HomeMy WebLinkAboutBNY Western Trust Company; 2003-08-20;!
AGREEMENT FOR TRUSTEE AND PAYING AGENT SERVICES
BNY WESTERN TRUST COMPANY
THIS AGREEMENT is made and entered into as of the .?Q 4% day of &?u>* ,
2003, by and between the CARLSBAD HOUSING AND REDEVELOPMENT COMMIS ION, a
public body corporate and politic duly organized and existing under the laws of the State of
California (“Commission”), and BNY Western Trust Company, a California banking corporation
(“Contractor”).
RECITALS
The Commission requires the professional services of a firm that is experienced in
providing Trustee and Paying Agent Services. Contractor has the necessary experience in
providing these professional services, has submitted a proposal to the Commission and has
affirmed its willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, the Commission and Contractor agree as follows:
1. Scope of Work. The Commission retains Contractor to perform, and Contractor agrees
to render, all applicable services (the “Services”) that are defined in the original Indenture of
Trust dated as of August 15, 1993 relating to Carlsbad Housing and Redevelopment
Commission Village Redevelopment Project 1993 Tax Allocation Bonds.
2. Term. This Agreement will be in effect until September 1, 2023 or until the life of the
bond issue expires, unless earlier terminated by either the Commission or Contractor under
Paragraph 9 below.
3. Compensation. The fees payable for the Services to be performed will be paid as
defined in Exhibit “A,” (pages 3 and 4 of Exhibit “A). Fees are not subject to increase prior to
the fifth anniversary date of appointment. No other compensation for the Services will be
allowed except for items covered by subsequent amendments to this Agreement.
4. Status of Contractor. Contractor will perform the Services as an independent contractor
and in pursuit of Contractor’s independent calling, and not as an employee of the Commission.
Contractor will be under the control of the Commission only as to the results to be accomplished.
5. Indemnification. Contractor agrees to provide indemnification as is stated in the
governing documents related to each specific bond issue, for which contractor shall serve as
trustee, fiscal agent or paying agent.
6. Insurance. Contractor will obtain and .maintain policies of commercial general liability
insurance, automobile liability insurance, a combined policy of workers’ compensation,
employer’s liability insurance, and professional liability insurance from an insurance company
authorized to transact the business of insurance in the State of California which has a current
rating in the Best‘s Key Rating guide of at least A-:V in an amount of not less than five hundred
thousand dollars ($500,000) each, unless otherwise authorized and approved by the
Commission Chief Executive Officer or Chief Financial Officer. Contractor will obtain occurrence
coverage, excluding Professional Liability, which will be written as claims-made coverage. The
insurance will be in force during the life of this Agreement and will not be canceled without thirty
City Attorney Approved Version W4.04.02
1
(30) days’ prior written notice to the Commis‘sion by certified mail. The Commission will be
named as an additional insured on General and Automobile liability. Contractor will furnish
certificates of insurance to the Contract Department, with endorsements to the Commission prior
to execution of this Agreement by the Commission.
7. Conflict of Interest. The Commission will evaluate Contractor’s duties pursuant to this
Agreement to determine whether disclosure under the Political Reform Act and City of
Carlsbad’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees,
agents’ or subcontractors. Should it be determined that disclosure is required, Contractor or
Contractor’s employees, agents, or subcontractors will complete and file with the City of
Carlsbad’s City Clerk those schedules specified by the Commission and contained in the
Statement of Economic Interests Form 700.
8.
laws and regulations prohibiting discrimination and harassment for the term of this Agreement.
Compliance With Laws. Contractor will comply with all applicable local, state and federal
9. Termination. The Commission or Contractor may terminate this Agreement at any time
after a 30 days’ written notice to the other party. the Commission will pay Contractor‘s costs for
services delivered up to the time of termination, if the services have been delivered in
accordance with the Agreement.
IO. Claims and Lawsuits. By signing this Agreement, Contractor agrees it may be subject to
civil penalties for the filing of false claims as set forth in the California False Claims Act,
Government Code sections 12650, et seq., and Carlsbad Municipal Code Sections 3.32.025,
seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the
Carlsbad Housing and Redevelopment Commission to terminate this Agreement.
11. Venue and Jurisdiction. Contractor agrees and stipulates that the proper venue and
jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the
State Superior Court, San Diego County, California.
12.
monies due or to become due under it, without the prior written consent of the Commission.
Assignment. Contractor may assign neither this Agreement nor any part of it, nor any
13. Amendments. This Agreement may be amended by mutual consent of the Commission
and Contractor. Any amendment will be in writing, signed by both parties, with a statement of
estimated changes in charges or time schedule.
City Attorney Approved Version W4.04.02
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14. Authoritv. The individuals executing this Agreement and the instruments referenced in it
on behalf of Contractor each represent and warrant that they have the legal power, right, and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CARLSBAD HOUSING AND
REDEVELOPMENT COMMISSION, a
public body corporate and politic duly
organized and existing under the
laws of the State of California
Davi fig" A.Oeser
ATTEST:
A
pity Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
CorDoration, Agreement must be signed by one corporate officer from each of the following two groups.
*Group A.
Chairman, President, or
Vice-president
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer@) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
Deputy General Counsel
3
City Attorney Approved Version #04.04.02
October 1 1,2002
Exhibit A
Page 1
Ms. Helga Stover
Senior Accountant
City of Carlsbad
163 5 Faraday Avenue
Carlsbad, CA 92008
Re: City ofcarlsbad Successor
Dear Helga:
On behalf of BNY Western Trust Company, we greatly appreciate the opportunity to present OUT
proposal to provide Successor Trustee and Paying Agent services for the City of Carlsbad.
Attached you will find our Fee Schedule, but please read on to discover more about the
differences BNY Western Trust Company offers as your trustee or agent.
Evidence of commitment, in terms of both continuity and quality of service, should .be a critical
consideration in selecting your trustee or agent. At The Bank of New York and BNY Western
Trust Company, our commitment to serving you is as solid as the institution itself. In 200 1,60%
percent of The Bank of New York’s total revenue was derived from securities processing
services, which include services such as MunicipaYCorporate Trust. As one of the primary
businesses of the Bank, this sector receives senior management support and significant resource
allocation.
BNY Western Trust Company, a California commercid bank and a subsidiary of The Bank of
New York Company, Inc., is legally organized and qualified to conduct business in California
and currently maintains capitalization levels in excess of $200 million. Through our Los
Angeles and San Francisco offices, we have remained committed to the California Public
Finance market for over 20 continuous years, and administer over 6,000 bond issues,.
representing over $65 billion in debt outstanding.
,
A Difference through Our People and Service
This relationship will be serviced locally by an administrative team of seasoned professionals
from our Los Angeles ofice, led by Ms. Karen Peterson. Karen will have compIete knowledge
of your bond issue, and serve as your contact from the document review and closing processes,
through debt service and compliance duties involved in the on-going daily administration of our
duties. What we essentially offer our issuers is a locally based, informed administrator who
knows every detail of your account, supported by the commitment and systems of the leading
provider of trustee services.
700 South Flower Stncf Suite 500 + Los Angclcs. California 90017-4104
Exhibit A Page 2
As a standard procedure upon transferring these bond issues Karen is prepared to deliver a
detailed account synoptic including all information relating to investments, debt service,
compliance, and requisition payments, (as applicable) for use by yourself. This synopsis is not
only an aid for our clients, but our administrators as well, through reviewing the governing
documents and establishing ticklers and procedures in the process.
A Difference Through Our Level of Experience
As an experienced member of your financing team, we bring the qualifications you require to
demonstrate, tlpt you have assembled the finest professionals in their field, thereby making your
financing both attractive and successfbl.
A Difference at A Fair Price
Attached you will find our complete fee schedule detailing ail related fees and expenses
associated with our appointment.
You Will find that the ultimate success of your offering is as critical to the Bank as it is to you
Further, you will discover that the responsiveness and superior service that characterize our
performance are the very strengths that have made BNY Western Trust Company a leading
provider of securities services wd a prime candidate for all your trustee and agency needs.
Should you have any questions regarding our proposal or attached fee schedule, please feel fiee
to contact me at (213) 630-6456.
Vice President
Page 3:
$7,400,000 (origind issuance) Carisbad Municipal Water District I997 Water Revenue
Certificates of Participation (1988 Refunding Project)
$6,595,000 (original issuance) City of Carisbad Rebding Certificates of Participation
(Hosp Grove Project) Series 1997 . .
$15,495,000 (original issuance) Carisbad Housing and Redevelopment Commission
Village Redevelopment Project Area 1993 Tax Allocation Bonds
$1 8,640,000 (original issuance) Enc& Financing Joint Powers Authority Wastewater
Revenue Rehding Bonds 1997 Series A
$10,175,438 (original issuance) City of Carisbad Limited Obligation Improvement Bonds
Assessment District No. 95-1 (Carlsbad Ranch)
.
SUCCESSOR TRUSTEE AND PAYING AGENT SERVICES FEE SCHEDULE
ACCEPTANCE FEE Waived ’
This one time charge is payabie at the time of the transfer of duties and includes the’ review and
establishment of all records and accounts. A11 out of pocket expenses associated with he transfer
of duties shall be billed at cost. Should we be able to utilize our standardtriparty agreement for
the removal of the old trustee and appointment of BNY as successor, we do not anticipate the need
to hire outside counsel but reserve the right to employ counsel and bill at cost if deemed
appropriate or required
ANNUAL ADMINISTRATION FEE
$7,400,000 (original issuance) Carlsbad Municipal Water District 1997 Water Revenue
Certificates of Participation (1988 Refunding Project) $1,900.00
36,595,000 (original issuance) City of Carlsbad Refunding Certificates of Participation
(Hosp Grove Project) Series 1997 $1,900.00 ’
#
$15,495,000 (original issuance) Carlsbad Housing and Redevelopment Commission Village
Redevelopment Project Area 1993 Tax Allocation Bonds $1,900.00
$18,640,000 (original issuance) Encina Financing Joint Powers Authority Wastewater
Revenue Refunding Bonds 1997 Series A S1,900.00 ‘
310,175,438 (original issuance) City of Carlsbad Limited Obligation Improvement Bonds
Assessment District No. 95-1 (Carlsbad Ranch) $500.00 ’
This fee is paid in advance for said period, or any portion thereof that any Bonds are outstanding.
TRANSACTION FEES Exhibit A Page 4
INVESTMENT CHARGWper transaction . S 35.00
Transaction fees include the settlement, upon purchase, sale or maturity of trust firnds invested
under the terms of the Trust Indenture or an Investment Agreement
An investment charge of (35 Basis Points.) will be assessed on the average monthly balance by .
the Trustee for government money market (sweep) investments in lieu of the $35.00 investment
charge on a per transaction basis. The Trustee may also receive a service fee fiom the money
market fimd for adrnini-tive services that would otherwise be performed by the fund
administrator.
REQUISITION /DISBURSEMENT FEE (check or wire) /per transaction $35.00
ANNUAL OUT-OF-POCKET EXPENSES 6 % of Billed Fees
Out-of-pocket expenses including, but not limited to, stationery, postage, telephone, and retention
of records will be billed annually in an amount qual to 6 % of all fees billed for the year. .
Express mail, Federal Express and outside messenger services will be billed to the account at
actual cost and are not covered by the 6 % expense charge.
MISCELLANEOUS SERVICES .
Out-of-pocket expenses of administrator to attend closings or special meetings, outside.counse1,
accountants, special agents, etc. will be charged at the actual cost incurred. The charges for performing services not contemplated at the time of execution of the Trust Indenture or not
specifically covered elsewhere' in the Schedule will be commensurate with the service. These
extraordinary services include, but arc not limited to: supplemental agreements; consent
operations; unusual releases or sinking fhd redemptions; the preparation of special or interim
reports which the Trustee must submit to security holders; custody of collateral which is
diversified, voluminous in bulk or which involves the Trustee in more than the usual activity.
TERMS OF PROPOSAL
Final acceptance of the appointment as Trustee under the Trust Indenture is subject to the fill
review of all documentation related hereto and acceptance by our trust committee. Assuming that
all documentation and records of the current trustee required of these financings are in
substintially good order, we do not anticipate fet adjustments or the need for outside legal
counsel will be necessary. Fees are not subject to increase prior to the fifth anniversary date of
appointment. This offer may be deemed terminated if we do not enter into a written agreement
within three months from the date of transmittal. Upon acceptance of our proposal, we will
provide you with our staridard form of Tripartite Agreement to effect the removal of the existing
trustee and appointment of successor and the orderly transfer of documentation and records. Any
deviation fiom this Pre-approved Agreement may result in out-of-pocket legal expense.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
Countyof La finio-ec-er } ss.
On , before me, /?fi 77( 0'2 0 n/D7if2y hU$
Name and Title of Officer (6 g , "Jane Doe, Notary Public") Date
personally appeared &37ddW, Add ro~m DeseL ,
Name(s) of Signer@)
ersonally known to me
@proved to me on the basis of satisfactory
evidence
Place Notary Seal Above
to be the person(s) whose name(s) idare
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature@) on the instrument the person@), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS mv hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of fhis form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual
[? Corporate Officer - Title(s):
Partner - 0 Limited 0 General
Attorney in Fact
Trustee
0 Guardian or Conservator
Other:
Signer Is Representing: u
0 1999 Nalional Notary Assmiation - 9350 De Soto Ave.. P.O. Box 2402 * ChalswMth, CA 9131 3-2402 - w.nalionalmlaty.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876M7
AUC. -05' 03 (TUE] 12: 16
I
BNY IWI'EKN 'I'KUST C~MIJANV
The Bank of New York Insurance Coverage
To prorect both the Bank's assets and those of our cllena we have strong Internal processes and
controls to Ihlt exposure to loss and to maintain the approprlate insurance coverage. The Bank of
New York Company. Inc. and its subsldiaries presently have the following insurance coverage:
Plnandal Institutlons Bond / Computer Crime Includes Safe Deposit Box
Coverage Per loss Llmlc s100,000.000
Dedunlble: s10.000,000
Canier: Lloyd's
Safe Deposlt Box Coverage Dedualble: $1,OOO,OOO
a) Dlshonesty of Employees
b) Forgery of securltles, checks, drafts or other
c) On premlses & In Transtt coverage for money and securlttes
Coverage Type:
written instruments
-. Excess J-Porn and Transit All Rlsk Money and Securities Coverage
(On predes and In translt) Per Loss Ltmk S400.000.000
Deducd ble: None Carrler. Lby d's
Coverage me:
Mall Insurance (per envelope llmlt) Per Envelope Llmlc 5100.000,000 non-negotiable
Deductible: None Carrier: Seaboard
Coverage Type:
Bankers Professional Liability
Per Loss Limlt: $25.000.000 Deducdble: $20,000,000
Carrier: Lloyd's Coverage Type:
Directors and Officers LiabUlty
Per Loss Limit Corporace: S20,OOO.OOO Indlvlduak $20.000,000 Deductlblc: Corporate: 93,000,000 Indlviduak None
Carrtec Natlonal Unlon & Varlous Ocher Carriers Coverage Type: Coverage for wrongful at& in respcctlve capadrles of Dlrcctors or Offlcers of rhe Company
Loss or destrucclon of cash or secunlies on or
off premises (lncludlngsecurltles or others held In custody).
S10,000.000 oegotlable
All rlsk of physlcal bss of property sent by regbwred rniall or ovemlght courler L
Losses due LO errors or ornlssions
-
b
over
AN. -05’ ~~(TUEI 12: 16 BNY WESTERN TRUST COMPANY
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TEL:213 630 6480 P. 003
Primary Liability Per Loss Limjt: $1,000.000 Deductlble: None Carrier. Atlanac Mutual
Coverage Type:
Excess Uabity Per loss Wmic $25,000,000 Deductible: SlO.OM3 Carder: National Unlon
Coverage Type:
Property Per loss Limit f500.000.000
Deductlbb: mo.aoo
Canier: AIG. Chubb, Zurlch, Varlous Other Carrlen .
Coverage Type:
Bodily InJury / Property Damage
I .. Llabillty covemge In_excess dprlmary coverage
Coverage includes Data Processlng, Bilslnea hrerruprlon, Boiler and Mwh1ner-y Service Interruprlon / Exlre Expense, Earthquake / Flood,
Plne Arts e.
All monetary amounts In US. dollars.
The insurance coverage llsted hereln provldes protection for The Bank of New York Company. Inc. and
all other corparatlons, companles. flrrns, enterprlses. or entldes whlch are subsldlarles of, or afflllated
wlth. and In which the named Insured has more rhan 60 percent ownership. All coverage is conclnually
renewed prlor KO explration dates. All carriers are rated A- or berrer by AM. Best. All Lloyd’s
syndlcates have a Standard and Poors’ Rating of Three Crowns or better. We contlnuorlsly redew all of
our exposures to loss and relevant insurance coverages available IO protect our assets and those of our
cllents.
For mom Jnfmtdm &our The Rank of New Yorkk hmnce co veqe orrrny other Bank bwn- please conmi your
Iordhnk ofNew York rrpmentarlve.
Vlslt our website at www.bankofny corn