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HomeMy WebLinkAboutContract 37198 AGREEMENT FOR -!T�' SECRETARY' CONTINUING DISCLOSURE SERVICES ;CINTRACT NO, BY AND BETWEEN CITY OF FORT WORTH, TEXAS (HEREINAFTER REFERRED TO AS THE"ISSUER") AND FSC DISCLOSURE SERVICES, A DIVISION OF FIRST SOUTHWEST COMPANY In connection with the sale and delivery of certain bonds, notes, certificates, or other municipal obligations (the "Bonds"), the Issuer has made certain undertakings to disclose to the investing public, on a periodic and continuing basis, certain information, as more fully set forth in such undertakings and as contemplated by the provisions of Securities and Exchange Commission Rule 15c2-12, as amended (the "Rule"). The Issuer has agreed to engage FSC Disclosure Services, a Division of First Southwest Company ("Disclosure Services"), to assist it with these continuing disclosure obligations, for the consideration and on the terms and conditions set forth herein, including the preparation and submission of annual reports (the "annual reports") and the reporting of certain specified events (the "Events"), which are set forth in the Issuer's undertakings, the Rule and in Subsection 2c. below. This agreement (the "Agreement") between the Issuer and the Disclosure Services shall become effective at the date of its acceptance as provided for below. The parties agree as follows: 1. This Agreement shall apply to all issues of Bonds delivered subsequent to the effective date of the continuing disclosure requirements as specified in the Rule, to the extent that any particular issue does not qualify for exceptions to the continuing disclosure requirements of the Rule. 2. Disclosure Services agrees to perform the following duties in connection with providing services relating to the Issuer's continuing disclosure obligations: a. assist the Issuer in compiling data determined or selected by the Issuer to be disclosed; b. assist the Issuer in identifying other information to be considered by Issuer for continuing disclosure reporting purposes; to Va. 06-09-08 P1 2: 11 I PJ c. assist the Issuer in preparing the presentation of such information, to include annual reports containing financial information and operating data of the type provided in the final official statement of applicable issues, and notices concerning the occurrence of the specified Events and other items listed below: 1) Principal and interest payment delinquencies 2) Non-payment related defaults 3) Unscheduled draws on debt service reserves reflecting financial difficulties 4) Unscheduled draws on credit enhancements reflecting financial difficulties 5) Substitution of credit or liquidity providers, or their failure to perform 6) Adverse tax opinions or event affecting the tax-exempt status of the security 7) Modifications to rights of security holders 8) Bond calls 9) Defeasances 10) Release, substitution, or sale of property securing repayment of the securities 11) Rating changes 12) Noncompliance with the Rule d. assist the Issuer in distributing or filing, in the Issuer's name, the above mentioned annual reports, notices and audited annual financial statements to Nationally Recognized Municipal Securities Information Repositories ("NRMSIR's"), the Municipal Securities Rulemaking Board, appropriate State Information Depository ("SID"), rating agencies, and other entities, as required by the Issuer's continuing disclosure obligations. e. provide to the Issuer confirmation of distribution or dissemination of reports and notices. 3. Issuer acknowledges and agrees to the following: a. Disclosure Services will be compensated for the performance of services with respect to assisting the Issuer with preparation and submission of continuing disclosure reports in accordance with the schedule as set forth below: (i) $2,500 per year for assistance in preparation and distribution of each annual report and assistance in distribution of audited annual financial statements, if Issuer is exempt from requirements other than filing with the SID, or $3,500 per year for assistance in preparation and distribution of each annual report and assistance in distribution of audited annual financial statements, if Issuer is not exempt from filing reports with the NRMSIR's. b. Issuer will provide to Disclosure Services, and Disclosure Services shall be entitled to rely upon, all information regarding the issuance of the Bonds, including the final official statement and the Issuer's commitment or undertaking regarding continuing disclosure as contained in the resolution authorizing issuance of the Bonds or separate contract or agreement; annual financial information and operating data of the type provided in the final official statement, information concerning the occurrence of an 2 Event or noncompliance with the Rule; and any other information necessary in connection with preparing continuing disclosure reports. c. Issuer will provide to Disclosure Services, and Disclosure Services shall be entitled to rely upon, annual written confirmation of all outstanding Bond issues for which the issuer has a continuing disclosure obligation. d. Issuer will provide to Disclosure Services all information required for preparation of each annual report, including financial information and operating data of the type provided in the final official statement and other information deemed necessary by Issuer, no later than 45 days prior to the date on which each annual report is due. e. Issuer will provide full and complete copies of the audited annual financial statement no later than ten (10) days prior to the date on which it is due. f. Issuer will notify Disclosure Services immediately upon the occurrence or immediately upon the Issuer's knowledge of the occurrence of each Event or noncompliance with the Rule, and the Issuer will immediately provide all information necessary for preparation of the notice of occurrence of each such Event or noncompliance with the Rule. g. Issuer shall have the sole responsibility for determining the disclosure to be made in all cases, and the Issuer shall review and provide written approval of the content and form of all continuing disclosure reports and notices. In the event of a disagreement between the Issuer and Disclosure Services regarding the disclosure to be made, either the Issuer or Disclosure Services may, but neither is obligated to, terminate this Agreement by written notice to the other party. h. A separate annual report will be prepared and distributed for each type of security pledge in effect for outstanding financing issues or Bonds of the Issuer. i. Issuer will inform Disclosure Services of the retirement of any Bonds included under the scope of this Agreement within 30 days of such retirement. 4. In the event that Disclosure Services and the Issuer determine that advice of counsel is appropriate with respect to any question concerning disclosure, then (i) the Issuer may consult with its counsel, or(ii) the Issuer may authorize Disclosure Services to seek legal advice from independent counsel regarding the disclosure. The Issuer agrees that it shall be responsible for the fees and expenses of its own counsel. The Issuer agrees to reimburse Disclosure Services the fees and expenses of independent counsel, if paid by Disclosure Services, for advice rendered pursuant to authorization by the Issuer. 5. To the extent allowed by law, the Issuer agrees to hold harmless and to indemnify Disclosure Services and its employees, officers, directors, and agents from and against any and all claims, damages, losses, liabilities, reasonable costs and expenses whatsoever(including attorneys' fees and expenses) which Disclosure Services may incur by reason of or in connection with the distribution of information in the disclosure reports 3 in accordance with this Agreement, except to the extent such claims, damages, losses, liabilities, costs and expenses result directly from Disclosure Services' willful misconduct or gross negligence in the distribution of such information. In order to provide for just and equitable contribution, if a claim for indemnification pursuant to the foregoing indemnification provision is made, but it is determined in an appropriate proceeding that such indemnification may not be enforced, even though the express provisions hereof provide for indemnification in such case, then the Issuer, on the one hand, and Disclosure Services, on the other hand, shall contribute to the claims, damages, losses, liabilities, costs and expenses to which Disclosure Services may be subject in accordance with the relative benefits received by Issuer, on the one hand, and Disclosure Services, on the other hand, and also the relative fault of Issuer, on the one hand, and Disclosure Services, on the other hand, in connection with the acts or omissions which resulted in such claims, damages, losses, liabilities, costs or expenses; and relevant equitable considerations shall also be considered. Subject to loss or damages resulting from willful misconduct or gross negligence, Disclosure Services, shall not be obligated to contribute any amount hereunder that exceeds the amount of fees previously received by Disclosure Services pursuant to this Agreement. 6. The fees and expenses due to Disclosure Services in providing continuing disclosure services shall be calculated in accordance with Section 3a. of this Agreement. The fees will be invoiced each year during the term of the Agreement, unless terminated earlier, and fees will be payable within 30 days of receipt of invoice, except that the fees for the first year's service will be invoiced and be payable upon acceptance of this Agreement. In addition, the Issuer agrees to reimburse Disclosure Services for the following expenses: (i) legal fees and expenses of counsel incurred by Disclosure Services pursuant to the terms of Section 4. above, and (ii) other out-of-pocket expenses reasonably incurred by Disclosure Services in performing its obligations hereunder. The Issuer shall remit payment for expenses to Disclosure Services within 30 days of receipt of invoice. 4 Bonds Issued Subsequent to Agreement 7. The provisions of this Agreement will include additional municipal bonds and financings (including financing lease obligations) issued during the stated term of this Agreement, if such bonds are subject to the continuing disclosure requirements. In this connection, the Issuer agrees that the Issuer will notify Disclosure Services of any municipal bonds and financing (including financing lease obligations) issued by the Issuer during any fiscal year of the Issuer during the term of this Agreement, and will provide Disclosure Services with such information as shall be necessary in order for Disclosure Services to perform the services contracted for hereunder. Effective Dates of Agreement 8. This Agreement shall be effective as of August 1, 2007 and shall remain in effect thereafter for a period of three (3) years. Unless Disclosure Services or Issuer shall notify the other party in writing at least thirty (30) days in advance of the applicable anniversary date that this Agreement will not be renewed, this Agreement will be automatically renewed on the third anniversary of the date hereof for two additional one (1) year periods. This agreement may be terminated with or without cause by the Issuer or Disclosure Services upon thirty (30) days' written notice to the other party. In the event of such termination, it is understood and agreed that only the amounts due to Disclosure Services for services provided and expenses incurred to and including the date of termination will be due and payable. No penalty will be assessed for termination of this Agreement. In the event this Agreement is terminated prior to its stated term, all records provided to Disclosure Services by the Issuer shall be returned to the Issuer as soon as practicable. In addition, the parties hereto agree that upon termination of this Agreement Disclosure Services shall have no continuing obligation to the Issuer regarding any service contemplated herein. Notwithstanding the foregoing, all indemnification, hold harmless and/or contribution obligations, pursuant to Section 5 of this Agreement, shall survive any termination, regardless of whether the termination occurs as a result of the expiration of the term hereof or the Agreement is terminated sooner by either the Issuer or Disclosure Services under this Section 8, pursuant to Subsection 3f., or otherwise. Provision of Notices Provision of information, delivery of certification and notices of Events and noncompliance with the Rule, unless directed otherwise in writing, shall be sent to: FSC Disclosure Services, a Division of First Southwest Company 325 North St. Paul Street, Suite 800 Dallas, Texas 75201 Attention: Nora Wittstruck VP for Continuing Disclosure Telephone: (214) 953-4073 Facsimile: (214) 953-4050 Email: nwittstruck2firstsw.com 5 ISSUER: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: Karen L. Montgomery Assistant City Manager/ CFO Telephone: (817) 392-6222 Facsimile: (817) 392-6134 Email: karen.mont omery(a�fortworth og v.orrg Acceptance of Agreement 9. This Agreement is submitted in triplicate originals. When accepted by the Issuer, it will constitute the entire Agreement between the Issuer and Disclosure Services for the purposes and the consideration specified above. Acceptance will be indicated on all copies and returned to Disclosure Services. An executed original will be returned for your files. Respectfully submitted, Attested By: FSC Disclosure Services, a Division of First ` A AA � A Southwest Company, _ V � 1�11tty I{ rlx By Cfw SeeretarY Hill A. Feinberg APPROVED AS TO Chairman and Chief Executive Officer rGRM A LEGALITY: l/Vi f By �� Nora Wittstruck ASSISTANT CITY ATTORNEY Vice President s C C jaa4e I Z-11, Date ACCEPTANCE CLAUSE The above and foregoing is hereby in all things accepted and approved by the Issuer, on this the 1 day of '�� , 2008. By C.e a /7 Authorized Representati Karen L. Montgomery Assistant City Manager/CFO Title - 1 Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 7/24/2007 DATE: Tuesday, July 24, 2007 LOG NAME: 13ADVISORY REFERENCE NO.: **C-22260 SUBJECT: Authorize Necessary and Related Agreements with First Southwest Company and Estrada Hinojosa for the Provision of Financial Advisory and Arbitrage Services RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to execute necessary and related agreements with First Southwest Company and Estrada Hinojosa for the provision of financial advisory and arbitrage services; and 2. Authorize a commencement date of August 1, 2007, and expiration date of July 31, 2010, with two one- year options to renew. DISCUSSION: The City advertised a request for qualifications in the Commercial Recorder on March 14 and March 21, 2007, for the provision of financial advisory and arbitrage services. First Southwest Company and Estrada Hinojosa are being recommended based upon responsiveness and demonstrated competence and qualifications. Additionally, First Southwest Company and Estrada Hinojosa have satisfactorily served as the City's co- financial advisors for the past ten years. Staff is recommending that the City continue its relationships with First Southwest Company as its lead financial advisor and Estrada Hinojosa, a minority-owned firm, as co- financial advisor. The new fee structure will be a base fee of $35,000 plus $0.75 per $1,000 denomination for each series of bond issues. Fees under the current agreement are based on the size of bond issues, $25,000 for the first $15M and $0.75 per $1,000 denomination for each series of bonds issue over $15M. As in the current contract, the fee will be split 65/35 between the two firms, respectively. First Southwest Company, the lead financial advisor and Estrada Hinojosa & Company, a certified minority- owned firm, the co-financial advisor is in compliance with the City's M/WBE Ordinance by committing to the work fees on bond transactions being split 65/35 between the two firms respectively on this project. The City's overall M/WBE goal is 25 percent. Typically, no charges for financial advisory services related to bond transactions are incurred unless bonds are actually sold. However, the agreement will provide for either or both of the financial advisors to be compensated on an hourly basis for special financial consulting work not directly related to a bond sale. Engagement letters will be executed for each special project compensated on an hourly basis. http://apps.cfwnet.org/council_packet/Reports/mc_print.asp 6/10/2008 Page 2 of 2 FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds required to pay financial advisory fees will be available from proceeds of bond sales, appropriate debt service funds, and/or appropriate operating funds. TO Fund/AccounVCenters FROM Fund/AccounVCenters PE47 553010 0132000 $0.00 G D06 553010 0132000 $0.00 Submitted for City Manager's Office by: Karen Montgomery (6222) Originating Department Head: Lena Ellis (8517) Additional Information Contact: Jenny Townsend (6030) http://apps.cfwnet.org/council_packet/Reports/mc_print.asp 6/10/2008