HomeMy WebLinkAboutThe Bank of New York Mellon; 2008-03-05;AGREEMENT FOR FISCAL AND ESCROW AGENT SERVICES
THE BANK OF NEW YORK MELLON
AGREEMENT is rrfafcfe and entered into as of the day of
200//by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and The Bank of New York Mellon, a corporation, ("Contractor").
RECITALS
City requires the professional services of a firm that is experienced in providing fiscal and
escrow agent services. Contractor has the necessary experience in providing these professional
services, has submitted a proposal to 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, City and Contractor agree as follows:
1 . Scope of Work. City retains Contractor to perform, and Contractor agrees to render,
those services (the "Services") that are defined in Exhibit "A", attached and incorporated by this
reference in accordance with the terms and conditions set forth in this Agreement.
Community Facilities District No. 3, 2007 Special Tax Bonds (Improvement Area 2)
2. Term. This Agreement will be effective until June 30, 2039 or until the life of the bond
issues expire, unless earlier terminated by either the City of Contractor under Paragraph 9
below.
3. Compensation. The total fee payable for the Services to be performed will be paid as
defined in Exhibit "A". Fees are subject to increase at any point during the life of the
appointment. No other compensation for the Services will be allowed except for items covered
by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent
(10%) retention until City has accepted the work and/or the Services specified in Exhibit "A."
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 City. Contractor
will be under the control of City only as to the results to be accomplished.
•
5. Indemnification. Contractor agrees to indemnify and hold harmless the City and its
officers, officials, employees and volunteers from and against all claims, damages, losses and
expenses including attorneys fees arising out of the performance of the work described herein
caused by any negligence, recklessness, or willful misconduct of the Contractor, any
subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that
this section will survive the expiration or early termination of this Agreement.
City Attorney Approved Version #11.28.06
6. Insurance. Contractor will obtain and maintain policies of commercial general liability
insurance, automobile liability insurance, a combined policy of workers' compensation,
employers 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 City
Attorney or the 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. 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 City prior to City's execution of this Agreement.
7. Conflict of Interest. City will evaluate Contractor's duties pursuant to this Agreement to
determine whether disclosure under the Political Reform Act and City'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 Clerk those schedules specified by City and
contained in the Statement of Economic Interests Form 700.
8. Compliance with Laws. Contractor will comply with all applicable local, state and federal
laws and regulations prohibiting discrimination and harassment and will obtain and maintain a
City of Carlsbad Business License for the term of this Agreement.
9. Termination. City or Contractor may terminate this Agreement at any time after a
discussion, and written notice to the other party. 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.
10. 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, et
seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the
City of Carlsbad 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. Assignment. Contractor may assign neither this Agreement nor any part of it, nor any
monies due or to become due under it, without the prior written consent of City.
13. Amendments. This Agreement may be amended by mutual consent of City 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 #11.28.06
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:
(print name/title)
(e-mail address)
&W r
By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation o the State of California
By:
ATTEST:
LOfcBAlNE
City Clerk
(e-mail address)
If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a
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:
RONAtpiR BALL, CityAttorney
Deputy City Attorney
City Attorney Approved Version #11.28.06
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
(sigprhere)
fou-Q VWy A viP
(print name/title)
(e-mail address)
'By:
(sign here)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
City Manager or Mayor
ATTEST:
-C « 1
LORRAINE M. WOOD
City Clerk
(print name/title)
(e-mail address)
If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a
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. BAkCCity Attorney
Deputy City Attorney
City Attorney Approved Version #11.28.06
EXHIBIT "A"
SCOPE OF SERVICES
Inherent in the process of identifying the financing team to bring an important debt financing to
market is selecting a Fiscal Agent who can assist the City in the on-going administrative process
throughout the life of the engagement and is committed, professional and experienced.
As a standard procedure upon closing a bond issue, an administrator should be prepared to
deliver a detailed account synopsis including all information relating to investments, debt service,
compliance, and requisition payments (as applicable), for use by the City and financing team.
This synopsis is should not only be an aid for the City, but for the administrators as well, and
enables them to thoroughly review the governing documents and to establish useful ticklers and
procedures.
Upon appointment of BNY as fiscal agent, the City shall be responsible for the payment of the
fees, expenses and charges as set forth in this Fee Schedule.
FEE SCHEDULE
ACCEPTANCE FEE Waived
This one time charge is payable at the time of the closing and includes the review and execution
of the Indenture and all documents submitted in support thereof, acceptance of the trust,
establishment of procedures and controls and set-up of trust accounts.
ANNUAL ADMINISTRATIVE FEE $1,500
The annual fee covers the duties and responsibilities related to account administration and
bondholder services, which may include maintenance of accounts on various systems, collection
and payment of principal and interest to bondholders, the preparation and distribution of any
sinking fund redemption notices and the monitoring of issuer compliance. This fee is payable in
advance for the year and shall not be prorated.
INVESTMENT COMPENSATION
With respect to investments in money market mutual funds, the investment maintenance fee will
be calculated at an annual rate of 37 basis points on average total monthly account balances.
With respect to investments in money market mutual funds for which BNY provides shareholder
services BNY (or its affiliates) may also receive and retain additional fees from the mutual funds
(or their affiliates) for shareholder services as set forth in the Authorization and Direction to BNY
to Invest Cash Balances in Money Market Mutual Funds.
BNY will charge a $35 transaction fee for the purchase, sale, or maturity of commercial paper
and U.S. treasuries and agencies.
City Attorney Approved Version #11.28.06
INVESTMENT AGREEMENT, OR REPURCHASE / FORWARD PURCHASE AGREEMENT
(if applicable) $500
This fee includes the review and acceptance of any investment agreement or repurchase
agreement. Counsel fees (if any) associated with the review and acceptance of the above will
be billed at cost. BNYTC will charge a $35 transaction fee for principal adjustments to the
Investment Agreement.
r
COUNSEL FEE $1,500 +
expenses
A fee covering the fees and expenses of Counsel for its services, including review of governing
documents, communication with members of the closing party (including representatives of the
issuer, investment banker(s), attorney(s) and BNY), attendance at meetings and the closing, and
such other services as BNY may deem necessary. The Counsel fee will be the actual amount of
the fees and expenses charged by Counsel and is payable at closing. Counsel fees will be
capped at the above price but may be increased if all documentation required for this financing
is not in substantially good order, numerous drafts or extensive negotiations are required, or the
closing is delayed. Should closing not occur, you shall still be responsible for payment of
Counsel fees and expenses.
MISCELLANEOUS FEES
The fees for performing extraordinary or other services not contemplated at the time of the
execution of the transaction or not specifically covered elsewhere in this schedule will be
commensurate with the service to be provided and will be charged in BNY's sole discretion.
These extraordinary services may include, but are not limited to, supplemental agreements,
consent operations, unusual releases, tenders or sinking fund redemptions, the preparation of
special or interim reports, custody of collateral, a one-time fee to be charged upon termination of
an engagement. Counsel, accountants, special agents and others will be charged at the actual
amount of fees and expenses billed.
OUT-OF-POCKET EXPENSES At Cost
Additional out-of-pocket expenses may include, but are not limited to, telephone; facsimile;
courier; copying; postage; supplies; statutory filing charges, including UCC amendments,
continuations, and termination fees; and expenses of BNY's representative(s) and Counsel for
attending special meetings. Fees and expenses of BNY's representatives and Counsel will be
charged at the actual amount of fees and expenses charged and all other expenses will be
charged at cost.
City Attorney Approved Version #11.28.06