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HomeMy WebLinkAboutBNY Western Trust Company; 2003-08-20; (3)AGREEMENT FOR TRUSTEE AND PAYING AGENT SERVICES BNY WESTERN TRUST COMPANY THIS AGREEMENT is made and entered into as of the 20* day of A3-*f- , 2003, by and between the CITY OF CARLSBAD, a municipal corporation (“City”), and BNY Western Trust Company, a California banking corporation (“Contractor”). RECITALS The City 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 City, 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 City and Contractor agree as follows: 1. Scope of Work. The City retains Contractor to perform, and Contractor agrees to render, all applicable services (the “Services”) as written in the Bond Indentures for the following bond issues: Assessment District No. 95-1 (Carlsbad Ranch) Limited Obligation Improvement Bonds All applicable services defined in the original Bond Indenture dated July 1, 1997 regarding Assessment District No. 95-1 (Carlsbad Ranch) Limited Obligation Improvement Bonds. Encina Financing Joint Powers Authority Wastewater Revenue Refunding Bonds 1997 Series A All applicable services defined in the original Trust Indenture dated February I, 1997 regarding Encina Financing Joint Powers Authority Wastewater Revenue Refunding Bonds 1997 Series A. 2. Term. This Agreement will be in effect until September 2, 2022 or until the life of the bond issue expires, unless earlier terminated by either the City 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 City. Contractor will be under the control of the City 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 City Attorney Approved Version #04.04.02 1 thousand dollars ($500,000) each, unless otherwise authorized and approved by the City Attorney or City Manager. 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 (30) days’ prior written notice to the City by certified mail. The City 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 City prior to execution of this Agreement by the City. 7. Conflict of Interest. The City 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 City and contained in the Statement of Economic Interests Form 700. a. Contractor will comply with all applicable local, state, and federal laws and regulations prohibiting discrimination and harassment for the term of this Agreement. Compliance With Laws. 9. Termination. The City or Contractor may terminate this Agreement at any time after a 30 days’ written notice to the other party. The City 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 sea, and Carlsbad Municipal Code Sections 3.32.025, gt seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City 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 City. 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 City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. 2 City Attorney Approved Version #04.04.02 14. Authority. 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 *By: A (print namehitle) f (print namehitle) AW* j &&e*/ CITY OF CARLSBAD PUBLIC IMPROVEMENT CORPORATION, a corporation of the State of California o';lChief Financial Officer ATTEST: - /,./ "?)&%% LORMINE M. WOOD J City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. Corporation, 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(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: Deputy City Attorney 3 City Attorney Approved Version #04.04.02 Exhibit A Page 1 October 1 1,2002 Ms. Helga Stover Senior Accountant City of Carlsbad 1635 Fkaday Avenue Carlsbad, CA 92008 Re: City of Carlsbad Successor Dear Helga: On behalf of BNY Western Trust Company, we greatly appreciate the opportunity to present our proposal to provide Successor Trustee and Paying Agent services for the City of Carisbad. 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, shouid 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 commercial 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 office, led by Ms. Karen Peterson. Karen will have complete knowledge of your bond issue, and serve as your contact Erom 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 OUT 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 Streef Suite 500 LOS Angelts. California 90017-4104 Exhibit A Page 2 As a standard procedure upon trans,cmng 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, @it you have assembled the fmest professionals in their field, thereby making your financing both attractive and successful. A Difference at A Fair Price Attached you will find our complete fee schedule detaihg all 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 apd a prime candidate for all your trustee and agency needs. Should you have any questions regarding our proposal or attached fee schedule, please feel free to contact me at (213) 630-6456. Vice President FPS/jo Page 3: I $7,400,000 (original issuance) Carisbad Municipal Water District 1997 Water Revenue certificates of Participation (1988 Refimding Project) $6,595,000 (original issuance) City of Carlsbad Rehding Certificates of Participation (Hosp Grove Project) Series 1997 . $15,495,000 (original issuance) Carlsbad Housing and Redevelopment Commission Village Redevelopment Project Area 1993 Tax Allocation Bonds $18,640,000 (original issuance) Enck Financing Joint Powers Authority Wastewater Revenue Refimding Bonds 1997 Series A $1 0,17543 8 (original issuance) City of Carlsbad 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 payable at the time of the transfer of duties and includes the' review and establishment of all records and accounts. All out of pocket expenses associated with the transfer of duties shall be billed at cost. Should we be able to. utilize our standard triparty agreement for the removal of the old trustee and appointmat of BNY as successor, we do not anticipatk the need to hire outside counsel but resent the right to employ counsel and bill at cost if deemed appropriate or required ANNUAL ADMINISTRATION FEE S7,400,OOO (original issuance) Carisbad Municipal Water District 1997 Water Revenue Certificates of Participation (1988 Refunding Project) (Hosp Grove Project) Series 1997 S1,900.00 ' $1,900.00 S6J95,OOO (original issuance) City of Carisbad Refunding Certificates of Participation I S15,495,000 (original issuance) Carlsbad Housing and Redevelopment Commission Village Redevelopment Project Area 1993 Tax Allocation Bonds Revenue Refunding Bonds 1997 Series A $1,900.00 ' $1$00.00 $18,640,000 (original issuance) Encina Financing Joint Powers Authority Wastewater S10,175,438 (original issuance) City of Carisbad Limited Obligation Improvement Bonds Assessment District No. 95-1 (Carlsbad Ranch) S500.00 ' This fee is paid in advance for said period, or any portion thereof that any Bonds are outstanding. TRANSACTION FEES INVESTMENT CHARGWper transaction Transaction fees include the settlement, upon purchase, sale or ma.aity of trus under the terms of the Trust Indenture or an Investment Agreement. Exhibit A Page 4 S 35.00 funds invested 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 from the money market fimd for adminimtive services that would otherwise be performed by the fund administrator. REQUISITION / DISBURSEMENT FEE (check or wire) /per transaction S35.00 ANNUAL OUT-OF-POCKET EXPENSES 6 YO 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 equal to 6 % of all fe+s 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-counsel, 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 elsewhe& in the Schedule will be commensurate with the service. These extraordinary services include, but are not limited to: supplemental agreements; consent operations; unusuaI releases or sinking fhnd 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 full review of all documentation related hereto and acceptance by our trust committee. Assuming that all documentation and records of the cumxu arJIstee required of these financings are in substantially good order, we do not anticipate fee 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 standard 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 from this Pre-approved Agreement may result in out-of-pocket legal expense. bLlFORNlA ALL-PURPOSE ACKNOWLEDGMENT State of California Countyof i-as A d6ad } SS. , before me, fi777/ CROdid, /1/07;4/2Y k?.)&y ' ' Date Name and Title of Officer (e.g.(CJane Doe, Notary Putilic") personally appeared /?a e 8;/n%dn? oA1/!A OES€/L. Name@) of Signer(s) personally known to me E proved to me on the basis of satisfactory evidence PATTI CRONIN Commission # 1387839 Los Angeles County Notary Public - Cdifornia f L. z Mvcm,E~Dec122al6l Place Notary Seal Above to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislherltheir authorized capacity (i es) , and that by his/ h e r/t he i r signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESSmnd 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 this 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 0 Corporate Officer - Title(s): 0 Partner - 0 Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: ' 0 1999 National Notary Association * 9350 De Solo Am., P 0 Box 2402 * Chatswwlh. CA 9131 3-2402 * www.nalionalnofary.org Prod. No. 5907 Rewder: Call Toll-Free 1-800-876-6827 AUG. -05' 03 (TUE) 12: 16 BNY WESTERN TRUST COMPANY TEL:213 630 6480 P. 002 The Bank of New York Insurance Coverage To protect both the Bank's assecs and those of our cllents. we have strong Internal processes and controls KO llmlt ercposure to loss and to mainraln the appcoprlate insurance coverage The Bank of New York Company, Inc. and its subsldiartes presently have the Following insurance coverage: Financial Instltutlons Bond / Camputer Crime Includes Safe Deposit Box Coverage Per Loss llmlc s100,000,000 Dedunlble: OlO.000,000 Carrler: Lloyd's Coverage Type: Safe Ueposlt Box Coverage Dedualble: $1,000,000 a) Dlshonesty of Employees b) Forgery of securltles, checks, drafu or other cl On premfses & In Tramit coverage for money and secudttes wrirren Instruments -. Excess J-Form and Transit All Rlsk Money and Securities Coverage (On premises and In translt) Per Loss Ltmtt: 5400,000,000 Deducd ble: None Carrier. Lloyd's Coverage Type: Mall Insurance (per envelope limit) Per Envelope llmlr: S1OO.OM3,OOO non-negotlable Deductible: None Carrler. Seaboard Coverage Type: Bankers Professional Liability Per Loss lirnlr: 625.000.000 Deducdble: %20,000,000 Carrier: Lloyd's Coverage Type: Directon and Offlcers Llablllty Per Loss Limtt: Corporace: 520,000.000 Indlvldual: .$20.000,000 Deductlblc: Corporate: 53,000,000 Indlvldual. None Canter: Nalllonal Union & Varlous Orher Carders Coverage Type: Coverage for wrongful acts in respccttve capacltles af Dlrcctors or Offlcers of rhe Company Loss or destrucclon of cash or seculllies on or off premises (lncludlng securltles or othen held In custody). 510,000,000 negotiable All rlsk of physical loss of property sent by regkured niall or ovemlaht courler L ,- Losses due io errors or ornlsslons - AUG. -05’ 03(TUE] 12: 16 BNY VESTERN TRUST COMPANY TEL:213 630 6480 -- Prhary Liability Per Loss Llmj t: 11,000.000 Deductlble: None Carrlec Atlanuc Mutual Coverage Type: Excess Uabuty Bodlly InJury / Property Damage Per Loss 11 rnlc Deductlble: Canler: -- Covera&e Type. Property Per Loss Limit: Deductlble. Canier: Coverage Type: $25,000,000 510,000 National Union .- hblllty coverage In excess d prlmq coverage ___. . - 9500.000.00a S250,OOO AIG, Chubb, Zurlch, Varlous Other Carders Coverage includes Data Processlng, Bushes [nlerruprlon, Botler and Machinery Service herruptlon / Exlm Expense, Earthquake / Flood, AI1 monewry mounts In US. dollars. The insurance coverage llsted hereln provldes protection for The Bank of New York Company. Inc. and all other corporatlons, companles. Arms, enrerprkes. or entlcles whlch are subsldlarles of, or afflllated with. and In whlch the named Insured has more than 50 percent ownership. All coverage is contlnually renewed prlor to expiration dates. AI1 carrlers are rated A- or betrer by A.M. Best. All Lloyd’s syndlcates have a Standard and Poors’ Ratlng &Three Crowns or better. We continuously review all of out exposures to loss and relevant insurance coverages avallabie 10 prorect our assets and those of our clients. Formore Infmmeaon abour The Bank ofNew Yorkk Insurance coverage or my orher Bank busihm, pleare canrecryour IocalLnk of New York rtpsencadve. Vlslt our webslte at www.bank&ny corn P. 003