days prior to the end of each term. 3. COMPENSATION. The City shall pay Consultant in accordance with the fee schedule of the Consultant personnel who perform services under this Agreement in accordance with the provisions of this Agreement and the Price Schedule attached as Exhibits C-1 and C-2 which are incorporated for all purposes herein. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. PM 1 2 4 S Professional Services Agreement MuniCap,Inc. ^�lr Page I of 10 A j4 Q> O�ryoF,P0, � y7141 4. TERMINATION. 4.1. Written Notice. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days' written notice of termination. 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Consultant has received access to City information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. Consultant, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3 Unauthorized Access. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. Professional Services Agreement MuniCap,Inc. Page 2 of 10 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to include in all its subConsultant agreements hereunder a provision to the effect that the subConsultant agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, or the final conclusion of any audit commenced during the said three years have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subConsultant involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subConsultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subConsultant reasonable notice of intended audits. 7. INDEPENDENT CONSULTANT. It is expressly understood and agreed that Consultant shall operate as an independent Consultant as to all rights and privileges and work performed under this agreement, and not as agent,representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, Consultants and subConsultant. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, Consultants and subConsultant. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Consultant or any officers, agents, servants, employees or subConsultant of Consultant. Neither Consultant, nor any officers, agents, servants, employees or subConsultant of Consultant shall be entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subConsultant. 8. LIABILITY AND INDEMNIFICATION. A. LIABILITY- CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY,INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. Professional Services Agreement MuniCap,Inc. Page 3 of 10 B. GENERAL INDEMNIFICATION- CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. C. INTELLECTUAL PROPERTY INDEMNIFICATION—Consultant agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the City for infringement of any patent, copyright, trade mark, trade secret, or similar property right arising from City's use of the software and/or documentation in accordance with this Agreement, it being understood that this agreement to defend, settle or pay shall not apply if the City modifies or misuses the software and/or documentation. So long as Consultant bears the cost and expense of payment for claims or actions against the City pursuant to this section, Consultant shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with Consultant in doing so. In the event City,for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against the City for infringement arising under this Agreement, the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however,Consultant shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Consultant timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or expenses shall not eliminate Contractor's duty to indemnify the City under this Agreement. If the software and/or documentation or any part thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Consultant shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the software and/or documentation; or(b)modify the software and/or documentation to make it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the software and/or documentation; or (c) replace the software and/or documentation with equally suitable, compatible, and functionally equivalent non-infringing software and/or documentation at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Consultant, terminate this agreement, and refund all amounts paid to Consultant by the City,subsequent to which termination City may seek any and all remedies available to City under law. Professional Services Agreement MuniCap,Inc. Page 4 of 10 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment,the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and assignee shall be jointly liable for all obligations of the Consultant under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract,the subConsultant shall execute a written agreement with the Consultant referencing this Agreement under which the subConsultant shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $2,000,000 Aggregate (b) Automobile Liability $1,000,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Consultant, its employees,agents, representatives in the course of the providing services under this Agreement. "Any vehicle"shall be any vehicle owned,hired and non-owned. (c) Worker's Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Disease-policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308— 1.0 et seq. Tex. Rev. Civ. Stat.)and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence,$500,000 bodily injury disease policy limit and $100,000 per disease per employee Professional Services Agreement MuniCap,Inc. Page 5 of 10 (d) Professional Liability(Errors&Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability(CGL)policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made,and maintained for the duration of the contractual agreement and for two(2)years following completion of services provided.An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees,officers,officials,agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery)in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of premium.Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas.All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management.If the rating is below that required,written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS,ORDINANCES.RULES AND REGULATIONS. Consultant agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances,rules or regulations, Consultant shall immediately desist from and correct the violation. Professional Services Agreement MuniCap,Inc. Page 6 of 10 12. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subConsultants and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. IF ANY CLAIM ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION COVENANT BY CONSULTANT, ITS PERSONAL REPRESENTATIVES, ASSIGNS, SUBCONSULTANTS OR SUCCESSORS IN INTEREST, CONSULTANT AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND THE CITY AND HOLD THE CITY HARMLESS FROM SUCH CLAIM. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To the CITY: To CONSULTANT: City of Fort Worth MuniCap, Inc. Attn: Susan Alanis,Assistant City Manager Abdi Yassin, Vice President 1000 Throckmorton Street 1800 Valley View Lane, Ste. 240-8 Fort Worth,TX 76102-6311 Farmers Branch, TX 75234 Facsimile:(817)392-8654 Facsimile: (443) 539-4120 14. SOLICITATION OF EMPLOYEES. Neither the City nor Consultant shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. Professional Services Agreement MuniCap,Inc. Page 7 of 10 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action,whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority,transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or Exhibits A, B, and C. 22. AMENDMENTS/MODIFICATIONS/EXTENSIONS. No amendment, modification,or extension of this Agreement shall be binding upon a party hereto unless set forth in a written instrument,which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including Exhibits A, B and C, contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. COUNTERPARTS. Professional Services Agreement MuniCap,Inc. Page 8 of 10 This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. 25. WARRANTY OF SERVICES. Consultant warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Consultant's option, Consultant shall either(a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty,or(b)refund the fees paid by the City to Consultant for the nonconforming services. 26. IMMIGRATION NATIONALITY ACT. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Consultant shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Consultant shall complete the Employment Eligibility Verification Form (I-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Consultant shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Consultant shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Consultant. 27. OWNERSHIP OF WORK PRODUCT. City shall be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation, created, published, displayed, and/or produced in conjunction with the services provided under this Agreement, collectively, "Work Product". Further, City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product shall inure to the benefit of the City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a"work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Consultant hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that the City may have or obtain, without further consideration, free from any claim, lien for balance due,or rights of retention thereto on the part of the City. 28. SIGNATURE AUTHORITY. The person signing this Agreement hereby warrants that he/she has the legal authority to execute this Agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement and any amendment hereto,may be executed by any authorized representative of Consultant whose name,title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit Professional Services Agreement MuniCap,Inc. Page 9 of 10 "B". Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day of �G Elan$CJL-,2016. ACCEPTED AND AGREED: CITY OF FORT WORTH: MUNICAP,INC. By: oca~--_ Susan Alanis, By: Assistant City Manager Keenan Rice, President Date: / Date: APPROVAL RECOMMENDED: By. ATTEST: — � Aaron B©vos. By: CFO,Director of Finance le: ATTE aryl ayser, ; City Secretary ...... �. �c APPROVED AS TO FORM LEGALITY: By: . 4 Vie"" �Ci ttorney CONTRACT AUTHORIZATION: M&C: G, 1�10 Date Approved: � 2( Professional Services Agreement MuniCap,Inc. Page 1 of 10 EXIHIBIT A STATEMENT OF WORK 1.0 SCOPE OF SERVICES Consultant shall provide services to the City for the Public Improvement District (PID) in accordance with this scope of services. There are fifteen (15) sections to the scope of services relating to eight (8) general types of consulting and administrative services provided. The eight (8) general types are consulting services related to service and assessment plan and bond issuance, administrative support services related to the special assessments, delinquency management, prepayment of special assessments, arbitrage rebate, continuing disclosure, IRS compliance monitoring, and accounting services. 2.0 CONSULTING SERVICES RELATED TO SERVICE AND ASSESSMENT PLAN AND BOND ISSUANCE Consulting services are services associated with the preparation of service and assessment plan with related assessment roll(s) for financing the public improvement of the development with the issuance of public improvement district bonds. The following services are typically provided by the Consultant on similar financings, but all services are provided on an as requested basis. • Consultant shall prepare the service plan for the PID. The service plan shall include the assessment methodology and the assessment roll for the PID. In conjunction with the preparation of the service plan, Consultant shall help estimate the assessments on various types of properties and revenues available to apply to the assessments and prepare projections for the issuance of bonds secured by the assessments; • Consultant shall also review descriptions of the service plan and assessment methodology included in bond documents, including the offering statement, to help confirm these documents and the service plan are consistent; • Consultant shall provide the certification required for the issuance of the bonds as reasonably approved by Consultant; • Consultant shall provide services to assist with the issuance of bonds on an as requested basis, including attending meetings, participating in conference calls, reviewing documents, providing advice and preparing projections of revenues to repay the bonds. 3.0 ADNIINLSTRATIVE SUPPORT SERVICES RELATED TO THE SPECIAL ASSESSMENTS Administrative and management support services are those services associated with the annual determination of the special assessments to be collected from the property subject thereto, updating the service and assessment plan and the special assessment roll, management of bond funds and accounts, and providing public information. Professional Services Agreement LeighFisher,Inc. Page 27 of 11 4.0 CALCULATE AND ALLOCATE THE ANNUAL INSTALLMENT Task shall entail determining the Annual Installment to be collected from each parcel and includes the following sub-tasks: • Background Research Task shall involve gathering and organizing the information required to form a database necessary to calculate and to allocate the Annual Installment and includes the following: 1. Subdivision Research: Identify parcel subdivisions and any other information relevant to collection of the Annual Installments; 2. Assessor's Parcel Research: Upon publication of property tax roll, review assessor parcel maps to compile a list of the assessor's parcels that will be valid for the collection of the Annual Installments and determine the assessed value of each parcel; 3. Ownership/Exempt Property Research: Research changes in ownership, dedication and offers of dedication of property to public agencies and other exempt uses. Identify date property conveyed or offered to exempt entities; 4. Database Management: Prepare database to include all relevant property characteristics for the parcels in the PID. • Calculate the Annual Installment to be collected Task shall involve calculating the Annual Installment to be collected and includes the following sub-tasks: 1. Preparation of Budget: Prepare a budget for the PID for the subsequent fiscal year on the basis of the Service and Assessment Plan(SAP), as updated each year; 2. Calculate Other Funds Available: Calculate other funds available, such as Tax Increment Reinvestment Zone (TIRZ) credits, capitalized interest and reserve fund income to be applied to the budget,as applicable; 3. Allocate Annual Assessment to the Assessed Lots: Allocate the Annual Installment to be collected to the Assessed Lots in the PID on the basis of the Systems, Applications and Products(SAP's)as updated each year. • Determine Amendments to the Annual Assessment Roll Task shall involve determining the amendments to the Annual Assessment Roll and making those amendments pursuant to the SAP's of Special Assessments. • Revise Assessment Plan Task shall involve updating the assessment plan to explain the research, methodology and assumptions utilized in the preparation of the budget, the Annual Installments to be collected, the allocation of the Annual Installment to be collected from the Assessed Lots, and the amendments to the Annual Assessment Roll. In conjunction with the preparation of the revised assessment plan, Consultant shall monitor and report on opportunities to refund the bonds to reduce the costs of debt service. • Support Services Related to Billing of Annual Installments 1. Present Findings to the City: The updated assessment plan prepared by the Consultant shall be provided to the City for its approval; 2. Provide Assessment Roll to County: The Consultant shall assist the City with its required notification to the County of the amount of the Annual Installments to be collected each year; 3. Supplemental Billing: The Consultant shall assist the County or City with any supplemental billing that shall be necessary. • Administration of Bond Funds Task shall involve the review and reconciliation of the account statements for funds and accounts maintained by the Trustee. The accounts and transactions are checked for accuracy and consistency with the Indenture. The task shall also include evaluation and coordination of investment of funds, including a review of qualified investment options pursuant to the trust indenture. 5.0 PUBLIC INFORMATION Task shall involve responding to telephone calls from property owners and other interested parties who have questions regarding the special assessments. The calls shall be related to a tax bill or an inquiry related to the purchase or sale of property subject to the special assessments. The Consultant shall provide a toll-free phone number for property owners to call with questions. Additionally, the number shall be given to people who call the City or County to obtain information about the special assessments. 6.0 ADMINISTRATIVE REVIEW At the request of the City, the Consultant shall review any notice from a property owner alleging an error in the calculation of any matters related to the Annual Assessment Roll, and if necessary, meet with the property owner, consider oral-and written evidence regarding the alleged error and decide whether, in fact, such a calculation error occurred, and take other corrective action as required to correct the error. 7.0 DELIQUENCY MANAGEMENT Services shall be provided only if special assessments are levied and there are delinquencies in the payment of special assessments. 8.0 DELINQUENT SPECIAL ASSESSMENT REPORT After the end of the collection period,the Consultant shall prepare a report which lists each parcel delinquent in the payment of the Annual Installment, and the corresponding amount of delinquency plus penalties. 9.0 DELIQUENCY FOLLOW-UP The Consultant shall keep the Trustee and City informed of special circumstances that come to the attention of the Consultant, such as bankruptcies and foreclosures. 10.0 PREPAYMENT OF SPECIAL ASSESSMENTS Consultant shall coordinate the prepayment of special assessments with the City, Trustee, property owners and title companies. This coordination shall include calculation of the amount due to prepay the special assessment and transmittal of a letter with the prepayment amount, prepayment instructions, and the recordable form of the special assessment lien release to the title company or other such steps as required by the Indenture and related documents. 11.0 ARBRITAGE REBATE SERVICES Arbitrage rebate services encompass activities associated with computing the rebate liability (if any) related to the Series 2014 Bonds. The computations will be prepared as described in Section 148(f)(2) of the Internal Revenue Code of 1986, as amended, Consultant shall coordinate the arbitrage rebate requirements of the bonds, including the following: • Background Research Task shall involve the review of documents, including the Indenture, non-arbitrage certificate, IRS form 8038-G trustee fund/account statements, prior rebate reports and consultations with bond counsel or special counsel, as needed. The funds subject to arbitrage rebate and any available exceptions will be identified.The flow of funds in the accounts with the Trustee will be identified as necessary to perform the arbitrage rebate calculations. • Calculation of Bond Yield Task shall involve preparation of a debt service table and an independent calculation of the yield on each issue. The resulting yields shall be verified with those stated on the non- arbitrage certificates. • Calculation of Rebate Liability Task shall involve computation of the allowable arbitrage earnings and comparison of the results to the actual investment earnings for each issue. • Preparation of Rebate Report Task shall involve the preparation of a written report containing the findings of the financial analysis and an explanation of the underlying methodology followed to compute the rebate liability for each issue. In addition to identifying any arbitrage liability, each report contains a separate investment yield comparison and analysis for each fund. Standard features also include the following items as defined by U.S. Treasury Regulations: 1. Explanation of calculation methodology; 2. Overview of applicable rebate requirements and treasury regulations; 3. Summary of all pertinent dates; 4. Identification of major assumptions; 5. Review of sources and uses of funds; 6. Bond yield calculation; 7. Investment yield by fund with comparison to bond yield; 8. Rebate liability by fund; 9. Aggregate liability for the issue. 12.0 REBATE LIABILITY DISCHARGE Task shall involve coordination of the filing of IRS Form 8038-T, and providing instructions for installment payments as necessary. 13.0 ASSISTANCE WITH IRS INQUIRES Task shall involve providing assistance in the event of an IRS inquiry related to any PID bond issue and includes providing supporting documentation used to prepare the calculations and explanation of the calculations in a meeting with the IRS, if necessary. Services are provided on a time and material basis and are not included in the base fee. 14.0 CONTINUING DISCLOSURE SERVICES • Continuing Disclosure/Annual Report Preparation 1. Annual Report Preparation The Consultant will prepare an annual report as required by the continuing disclosure agreements; • Developer Quarterly Reports The Consultant will request from the Developer the reports pursuant to the continuing disclosure agreement; • Significant Event Notices Upon notification by any responsible party or if Consultant independently becomes aware of such knowledge, Consultant will prepare notices of material events covering the events enumerated in the disclosure agreements; • Dissemination The Consultant shall disseminate the annual reports, quarterly reports from the Developer, and notices of significant events to the designated dissemination agent or Municipal Securities Rulemaking Board (MSRB) and the appropriate state information repository (SID), as applicable, in a timely manner as set forth in the continuing disclosure agreement. The Consultant shall also provide information to bond holders requesting information as provided for in the continuing disclosure agreements; • Homebuyer Disclosure The Consultant shall monitor notice provided to prospective homebuyers by the developer and builders in accordance with the home buyer disclosure program, including without limitation,the following notices: 1. Notice of the special taxing district recorded in the appropriate land records for the property; 2. Notice of the special taxing district provided by builders in addendum to contracts on brightly colored paper; 3. Collection of a copy of the addendum signed by each buyer from builders with such copy being provided to the City; 4. Signage indicating that the property for sale is located in a PID located in conspicuous places in all model homes; 5. An overview of the PID provided to builders to be included in sales packets; 6. Estimates of monthly ownership costs including special assessments; 7. Notification to settlement companies through the builders to include special assessments on HUD 1 forms and inclusion in total estimated assessments for the purpose of setting up tax escrows; 8. Notice of the PID in the homeowner association documents; 9. Announcements of the PID on the City's web site and community channel. 15. IRS COMPLIANCE MONITORING • Compliance Monitoring Task shall involve maintenance of an audit file and preparation of a report confirming compliance with applicable requirements of the tax certificate for the bonds. The task shall include the following subtasks: 1. Ownership and Transfer of Public Improvements Confirm that all public improvements have been transferred to a public entity, once appropriate, as required by the applicable agreement with the developer; 2. No Post-Closing Agreements Confirm with any relevant parties to confirm that there are no post-closing agreements that give any private business user a special legal entitlement to any public improvement, except for those agreements reviewed by bond counsel; 3. No Disposition of the Public Improvements Confirm that there have been no sales, leases, or other dispositions of any public improvement,except for dispositions reviewed by bond counsel; 4. No Modifications Confirm that there have been no modifications to any public improvement, except for those which are in compliance with agreement with the developer providing for the construction of the public improvements or as otherwise approved by bond counsel; 5. Maintenance of Audit File Maintain an audit file with documentation to verify information related to compliance with the tax certificate; 6. Preparation of Report Prepare a report to the City each year explaining the efforts of Consultant to verify confirmation of compliance with the tax certificate,documentation in the audit file,and identifying any missing information or requirements of the tax certificate not confirmed. • Tax Reporting Consultant will request and compile all information related to IRS-required tax reporting (i.e.—Ws) from all vendors and report this information annually to all vendors and the IRS in accordance with IRS regulations. 16. ACCOUNTING SERVICES This task includes the following subtasks: • Review and Track Invoices Consultant shall enter any invoices received by the PID into the accounts receivable journal, check the invoice against approved contracts or purchase orders, prepare a certificate for the payment of the invoice by the Trustee, and forward the invoice with the Consultant's and Trustee's certificate to an officer of the PID authorized to approve the disbursement of funds by the PID. • Maintain General Ledger Consultant shall enter transactions in a general ledger for the PID to maintain accounting records to be used for the preparation of financial statements, as needed. • Financial Statement Preparation Consultant shall record financial transactions of the PID in the appropriate ledgers of the PID and prepare annual financial statements for the PID, as needed. • Annual Audit Coordination The Consultant shall coordinate with the auditor the preparation of an audit of the financial records of the PID. Consultant shall incorporate internal controls as recommended by the auditor. • Requisition Review 1. The Consultant shall assist the City with review of all requisition documentation and verify confirmation of compliance with the Development, Acquisition and Financing Agreement, confirm proper documentation in the audit file, and identify any missing information or requirements not confirmed,as needed; 2. The Consultant shall provide other services requested by the City for which the Consultant has expertise, such as evaluating options to refund the bonds at a lower interest rate. Such services shall be provided only if confirmed in writing (including by email) and shall be billed on a time and material basis as provided for in Exhibit "B", "Verification of Authority". EXHIBIT B VERIFICATION OF SIGNATURE AUTHORITY Full Legal Name of Company: MuniCap,Inc. Legal Address: 1800 Valley View Lane, Suite 240-8, Farmers Branch, TX 75234 Services to be provided: Public Improvement District(PID)Assessment Plan consulting services, as well as administration services for the set-up of the assessment plan. Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Company and to execute any agreement, amendment or change order on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Company. Company will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Company. 1. Name: Keenan.Rice Position: Pr 'dent Signature 2. Name: Abdi Yassin Positio • Vice resident Signatu re 3. Name: Position: Signature Name: Kee an Dice ,V� Signature of President/CEO Other Title.- Date: Exhibit C-1 PID #16 (Walsh Ranch/Quail Valley) Consulting—and Administrative Service Fee Schedule I. CONSULTING SERVICES RELATED TO THE SERVICE AND ASSESSMENT PLAN AND PID BOND ISSUANCE Consultant shall provide services as described in Section 2.0 of Exhibit A for a cost of $30,000 for the first phase of development plus out of pocket expenses not to exceed $5,000. The total fee amount of$30,000 for the first phase shall be paid as follows: (i) $17,500 payable up on the approval of the final project service and assessment plan and levy of the PID assessments, and(ii)the balance of$12,500 payable up on the issuance of the PID bonds. Consultant shall also provide services as described in Section 2.0 of Exhibit A for a cost of$15,000 for each additional phase of development plus out of pocket expenses not to exceed $2,500. The total fee amount of$15,000 for each additional phase shall be paid as follows: (i) $7,500 payable up on the approval of the updated service and assessment plan and levy of the PID assessments for each additional phase, and (ii) the balance of $7,500 payable up on the issuance of the PID bonds. II. ADMINISTRATIVE SERVICES RELATED TO THE SPECIAL ASSESSMENTS AND PID BONDS Administrative services, as set forth in Sections 3.0, 4.0, 5.0, 6.0, 7.0, 8.0, 9.0, 13.0, 14.0, 15.0 and 16.0 of Exhibit A, shall be provided on a time and material basis with total annual amount not to exceed $30,000 for the first phase of development, plus an estimate of$5,000 to $7,000 for one-time initial set up costs. These costs should decrease once the first phase of development is complete. This estimate includes preparation for and attendance at an annual meeting of the City to review the update of the annual assessment plan. Fees shall be billed based on the number of hours worked at Consultant's prevailing hourly rates, which are currently shown in the fee schedule below for"Additional Work", as agreed by City and Consultant. Administrative services, as set forth in Sections 3.0, 4.0, 5.0, 6.0, 7.0, 8.0, 9.0, 13.0, 14.0, 15.0 and 16.0 of Exhibit A, shall be provided on a time and material basis with additional total annual amount not to exceed $10,000 for each additional phase of development (with the aggregate total annual amount for all phases not to exceed $60,000), plus an estimate of$2,500 to $4,000 for one-time initial set up costs per additional phase of development. Fees shall be billed based on the number of hours worked at Consultant's prevailing hourly rates, which are currently shown in the fee schedule below for "Additional Work", as agreed by City and Consultant. III. PREPAYMENTS OF SPECIAL ASSESSMENTS Services related to prepayment of special assessments, as set forth in Section 10.0 of Exhibit A, are billed directly to the party requesting the prepayment and paid from prepayment proceeds. IV. ARBITRAGE REBATE SERVICES Services related to annual arbitrage rebate, as set forth in Sections 11.0 and 12.0 of Exhibit A shall be provided for a cost of$1,250 per year plus an initial setup fee of$500 for each phase bond series. Calculations provided each five years in-lieu of annual calculations shall provided for a cost of$4,000 plus an initial setup fee of$500 for each phase bond series. REIMBURSABLE EXPENSES Out of pocket expenses are billed at actual costs without any mark up. Consultant shall receive written approval from the City before incurring any expenses in excess of one-hundred dollars($100). The fees provided for herein may be increased from time to time to reflect increased costs of labor and services; provided however, that in no event shall such increase be made more than one time per year and such increase shall not exceed 10%of the fee charged immediately prior to the increase. Consultant shall provide the City with one hundred and twenty (120) days advance written notice of each such increase. ADDITIONAL WORK Services or meetings not included in the scope of work set forth in Exhibit "A" to this Agreement are identified as additional work and shall be billed at Consultant's prevailing hourly rates, which currently are as follows: Title Hourly Rate President $250 Senior Vice President 225 Vice President 200 Manager 175 Senior Associate 150 Associate 135 Consultant's hourly rates may be adjusted from time to time to reflect increased costs of labor and services. Consultant shall not provide additional work without the City's prior written authorization. Consultant shall send an invoice to the City each quarter showing the work performed, the person performing the work,the date the work was performed,the amount of the time worked, and the hourly rates for the work. The invoice shall be accompanied by a certificate to the trustee to be signed by the City instructing the trustee to pay the invoice. Within thirty days of receiving the invoice, the City shall forward each correctly billed invoice to the trustee with a signed certificate instructing the trustee to pay the invoice. Consultant's invoices shall be paid solely from available funds of the PID Exhibit C-2 PID#17 (Rock Creek Ranch) Consulting and Administration Services Fee Schedule I. CONSULTING SERVICES RELATED TO THE SERVICE AND ASSESSMENT PLAN AND PID BOND ISSUANCE Consultant shall provide services as described in Section 2.0 of Exhibit A for a cost of $30,000 plus out of pocket expenses not to exceed $5,000. The total fee amount of$30,000 shall be paid as follows: (i) $17,500 payable up on the approval of the final project service and assessment plan and levy of the PID assessments, and (ii) the balance of$12,500 payable up on the issuance of the PID bonds. II. ADMINISTRATIVE SERVICES RELATED TO THE SPECIAL ASSESSMENTS Administrative services, as set forth in Sections 3.0, 4.0, 5.0, 6.0, 7.0, 8.0, 9.0, 13.0, 14.0, 15.0 and 16.0 of Exhibit A, shall be provided on a time and material basis with total annual amount not to exceed $30,000, plus an estimate of$5,000 to $7,000 for one-time initial set up costs. These costs should decrease once the development is complete. This estimate includes preparation for and attendance at an annual meeting of the City to review the update of the annual assessment plan. Fees shall be billed based on the number of hours worked at Consultant's prevailing hourly rates, which are currently shown in the fee schedule below for "Additional Work", as agreed by City and Consultant. III. PREPAYMENTS OF SPECIAL ASSESSMENTS Services related to prepayment of special assessments, as set forth in Section 10.0 of Exhibit A, are billed directly to the party requesting the prepayment and paid from prepayment proceeds. IV. ARBITRAGE REBATE SERVICES Services related to annual arbitrage rebate, as set forth in Sections 11.0 and 12.0 of Exhibit A shall be provided for a cost of$1,250 per year plus an initial setup fee of$500 for each phase bond series. Calculations provided each five years in-lieu of annual calculations shall provided for a cost of$4,000 plus an initial setup fee of$500 for each phase bond series. REIMBURSABLE EXPENSES Out of pocket expenses are billed at actual costs without any mark up. Consultant shall receive written approval from the City before incurring any expenses in excess of one-hundred dollars ($100). The fees provided for herein may be increased from time to time to reflect increased costs of labor and services; provided however, that in no event shall such increase be made more than one time per year and such increase shall not exceed 10%of the fee charged immediately prior to the increase. Consultant shall provide the City with one hundred and twenty (120) days advance written notice of each such increase. ADDITIONAL WORK Services or meetings not included in the scope of work set forth in Exhibit "A" to this Agreement are identified as additional work and shall be billed at Consultant's prevailing hourly rates,which currently are as follows: Title Hourly Rate President $250 Senior Vice President 225 Vice President 200 Manager 175 Senior Associate 150 Associate 135 Consultant's hourly rates may be adjusted from time to time to reflect increased costs of labor and services. Consultant shall not provide additional work without the City's prior written authorization. Consultant shall send an invoice to the City each quarter showing the work performed, the person performing the work, the date the work was performed, the amount of the time worked, and the hourly rates for the work. The invoice shall be accompanied by a certificate to the trustee to be signed by the City instructing the trustee to pay the invoice. Within thirty days of receiving the invoice, the City shall forward each correctly billed invoice to the trustee with a signed certificate instructing the trustee to pay the invoice. Consultant's invoices shall be paid solely from available funds of the PID. M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FoRTWORT11 COUNCIL ACTION: Approved on 3/21/2017 DATE: 3/21/2017 REFERENCE **G-18969 LOG NAME: 13PID ADMINISTRATION NO.. — CODE: G TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of an Contract with MuniCap, Inc., to Provide Financial and Operational Administrative Services Related to the the Quail Valley and Rock Creek Ranch Capital Public Improvement Districts in an Amount Not to Exceed $350,000.00 (COUNCIL DISTRICTS 3 and 6) RECOMMENDATION: It is recommended that the City Council authorize the execution of a contract with MuniCap, Inc., for financial and operational administrative services related to the Quail Valley and Rock Creek Ranch Capital Public Improvement Districts in an amount not to exceed $350,000.00. DISCUSSION: The proposed Agreement between the City and MuniCap, Inc., provides services necessary to administer and operate the two newest Public Improvement Districts created by the City— PID No. 16 (Quail Valley) and PID No. 17 (Rock Creek Ranch) (collectively, PIDs). Unlike the City's existing Public Improvement Districts, Quail Valley and Rock Creek Ranch are both "capital" in nature and are anticipated to issue debt in the future. The services MuniCap will provide to the City include input and analysis of the initial Service and Assessment Plans, analysis of the bond issues, administrative and managerial support services for the day-to-day operation of the PIDs, including communication with property owners, calculation and allocation of the annual installment of the assessment, and collection oversight for assessment payments. MuniCap will also assist the City in performing arbitrage rebate calculations and assist in preparing continuing disclosure documents that will be required as part of the debt issuance. Services performed under the Agreement will be paid from the proceeds of the PIDs, as appropriate, and are anticipated to be no greater than $350,000.00 per year. MuniCap's charges are as follows: Consulting Services: • $30,000.00 for services related to levying assessments and issuing bonds for the initial phase of each PID, plus up to $5,000.00 in out of pocket expenses for the initial set-up charges • $15,000.00 for services related to levying assessments and issuing bonds for each additional phase of the PIDs, if any, with out-of-pocket expenses not to exceed $2,500.00 for each phase Administration: • $30,000.00 per year for ongoing administrative expenses associated with the first phase of each PID, plus an estimated $5,000.00 to $7,500.00 for.one-time set-up costs • $10,000.00 per year for ongoing administrative expenses associated with each additional phase of the PIDs, if any, plus an estimated $2,500.00 to $4,000.00 for one-time set-up costs • The total administration fee for all phases of each individual PID will not exceed $60,000.00 per year (excluding one-time, set up costs) Arbitrage Compliance: http://apps.cfwnet.org/council_packet/mc review.asp?ID=24359&councildate=3/21/2017 3/5/2018 M&C Review Page 2 of 2 • $500.00 set-up cost for each bond issue • $1,250 per year for each bond issuance FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that funds to pay for these services will be collected through the levy of an assessment from the PIDs. Appropriations will be presented for Mayor and Council consideration when the assessments are finalized and the levy is presented. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID I Year (Chartfield 2) Submitted for City Manager's Office by: Jay Chapa (5804) Originating Department Head: Aaron Bovos (8517) Additional Information Contact: Mark Krawczyk (7761) ATTACHMENTS Form 1295.pdf http://apps.cfwnet.org/council_packet/mc review.asp?ID=24359&councildate=3/21/2017 3/5/2018