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HomeMy WebLinkAboutContract 41146OW SECRETARY , _fioNrimet NO. 17+144a_ Specialty Assets Investm nt Account A.reement This Specialty Assets Investment Account Agreement ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton, Parker and Wise Counties, Texas, acting by and through Karen L. Montgomery, its duly authorized Assistant City Manager, and JPMIRGAN CHASE CLANK, N.A. ("Bank"), a Texas Banking Institution, acting by and through Adrean M. Williams -Boyd, its duly authorized Fiduciary Officer. This Agreement shall commence upon October 14, 2008 ("Effective Date") and shall expire on October 14, 2010, unless terminated earlier in accordance with the provisions of this Agreement. This Agreement may be renewed for up to two (2) one-year periods at the same terms and conditions by mutual agreement of the parties. The Bank is authorized to open a Specialty Assets Investment Advisory Account ("Account") for the City. At a reasonable time after the City signs this Agreement, City will deliver to the Bank the indicia of ownership with respect to property listed on the Schedule of Property ("Assets") as determined at the sole discretion of the City. Subject to the provisions herein, title to all Properties shall remain in City and Bank shall administer and manage such properties in accordance with the duties and responsibilities set forth below. If City desires to add additional Assets to the Account, and after review, the Bank agrees to accept such additional Assets; such addition shall be evidenced by the including of such Assets on subsequent periodic statements issued to the City. The Bank will hold the Assets, subject to the following provisions. §1. Services to be Provided by the Bank. At a reasonable time after the City signs this Agreement, City will, with respect to Assets described in each Schedule of Property, deliver to the Bank copies of all relevant documents necessary to enable the Bank to perform its duties under the Agreement. The Bank shall be fully authorized to rely upon the information contained in such documents furnished from time to time by City. If this Agreement covers Oil and Gas Properties, the attached "Oil, Gas and Mineral Property Addendum" is incorporated into this Agreement by reference and provides additional details regarding services for mineral assets. 2. Communication. All written communication to the Bank pursuant to this Agreement will be sent to the Bank at the address where the Account was opened unless the Bank designates otherwise in writing. All written communication to the City will be sent to the address set forth below unless the City designates otherwise in writing. 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: City of Fort Worth Attn: Gas Lease Program Manager Planning and Development Department 1000 Throckmorton Street Fort Worth TX 76102-6311 Facsimile: (817) 392- 10.28.10 To BANK: JPMorgan Chase Attn: Adrean M. Boyd 420 Throckmorton, Suite 300 Fort Worth, TX 76102 Facsimile: (817) 884a 241ICIAL RECORD CITY SECRETARY F7. WORTh, TX Anything in this paragraph to the contrary notwithstanding, for all purposes of this Agreement, a facsimile transmission received by the Bank signed by the City shall be deemed to be an original written communication signed by the City and the Bank shall be entitled to rely on the authenticity of such City communication. §3. Investments. The Bank may invest and reinvest any cash balances held in the Account from time to time in money market funds, deposit accounts, certificates of deposit or other evidences of deposit issued by the Bank or any bank affiliate of JP Morgan Chase & Co. which are Public Funds Investment Act (PFIA) compliant. The Bank and its affiliates may not receive compensation from the City for these products or services in addition to the compensation set forth in its established schedule of fees. Bank shall sweep funds from the Account daily to a PFIA eligible money market fund. §4. Investment Disclosure. To the extent that any Account is invested in marketable securities, including JPMorgan Funds, the City acknowledges its understanding that such investments are not deposits or obligations of and are not guaranteed by JPMORGAN CHASE & CO. or its affiliates that such investments involve investments risks, including possible loss of principal amount invested; and that such investments are not insured or guaranteed by the Federal Deposit Insurance Corporation (FDIC) or by any other governmental agency or government - sponsored agency of the federal government or state §5. Statements. Unless waived by the City in writing, the Bank will forward to City monthly statements showing a summary of transactions during the preceding accounting period and a monthly statement listing all of the Assets. City acknowledges the right to receive written confirmation of each transaction but waives that right on the condition that a monthly statement of activity will be furnished to City. Unless written objection is made to such statement within 60 days from the receipt thereof, it shall be considered approved and ratified and thereafter the Bank shall have no liability with reference to any matter disclosed therein. §6. Fees. For the Bank's services hereunder, City agrees to pay Bank an amount of $240,000 for the term of the Agreement and in accordance with the provisions of this Agreement This fee shall be paid at a rate of $10,000 per month, for a total amount not to exceed $240,000 during the first two (2) year term of the Agreement and shall continue at a rate of $10,000 per month of the two (1) year extensions. The Bank shall also be entitled to receive additional compensation for unusual or extraordinary services however the Bank shall not perform any additional services for the City not specified in 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 Bank not specified by the Agreement unless the City first approves such expenses in writing. §7. Indemnification. In performing services hereunder, it is understood and agreed that the Bank assumes only the duties specifically enumerated herein it being expressly agreed that there are no implied duties hereunder. In performing its duties and services under this Agreement, the Bank is not required, expected, or anticipated to physically appear, travel to, through, or in any way be associated with the actual mineral producing properties which are the subject and purpose of this Agreement. The Bank will perform solely the ministerial functions set forth in this Agreement or Addendum, with any actual operation and maintenance of the mineral producing properties being solely the responsibility and charge of the City and/or any agent or subcontractor hired by the City. HOWEVER, BANK 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 2 THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSIONS, MALFEASANCE OR INTENTIONAL MISCONDUCT OF BANK, ITS OFFICERS, EMPLOYEES, OR ANY AGENTS O R SUBCONTRACTORS HIRED BY THE BANK DURING THE PERFORMANCE OF ITS DUTIES AND SERVICES UNDER THIS AGREEMENT. THE BANK SHALL BE LIABLE FOR DAMAGES ARISING OUT OF THE BANK'S N EGLIGENCE OR WILLFUL MISCONDUCT, PROVIDED HOWEVER THAT; THE BANK S HALL NOT BE LIABLE OR RESPONSIBLE FOR ANY ACTION IT TAKES PURSUANT TO ANY DIRECTION WHICH WHEN GIVEN EXCEEDS THE CITY'S ACTUAL AUTHORITY. BANK COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER P ROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO BANK'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF BANK, ITS OFFICERS, SERVANTS, EMPLOYEES, OR ANY AGENTS OR S UBCONTRACTORS HIRED BY THE BANK DURING THE PERFORMANCE OF ITS DUTIES AND SERVICES UNDER THIS AGREEMENT. §8. Miscellaneous. (a) The City agrees to notify the Bank immediately of any change in the City's status from that disclosed on the City's W-9 attached hereto. Except as otherwise provided in this Agreement any change in the City's status, must be communicated to the Bank by an instrument in writing with appropriate documentation before the Bank will accept any directions from the City. (b) Except as otherwise provided in this Agreement or any Addendum attached hereto: (i) this Agreement will terminate upon written notice by either party to the other at least forty-five (45) days prior to the effective date of such termination; (ii) the termination of the Agreement will not affect or preclude the consummation of any transactions which were initiated prior to the effective date of such termination; (iii) upon termination, the Assets will be distributed to the City; (iv) the Bank shall forgo any future payment and compensation will be rendered on a pro- rata basis for prior work performed and (v) within a reasonable time after the effective date of such termination, the Bank will render to the City or the City's representative a final statement of the transactions from the date of the last statement to the date of the transfer of the Assets. (c) The Bank will not be required to lend to, or advance, or pay out of its own funds any sum whatsoever for the account of the City. (d) All securities held in the Account under this Agreement may be registered in the name of any nominee or nominees selected by the Bank. (e) The City further instructs that the Bank is not authorized and shall not disclose the name, address or security positions of the City in response to requests concerning shareholder communications under Section 14 of the Securities Exchange Act of 1934, the rules and regulations thereunder, and any similar statute, regulation, or rule in effect from time to time. (f) City acknowledges receipt of the Bank's privacy policy. The Bank is hereby specifically authorized to release information about this Account to other affiliates of JPMorgan Chase & Co but to no other party. 3 §9. (g) EACH PARTY HERETO RESERVES THE RIGHT TO A BENCH TRIAL BUT WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) EACH PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH. Governing Law. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of 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. §10. Assignment and Subcontracting. Within sixty (60) calendar days of hiring any agent or subcontractor to perform its duties under this Agreement the Bank shall notify the City and provide the name, address, and any other relevant contact information of such agent or subcontractor including the duties to be performed. Upon the release, termination, removal, or replacement of any agent or subcontractor the Bank shall n otify the City of this event within sixty (60) calendar days of its occurrence, and provide the name, address, and relevant contact information of the replacement agent o r subcontractor, if applicable. §11. Insurance. Bank shall provide the City's Risk Manager with memorandums 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: 11.1 Coverage and Limits (a) Bankers Professional Liability (including Errors & Omissions): $1,000,000 Each wrongful act $2,000,000 Aggregate Limit The insurance shall be maintained for the duration of the contractual agreement and for services provides under the contractual agreement or for the warranty period, which ever is longer. An annual memorandum of insurance submitted to the City shall evidence coverage. Bank reserves the right to self -insure as respects Bankers Professional Liability insurance. (b) Discovery & Notice of Claim Provision Notice of claim may be filed anytime during the life of this agreement, and up to one year following completion of the services provided under the contractual agreement relating to any incident which occurred during the term of this Agreement and for which a claim was not previously made. 11.2 Memorandums. Memorandums of Insurance evidencing that the Bank has obtained all required insurance shall be delivered to the City prior to Bank proceeding with any work pursuant 4 to this Agreement All applicable policies shall be endorsed to name the City as an additional insured thereon as its interests may appear except for Bankers Professional Liability. The term City shall include its employees officers, officials, agents, in respect to the contracted services. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement 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. §12. Standard of Care. In addition to the provisions of the Agreement, the Bank shall not be responsible for any liability, loss, cost, suit, damage or expense (including attorney fees and expenses) incurred by the City, including without limitation, cleanup costs, costs of remediation, diminution of property value, fines, penalties, court costs, civil or criminal sanctions, arising out of or resulting from (i) title defects; (ii) any condition on the Properties that violates any applicable local, state or federal law or regulation; (iii) the prior administration of the Properties; (iv) the prior, currently existing or future uses of the Properties; (v) the breach or failure of any third party pursuant to any lease or sublease arrangements with respect to the Properties; (vi) the loss of title to mineral interest resulting from the running of prescription; excluding such liabilities, losses, costs, suits, damages or expenses arising out of or resulting from the gross negligence or willful misconduct of the Bank. §13. Independent Contractor. It is expressly understood and agreed that in performing its duties and services as an agent under this Agreement , the Bank shall operate as an independent contractor as to all rights and privileges granted herein, and not as an employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Bank 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 and servants, employees contractors and subcontractors. Bank acknowledges that the doctrine of respondeat superior shall not apply as between the City its officers, agents, servants and employees, and Bank its officer's agents, employees, servants, contractors and subcontractors. Bank further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Bank. §14. Disclosure of Conflicts and Confidential Information. Bank, for itself and its officers, agents and employees shall notify the City as soon as possible of any conflicts of which the Bank becomes aware. Bank for itself and its officers, agents and employees further 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. Bank 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. Bank shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. §15. Right To Audit. Bank agrees that the City shall, until the expiration of three (3) years after final payment under this contract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Bank involving transactions relating to this Contract at no additional cost to the City. Bank agrees that the City shall have access during normal working hours to all necessary Bank 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 Bank reasonable advance notice of intended audits. §16. Compliance with Laws, Ordinances, Rules and Regulations. Bank agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City 5 notifies Bank of any violation of such laws, ordinances, rules or regulations, Bank shall immediately desist from and correct the violation. §17. Non -Discrimination Covenant. Bank, for itself, as part of the consideration herein, agrees that in the performance of Bank'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 Bank, its personal representatives, assigns, subcontractors or successors in interest, Bank agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. §18. 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, privileges and immunities. §19. No Waiver. The failure of the City or Bank 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 Bank's respective right to insist upon appropriate performance or to assert any such right on any future occasion. §20. 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. §21. Force Majeure. The City and Bank 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. §22. Headings Not Controlling. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. §23. 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 hereto. §24. Amendments / Modifications / Extensions. No extension, modification or amendment of this Agreement shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, and executed by both parties hereto. The provisions of §§ 5, 7, and 9 of this Agreement, together with indemnification provisions of any Addendum attached hereto, shall survive any termination, amendment or expiration of the Agreement and shall be binding on both parties' successors and assigns. §25. Entirety Of Agreement. This Agreement, together with the relevant Addendum or Addenda attached hereto, represents the entire agreement between the parties concerning the management of the Assets and the transactions contemplated hereunder Any and all previous communications and understandings between the City and the Bank regarding subject matter hereof, whether oral or written, are superseded by this Agreement §26. 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 6 binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this day of eva4w.1rav‘ , 2010. CITY OF FO ' T WORTH: By: 0/ia,c,a4 Karen L. Montgomery Assistant City Manager ATTE T By: arty Hendrix City Secretary JPMORGriN CHA By: AA( / N me: Adrean M. B Title: Fiduciary Officer c 4 Mi ff - '0¢°°. 06400o N )1& ATTEST: Pf 0 eV Clic, flag cor ri 0 0 ,otr4iO3 Oef 00 0 a cql tip 5 APPROVED AS TO FORM AND LEGALITY: td.c_ Assistant �C ty Attorney CONTRACT AUTHORIZATION: M&co a-ma-3\ a k.4) Date Approved: 110 114 \'os • OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 7 1 1-1 9-11 0 PO4 : 33 IN M&C Review Page 1 of 3 \_ C LECI irl-C-\\ COUNCIL ACTION: Approved on 10/14/2008 Official site of the City of Fort Worth, Texas FORT WORTI! I ri 10 lir Pr - DATE: 10/14/2008 REFERI='NCI-J' C-23126 LOG NAME: 13POILGASASSET NO.: CODE: C TYPE: NON- PUBLIC NO CONSENT HEARING: SUBJECT: Authorize Contracts for Gas and Oil Mineral Asset Management Banking Services with JPMorgan Chase for a Cost Not to Exceed $240,000.00; and Consulting Services with Midkiff Oil and Gas for a Cost Not to Exceed $1,048,000.00 for the Financial Management Services Department RECOMMENDATION: It is recommended that the City Council authorize execution of contracts for gas and oil mineral asset management banking services with JPMorgan Chase for a cost not to exceed $240,000.00 and consulting services with Midkiff Oil and Gas for a cost not to exceed $1,048,000.00 for the Financial Management Services Department. DISCUSSION: These contracts will enhance the City's ability to manage its mineral assets, especially those currently being produced from the Barnett Shale gas field. The City issued a request for proposals (RFP) for these services on May 14, 2008. The City notified over 100 firms of this RFP by email. Firms notified included banks, Iandmen, law firms and mineral production companies. The City held a pre -proposal conference on May 20, 2008, and five interested firms attended. JPMorgan Chase Bank, N.A., Midkiff Oil and Gas, and Wells Fargo Bank, N.A., submitted proposals by the submittal deadline of June 26, 2008. An evaluation panel made up of representatives from the City Attorney's Office, the Engineering Department, the Financial Management Services Department (FMS), the Minority Women -owned Business Enterprise (M/WBE) Office, and the Planning and Development Department evaluated the proposals. Proposal evaluation factors included responsiveness and clarity of proposals, background and experience of the firms, personnel qualifications, contract costs, and M/WBE participation. The RFP allowed for multiple contract awards to the best evaluated firms by section Section I of the scope of services covers the consulting services and Section II covers the asset management services. Midkiff Oil and Gas was determined to be the best evaluated firm for the consulting services contract and JPMorgan Chase was determined to be the best evaluated firm for the asset management services contract. http://apps.cfwnet.org/council packet/mc_review.asp?ID=10514&councildate=10/14/2008 11/18/2010 M&C Review Page 2 of 3 The fees for Midkiff Oil and Gas for consulting services will be four and one-half percent of the gross lease bonus collected for bonuses up to $250,000.00, two percent of the gross lease bonus collected on bonuses exceeding $250 000.00 and up to $5,000,000.00 and a $100,000.00 fee on bonuses over $5,000,000.00. JPMorgan Chase's fees for asset management will be $10,000.00 per month over the term of the contract. All fees associated with these services will be funded through gas well revenues. If approved, these contracts shall begin upon execution and shall remain in effect for two years from the date of execution. RENEWAL OPTIONS — These contracts, if approved, may be renewed for up to two additional one- year terms at the City's option. These actions do not require specific City Council approval provided the City Council has appropriated sufficient funds to satisfy the City's obligation during the renewal term. ADVERTISEMENT — This RFP was advertised in the Fort Worth Star -Telegram on May 14 May 21, and May 28, 2008, as well as June 4, June 11, and June 18, 2008, and was posted on the City's website from May 14, 2008, through June 26, 2008. M/WBE - A goal for M/WBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office The M/WBE goal for these contracts is 10 percent of the total expenditures under these contracts Midkiff Oil and Gas is in compliance by committing to utilize certified M/WBEs for outside services and supplies when needed. JPMorgan Chase is in compliance by committing to utilize certified M/WBEs through their Supplier Diversity Program. These contracts may be renewed for up to two additional one-year terms at the City's option This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the participating departments. http://apps.cfwnet.org/council_packet/mc_review.asp?ID=1 0514& councildate=1 0/14/200 8 11/18/2010