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HomeMy WebLinkAboutContract 59672CSC No. 59672 FORTWORTH. PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a Texas home rule municipal corporation, acting by and through its duly authorized Assistant City Manager, and Hilltop Securities Asset Management, LLC, ("Vendor"), a Delaware limited liability company, acting by and through its duly authorized representative, each individually referred to as a "party" and collectively referred to as the "parties." 1. Scone of Services. Vendor will, in good faith and with due diligence, provide arbitrage rebate compliance services in connection with bonds, notes, certificates, or other tax-exempt obligations (the "Obligations"). In particular, Vendor will perform all duties outlined and described in the Scope of Work, which is attached hereto as Exhibit "A" and incorporated herein for all purposes as though it were set forth at length. The actions and objectives contained in Exhibit "A" are referred to herein as the "Services." 2. Term. This Agreement will govern all services provided for a period beginning February 1, 2023 and end April 30, 2024, unless terminated earlier in accordance with this Agreement ("Initial Term"). City will have the option, in its sole discretion, to renew this Agreement under the same terms and conditions, for up to four (4) one-year renewal option(s) (each a "Renewal Term"). 3. Comnensation. City will pay Vendor in accordance with the provisions ofthis Agreement, including Exhibit `B," which is attached hereto and incorporated herein for all purposes. Total compensation under this Agreement will not exceed Sixty Thousand Dollars ($60,000.00) per year. Vendor will not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City will not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. 4. Termination. 4.1. Written Notice. City or Vendor 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 City in any fiscal period for any payments due hereunder, City will notify Vendor of such occurrence, and this Agreement will terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to 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 end of the then -current term, City will pay Vendor for services actually rendered up to the effective date of termination, and Vendor will continue to provide City with Professional Services Agreement Page 1 of 14 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX services requested by City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Vendor will provide City with copies of all completed or partially completed documents prepared under this Agreement. In the event Vendor has received access to City Information or data as a requirement to perform services hereunder, Vendor will return all City provided data to City in a machine readable format or other format deemed acceptable to City. 5. Disclosure of Conflicts and Confidential Information. 5.1 Disclosure of Conflicts. Vendor hereby warrants to City that Vendor has made full disclosure in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement. In the event that any conflicts of interest arise after the execution of this Agreement, Vendor hereby agrees immediately to make full disclosure to City in writing. 5.2 Confidential Information. Vendor, for itself and its officers, agents and employees, agrees that it will treat all information provided to it by City ("City Information") as confidential and will not disclose any such information to a third party without the prior written approval of City. 5.3 Public Information Act. City is a government entity under the laws of the State of Texas, and all documents held or maintained by City are subject to disclosure under the Texas Public Information Act. In the event there is a request for information marked Confidential or Proprietary, City will promptly notify Vendor. It will be the responsibility of Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by City but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 5.4 Unauthorized Access. Vendor must store and maintain City Information in a secure manner and will not allow unauthorized users to access, modify, delete, or otherwise corrupt City Information in any way. Vendor must notify City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised, in which event, Vendor will, in good faith, use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means and will fully cooperate with City to protect such City Information from further unauthorized disclosure. 6. RiLrht to Audit. Vendor agrees that City will, until the expiration of three (3) years after final payment under this Agreement 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 — including but not limited to all electronic records — of Vendor involving transactions relating to this Agreement at no additional cost to City. Vendor agrees that City will have access during normal working hours to all necessary Vendor facilities and will be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City will give Vendor reasonable advance notice of intended audits. 7. Independent Contractor. It is expressly understood and agreed that Vendor will operate as an independent contractor as to all rights and privileges and work performed under this Agreement and not as agent, representative, or employee of City. Subject to and in accordance with the conditions and provisions of this Agreement, Vendor will 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, contractors, and subcontractors. Vendor acknowledges that the doctrine of respondeat superior Professional Services Agreement Page 2 of 14 will not apply as between City, its officers, agents, servants, and employees, and Vendor, its officers, agents, employees, servants, contractors, and subcontractors. Vendor further agrees that nothing herein will be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that City will in no way be considered a Co -employer or a Joint employer of Vendor or its officers, agents, servants, employees, contractors, or subcontractors. Neither Vendor nor any officers, agents, servants, employees, contractors, or subcontractors of Vendor will be entitled to any employment benefits from City. Vendor will 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, contractors, or contractors. Liability and Indemnification. 8.1 LIABILITY - VENDOR WILL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE, AND/OR PERSONAL INJURY — INCL UDING 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 VENDOR, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 8.2 GENERAL INDEMNIFICATION - VENDOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROMAND AGAINST ANYAND ALL CLAIMS OR LAWSUITS OFANYKIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTYDAMAGE OR LOSS (INCL UDINGALLEGED DAMAGE OR LOSS TO VENDOR'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 VENDOR, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 8.3 INTELLECTUAL PROPERTY INDEMNIFICATION — Vendor agrees to defend, settle, or pay, at its own cost and expense, any claim or action against City for infringement of any patent, copyright, trade mark, trade secret, or similar property right arising from City's use of Vendor -provided software and/or documentation in accordance with this Agreement, it being understood that this agreement to defend, settle, or pay will not apply if City modifies or misuses the software and/or documentation. So long as Vendor bears the cost and expense of payment for claims or actions against City pursuant to this section, Vendor will 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 will have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect City's interest, and City agrees to cooperate with Vendor 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 City for infringement arising under this Agreement, City will 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, Vendor will fully participate and cooperate with City in defense of such claim or action. City agrees to give Vendor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, City's assumption of payment of costs or expenses will not eliminate Vendor's duty to indemnify City under this Agreement. If the software and/or Professional Services Agreement Page 3 of 14 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, Vendor will, 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 Vendor, terminate this Agreement and refund all amounts paid to Vendor by City, subsequent to which termination City may seek any and all remedies available to City under law. Assienment and SubcontractinE. 9.1 Assimnent. Vendor will not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment, the assignee will execute a written agreement with City and Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement. Vendor will be liable for all obligations of Vendor under this Agreement prior to the effective date of the assignment. 9.2 Subcontract. If City grants consent to a subcontract, the subcontractor will execute a written agreement with Vendor referencing this Agreement under which subcontractor agrees to be bound by the duties and obligations of Vendor under this Agreement as such duties and obligations may apply. Vendor must provide City with a fully executed copy of any such subcontract. 10. Insurance. Vendor must provide City with certificate(s) of insurance documenting policies of the following types and minimum coverage limits that are to be in effect prior to commencement of any Services 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 will be on any vehicle used by Vendor, or its employees, agents, or representatives in the course of providing Services under this Agreement. "Any vehicle" will be any vehicle owned, hired and non -owned. (c) Worker's Compensation: Professional Services Agreement Page 4 of 14 Statutory limits according to the Texas Workers' Compensation Act or any other state workers' compensation laws where the Services are being performed Employers' liability $100,000 - Bodily Injury by accident; each accident/occurrence $100,000 - Bodily Injury by disease; each employee $500,000 - Bodily Injury by disease; policy limit (d) Professional Liability (Errors & Omissions): ® Applicable 0 N/A $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 must 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 must be submitted to City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies must name City as an additional insured thereon, as its interests may appear. The term City includes its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy must include a Waiver of Subrogation (Right of Recovery) in favor of City. (c) A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage must be provided to City. Ten (10) days' notice will be acceptable in the event of non-payment of premium. Notice must be sent to the Risk Manager, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, with copies to the Fort Worth 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 City to request required insurance documentation will not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that Vendor has obtained all required insurance will be delivered to the City prior to Vendor proceeding with any work pursuant to this Agreement. Professional Services Agreement Page 5 of 14 11. Compliance with Laws, Ordinances, Rules and Regulations. Vendor 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 City notifies Vendor of any violation of such laws, ordinances, rules or regulations, Vendor must immediately desist from and correct the violation. 12. Non -Discrimination Covenant. Vendor, for itself, its personal representatives, assigns, contractors, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor's duties and obligations hereunder, it will 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 VENDOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS, CONTRACTORS, SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, VENDOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. 13. Notices. Notices required pursuant to the provisions of this Agreement will 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 CITY: City of Fort Worth Attn: Assistant City Manager 200 Texas Street Fort Worth, TX 76102-6314 Facsimile: (817) 392-8654 With copy to Fort Worth City Attorney's Office at same address To VENDOR: Hilltop Securities Asset Management, LLC Brian Helming, Managing Director 717 N. Harwood Street, Suite 3400 Dallas, TX 75201 Fax: 214-840-5040 14. Solicitation of Employees. Neither City nor Vendor will, 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 will 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, City does not waive or surrender any of its governmental powers or immunities. 16. No Waiver. The failure of City or Vendor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein does not constitute a waiver of City's or Vendor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. Professional Services Agreement Page 6 of 14 17. Governing Law / Venue. This Agreement will 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 will 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 will not in any way be affected or impaired. 19. Force Maieure. City and Vendor will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but will 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; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected (collectively, "Force Majeure Event"). The performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure Event, and an explanation as to how it prevents or hinders the Parry's performance, as soon as reasonably possible after the occurrence of the Force Majeure Event, with the reasonableness of such notice to be determined by the City in its sole discretion. The notice required by this section must be addressed and delivered in accordance with Section 13 of this Agreement. 20. Headings not Controlling; Headings and titles used in this Agreement are for reference purposes only, will 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 will not be employed in the interpretation of this Agreement or the exhibits thereto. 22. Amendments / Modifications / Extensions. No amendment, modification, or extension of this Agreement will be binding upon a party hereto unless set forth in a written instrument, which is executed by an authorized representative of each party. 23. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart will, for all purposes, be deemed an original, but all such counterparts will together constitute one and the same instrument. 24. Warranty of Services. Vendor warrants that its services will be of a high 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 Vendor's option, Vendor will 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 City to Vendor for the nonconforming services. 25. Immigration Nationalitv Act. Vendor must verify the identity and employment eligibility Professional Services Agreement Page 7 of 14 of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Vendor will provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor must adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Vendor employee who is not legally eligible to perform such services. VENDOR WILL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, OR AGENTS. City, upon written notice to Vendor, will have the right to immediately terminate this Agreement for violations of this provision by Vendor. 26. Ownership of Work Product. City will be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation that are created, published, displayed, or produced in conjunction with the services provided under this Agreement (collectively, "Work Product"). Further, City will 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 will inure to the benefit of 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 will 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, Vendor 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 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 City. 27. Signature Authoritv. The person signing this Agreement hereby warrants that they have 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 Vendor. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 28. Chanize in Companv Name or Ownership. Vendor must notify City's Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of Vendor or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director's resolution approving the action, or an executed merger or acquisition agreement. Failure to provide the specified documentation so may adversely impact future invoice payments. 29. No Bovcott of Israel. If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" has the meanings ascribed to those terms in Section 2271 of the Texas Government Code. By signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. Professional Services Agreement Page 8 of 14 30. Prohibition on Bovcottine Enemv Companies. Vendor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full- time employees unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 31. Prohibition on Discrimination Against Firearm and Ammunition Industries. Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. 32. Electronic Signatures. This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. 33. Entirety of Agreement. This Agreement contains the entire understanding and agreement between City and Vendor, 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. (signature page follows) Professional Services Agreement Page 9 of 14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples. CITY OF FORT WORTH: VENDOR (Hilltop Securities Asset Management, LLQ By: Name: D?dooke Title: Cier Date: APPROVAL RECOMMENDED: By: John Samford (Jun 9,202313:08 CDT) Name: John R. Samford Title: Assistant Finance Director & City Treasurer APPROVAL RECOMMENDED: keal�aU Zeno By: RegiYald Zeno (Jun 12, 202308:03 CDT) Name: Reginald Zeno Title: Chief Financial Officer ,o��ORrk 0 ATTEST: U. -I '=,Q via =v p°nnazos By: Name: Jannette Goodall Title: City Secretary CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: 24 Name: Alex Laufer Title: Debt Manager APPROVED AS TO FORM AND LEGALITY: By: r� Name: Denis McElroy Title: Sr. Assistant City Attorney CONTRACT AUTHORIZATION: M&C: N/A Form 1295: 2023-1029102 Professional Services Agreement By. David Medanich-1302 (Jun 9, 202312:02 CDT) Name: David Medanich Title: President Date: Page 10 of 14 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX EXHIBIT A SCOPE OF SERVICES Overview Vendor shall assist and advise the City regarding arbitrage obligations in connection with the sale and delivery of certain bonds, notes, certificates, or other tax-exempt obligations of the City and of any City affiliate such as the Lone Star Local Government Corporation and the Central City Local Government Corporation (the "Obligations" or "Bonds"). Vendor will advise and assist City in determining to what extent, if any, the City will be required to rebate certain investment earnings (the amount of such rebate being referred to herein as the "Arbitrage Amount") from the proceeds of the Obligations to the United States of America pursuant to the provisions of Section 148(f)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). For purposes of this Scope of Services, the term "Arbitrage Amount" includes payments made under the election to pay penalty in. lieu of rebate for a qualified construction issue under Section 148(f)(4) of the Code. Obligations Included This Scope of Services shall apply to all issues of tax-exempt Obligations delivered subsequent to the effective date of the rebate requirements under the Code, except for (i) issues which qualify for exceptions to the rebate requirements in accordance with Section 148 of the Code and related Treasury regulations, or (ii) issues excluded by the City in writing in accordance with the further provisions hereof, (iii) new issues effected in a fashion whereby Hilltop Securities Asset Management, LLC ("HSAM") is unaware of the existence of such issue, (iv) issues in which, for reasons outside the control of HSAM, HSAM is unable to procure the necessary information required to perform such services. Covenants of Hilltop Securities Asset Management HSAM agrees to provide its professional services in determining the Arbitrage Amount with regard to the Obligations. The City will assume and pay the fee of HSAM as such fee is set out in Exhibit B of the Agreement. HSAM shall not be responsible for any expenses incurred on behalf of City in connection with providing such professional services, including any costs incident to litigation, mandamus action, test case or other similar legal actions. HSAM agrees to perform the following duties in connection with providing arbitrage rebate compliance services: a. To cooperate fully with the City in reviewing the schedule of investments made by the City with (i) proceeds from the Obligations, and (ii) proceeds of other funds of the City which, under Treasury Regulations Section 1.148, or any successor regulations thereto, are subject to the rebate requirements of the Code; b. To perform, or cause to be performed, consistent with the Code and the regulations promulgated thereunder, calculations to determine the Arbitrage Amount under Section 148(f)(2) of the Code; and C. To provide a report to the City specifying the Arbitrage Amount based upon the investment schedule, the calculations of bond yield and investment yield, and other information deemed relevant by HSAM. In undertaking to provide the services set forth in paragraph 1 and this paragraph 2, HSAM does not assume any responsibility for any record retention requirements which the City may have under the Code or other applicable laws, it being understood that the City shall remain responsible for compliance with any such record Professional Services Agreement Page 11 of 14 retention requirements. HSAM shall maintain City records and work product pursuant to its own internal document retention policy. Covenants of the City In connection with the performance of the aforesaid duties, the City agrees to the following: a. The fees due to HSAM in providing arbitrage rebate compliance services shall be calculated in accordance with Exhibit B attached hereto. The fees will be payable upon delivery of the report prepared by HSAM for each issue of Obligations during the term of this Agreement. b. The City will provide HSAM all information regarding the issuance of the Obligations and the investment of the proceeds therefrom, and any other information necessary in connection with calculating the Arbitrage Amount. HSAM will rely on the information supplied by the City without inquiry, it being understood that HSAM will not conduct an audit or take any other steps to verify the accuracy or authenticity of the information provided by the City. The City will notify HSAM in writing of the retirement, prior to the scheduled maturity, of any Obligations included under the scope of this Agreement within 30 days of such retirement. This notification is required to provide sufficient time to comply with Treasury Regulations Section 1.148-3(g) which requires final payment of any Arbitrage Amount within 60 days of the final retirement of the Obligations. In the event the City fails to notify HSAM in a timely manner as provided hereinabove, HSAM shall have no further obligation or responsibility to provide any services under this Agreement with respect to such retired Obligations. 2. In providing the services set forth in this Agreement, it is agreed that HSAM shall not incur any liability for any error of judgment made in good faith by a responsible officer or officers thereof and, except to the limited extent set forth in this paragraph, shall not incur any liability for any other errors or omissions, unless it shall be proved that such error or omission was a result of the negligence or willful misconduct of said officer or officers. In the event a payment is assessed by the Internal Revenue Service due to an error by HSAM, the City will be responsible for paying the correct Arbitrage Amount, and HSAM's liability shall not exceed the amount of any penalty or interest imposed on the Arbitrage Amount as a result of such error. Additionally, it is understood and agreed that HSAM shall incur no liability for any errors, omissions, or failure to make a timely payment in connection with any IRS Computation Date calculations occurring prior to the effective date of the HSAM's initial engagement with the City for arbitrage rebate services, even if the error is discovered after the date of HSAM's engagement. No Coordination with Private Activity Regulations 1. The purpose of HSAM's engagement is to determine the Arbitrage Amount pursuant to Section 148(f)(2) of the Code. Sections 141-147 of the Code and the related Treasury Regulations set forth requirements with respect to the amount of obligation proceeds that may be used for the benefit of a private person or entity. Treasury Regulations Section 1.141-6(a) requires that allocations of expenditures of obligation proceeds for purposes of computing the Arbitrage Amount must be the Professional Services Agreement Page 12 of 14 same as the allocations of expenditures used to test the private use of projects financed with proceeds of the Obligations. 2. For purposes of calculating the Arbitrage Amount, HSAM's calculations assume that the allocation of the expenditures of Obligation proceeds as provided to HSAM are the same for both purposes of Sections 141-147 and Section 148 of the Code. The scope of this engagement does not include procedures to analyze the private use limitations associated with the Obligations. Obligations Issued Subsequent to Initial Agreement The services contracted for under this Agreement will automatically extend to any additional Obligations (including financing lease obligations) issued during the term of this Agreement if such Obligations are subject to the rebate requirements under Section 148(f)(2) of the Code. In connection with the issuance of additional Obligations, the City agrees to the following: a. The City will notify or cause the notification, in writing, to HSAM of any tax-exempt financing (including financing lease obligations) issued during any calendar year of this Agreement, and will provide HSAM with such information regarding such Obligations as HSAM may request in connection with its performance of the arbitrage rebate services contracted for hereunder. If such notice is not provided to HSAM with regard to a particular Obligation, HSAM shall have no obligation to provide any services hereunder with respect to such Obligation. b. At the option of the City, any additional Obligations to be issued subsequent to the execution of this Agreement may be excluded from the services provided for herein. In order to exclude an issue, the City must notify HSAM in writing of their intent to exclude any specific Obligations from the scope of this Agreement, which exclusion shall be permanent for the full life of the Obligations; and after receipt of such notice, HSAM shall have no obligation to provide any services under this Agreement with respect to such excluded Obligations. Professional Services Agreement Page 13 of 14 EXHIBIT B PAYMENT SCHEDULE The Obligations to be covered initially under this Agreement include all issues of tax-exempt obligations delivered subsequent to the effective dates of the rebate requirements, under the Code. The fee for any Obligations under this Agreement shall only be payable if a computation is required under Section 148(f)(2) of the Code. In the event that any of the Obligations fall within an exclusion to the computation requirement as defined by Section 148 of the Code or related regulations and no calculations were required by HSAM to make that determination, no fee will be charged for such issue. For example, certain obligations are excluded from the rebate computation requirement if the proceeds are spent within specific time periods. In the event a particular issue of Obligations fulfills the exclusion requirements of the Code or related regulations, the specified fee will not be owed to HSAM if no calculations were required to make the determination. HSAM's fee for arbitrage rebate services is based upon a fixed Calculation Period fee per issue. The Calculation Period fee is charged based upon the number of Calculation Periods that proceeds exist subject to rebate from the delivery date of the issue to the Calculation Date. HSAM's fees are payable upon delivery of the report. The first report will be made following one Calculation Period from the date of delivery of the Obligations and on each Calculation Date thereafter during the term of the Agreement. The fees for computations of the Arbitrage Amount which encompass more, or less, than one Calculation Period shall be prorated to reflect the longer, or shorter, period of work performed during that period. The fee for each of the Obligations included in this Agreement shall be based on the table below. Additionally, due to significant time saving efficiencies realized when investment information is submitted in an electronic format, the fees noted below shall be reduced by 10% if the City provides its information in a spreadsheet or electronic text file Description FEE AJN:NVUAL Car_CULAHONPERIOD C,aCULATTONPERIOD FEE $ 1,400 CO UPREHEN SIPE ARBITRA GE COMPLL-MrCE SERVICES EVCLUDE: • Commingled Funds Analysis &. Calculations • Spending Exception Analysis & Calculations Yield Restriction Anahsis & Calculations (for yield restricted Project Funds, Reserve Funds, Escrow Funds, etc.) • Parity Reserve Fund Allocations ■ Transferred Proceeds Calculations • Universal Cap Calculations • Debt Service Fund Calculations (including earnings test when required) INCLUDED • Preparation of all Required IRS Papen4 ork for Aiaking a Rebate Pk_y-ment i Yield Reduction Payment • Retention of Records Provided for Arbitrage Computations • IRS Audit Assistance Delivery of Rebate Calculations Each Year That Meets the Timing Requirements of the Audit Schedule ■ On -Site Meetings, as Appropriate, to Discuss Calculation Results i Subsequent Planning Items OTHER SERVICES A`'AILABLE: IRS Refund Request — Update calculation, prepare refund request package, and assist City as necessary in responding to subsequent IRS Information Requests $750 Commercial Paper Calculations Spending Exception Report Only (Each Draw is an Issue) $500 Full Rebate Calculation (12 Month Gather is an Issue) $1,400 Professional Services Agreement Page 14 of 14