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HomeMy WebLinkAboutPSA - Bond Arbitrage Services - Crowe LLP1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS April 14, 2020 Jennifer Wilson Crowe LLP 135 North Pennsylvania Street, Suite 200 Indianapolis, Indiana 46204 jennifer.wilson@crowe.com RE: Professional Services Agreement Dear Ms. Wilson: PHONE 574/235-9251 FAx 574/ 235-9171 The Board of Public Works, at its meeting held on April 14, 2020, approved the above referenced agreement for bond arbitrage services in the amount of $42,300. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, s/Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR Crowe LLP Independent Member Crowe Global 135 Pennsylvania Street, Suite 200 Indianapolis, IN 46204-2407 Tel 317-632-1100 Fax 317-635-6127 www.crowe.com February 14, 2020 Ben Dougherty City of South Bend 227 W Jefferson Blvd Ste 1200N South Bend, Indiana 46601-1830 Dear Mr. Dougherty: This letter agreement confirms the arrangements for Crowe LLP ("Crowe" or "we" or "us") to provide consulting services, as more fully set forth herein (the "Services"), and the deliverables set forth herein (the "Deliverables") in connection with Arbitrage Rebate Analysis for the City of South Bend ("Client" or "you" or "your") from information provided by Client or information provided to Crowe on Client's behalf. The attached Crowe Engagement Terms, and any attachments or addendums thereto, are an integral part of this letter agreement and are incorporated herein (collectively, the "Agreement"). SCOPE OF CROWE SERVICES Crowe will provide Services to Client which are outlined in Attachment A. The Services will be performed in accordance with the Standards for Consulting Services established by the American Institute of Certified Public Accountants. The extent and sufficiency of the Services and procedures to be performed will be determined with Client and are solely the responsibility of Client. Because these Services will not constitute an audit, review, or examination in accordance with standards established by the American Institute of Certified Public Accountants, Crowe will not express an opinion on any deliverables. Crowe has no obligation to perform any Services beyond those listed in Attachment A. If Crowe performs additional services beyond those listed, other matters might come to Crowe's attention that would be reported to Client. Crowe makes no representations as to the adequacy of the Services or any Deliverables for Client's purposes. Crowe will prepare a report ("Deliverables") reflecting findings of the Services outlined in Attachment A for use by Client. Crowe Services, any Deliverables, and any other work product are intended for the benefit and use of Client only. There are no intended third -party beneficiaries to this Agreement. This engagement will not be planned or conducted in contemplation of reliance by any other party or with respect to any specific transaction and is not intended to benefit or influence any other party. Therefore, items of possible interest to a third party may not be specifically addressed or matters may exist that could be assessed differently by a third party. The working papers for this engagement are the property of Crowe and constitute confidential information. This engagement cannot be relied upon to disclose errors, fraud, or illegal acts that may exist, and Crowe will not address legal or regulatory matters or abuses of management discretion, which are matters that should be discussed by Client with Client's legal counsel. Client is responsible for the accuracy and completeness of the information provided to Crowe for purposes of this engagement and for timely updating such information. Client agrees Crowe may rely on the information provided to Crowe without investigation or other attempts to verify its accuracy or completeness. Client has determined that Crowe's provision of Services shall not violate any statute or regulation. Client agrees to be responsible to: make all management decisions and perform all management functions. Client will designate a management representative who possesses suitable skill, knowledge, and/or City of South Bend 2 February 14, 2020 experience, to oversee the Services; evaluate the adequacy and results of the Services performed and any Deliverables; accept responsibility for the results of the Services; and establish and maintain internal controls, including monitoring ongoing activities. The management representative shall be knowledgeable in all laws, regulations, and industry practices applicable to the Services, any Deliverables, and any other work product. Client will be responsible to determine and approve the risk, scope, and frequency of Services to be performed, and the management representative shall coordinate, review, and approve Crowe's performance of Services. Client will be responsible for communicating Crowe's findings within Client's organization, and Client shall be responsible for determining when, whether, and how any recommendations or Deliverables from Crowe are to be implemented. Client shall also ensure that it has all rights and authority necessary to permit Crowe to access or use any systems or third -party products during performance of Services. For any third -party software applications, or related hardware, used by Client and to which Crowe must have access for purposes of providing the Services, Client represents that it has obtained any necessary licenses for Crowe to perform the Services. ACCEPTANCE OF FORMAL DELIVERABLES Any issues with a Deliverable after a Deliverable is accepted shall be treated as a change in scope of the engagement. DEFINITION OF ENGAGEMENT COMPLETION This engagement shall be concluded upon acceptance of the Deliverables or when terminated in writing by one of the parties. FEES Fees and expenses are outlined in Attachment A We will invoice you for our Services on a monthly basis as Services as rendered and for out-of-pocket expenses as they are incurred. Additionally, we understand that management may have questions throughout the engagement. Our fee structure is designed to ensure that our clients are not reluctant to call us when questions arise. Routine telephone calls for advice/questions are considered part of the basic Services and do not involve additional fees. However, should questions be posed that require significant research, we will discuss with the Client the approach in completing such research and the potential fee that may be necessary and obtain management approval before conducting any research. These additional costs will be billed at least quarterly, if incurred. Our invoices are due and payable upon receipt. If any amounts invoiced remain unpaid 30 days after the invoice date, you agree that Crowe may, in its sole discretion, cease work until all such amounts are paid or terminate this engagement. The fee payment arrangements are designed for clarity and efficiency and may not correspond to the amount of time and cost we incur on your behalf during a particular calendar period for a variety of reasons. The professional fees and expenses that are actually incurred may exceed the billing amounts we invoice to you early in the process. You agree that in the event, regardless of the cause, the arrangement under this letter is terminated, you will pay us any professional fees and expenses incurred in excess of billings received, in addition to any termination payment this letter might require. Similarly, in the event of early termination, if your payments have exceeded our fees and expenses, we will return the excess payments to you. The above fees are based on the Services to be provided under this Agreement. Fees and expenses for any additional projects or services will be agreed to and billed separately. The fees outlined above are based on certain assumptions. Those assumptions may be incorrect due to incomplete or inaccurate information provided, or circumstances may arise under which we must perform City of South Bend 3 February 14, 2020 additional work, which in either case will require additional billings for our Services. Examples of such circumstances include, but are not limited to: • New or changing professional standards or regulatory requirements • A change in the Services Plan by Client • A change in your information systems environment over the time period • Erroneous or incomplete information or records • New or unusual transactions • Change in your organizational structure or size due to merger and acquisition activity or other events • Change in your controls • Agreed -upon level of preparation and assistance from your personnel not provided • Numerous revisions to your information • Lack of availability of appropriate Client personnel during fieldwork. Additionally, to accommodate requests to reschedule fieldwork without reasonable notice, additional billings for our Services could be required, and our assigned staffing and ability to meet agreed -upon deadlines could be impacted. Reasonable notice is deemed as a minimum of ten business days before the start of fieldwork. Due to such potential changes in circumstance, we reserve the right to revise our fees. However, if such a change in circumstances arises or if some other significant change occurs that causes our fees to exceed our estimate, we will advise management. Additionally, these fees do not consider any time that might be necessary to assist management in the implementation or adoption of new or existing accounting, reporting, regulatory, or tax requirements that may apply. Our fee estimates also assume that personnel of the Client will assist us in gathering the information necessary to perform the engagement, including obtaining supporting documents, pulling customer files, following up on exceptions, and in other similar ways. Further, our fees and expenses take into consideration the pre -planning that takes place in coordinating our review. If Crowe is requested to delay the start of the confirmed review, we reserve the right to invoice you for all expenses incurred for which we cannot recuperate and any professional time for which Crowe professionals cannot be re -assigned to other projects. We assume that no irregularities will be discovered, no unusual procedures will be required, internal control is reasonably adequate, and there will be no substantial changes in the operations of the Client. If unforeseen circumstances indicate that the fees will change, the situation will be discussed with management. Our fees are exclusive of taxes or similar charges, as well as customs, duties or tariffs, imposed in respect of the Services, any work product or any license, all of which Client agrees to pay if applicable or if they become applicable (other than taxes imposed on Crowe's income generally), without deduction from any fees or expenses invoiced to Client by Crowe. To facilitate Crowe's presence at Client's premises, Client will provide Crowe with internet access while on Client's premises. Crowe will access the internet using a secure virtual private network. Crowe will be responsible for all internet activity performed by its personnel while on Client's premises. In the event Client does not provide Crowe with internet access while on Client's premises, Client will reimburse Crowe for the cost of internet access through other means while on Client's site. CONTRACT TERMINATION From time -to -time, businesses decide that an Agreement does not continue to meet their needs. Accordingly, we mutually agree that either party can terminate this engagement upon delivery of written notice 90 days prior to the date of the desired termination. We also mutually agree that specific scope elements may be terminated upon delivery of written notice 90 days prior to the date of the desired termination. MISCELLANEOUS City of South Bend 4 February 14, 2020 For purposes of this Miscellaneous section, the Acceptance section below, and all of the Crowe Engagement Terms, "Client" will mean the entity(ies) defined in the first paragraph of this letter and will also include all related parents, subsidiaries, and affiliates of Client who may receive or claim reliance upon any Crowe deliverable. Crowe will provide the services to Client under this Agreement as an independent contractor and not as Client's partner, agent, employee, or joint venturer under this Agreement. Neither Crowe nor Client will have any right, power or authority to bind the other party. This engagement letter agreement (the "Agreement") reflects the entire agreement between the parties relating to the services (or any reports, deliverables or other work product) covered by this Agreement. The engagement letter and any attachments (including without limitation the attached Crowe Engagement Terms) are to be construed as a single document, with the provisions of each section applicable throughout. This Agreement may not be amended or varied except by a written document signed by each party. It replaces and supersedes any other proposals, correspondence, agreements and understandings, whether written or oral, relating to the services covered by this letter, and each party agrees that in entering this Agreement, it has not relied on any oral or written representations, statements or other information not contained in or incorporated into this Agreement. Any non -disclosure or other confidentiality agreement is replaced and superseded by this Agreement. Each party shall remain obligated to the other party under all provisions of this Agreement that expressly or by their nature extend beyond and survive the expiration or termination of this Agreement. If any provision (in whole or in part) of this Agreement is found unenforceable or invalid, this will not affect the remainder of the provision or any other provisions in this Agreement, all of which will continue in effect as if the stricken portion had not been included. This Agreement may be executed in two or more actual, scanned, emailed, or electronically copied counterparts, each and all of which together are one and the same instrument. Accurate transmitted copies (transmitted copies are reproduced documents that are sent via mail, delivery, scanning, email, photocopy, facsimile or other process) of the executed Agreement or signature pages only (whether handwritten or electronic signature), will be considered and accepted by each party as documents equivalent to original documents and will be deemed valid, binding and enforceable by and against all parties. This Agreement must be construed, governed, and interpreted under the laws of the State of Indiana, without regard for choice of law principles. We are pleased to have this opportunity to serve you, and we look forward to a continuing relationship. If the terms of this letter and the attached Crowe Engagement Terms are acceptable to you, please sign below and return one copy of this letter at your earliest convenience. Please contact us with any questions or concerns. (Signature Page Follows) City of South Bend 5 February 14, 2020 ACCEPTANCE I have reviewed the arrangements outlined above and in the attached "Crowe Engagement Terms," and I accept on behalf of the Client the terms and conditions as stated. By signing below, I represent and warrant that I am authorized by Client to accept the terms and conditions as stated. IN WITNESS WHEREOF, Client and Crowe have duly executed this engagement letter effective the date first written above. City of South Bend Signature Printed Name Title April 14, 2020 Date BOARD OF PUBLIC W ORKS (Lary A. Gilot, President n Elizabeth A. Marachk, Member Therese J. Doran, Member Jordan V. Gathers, Member Joseph R. Molnar, Member A'LTES'P: C.1111; C`41"main Linda M. Marfin Clerk Crowe LLP Signature Jennifer Z. Wilson Printed Name Managing Director Title April 8, 2020 Date City of South Bend 6 February 14, 2020 Crowe Engagement Terms Crowe wants Client to understand the terms under which Crowe provides its services to Client and the basis under which Crowe determines its fees. These terms are part of the Agreement and apply to all services described in the Agreement as well as all other services provided to Client (collectively, the "Services"), unless and until a separate written agreement is executed by the parties for separate services. Any advice provided by Crowe is not intended to be, and is not, investment advice. CLIENT'S ASSISTANCE — For Crowe to provide Services effectively and efficiently, Client agrees to provide Crowe timely with information requested and to make available to Crowe any personnel, systems, premises, records, or other information as reasonably requested by Crowe to perform the Services. Access to such personnel and information are key elements for Crowe's successful completion of Services and determination of fees. If for any reason this does not occur, a revised fee to reflect additional time or resources required by Crowe will be mutually agreed. Client agrees Crowe will have no responsibility for any delays related to a delay in providing such information to Crowe. Such information will be accurate and complete, and Client will inform Crowe of all significant tax, accounting and financial reporting matters of which Client is aware. PROFESSIONAL STANDARDS — As a regulated professional services firm, Crowe must follow professional standards when applicable, including the Code of Professional Conduct of the American Institute of Certified Public Accountants ("AICPA") and, to the extent applicable, the Public Company Accounting Oversight Board (PCAOB). Thus, if circumstances arise that, in Crowe's professional judgment, prevent it from completing the engagement, Crowe retains the right to take any course of action permitted by professional standards, including declining to express an opinion or issue other work product or terminating the engagement. REPORTS — Any information, advice, recommendations or other content of any memoranda, reports, deliverables, work product, presentations, or other communications Crowe provides under this Agreement ("Reports"), other than Client's original information, are for Client's internal use only, consistent with the purpose of the Services. Client will not rely on any draft Report. Unless required by an audit or other attestation professional standard, Crowe will not be required to update any final Report for circumstances of which we become aware or events occurring after delivery. CONFIDENTIALITY — Except as otherwise permitted by this Agreement or as agreed in writing, neither Crowe nor Client may disclose to third parties any information provided by or on behalf of the other that is expressly designated as confidential and/or proprietary. Client use of any Crowe work product will be limited to its stated purpose and to Client business use only. However, Client and Crowe each agree that either party may disclose such information to the extent that it: (i) is or becomes public other than through a breach of this Agreement, (ii) is subsequently received by the recipient from a third party who, to the recipient's knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information, (iii) was known to the recipient at the time of disclosure or is thereafter created independently, (iv) is disclosed as necessary to enforce the recipient's rights under this Agreement, or (v) must be disclosed under applicable law, regulations, legal process or professional standards. THIRD PARTY PROVIDER — Crowe may use a third -party provider in providing Services to Client, if Client agrees to and authorizes such use in writing and in advance of Crowe hiring any third -party provider. Use of a third -party provider may require Crowe to share Client confidential information with the provider. If Crowe uses a third -party provider, Crowe will enter into a confidentiality agreement with the provider to require the provider to protect the confidentiality of Client's confidential information, and Crowe will be responsible to Client for maintaining its confidentiality. The limitations on Client's remedies, vis-a-vis Crowe, in this Agreement will also apply to any subcontractors. DATA PROTECTION — If Crowe holds or uses Client information that can be linked to specific individuals who are Client's customers ("Personal Data"), Crowe will treat it as confidential and comply with applicable US state and federal law and professional regulations (including, for financial institution clients, the objectives of the Interagency Guidelines Establishing Information Security Standards) in disclosing or using such information to carry out the Services. The parties acknowledge and understand that while Crowe is a service provider as defined by the California Consumer Privacy Act of 2018 and processes Client City of South Bend 7 February 14, 2020 information pursuant to this Agreement, Crowe retains its independence as required by applicable law and professional standards for purposes of providing attest services and other services. Crowe will not (1) sell Personal Data to a third party, or (2) retain, use or disclose Personal Data for any purpose other than for (a) performing the Services and its obligations on this Agreement, (b) as otherwise set forth in this Agreement, (c) to detect security incidents and protect against fraud or illegal activity, (d) to enhance and develop our products and services, including through machine learning and other similar methods and (e) as necessary to comply with applicable law or professional standards. Crowe has implemented and will maintain physical, electronic and procedural safeguards reasonably designed to (i) protect the security, confidentiality and integrity of the Personal Data, (ii) prevent unauthorized access to or use of the Personal Data, and (iii) provide proper disposal of the Personal Data (collectively, the "Safeguards"). Client represents (i) that it has the authority to provide the Personal Data to Crowe in connection with the Services, (ii) that Client has processed and provided the Personal Data to Crowe in accordance with applicable law, and (iii) will limit the Personal Data provided to Crowe to Personal Data necessary to perform the Services. To provide the Services, Client may also need to provide Crowe with access to Personal Data consisting of protected health information, financial account numbers, Social Security or other government -issued identification numbers, or other data that, if disclosed without authorization, would trigger notification requirements under applicable law ("Restricted Personal Data"). In the event Client provides Crowe access to Restricted Personal Data, Client will consult with Crowe on appropriate measures (consistent with legal requirements and professional standards applicable to Crowe) to protect the Restricted Personal Data, such as: deleting or masking unnecessary information before making it available to Crowe, using encryption when transferring it to Crowe, or providing it to Crowe only during on -site review on Client's site. Client will provide Crowe with Restricted Personal Data only in accordance with mutually agreed protective measures. Otherwise, Client and Crowe agree each may use unencrypted electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement. Crowe will reasonably cooperate with Client in responding to or addressing any request from a consumer or data subject, a data privacy authority with jurisdiction, or the Client, as necessary to enable Client to comply with its obligations under applicable data protection laws and to the extent related to Personal Data. Client will reimburse Crowe for any out-of-pocket expenses and professional time (at Crowe's then -current hourly rates) incurred in connection with providing such cooperation. Client will provide prompt written notice to Crowe (with sufficient detailed instructions) of any request or other act that is required to be performed by Crowe. As appropriate, Crowe will promptly delete or procure the deletion of the Personal Data, after the cessation of any Services involving the processing of Client's Personal Data, or otherwise aggregate or de -identify the Personal Data in such a way as to reasonably prevent reidentification. Notwithstanding the forgoing, Crowe may retain a copy of the Personal Data as permitted by applicable law or professional standards, provided that such Personal Data remain subject to the terms of this Agreement. If Crowe uses a third -party provider, Crowe will include terms substantially similar to those set forth in this Data Protection Paragraph in an agreement with such provider. GENERAL DATA PROTECTION REGULATION COMPLIANCE — If and to the extent that Client provides personal data to Crowe subject to the European Union General Data Protection Regulation ("GDPR"), then in addition to the requirements of the above Data Protection section, this section will apply to such personal data ("EU Personal Data"). The parties agree that for purposes of processing the EU Personal Data, (a) Client will be the "Data Controller" as defined by the GDPR, meaning the organization that determines the purposes and means of processing the EU Personal Data; (b) Crowe will be the "Data Processor" as defined by GDPR, meaning the organization that processes the EU Personal Data on behalf of and under the instructions of the Data Controller; or (c) the parties will be classified as otherwise designated by a supervisory authority with jurisdiction. Client and Crowe each agree to comply with the GDPR requirements applicable to its respective role. Crowe has implemented and will maintain technical and organizational security safeguards reasonably designed to protect the security, confidentiality and integrity of the EU Personal Data. Client represents it has secured all required rights and authority, including consents and notices, to provide such EU Personal Data to Crowe, including without limitation authority to transfer such EU Personal Data to the U.S. or other applicable Country or otherwise make the EU Personal Data available to Crowe, for the duration of and purpose of Crowe providing the Services. The types of EU Personal Data to be processed include name, contact information, title, and other EU Personal Data that is transferred to Crowe in connection with the Services. The EU Personal Data relates to the data subject categories of individuals connected to Client, Client customers, Client vendors, and Client affiliates or subsidiaries ("Data Subjects"). Crowe will process the EU Personal Data for the following purpose: (x) to provide the Services in accordance with this Agreement, (y) to comply with other documented reasonable instructions provided City of South Bend 8 February 14, 2020 by Client, and (z) to comply with applicable law. In the event of a Crowe breach incident in connection with EU Personal Data in the custody or control of Crowe, Crowe will promptly notify Client upon knowledge that a breach incident has occurred. Client has instructed Crowe not to contact any Data Subjects directly, unless required by applicable law. In the event that a supervisory authority with jurisdiction makes the determination that Crowe is a data controller, Client will reasonably cooperate with Crowe to enable Crowe to comply with its obligations under GDPR. INTELLECTUAL PROPERTY — Any working papers, or other work product conceived, made or created by Crowe in rendering the Services under this Agreement ("Work Product"), and all intellectual property rights in such Work Product will be owned exclusively by Crowe. Further, Crowe will retain exclusive ownership or control of all intellectual property rights in any ideas, concepts, methodologies, data, software, designs, utilities, tools, models, techniques, systems, Reports, or other know-how that it develops, owns or licenses in connection with this Agreement ("Materials"). The foregoing ownership will be without any duty of accounting. DATA USAGE AND AGGREGATIONS - Client hereby acknowledges and agrees that Crowe may, in its discretion, use any Client information or data provided to Crowe to improve Crowe services and Materials, including without limitation developing new Crowe services and software or other products. Client also agrees that Crowe may, in its discretion, aggregate Client content and data with content and data from other clients, other sources, or third parties ("Data Aggregations") for purposes including, without limitation, product and service development, commercialization, industry benchmarking, or quality improvement initiatives. Prior to, and as a precondition for, disclosing Data Aggregations to other Crowe customers or prospects, Crowe will anonymize any Client data or information in a manner sufficient to prevent such other customer or prospect from identifying Client or individuals who are Client customers. All Data Aggregations will be the sole and exclusive property of Crowe. LEGAL AND REGULATORY CHANGE — Crowe may periodically communicate to Client changes in laws, rules or regulations. However, Client has not engaged Crowe, and Crowe does not undertake an obligation, to advise Client of changes in (a) laws, rules, regulations, industry or market conditions, or (b) Client's own business practices or other circumstances (except to the extent required by professional standards). The scope of Services and the fees for Services are based on current laws and regulations. If changes in laws or regulations change Client's requirements or the scope of the Services, Crowe's fees will be modified to a mutually agreed amount to reflect the changed level of Crowe's effort. PUBLICATION — Client agrees to obtain Crowe's specific permission before using any Report or Crowe work product or Crowe's firm's name in a published document, and Client agrees to submit to Crowe copies of such documents to obtain Crowe's permission before they are filed or published. NO PUNITIVE OR CONSEQUENTIAL DAMAGES — Any liability of Crowe will not include any consequential, special, incidental, indirect, punitive, or exemplary damages or loss, nor any lost profits, goodwill, savings, or business opportunity, even if Crowe had reason to know of the possibility of such damages. LIMIT OF LIABILITY — Except where it is judicially determined that Crowe performed its Services with recklessness or willful misconduct, Crowe's liability will not exceed fees paid by Client to Crowe for the Services. A claim for a return of fees paid is the exclusive remedy for any damages. This limit of liability will apply to the full extent allowed by law, regardless of the grounds or nature of any claim asserted, including, without limitation, to claims based on principles of contract, negligence or other tort, fiduciary duty, warranty, indemnity, statute or common law. This limit of liability will also apply after this Agreement. INDEMNIFICATION FOR THIRD -PARTY CLAIMS — In the event of a legal proceeding or other claim brought against Crowe by a third party, except where it is judicially determined that Crowe performed the Services with recklessness or willful misconduct, Client agrees to indemnify and hold harmless Crowe and its personnel against all costs, fees, expenses, damages and liabilities, including attorney fees and any other fees or defense costs, associated with such third -party claim, relating to or arising from any Services performed or work product provided by Crowe that Client uses or discloses to others or this engagement generally. This indemnification is intended to apply to the full extent allowed by law, regardless of the City of South Bend 9 February 14, 2020 grounds or nature of any claim, liability, or damages asserted, including, without limitation, to claims, liability or damages based on principles of contract, negligence or other tort, fiduciary duty, warranty, indemnity, statute or common law. This indemnification will also apply after termination of this Agreement. NO TRANSFER OR ASSIGNMENT OF CLAIMS — No claim against Crowe, or any recovery from or against Crowe, may be sold, assigned or otherwise transferred, in whole or in part. TIME LIMIT ON CLAIMS — In no event will any action against Crowe, arising from or relating to this engagement letter or the Services provided by Crowe relating to this engagement, be brought after the earlier of 1) two (2) years after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or 2) the expiration of the applicable statute of limitations or repose. RESPONSE TO LEGAL PROCESS — If Crowe is requested by subpoena, request for information, or through some other legal process to produce documents or testimony pertaining to Client or Crowe's Services, and Crowe is not named as a party in the applicable proceeding, then Client will reimburse Crowe for its professional time, plus out-of-pocket expenses, as well as reasonable attorney fees, Crowe incurs in responding to such request. MEDIATION — If a dispute arises, in whole or in part, out of or related to this engagement, or after the date of this agreement, between Client or any of Client's affiliates or principals and Crowe, and if the dispute cannot be settled through negotiation, Client and Crowe agree first to try, in good faith, to settle the dispute by mediation administered by the American Arbitration Association, under its mediation rules for professional accounting and related services disputes, before resorting to litigation or any other dispute - resolution procedure. The results of mediation will be binding only upon agreement of each party to be bound. Costs of any mediation will be shared equally by both parties. Any mediation will be held in South Bend, Indiana. JURY TRIAL WAIVER — FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES, THE PARTIES AGREE TO WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY. HOWEVER, AND NOTWITHSTANDING THE FOREGOING, IF ANY COURT RULES OR FINDS THIS JURY TRIAL WAIVER TO BE UNENFORCEABLE AND INEFFECTIVE IN WAIVING A JURY, THEN ANY DISPUTE RELATING TO OR ARISING FROM THIS ENGAGEMENT OR THE PARTIES' RELATIONSHIP GENERALLY WILL BE RESOLVED BY ARBITRATION AS SET FORTH IN THE PARAGRAPH BELOW REGARDING "ARBITRATION." ARBITRATION — If any court rules or finds that the JURY TRIAL WAIVER section is not enforceable, then any dispute between the parties relating to or arising from this Agreement or the parties' relationship generally will be settled by binding arbitration in South Bend, Indiana (or a location agreed in writing by the parties). Any issues concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of this Section, will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). The arbitration will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). Regardless of the amount in controversy, the arbitration will be administered by JAMS, Inc. ("JAMS"), pursuant to its Streamlined Arbitration Rules & Procedures or such other rules or procedures as the parties may agree in writing. In the event of a conflict between those rules and this Agreement, this Agreement will control. The parties may alter each of these rules by written agreement. If a party has a basis for injunctive relief, this paragraph will not preclude a party seeking and obtaining injunctive relief in a court of proper jurisdiction. The parties will agree within a reasonable period of time after notice is made of initiating the arbitration process whether to use one or three arbitrators, and if the parties cannot agree within fifteen (15) business days, the parties will use a single arbitrator. In any event the arbitrator(s) must be retired federal judges or attorneys with at least 15 years commercial law experience and no arbitrator may be appointed unless he or she has agreed to these procedures. If the parties cannot agree upon arbitrator(s) within an additional fifteen (15) business days, the arbitrator(s) will be selected by JAMS. Discovery will be permitted only as authorized by the arbitrator(s), and as a rule, the City of South Bend 10 February 14, 2020 arbitrator(s) will not permit discovery except upon a showing of substantial need by a party. To the extent the arbitrator(s) permit discovery as to liability, the arbitrator(s) will also permit discovery as to causation, reliance, and damages. The arbitrator(s) will not permit a party to take more than six depositions, and no depositions may exceed five hours. The arbitrator(s) will have no power to make an award inconsistent with this Agreement. The arbitrator(s) will rule on a summary basis where possible, including without limitation on a motion to dismiss basis or on a summary judgment basis. The arbitrator(s) may enter such prehearing orders as may be appropriate to ensure a fair hearing. The hearing will be held within one year of the initiation of arbitration, or less, and the hearing must be held on continuous business days until concluded. The hearing must be concluded within ten (10) business days absent written agreement by the parties to the contrary. The time limits in this section are not jurisdictional. The arbitrator(s) will apply substantive law and may award injunctive relief or any other remedy available from a judge. The arbitrator(s) may award attorney fees and costs to the prevailing party, and in the event of a split or partial award, the arbitrator(s) may award costs or attorney fees in an equitable manner. Any award by the arbitrator(s) will be accompanied by a reasoned opinion describing the basis of the award. Any prior agreement regarding arbitration entered by the parties is replaced and superseded by this agreement. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. All aspects of the arbitration will be treated by the parties and the arbitrator(s) as confidential. NON -SOLICITATION — Each party acknowledges that it has invested substantially in recruiting, training and developing the personnel who render services with respect to the material aspects of the engagement ("Key Personnel"). The parties acknowledge that Key Personnel have knowledge of trade secrets or confidential information of their employers that may be of substantial benefit to the other party. The parties acknowledge that each business would be materially harmed if the other party was able to directly employ Key Personnel. Therefore, the parties agree that during the period of this Agreement and for one (1) year after its expiration or termination, neither party will solicit Key Personnel of the other party for employment or hire the Key Personnel of the other party without that party's written consent unless hiring or engaging party pays to the other party a fee equal to the hired or engaged Key Personnel's compensation for the prior twelve-month period with the other party. CROWE AND EQUAL OPPORTUNITY — Crowe abides by the principles of equal employment opportunity, including without limitation the requirements of 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. Crowe also abides by 29 CFR Part 471, Appendix A to Subpart A. The parties agree that the notice in this paragraph does not create any enforceable rights for any firm, organization, or individual. Crowe and its subcontractors further agree not to discriminate against any firm or employee or applicant for employment in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of contract or employment, or any matter directly or indirectly related to contracting or employment because of race, sex, sexual orientation, gender identity, religion, color, national origin, ancestry, age or disability that does not affect that person's ability to perform the work. CROWE GLOBAL NETWORK — Crowe LLP and its subsidiaries are independent members of Crowe Global, a Swiss organization. "Crowe" is the brand used by the Crowe Global network and its member firms, but it is not a worldwide partnership. Crowe Global and each of its members are separate and independent legal entities and do not obligate each other. Crowe LLP and its subsidiaries are not responsible or liable for any acts or omissions of Crowe Global or any other Crowe Global members, and Crowe LLP and its subsidiaries specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Global or any other Crowe Global member. Crowe Global does not render any professional services and does not have an ownership or partnership interest in Crowe LLP or any other member. Crowe Global and its other members are not responsible or liable for any acts or omissions of Crowe LLP and its subsidiaries and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe LLP and its subsidiaries. Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global. City of South Bend 11 February 14, 2020 City of South Bend 12 February 14, 2020 ATTACHMENTA Scope of Services The scope of services provided by Crowe may include the following: • Prepare an analysis of the funds of the City of South Bend Redevelopment Authority Lease Rental Revenue Refunding Bonds of 2015 (Eddy Street Commons Project) ("Redevelopment 2015 Refunding Bonds") to determine if any of the funds are subject to arbitrage rebate or yield restriction. Calculate the arbitrage rebate or yield restriction payment owed as of February 1, 2020, if any fund is subject to arbitrage rebate/yield restriction. • Calculate the arbitrage rebate or yield restriction payment owed as of February 1, 2020, for the City of South Bend Redevelopment Authority Lease Rental Revenue Bonds of 2015 ("Redevelopment 2015 Bonds"). • Prepare an analysis of the funds of the City of South Bend Economic Development Income Tax Bonds of 2015 ("EDIT 2015 Bonds") to determine the funds subject to arbitrage rebate or yield restriction. Calculate the arbitrage rebate or yield restriction payment owed as of August 4, 2020 or other such date selected by the Client that is no later than August 4, 2020. • Prepare an analysis of the funds of the City of South Bend Sewage Works Revenue Bonds of 2009 ("2009 Sewer Bonds"), the South Bend Sewage Works Revenue Bonds of 2010 ("2010 Sewer Bonds"), the South Bend Sewage Works Revenue Bonds of 2011 ("2011 Sewer Bonds"), the South Bend Sewage Works Revenue Bonds of 2012 ("2012 Sewer Bonds"), the South Bend Sewage Works Revenue Bonds of 2013A ("2013 Sewer Bonds"), and the South Bend Sewage Works Refunding Revenue Bonds of 2015 ("2015 Sewer Bonds") (collectively, the "Sewer Bonds:) to determine the funds subject to arbitrage rebate or yield restriction. Calculate the arbitrage rebate or yield restriction payment owed o as of January 31, 2019, for the 2009 Sewer Bonds, o amount of rebate accrued as of January 31, 2020, for the ten-year anniversary date that is to be no later than December 21, 2020, (the bond year date is to be selected by the Client), for the 2010 Sewer Bonds, o as of October 25, 2016 (or other such date selected by the Client that is no later than October 25, 2016), for the 2011 Sewer Bonds, o as of December 13, 2017 (or other such date selected by the Client that is no later than December 13, 2017), for the 2012 Sewer Bonds, o as of April 25, 2018 (or other such date selected by the Client that is no later than April 25, 2018), for the 2013 Sewer Bonds, and o amount of rebate accrued as of January 31, 2020 for the first five-year anniversary date that is no later than December 8, 2020, (the bond year date is to be selected by the Client) for the 2015 Sewer Bonds. • Prepare an analysis of the funds of the City of South Bend Waterworks Revenue Bonds of 2009, Series A ("2009A Water Bonds"), the South Bend Waterworks Revenue Bonds of 2009, Series B ("2009B Water Bonds"), the South Bend Waterworks Revenue Bonds of 2012 ("2012 Water Bonds"), the South Bend Waterworks Refunding Revenue Bonds of 2012, Series B ("2012B Water Bonds"), and the South Bend Waterworks Refunding Revenue Bonds of 2016 ("2016 Water Bonds") (collectively, the "Water Bonds:) to determine the funds subject to arbitrage rebate or yield restriction. Calculate the arbitrage rebate or yield restriction payment owed o as of January 31, 2019, for the 2009A Water Bonds, o as of November 5, 2019, for the 2009B Water Bonds, o as of June 21, 2017 (or other such date selected by the Client that is no later than June 21, 2017), for the 2012 Water Bonds, o as of November 29, 2017 (or other such date selected by the Client that is no later than November 29, 2017), for the 2012B Water Bonds, and o amount of rebate accrued as of January 31, 2020, for the five-year anniversary date that is to be no later than December 27, 2021, (the bond year date is to be selected by the Client), for the 2016 Water Bonds, City of South Bend 13 February 14, 2020 • Prepare an analysis of the funds of the City of South Bend Building Corporation First Mortgage Revenue Refunding Bonds, Series 2012 ("Building Corporation 2012 Bonds") to determine if any of the funds are subject to arbitrage rebate or yield restriction. Calculate the arbitrage rebate or yield restriction payment owed as of January 1, 2017, if any fund is subject to arbitrage rebate/yield restriction. • Prepare an analysis of the funds of the City of South Bend Building Corporation First Mortgage Revenue Bonds, Series 2013 ("Building Corporation 2013 Bonds") to determine if any of the funds are subject to arbitrage rebate or yield restriction. Calculate the arbitrage rebate or yield restriction payment owed as of February 1, 2018, if any fund is subject to arbitrage rebate/yield restriction. • Prepare an analysis of the funds of the City of South Bend Building Corporation County Option Income Tax Lease Rental Revenue Refunding Bonds of 2010 ("Building Corporation COIT 2010 Bonds") to determine the funds subject to arbitrage rebate or yield restriction. Calculate the arbitrage rebate or yield restriction payment owed as of February 24, 2020. • Assistance with the preparation of the rebate payment forms, if applicable. Fees The total fee for this project will be $42,300 as detailed below plus out-of-pocket expenses. Services requested which are outside the scope of services listed herein will be described and quoted separately. Redevelopment 2015 Refunding Bonds $ 2,400 Redevelopment 2015 Bonds 4,000 EDIT 2015 Bonds 4,000 Sewer Bonds 9,500 Water Bonds 9,500 Building Corporation 2012 Bonds 2,400 Building Corporation 2013 Bonds 4,000 Building Corporation COIT 2010 Bonds 6,500 Total Fees 42 300 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 4/8/2020 Name Beniamin Dougherty Department A&F BPW Date 4/14/2020 Phone Extension Via Microsoft Teams Review and Approval Required Prior to Submittal to Board Diversity Compliance ❑ Officer Name and Inclusion Officer BPW Attorney ❑ Attorney Name Dept. Attorney ® Attorney Name Elliot Anderson Purchasing ❑ Check the Appropriate Item Tvbe — Reauired for All Submissions N Professional Services Agreement U Contract U Proposal ❑ Open Market Contract ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Reject Bids/Quotes ❑ Proposal Opening ❑ C/O & PCA No. ❑ PCA ❑ Chg. Order, No. ❑ Traffic Control ❑ Resolution n Other: n Ease./Encroach Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Information Crowe LLP ❑ Yes ❑ If Yes, Approved by Purchasing ® No E] MBE ❑ WBE Completed E-Verify Form Attached ❑❑ Yes No Bond Arbitrage Services N/A General Fund (Fund 101) 101-0401-415.31-06 $42,300 Fees for deliverables Perform analyses and computations regarding tax compliance procedures for outstanding bond issues. For Change Orders Only Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount Current Percent of Change: New Amount Total Percent of Change: Time Extension Amount: New Completion Date: Increase Decrease Increase Decrease