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HomeMy WebLinkAboutContract 55812CSC No. 55812 T - - . Apri130, 2021 Alex Laufer Debt and Compliance Manager Department of Financial Management Services City of Ft. Worth, Texas 200 Texas Street Ft. Worth, Texas 76102 805 Third Ave, 29th Floor New York, NY 10022 +1 (212) 702-0707 � www.kbra.com Re: Published Rating of City of Fort Worth, Texas, General Purpose Refunding and Improvement Bonds, Series 2021, General Purpose Refunding Bonds, T�able Series 2021, Combination T� and Revenue Certificates of Obligation, Series 2021, Tax Notes, Series 2021C Dear Mr. Laufer, This letter ageement sets forth the process and terms pursuant to which Kroll Bond Rating Agency, LLC ("KBRA") will assign a published debt credit rating to City of Fort Worth, Texas, General Purpose Refunding and Improvement Bonds, Series 2021, General Purpose Refunding Bonds, T�able Series 202, Combination T� and Revenue Certificates of Obligation, Series 2021, T� Notes, Series 2021 C("Bonds"). Set forth below are descriptions of the services to be provided by KBRA and the steps in our rating process, as well as the related fee arrangements and other terms. If this letter agreement meets with your approval, please sign in the space below to evidence your acceptance of this letter agreement and return a signed copy to me. Deliverables Post Committee Feedback: We will orally provide you post committee feedback once the rating committee has determined what it expects the rating to be ("Post Committee Feedback"). The Post Committee Feedback is for your use only and may not be shared or disseminated in any manner except to your agents and advisors in connection with the rating that have a need to know such information and are bound by appropriate confidentiality obligations. If you elect to proceed after receiving Post Committee Feedback, KBRA will continue its rating process and provide the below deliverables. Rating Report: KBRA will prepare and publish a rating report regarding the rating (the "Rating Report"). A draft of the Rating Report will be sent to you prior to any publication or release of such report. The draft will be sent (i) to inform you of the critical infOrmation and principal considerations upon which the credit rating is based, and (ii) to afford you an opportunity to submit additional factual information not previously available to KBRA, to clarify any factual misperceptions, or to identify any Confidential Information (as defined below). KBRA shall duly evaluate any comments made by you; however, KBRA is not obliged to consider any drafting or editorial changes proposed by you, other than those made to correct factual errors or remove references to Conf'idential Information. The draft Rating Report is for your use only and may not be shared with third parties other than your agents or advisars that have a need to know such information and who are bound by appropriate confidentiality obligations. Rating Letter: KBRA will issue a rating letter for the rating ("Rating Letter"). Finalization of the rating and delivery of the Rating Letter are subject to the satisfactory completion of all aspects of KBRA's rating process, as determined by KBRA in its sole discretion. Surveillance: KBRA will conduct periodic surveillance of the Bonds, which will include reviewing updated information and speaking with you as necessary and may involve potential publication of updates including surveillance reports (each, a "Surveillance ReporY'). OFFICIAL REC�RD CITY SECRETARY FT. VIIORTH, TX � Process The rating process will have three (3) major phases. A broad overview of each phase is set forth below. The time required to complete each phase may vary materially from KBRA's initial estimates if (i) KBRA becomes aware of any information that KBRA determines, in its sole discretion, may require additional unexpected diligence or research, or (ii) there is a delay in your provision of information to KBRA that, in KBRA's sole discretion, is required for KBRA to perform its analysis. Any feedback provided by KBRA to you during the rating process is for your use only and may not be shared with third parties other than your agents and advisors who have a need to know such information and are bound by appropriate confidentiality obligations. Phase I: Review of the relevant financial information and documents. Ongoing conversations with your representatives. Information meetings. Review of preliminary offering documents and draft issuance documents. Issuance of Post Committee Feedback Phase II: If applicable, review of any updates to underlying analysis. If applicable, any other aspects of KBRA's review which it views to be material to a potential rating Preparation and issuance of the Rating Letter and Rating Report. Phase III: KBRA will perform ongoing periodic surveillance of the issuance including potential publication of updates. Rating Fees The fees for the rating services outlined herein are set forth below. Phase I Fee: $15,000 Phase II Fee: $35,000 Phase III Annual Fee: $0 Payment: The Phase I Fee and Phase II Fee, as reflected above, will be due upon KBRA's issuance of the Rating Letter. The Phase III Annual Fee, as reflected above, will be due on each anniversary of the issuance of the Rating Letter. All fees are payable within five (5) days after receipt of an invoice. All fees are exclusive of and subject to applicable taxes. The fees are non-refundable. Payment of fees is not contingent on the successful offering of the Bonds, your use of the rating or our issuance of any particular rating. Term and Termination This letter agreement shall remain in effect so long as KBRA is maintaining the rating, unless this letter agreement has been terminated as provided herein. Either party may terminate this letter agreement at any time by delivering written notice to such effect to the other party. If such termination takes place before the completion of Phase II, a"Break-up Fee", as defined below, will be due and payable. The termination of this letter agreement may result in KBRA's withdrawal of any then-existing rating. Page 2 of 7 � If a Rating Letter is not yet issued by the date that is 180 calendar days after the date of this letter ageement for any reason other than KBRA's breach of this letter agreement, then on such date (a) if you elect to proceed with the rating process (i) KBRA may request that you provide up-to-date information to allow us to complete the rating process, and (ii) a fee commensurate with the work performed as of such date, as detailed in this letter agreement, shall be due and payable, or (b) if you do not elect to proceed with the rating process, then on such date a"Break-up Fee", as defined below, will be due and payable. Break-up Fee: In the event this letter agreement is terminated before the completion of Phase II for any reason other than KBRA's breach of its obligations hereunder, a break-up fee commensurate with the work performed as of the date of such termination, as detailed in this letter agreement, shall be due and payable; provided that (i) if termination takes place prior to the completion of Phase I, the Break-up Fee shall not exceed the Phase I Fee, and (ii) if termination takes place prior to the completion of Phase II, the Break-up Fee shall not exceed the sum of the Phase I Fee (to the extent not already paid), the Phase II Fee. General 1. In issuing and maintaining its ratings, KBRA relies on information it receives from you or at your request or direction and from other sources KBRA believes to be credible. The rating, and the maintenance of the rating, may be affected by KBRA's opinion of the information received from you or at your request or direction in connection with this letter agreement. You agree to use good faith efforts to cooperate, in any manner reasonably requested, with any verification procedures performed by KBRA or its agents or at KBRA's request. For so long as this letter agreement is in effect, in connection with the rating provided hereunder, you warrant that you will provide, or cause to be provided, as promptly as practicable, to KBRA and/ar its agents (a) all information requested by KBRA in accordance with its ratings process or that may be necessary for KBRA to satisfy its obligations pursuant to any applicable legislation in connection with the issuance of its ratings, or as required by any regulatory or legal authorities, including, without limitation, relevant third-parly information to the extent you have the legal right to disclose such information, after due inquiry, and (b) any other material information relevant to the rating and surveillance of the rating, including, without limitation, information on material changes to information previously provided by you, or at your request or direction, to KBRA. The failure to provide such information may result in KBRA's termination of this letter agreement or, in the case of surveillance, the downgrade or withdrawal of the rating. You further warrant that all information provided to KBRA and its agents by you or at your request or direction regarding the rating or surveillance of the rating, as such information may be updated from time to time in accordance with (b) above, contains and will contain no untrue statement of material fact and does not and will not omit a material fact necessary in order to make such information, in light of the circumstances in which it was provided, not misleading. You acknowledge that the rating issued pursuant to this letter agreement is based on the information you provide or another party provides at your request or direction to KBRA, and KBRA will not independently verify the accuracy or completeness of such information. So long as this letter agreement is in effect, you agree to provide, and will cause third parties providing information at your request or direction to reasonably cooperate in providing, additional information if requested by KBRA as may be necessary for KBRA's compliance with any applicable laws or regulations. 2. You understand that KBRA is relying on your representations, warranties, and covenants and if, for any reason, you breach your representations, warranties, or covenants at any time, you shall provide prompt written notice to KBRA and if possible, promptly cure such breach, including by correcting any relevant information. The failure of any of your representations, warranties ar covenants to be true at any time may affect KBRA's ability to issue and maintain the ratings, result in the downgrade ar withdrawal of the ratings and/or limit KBRA's ability to issue ratings far you in the future as we may no longer be permitted to reasonably rely on your representations. To the extent permitted by applicable law, you will indemnify KBRA for all losses, damages, liabilities, judgments, costs, charges and expenses (including reasonable legal fees and expenses) ("Losses") (a) resulting from a breach of the representations, warranties, or covenants in this letter agreement, including but not limited to all Losses arising from claims asserted by any third party against KBRA arising from such breach, or (b) that arise out of or relate to any claim that the information provided by you or at your request or direction infringes or violates the intellectual property rights of a third parly, except in either case, to the extent such Losses are judicially determined to result from the gross negligence or willful misconduct of KBRA. Page 3 of 7 � 3. KBRA reserves the right in its sole discretion to raise, lower or withdraw any rating at any time for any reason it deems sufficient. KBRA may take such action notwithstanding any request for a withdrawal of a rating or termination of this letter agreement. KBRA reserves the right to refuse to complete the rating if you violate any of the terms of this letter agreement, including if you fail to provide KBRA with accurate, complete, timely or reliable information required by this letter agreement. Under any of the foregoing circumstances, no fees paid to KBRA will be returned. In the event that KBRA issues a rating pursuant to this letter agreement, such rating reflects KBRA's then-current opinion of the creditworthiness of the Bonds. The rating issued hereunder will be subject to the qualiiications and descriptions set forth on KBRA's Rating Letter and sources referenced therein. The ratings and other views of KBRA are statements of opinion and not statements of fact. They are not a recommendation or suggestion, directly or indirectly, to you or any other person, to buy, sell, make or hold any investment, loan or security or to undertake any investment strategy with respect to any investment, loan or security or any issuer. Ratings do not comment on the adequacy of market price, marketability, the suitability of any investment, loan or security for a particular investor (including without limitation, any accounting and/or regulatory treatment), or the tax-exempt nature or taxability of payments made in respect of any investment, loan or security. You acknowledge that KBRA is not your advisor and is not providing you any financial advice, or any legal, auditing, accounting, appraisal, valuation or actuarial services. The ratings should not be viewed as a replacement for such advice ar services. Nothing in this letter agreement is intended to or should be construed as creating a fiduciary relationship between you and us or between us and any user of the ratings described herein. 4. For purposes of this letter agreement, "Confidential Information" shall mean information provided to KBRA by you, or at your request or direction, in connection with the rating that is marked as, or is otherwise indicated in writing, including, without limitation, email, to be, "Confldential". Notwithstanding the foregoing, information disclosed by you or at your request or direction to KBRA shall not be deemed to be Confidential Information, and KBRA shall have no obligation to treat such information as Confidential Information, if such information (a) was known by KBRA or its affiliates at the time of such disclosure and was not known by KBRA to be subject to a prohibition on disclosure, (b) was known to the public at the time of such disclosure, (c) becomes known to the public (other than by an act of KBRA or its affiliates) subsequent to such disclosure, (d) is disclosed to KBRA or its affiliates by a third party subsequent to such disclosure and KBRA reasonably believes that such third party's disclosure to KBRA or its affiliates was not prohibited, (e) is developed independently by KBRA or its affiliates without reference to the Confidential Information, (fl has been aggregated or modified such that it is no longer identifiable as attributable to the Bonds, or (g) is approved by you for public disclosure, or is otherwise publicly disclosed by you. For the avoidance of doubt, with respect to (g), any information that is reviewed and authorized for publication by you, your agents, or advisors will not be deemed Confidential Information. Except as otherwise provided herein, KBRA shall not disclose Confidential Information to third parties. KBRA may disclose Confidential Information to its employees, consultants, representatives, financial and legal advisors and affiliates, provided such persons or entities are bound by confidentiality obligations similar to those contained in this letter agreement. KBRA may use Confidential Infortnation to assign, raise, lower, or withdraw a rating, provided that, in each case, the Confidential Information is not presented publicly. KBRA may also use and share Conf'idential Information with any of its affiliates or agents engaged in the ratings or other financial services businesses who are bound by confidentialiiy obligations similar to those contained in this letter agreement, for modeling, benchmarking and research purposes, and a11 such models, benchmarks and research shall be the sole property of KBRA and its affiliates, provided that, in each case, Confidential Information is not presented publicly in a way that can be attributed to you. KBRA reserves the right to use, publish, disseminate, or license others to use or disseminate any non-Confidential Information provided by you, or at your request or direction, to the extent such infortnation is contained in a product produced by KBRA or its affiliates. KBRA may disclose Confidential Information to the extent (a) necessary to defend itself in a proceeding before a legal, governmental or administrative authority, or (b) requested or required by law, regulation, order or subpoena of a judicial or governmental authority or auditor. Nothing herein shall prohibit or restrict the rights of current or former KBRA personnel to disclose Confidential Information in a manner that is protected or required by the whistleblower provisions of any applicable law or regulation. 5. KBRA will make the any published ratings publicly known by issuing a press release and posting such ratings to kbra.com. Notwithstanding anything to the contrary herein, KBRA reserves the right to use, publish, disseminate, or license Page 4 of 7 � others to use or disseminate any ratings provided pursuant to this letter agreement and any analytical reports, including the rationale for the rating, including with respect to published ratings that have been withdrawn, regardless of the reason for such withdrawal, unless otherwise provided in this letter agreement. Any analytical reports published by KBRA are not issued by or on behalf of you or at your request. KBRA may publish explanations of KBRA's rating methodology from time to time and nothing in this letter agreement shall be construed as limiting KBRA's ability to modify or refine its rating methodology as KBRA deems appropriate. 6. KBRA does not and cannot guarantee the accuracy, completeness, or timeliness of the information relied on in connection with a rating or the results obtained from the use of such information. KBRA GIVES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICLTLAR PURPOSE OR USE. KBRA, its affiliates or third party providers, or any of their officers, directors, shareholders, employees or agents shall not be liable to you, your affiliates or any third parties asserting claims, directly or indirectly, for any inaccuracies, errors, or omissions, in each case regardless of cause, actions, damages (consequential, special, indirect, incidental, punitive, compensatory, exemplary or otherwise), claims, liabilities, costs, expenses, legal fees or losses (including, without limitation, lost income or lost profits and opportunity costs) in any way arising out of or relating to any rating provided hereunder or the related analytic services even if advised of the possibility of such damages or other amounts except to the extent such damages or other amounts are judicially determined to result from gross negligence or willful misconduct of KBRA. In furtherance and not in limitation of the foregoing, KBRA will not be liable to you, your affiliates or any third parties asserting claims with respect to any decisions alleged to be made by any person based on anything that may be perceived as advice or recommendations. Preliminary feedback or any discussions with KBRA's analysts shall not be deemed to be advice or opinions regarding securities or business operations. KBRA will not be liable to you, your affiliates, or any third parties for disclosures by any goverrunental, legal or regulatory authorities (collectively, "Governmental Entities") of any Confidential Information. The provisions of this paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, tort (including, without limitation, negligence), or otherwise. Neither party waives any protections, privileges, or defenses it may ha�e pursuant to law, including, without limitation, the First Amendment of the Constitution of the United States of America. 7. Notwithstanding anything to the contrary, you understand and agree that KBRA has not consented to, and will not consent to, (a) being named an "expert" pursuant to applicable securities laws including, without limitation, Section 7 of the Securities Act of 1933, or (b) identification of KBRA in any registration statement, prospectus or other offering document (including through incorporation) within the meaning of applicable securities laws such that KBRA could reasonably be expected to be considered an "expert" pursuant to applicable securities laws including, without limitation, Section 7 of the Securities Act of 1933. 8. You understand that current and future laws and regulations relating to rating agencies, as such laws and regulations may be amended ar supplemented, may apply to KBRA and KBRA may be required to comply with such laws and regulations by implementing internal policies and procedures. You acknowledge that our services and any ratings contemplated hereunder may be subject to such laws and regulations and you agree to cooperate with KBRA if your cooperation is necessary for KBRA's compliance. Nothing in this letter agreement shall prevent KBRA from acting in accordance with applicable laws and regulations and KBRA's policies, as published from time to time, in furtherance of such laws and regulations, includii�g, but not limited to publicly disclosing any information provided in connection with the rating, to the extent that KBRA in good faith determines is necessary to be disclosed pursuant to Rule 17g-7 of the Securities Exchange Act of 1934, or if required by any other law or by any Governmental Entities. 9. Nothing in this letter agreement, or the rating when issued, is intended or should be construed as creating any rights on behalf of any third parties, including, without limitation, any recipient of the rating. No person is intended as a third- parly beneficiary of this letter agreement or of the rating when issued. 10. This letter agreement shall be binding on, and inure to the benefit of, the parties hereto and their successors and assigns. Page 5 of 7 � 11. In the event that any term or provision of this letter agreement shall be held to be invalid, void, or unenforceable, then the remainder of this letter agreement shall not be affected, impaired, or invalidated, and each such term and provision shall be valid and enforceable to the fullest e�ent permitted by law. 12. This letter agreement supersedes any other agreement and/or terms and conditions relating to the information provided to KBRA in relation to the rating, including, without limitation, any non-disclosure or confidentiality agreements, or terms and conditions of any website of the issuers or its agents, such as a"click-through" agreement, and constitutes the complete and entire agreement between the parties regarding the subject matter of this letter agreement. This letter agreement may not be amended except in a writing signed by authorized representatives of both parties. All notices required to be provided by you pursuant to this letter agreement must be delivered in writing by emailing legal@kbra.com. 13. The parties to this letter agreement do not waive, and reserve the right to contest, any issues regarding sovereign immunity, the applicable governing law and the appropriate forum for resolving any disputes arising out of or relating to this letter agreement. 14. This letter agreement may be executed in counterparts (which may be exchanged by email), each of which shall be deemed an original, but which together shall constitute one and the same instrument. 15. This letter agreement, the Rating Letter, Rating Report, any Surveillance Report, or any other rating document produced by KBRA in connection with this letter agreement shall be governed by the internal laws of the State of New York. The parties irrevocably agree that the state and federal courts of New York located in the County of New York shall be the exclusive forums for any dispute arising out of or relating to this letter agreement and the parties hereby consent to the personal jurisdiction of such courts. 16. The terms and conditions of this letter agreement are to be kept confidential between the parties. Either party may disclose the terms of this letter agreement as required by law, and to its agents, advisors, auditors and consultants as necessary, provided that such recipients are bound by appropriate confidentiality obligations. [There is no further text on this page] Page 6 of 7 � The offer of services contained in this letter agreement will expire if not signed and returned to us on or before May 14, 2021. We look forward to working with you. If you have any questions, please call me at 646.731.2419. Sincerely, Dana Bunting Senior Managing Director Kroll Bond Rating Agency, LLC Agreed and accepted: City of Fort Worth, Texas By: �,�//( Name: ���,�- 2�no Title: ii w Date: �Il�pl � G 2 � L l � Email or mail signed letter agreement to: William Baneky Kroll Bond Rating Agency, LLC Email: william.baneky@kbra.com Tel: 646.731.3325 Return By: May 14, 2021 Billin Information Company C � .r �t' �'Ori' 1'�o�-F'1� Contact Name U.ar� s� hl � Il � c�.K.S Address 2pd T,Lkp..� S�rt.e.1' 'Fo✓i' �'1�er-� , TK %G / D1 W9 Required (Y/N) Y� S Contact Email Gh.ar; ssa . W; II ; a►�ts o�ir�'ht�acas • o� OFFICIAL REC�RD CITY SECRETARY FT. VIIORTH, TX Contract Compliance Manager: By signing I acknowledge that 1 am the person responsible for the monitoring and administration of this contract, including ensuring all pei•formance and repoi�ting requirements. Alex Laufer ���" Name of Employee/Signature Debt & Compliance Manager Title �I This form Is N/A as No City Funds are assoclated with this Contract Alex Laufer ��(�' Printed Name � /� ��/ . Signature ��4��n�� � ���FORro�oa� o � p/�o° o � ��a o=� � o � o ° �`� ��� �� °��0000a� a �EX A`'-�.o,o.A'p City Secretary Jun 8, Zo2i OFFICIAL REC�RD CITY SECRETARY FT. VIIORTH, TX ���� ����� I►I I �1►I [� '7 �11 111� Date: June 7, 2021 To: Charissa A. Williams, Financial Management Services Department r,�I ; From: Denis McElroy, Assistant City Attorney �� � Subject: Delegated Authority in connection with the City of Fort Worth, Texas The purpose of this memo is to document the authority of the City Manager and/or the Chief Financial Officer/Director of Financial Management Services ("CFO") to effect the sale of various Council- authorized bond and debt obligations and to enter into related agreements and for the CFO to execute related contractual documents. On April 13, 2021, the Mayor and Council adopted ordinances authorizing issuance and sale of taxable and tax-exempt general obligation bonds, tax notes, certificates of obligation, and water and sewer system revenue bonds (Ordinances 24799, 24801, 24892, 24805, 24808, and 248 1 1-04-202 1, collectively the "Debt Ordinances"). Each of the Debt Ordinances designated the City Manager and the CFO as the City's agent with authority to effect the sale of the debt within the parameters of the specific ordinance as approved by the Mayor and Council. The Council-approved Debt Ordinances also generally provided these individuals with authority to undertake all actions and execute all instruments, whether or not mentioned in the ordinance, that are deemed necessary to complete the sale. Because each Debt Ordinance generally contemplates the debt having and maintaining a rating, in my opinion the rating-agency agreements are necessary instruments in order to effect the sale of the debt, and execution of the instruments is authorized by the Debt Ordinances even though these contracts are not specifically identified. Each ordinance also contains language designating the Chief Financial Officer/ Director of Financial Management Services as a special Acting Assistant City Manager for the limited purposes of executing certificates, agreements, notices, instruction letters, requisitions, and other documents on behalf of the City in accordance with the corresponding Debt Ordinance. Therefore, under the terms of the Debt Ordinances, the City Manager ar the CFO is authorized to execute contracts related to issuance and sale of the debt obligations authorized under the terms of the Debt Ordinances.