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HomeMy WebLinkAboutContract 35012 CITY SECRET..'W CONTRACT NO. p� CUSTODY AGREEMENT THIS CUSTODY AGREEMENT (this "Agreement") dated as of January 31, 2007, is made by and between the City of Fort Worth, Texas, a Texas home rule city, (the "Depositor") and Wells Fargo Bank, National Association, a national banking association, as custodian hereunder(the"Custodian"). WHEREAS, the Depositor desires to engage the services of the Custodian to act on its behalf in providing custodial services for certain assets under the Depositor's management; and WHEREAS, Depositor and Custodian have entered into that certain Letter Agreement for Section 108 Loan Guarantee Program Custodial Account (the "Custodial Account Letter Agreement") with the United States Department of Housing and Urban Development ("HUD"), which requires Depositor to open an account with a national banking association for maintaining custody of the funds loaned to Depositor under the 108 Loan Guarantee Program (the "Program"); and Whereas, Depositor and Custodian have also entered into that certain Letter Agreement for Section 108 Loan Guarantee Program Investment Account (the "Investment Account Agreement" and, together with the Custodial Account Letter Agreement, the "Letter Agreements") with HUD which requires Depositor to maintain an account for the deposit of investments purchased with Program funds; and WHEREAS, the Custodian is willing to act as the Depositor's custodian to provide these services for the Depositor, and has agreed to serve as the safekeeping agent for the securities and similar investments of the Depositor. NOW, THEREFORE, the parties hereto agree as follows: 1. Services to be Provided by the Custodian. The Custodian shall: a. Open and maintain a custody account entitled Evans-Rosedale HUD Custody Account (the "Custodial Account") in the name of the Depositor and hold in such custody account all cash and securities initially deposited by the Depositor plus any additional cash and securities that may be received from time to time for the custody account. Notwithstanding the foregoing sentence, any earnings on the Custodial Account shall be deposited in accordance with section(b) below. b. Open and maintain a custody account entitled Evans-Rosedale Investment Account (the "Investment Account", and together with the Custodial Account, the "Custody Accounts") in the name of the Depositor and therein deposit and hold in such Investment Account all income earned on the Custodial Account. c. Hold and invest all such cash and securities deposited into the Custody Accounts (the "Custodial Funds") in accordance with the written direction of the Depositor, and in accordance with the Depositor's investment policy attached hereto a d. Act upon written direction from an authorized representative or officer of the Depositor, or from any investment manager of the Depositor, duly appointed in writing by the Depositor. The Custodian shall be protected in acting on a facsimile or electronic direction/data transmissions as provided in Section 11 hereof. The Custodian shall treat as genuine and may rely on any written notice or communication without further verification, that it believes is from the proper party and shall be protected in doing so by the Depositor. e. THE PARTIES HERETO EXPRESSLY AGREE THAT THE CUSTODIAN, UPON WRITTEN INSTRUCTIONS FROM HUD, SHALL TAKE SUCH ACTION AS HUD DIRECTS, INCLUDING THE REMITTANCE OF THE CUSTODIAL FUNDS TO HUD, OR TO HUD'S ORDER. FURTHER, THE CUSTODIAN SHALL, IF SO DIRECTED IN WRITING BY HUD, CHANGE THE NAME OF THE CUSTODY ACCOUNTS SO THAT HUD IS REFLECTED AS OWNER OF SUCH ACCOUNTS. f. Disburse cash and securities in the Custody Account in accordance with the written directions of the Depositor. g. Be responsible for the collection of all investment income relating to the assets in the Custody Account and hold such investment income pursuant to Section 1(b) above. h. Issue advices to the Depositor [and duly appointed investment managers] setting forth particulars of purchases, sales, receipts, deliveries and principal collection. i. Present for payment all maturing securities or any securities called for redemption and collect proceeds therefrom. j. Deliver proxy materials for securities held in the Custody Account as the Depositor may direct in writing. k. The Depositor recognizes and agrees that the Custodian will not provide supervision, recommendations or advice relating to either the investment of moneys held in the Custody Account or the purchase, sale, retention or other disposition of any investments. 2. Powers of the Custodian. The Custodian is authorized and empowered to: a. Hold assets in the Depositor's name, in the name of a nominee selected by the Custodian or at depositories. b. Employ agents other than persons on its regular payroll and delegate to them such ministerial and other nondiscretionary duties as it sees fit and to rely upon such information furnished by such agents. C. Make, execute, acknowledge and deliver any and all documents of transfer and conveyance and other instruments that may be necessary or appropriate to carry out the custodianship duties and powers. 2 3. Reports. The Custodian shall furnish to the Depositor [and the duly appointed investment managers] a monthly statement of the Custody Account and Investment Account reflecting all activity during the month, and an inventory of assets including market value as of month end. The Custodian will furnish such other reports as the Depositor may reasonably request, including reports to the Depositor's accountant or its examiners,but no more frequently than monthly. 4. Fees. The Custodian shall receive compensation from the Depositor as set forth in Exhibit A attached to this Agreement, as amended from time to time by the parties. The Custodian shall also be reimbursed by the Depositor for its reasonable out-of pocket expenses during the performance of the Custodian's duties under this Agreement. 5. Authorized Persons. The Depositor [and each duly appointed investment manager] shall furnish a list to the Custodian (and from time to time whenever there are changes therein) of persons authorized to act on behalf of the Depositor [or such investment manager] for the purpose of transmitting instructions to the Custodian concerning the assets in the Custody Account and Investment Account. An initial list is attached hereto as Exhibit B. The Custodian shall have no duty to confirm whether the information on Exhibit B is current. Unless and until written notice of any changes to Exhibit B shall be delivered to and acknowledged by the Custodian, the Custodian shall be entitled to assume that such information is current. 6. Amendment and Termination. This Agreement may be amended by written agreement of the parties at any time. The duties of the Custodian may not be increased without the Custodian's prior written consent. This Agreement shall continue in effect until terminated by either parry upon thirty (30) days written notice to the other party. Upon termination, all cash or securities held in the Custody Account and Investment Account shall be delivered by the Custodian to the Depositor or in accordance with the Depositor's written instruction. Any fees remaining outstanding and any balance owing to the Custodian may be deducted from the assets of the Custody Account prior to delivery to the Depositor or as the Depositor directs. Notwithstanding the foregoing, this Agreement may not be amended or terminated except that thirty (30) days advance written notice of such amendment or termination shall have been given to HUD, and HUD shall not have objected to such amendment or termination prior to the effective date thereof. 7. Indemnification. To the extent permitted by law, the Depositor hereby agrees to indemnify and hold the Custodian and its agents, affiliates, successors and assigns harmless from and against any and all damages, claims, liabilities, losses, costs and expenses (including without limitation attorney's fees and expenses) ("Losses"), that may be imposed on, incurred by, or asserted against the Custodian by reason of any action taken or not taken by the Custodian under this Agreement, including, but not limited to, damages, claims, liabilities, losses, costs and expenses, incurred by the Custodian as a result of its good faith efforts in following facsimile or electronically transmitted directions and/or any action or inaction of the Custodian based on data received from authorized parties, including duly appointed third parties, regarding the Custody Account, 3 unless such Losses are finally adjudicated to have been primarily caused by the gross negligence or willful misconduct of the Custodian. In no event shall the Custodian be liable for any special, indirect or consequential losses or damages of any kind (including without limitation lost profits) from any action taken or omitted to be taken by it, even if advised of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment of this Agreement and any resignation or removal of the Custodian. 8. Notices. All notices, instructions, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given(a) on the date of service if served personally to the parry to whom notice is to be given, (b) on the day of transmission if sent by facsimile transmission to the facsimile number given below, and telephonic confirmation of receipt is obtained promptly after completion of transmission, (c) on the day after delivery to Federal Express or similar overnight courier service or the Express Mail service maintained by the United States Postal Service, or (d) on the fifth day after mailing, if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed, return receipt requested,to the parry as follows: Notices to the Depositor shall be directed and mailed as follows: City of Fort Worth 1000 Throckmorton Street Fort Worth,Texas 76102 Attention: Jerome Walker Tel: (817) 392-7537 Fax: (817) 392-7328 Notices to the Custodian shall be directed and mailed as follows: Wells Fargo Bank,National Association Corporate Trust Services 201 Main Street, Suite 301 Fort Worth, Texas 76102 Attention: Mark A. Dunn Tel: 817-334-7061 Fax: 817-885-8650 Either parry may change its address for purposes of the paragraph by giving the other party written notice of the new address in the manner set forth above. 9. Inspection Privileges. The books, records, documents, accounting procedures and practices of the Custodian relevant to this Agreement are subject to examination by the Depositor, or its designated independent public accountant, during normal business hours and upon at least two (2)business day's prior written notice to the Custodian. 4 10. Governing Law. This Agreement and all transactions hereunder shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of Texas. 11. Regarding the Custodian. (a) Nothing in this Agreement is intended or shall confer upon anyone other than the parties hereto any legal or equitable right,remedy or claim. (b) The invalidity of any portion of this Agreement shall not affect the validity of the remainder hereof. (c) This Agreement is the final integration of the agreement of the parties with respect to the matters covered by it and supersedes any prior understanding or agreement, oral or written,with respect thereto. (d) The rights and obligations of each party hereto may not be assigned or delegated to any other person without the written consent of the other party hereto. Subject to the foregoing, the terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. (e) The Custodian is not a party to, is not bound by, and has no duty to inquire into any agreement other than this Agreement. The Custodian shall have no implied duties, fiduciary or otherwise, beyond the express duties set forth herein. (f) It is the intention of the parties to this Agreement that the Custodian shall never be required to use or advance its own fiends or otherwise incur personal financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder. (g) Any corporation or association into which the Custodian may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale,merger, consolidation or transfer to which the Custodian is a party, shall be and become the successor Custodian under this Agreement and shall have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance any further act. (h) The Custodian may resign as such following the giving of thirty (30) calendar days prior written notice to the Depositor. Similarly, the Custodian may be removed and replaced following the giving of thirty (30) days prior written notice to the Custodian by the Depositor. In either event, the duties of the Custodian shall terminate (30) days after receipt of such notice (or as of such earlier date as may be mutually agreeable); and the Custodian shall then deliver the balance of the moneys or assets then in its possession to a successor Custodian as shall be appointed by the Depositor as evidenced by a written 5 notice filed with the Custodian. If the Depositor has failed to appoint a successor prior to the expiration of thirty (30) calendar days following receipt of the notice of resignation or removal, the Custodian may appoint a successor or may petition any court of competent jurisdiction for the appointment of a successor Custodian or for other appropriate relief, and any such resulting appointment shall be binding upon all of the Depositor. 12. Facsimile and Electronic Direction/Data Transmissions. (a) The Custodian is authorized to accept directions and/or data transmitted to the Custodian through the means set forth in this Section 11 by authorized representatives, including duly appointed third parties. (b) The Custodian is authorized to act on written instructions conveyed by facsimile transmission, notwithstanding the fact that such instructions do not bear an original authorized signature, provided the instructions acted upon: (i) appear to be signed by a person(s) entitled to give binding instructions to the Custodian, and (ii) are consistent with the established authority of such person(s). (c) The Custodian is authorized to act on written directions or data transmissions conveyed by electronic mail or other electronic means notwithstanding the fact that such directions or data do not bear an authorized signature, provided the directions or data acted upon: (i) appear to have been sent from the computer of a person(s), or by a person(s), entitled to give binding directions to the Custodian, and (ii) are consistent with the established authority of such person(s). (d) The Depositor acknowledges its responsibility for the accuracy and completeness of the electronic data it submits to the Custodian, including data from duly appointed third party agents, and is solely responsible for any adverse consequences that may result from errors or inaccuracies caused by the quality of such data. The Custodian may fully rely on data received, and shall have no obligation to review it or verify its accuracy. The Depositor understands the risks associated with communicating time sensitive matters, such as trade directions, by facsimile or electronic means and acknowledges that, if it elects to do so, the Custodian will act within a reasonable time of receipt of the facsimile or electronic transmission by the person(s) to whom it was sent. The Depositor further acknowledges that information or instructions provided under this Agreement may be less confidential than information transmitted by other methods. The Custodian shall not be liable for any loss of the confidentiality of information prior to its reception. 13. Tax Matters. (a) Reporting of Income. The Custodian shall report to the Internal Revenue Service (the "IRS"), as of each calendar year-end, and to the Depositor, all income earned from the investment of any sum held in the Custody Account and Investment Account against the Depositor, as and to the extent required under the provisions of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (th___ ", ^� ;,n, U � �� The Depositor shall furnish the Custodian with a completed Form W-8 or Form W-9, as applicable. (b) Preparations and Filing of Tax Returns. The Depositor is required to prepare and file any and all income or other tax returns applicable to the Custody Account and Investment Account with the IRS and all required state and local departments of revenue in all years income is earned in any particular tax year to the extent required under the provisions of the Code. (c) Payment of Taxes. Any taxes payable on income earned from the investment of any sums held in the Custody Account shall be paid by the Depositor, whether or not the income was distributed by the Custodian during any particular year and to the extent required under the provisions of the Code. [ Signature page is attached. ] 7 IN WITNESS WHEREOF, authorized officers of the parties have duly executed this Agreement as of the day and year first written above. City of Fort Worth, as Depositor v / By. Name: Dale Fisseler Title: Assistant City Manager Approved -s to legalit and form: By: Assistant City Attorney ATTEST: I N\ City Secretary ENC�M&C RE-QUIREI) Wells Fargo Bank,National Association, as Custodian By: _/h""�'� — Name: Mark A. Dunn Title: Vice President Exhibit A CUSTODIAN'S FEE SCHEDULE [fee schedule is on the following page] 9 Wells Fargo Bank Greg L. Stites Corporate Trust Services Vice PresidentlBusiness Development 400 West 151"Street, I'Floor Tel: (512)344-8640 M Austin, TX 78701 Fax: (512)344-8621 Greg.L.Stites@ivellsfargo.con SCHEDULE OF FEES to act as CUSTODIAN for the City of Fort Worth Evans-Rosedale Project Custody Account Acceptance Fee: Waived Initial Fees as they relate to Wells Fargo Bank acting in the capacity of Custodian — includes review of the Custody Agreement; acceptance of the Custody appointment; setting up of Custody Account(s) and accounting records; and coordination of receipt of funds for deposit to the Custody Account(s). Acceptance Fee payable at time of Custody Agreement execution. Custodian Annual Administration Fee: $1,500.00 For ordinary administrative services by Custodian — includes daily routine account management; investment transactions; cash transaction processing (including wire and check processing); monitoring claim notices pursuant to the agreement; disbursement of funds in accordance with the agreement; and mailing of trust account statements to all applicable parties. Tax Reporting Annual Administration Fee: Waived Includes standard 1099-INT Tax Reporting for interest earnings for up to five (5) entities. Should additional tax reporting be necessary or if the Custodian must request W-9s from individual entities, a$25 per reporting charge will be assessed. If all W-9s are received for the entities, no additional fee shall be charged for tax reporting. This fee is payable in advance, with the first installment due at the time of Custody Agreement execution. The Annual Fee covers a full year or any part thereof, and therefore will not be prorated or refunded in the year of early termination. Wells Fargo's bid is based on the following assumptions: • Number of Custody Accounts to be established: One(1) • Number of Deposits to Custody Account: Not more than One (1) • Number of Withdrawals from Custody Fund: Not more than Five(5) • APPOINTMENT SUBJECT TO RECEIPT OF REQUESTED DUE DILIGENCE INFORMATION AS PER THE USA PATRIOT ACT • PROPOSAL ASSUMES BALANCES WILL BE INVESTED IN MONEY MARKET FUNDS • ALL FUNDS WILL BE RECEIVED FROM OR DISTRIBUTED TO A DOMESTIC OR AN APPROVED FOREIGN ENTITY • THIS PROPOSAL IS VALID FOR A PERIOD OF 90-DAYS FROM THE DATE BELOW Out-of Pocket Expenses: At Cost We will charge for out-of-pocket expenses in response to specific tasks assigned by the client or provided for in the Custody agreement. Possible expenses would be, but are not limited to, express mail and messenger charges, travel expenses to attend closing or other meetings. There are no charges for indirect out-of-pocket expenses. This fee schedule is based upon the assumptions listed above which pertain to the responsibilities and risks involved in Wells Fargo undertaking the role of Custodian. These assumptions are based on information provided to us as of the(late of this fee schedule. Our fee schedule is subject to review and acceptance of the final documents. Should any of the assumptions,duties or responsibilities change, we reserve the right to affirm, tnodify or rescind our fee schedule. Extraordinary services(services other than the ordinary administration services of Custodian described above) are not included in the annual administration fee and will be billed as incurred at the rates in effect from time to time. Submitted on: November 2,2006 Pipeline Number 45889 Exhibit B DESIGNATED PERSONS OF THE DEPOSITOR Name and Title Signature 1. Dale Fisseler Assistant City Manager 2. Robert Shook City Treasurer 3. Jerome Walker ...... Director of Housing 10 Exhibit C Direction for Investment of Cash Balances Wells Fargo Advantage Funds Direction to use Wells Fargo Advantage Funds for Cash Balances for the following account(s): Account Name: Fort Worth HUD Evans-Rosedale Custody Account Account Number(s): 21041500 You are hereby directed to invest, as indicated below or as I shall direct further from time to time, all cash in the Account in the following money market portfolio of Wells Fargo Advantage Funds (the "Fund") or another permitted investment of my choice (Check One): M Wells Fargo Advantage Funds, 100% Treasury Money Market Fund II Wells Fargo Advantage Funds, Government Money Market Fund II Wells Fargo Advantage Funds, Cash Investment Money Market Fund II Wells Fargo Advantage Funds, Prime Investment Money Market Fund II Wells Fargo Advantage Funds, Treasury Plus Money Market Fund ❑Wells Fargo Advantage Funds, Heritage Money Market Fund II Wells Fargo Advantage Funds, National Tax-Free Money Market Fund I acknowledge that I have received, at my request, and reviewed the Fund's prospectus and have determined that the Fund is an appropriate investment for the Account. Each Fund's prospectus can be downloaded from the Wells Fargo website at the following link: http://www.wellsfargo.com/funds/fmq fund/fund type/fundtype.jhtml?fundType=Mon eyMarket&t ab=literature I understand from reading the Fund's prospectus that Wells Fargo Funds Management, LLC, ("Wells Fargo Funds Management"), a wholly-owned subsidiary of Wells Fargo & Company, provides investment advisory and other administrative services for the Wells Fargo Advantage Funds. Other affiliates of Wells Fargo & Company provide sub-advisory and other services for the Funds. Boston Financial Data Services serves as transfer agent for the Funds. The Funds are distributed by Wells Fargo Funds Distributor, LLC, Member NASD/SIPC, an affiliate of Wells Fargo & Company. I also understand that Wells Fargo & Company will be paid, and its bank affiliates may be paid, fees for services to the Funds and that those fees may include Processing Organization fees as described in the Fund's prospectus. I understand that you will not exclude amounts invested in the Fund from Account assets subject to fees under the Account agreement between us. I understand that investments in the Fund are not obligations of, or endorsed or guaranteed by, Wells Fargo Bank or its affiliates and are not insured by the Federal Deposit Insurance Corporation. I acknowledge that I have full power to direct investments of the Account. I understand that I may change this direction at any time and that it shall continue in effect until revoked or modified by me by written notice to you. I understand that if I choose to communicate this investment direction solely via facsimile, then the investment direction will be understood to be enforceable a d- binding. Signature V_ _4 IZ Date