HomeMy WebLinkAboutRegions Bank - Custody Agreement 2008 11 24CUSTODY AGREEMENT
This Custody Agreement (this "Agreement ") is made and entered into as of the
24th day of November, 2008, by and between City of Winter Springs, a Florida
Municipal Corporation ('Depositor ") and Regions Bank, an Alabama banking
corporation ( "Custodian ").
WHEREAS, Depositor desires to appoint Custodian as its agent to hold certain assets
subject to the terms and conditions described herein.
WHEREAS, Custodian desires to accept the appointment as custodian and agrees to act
on the terms and conditions described herein.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Custodian. Depositor hereby appoints Custodian as the
custodian for the purposes set forth herein, and Custodian hereby accepts such
appointment under the terms and conditions described herein.
2. Custody Account. Custodian will establish and maintain the custody account
(the "Account ") in the name of Depositor for the purpose of holding funds and /or
securities deposited with Custodian.
3. Investment of Account. During the term of this Agreement, funds in the
Account shall be invested and reinvested by Custodian in direct obligations of the United
States Treasury or such other investments as shall be directed in wziting by Depositor and
as shall be acceptable to Custodian. Subject to principles of best execution, transactions
are effected on behalf of the Account through broker - dealers selected by Depositor.
Depositor, upon written request, will receive a statement of transaction details upon
completion of any securities transaction in the Account without any additional cost.
Custodian shall have no liability for any loss sustained as a result of any investment made
in accordance with this Agreement or as a result of any liquidation of any investment
prior to its maturity for which proper instructions are provided by Depositor or for the
failure of Depositor to give Custodian investment instructions.
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4. Use of Depositories; Nominee Name. (a) Custodian may deposit securities with,
and hold securities in, any securities depository, settlement system, dematerialized book
entry system or similar system (together a "Securities Depository ") on such terms as such
systems customarily operate and Depositor shall provide Custodian with such
documentation or acknowledgements as Custodian may require to hold the securities in
such systems. Custodian shall have no responsibility for any act or omission by (or the
insolvency of) any Securities Depository. In the event Depositor incurs a loss due to the
negligence, willful misconduct, or insolvency of a Securities Depository, Custodian shall
make reasonable endeavors, in its discretion, to seek recovery from the Securities
Depository.
(b) Custodian is authorized to hold in bearer form, such securities as are customarily
held in bearer form and to register in the name of Depositor, Custodian, a Securities
Depository, or their respective nominees, such securities as are customarily held in
registered form. Depositor authorizes Custodian to hold securities in omnibus accounts and
will accept delivery of securities of the same class and denomination as those deposited
with Custodian.
5. Entitlements. With respect to all securities held in the Account, Custodian by
itself, or through the use of the book entry system or the appropriate Securities Depository,
shall, unless otherwise instructed in writing to the contrary by Depositor: (i) collect all
income and other payments reflecting interest and principal on the securities in the Account
and disburse such amounts as directed in writing by Depositor; (ii) forward to Depositor
copies of all information or documents that it may receive from an issuer of securities
which, in the opinion of Custodian, are intended for the beneficial owner of the securities
including, without limitation, all proxies and other authorizations properly executed and all
proxy statements, notices and reports; (iii) execute, as Custodian, any certificates of
ownership, affidavits, declarations or other certificates under any tax laws now or hereafter
in effect in connection with the collection of bond and note coupons; and (iv) hold directly,
or through the book entry system or Securities Depository, all rights issued with respect to
any securities held by Custodian hereunder. Upon receipt of written instructions from
Depositor, Custodian shall (i) release and exchange securities held hereunder for other
securities and/or cash in connection with (a) any sale, conversion privilege, reorganization,
recapitalization, redemption in kind, consolidation, tender offer or exchange offer, or (b)
any exercise, subscription, purchase or other similar rights; and (ii) present securities for
payment upon maturity, redemption or other retirement of the securities.
6. Disbursements. Custodian shall disburse funds held hereunder as directed in
writing by the person so designated on Exhibit `B" hereto, or any other person designated
in a writing signed by Depositor and delivered to Custodian in accordance with the notice
provisions of this Agreement, to act as its representative under this Agreement.
Custodian is hereby granted the right to rely on any disbursement request received by it
from the Depositor and shall have no obligation to verify the accuracy or the contents of
any such disbursement instruction.
7. Disposition and Termination. Either party may terminate this Agreement on
fifteen (15) days notice in writing to the other party. After notice of termination is given
by either party, Custodian agrees to deliver all funds and securities to or upon the written
instructions of Depositor. Upon delivery of all funds and securities by Custodian, this
Agreement shall terminate subject, however, to the provisions of Sections 10 and 11.
8. Custodian. Custodian undertakes to perform only such duties as are expressly set
forth herein and no duties shall be implied. Custodian shall have no liability under, and
no duty to inquire as to the provisions of any agreement other than this Agreement.
Custodian may rely upon and shall not be liable for acting or refraining from acting upon
any written notice, instruction or request furnished to it hereunder and believed by it to be
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genuine and to have been signed or presented by the proper party or parties. Custodian
shall be under no duty to inquire into or investigate the validity, accuracy or content of
any such document. Custodian shall have no duty to solicit any payments which may be
due it or the Account. Custodian shall not be liable for any action taken or omitted by it
in good faith except to the extent that a court of competent jurisdiction makes a final
determination that Custodian's negligence or willful misconduct was the primary cause of
any loss to Depositor. Custodian may execute any of its powers and perform any of its
duties hereunder directly or through agents or attorneys, and may consult with counsel,
accountants and other skilled persons to be selected and retained by it. In the event that
Custodian shall be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands from any party hereto which, in its opinion, conflict with
any of the provisions of this Agreement, it shall be entitled to refrain from taking any
action and its sole obligation shall be to keep safely all property held under the terms of
this Agreement until it shall be directed otherwise in writing by all of the other parties
hereto or by a final order or judgment of a court of competent jurisdiction. Anything in
this Agreement to the contrary notwithstanding, in no event shall Custodian be liable for
special, indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if Custodian has been advised of the likelihood of such
loss or damage and regardless of form of action, provided Custodian was acting in
accordance with the terms and conditions of this Agreement.
9. Succession. Custodian may resign and be discharged from its duties or
obligations hereunder by giving thirty (30) days notice in writing of such resignation to
Depositor specifying a date when such resignation shall take effect. Custodian shall have
the right to withhold an amount equal to any amount due and owing to Custodian, plus
any costs and expenses Custodian shall reasonably believe may be incurred by Custodian
in connection with its resignation hereunder. Any corporation or association into which
Custodian may be merged or converted or with which it may be consolidated, or any
corporation or association to which all or substantially all the custody business of
Custodian's corporate trust line of business may be transferred, shall be the custodian
under this Agreement without further act.
10. Fees. Depositor agrees to pay Custodian upon execution of this Agreement and
from time to time thereafter reasonable compensation for the services to be rendered
hereunder, which, unless otherwise agreed in writing, shall be as described in Exhibit "A"
attached hereto.
11. Indemnity of Custodian. Depositor shall indemnify, defend and hold harmless
Custodian and its directors, officers, agents and employees (the "Indemnitees ") from all
loss, liability or expense (including the fees and expenses of in -house or outside counsel)
arising out of or in connection with (i) Custodian's execution and performance of this
Agreement, except in the case of such loss, liability, or expense is finally determined by a
court of competent jurisdiction to have resulted from the negligence or willful
misconduct of Indemnitees or (ii) its following any instructions or other directions from
Depositor, except to the extent that its following any such instruction or direction is
expressly forbidden by the terms hereof. The parties hereto acknowledge that the
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foregoing indemnities shall survive the resignation or removal of Custodian or the
termination of this Agreement.
12. Taxpayer Identification Number. Depositor represents that its correct Taxpayer
Identification Number ( "TIN ") assigned by the Internal Revenue Service ( "IRS ") or any
other taxing authority is set forth on Exhibit `B ", hereto. Upon execution of this
Agreement, Depositor shall provide Custodian with a fully executed IRS Form W -8 or
W -9, which shall include Depositor's TIN. All interest or other income earned under the
Agreement shall be allocated and/or paid as directed in a written direction of Depositor
and reported by the recipient to the IRS or any other taxing authority. Notwithstanding
such written directions, Custodian shall report and withhold any taxes as it determines
may be required by any law or regulation in effect at the time of the distribution. In the
absence of timely direction, all proceeds of the Account shall be retained in the Account
and reinvested from time to time by Custodian as provided in Section 3. In the event that
any earnings remain undistributed at the end of any calendar year, Custodian shall report
to the Internal Revenue Service or such other authority such earnings as it deems
appropriate or as required by any applicable law or regulation or, to the extent consistent
therewith, as directed in writing by Depositor. In addition, Custodian shall withhold any
taxes it deems appropriate and shall remit such taxes to the appropriate authorities.
13. Notices. All communications hereunder shall be in writing and shall be deemed
to be duly given and received: (i) upon delivery if delivered personally or upon confirmed
transmittal if by facsimile; (ii) on the next Business Day (as hereinafter defined) if sent
by overnight courier; or (iii) four (4) Business Days after mailing if mailed by prepaid
registered mail, return receipt requested, to the appropriate notice address set forth below
in this Section 13 or at such other address as any party hereto may have furnished to the
other parties hereto in writing by registered mail, return receipt requested.
If to Depositor: City of Winter Springs
Attn: City Manager
1126 E. State Road 434
Winter Springs, Florida 32708
407 -327 -5957
If to Custodian: Regions Bank
Corporate Trust Department
111 North Orange Avenue, Suite 750
Orlando, Florida 32801
Attn: Stacey Johnson
(407) 419 -8072 (Telephone)
(407) 419 -8091 (Facsimile)
stacey.johnson@regions.com
Notwithstanding the above, in the case of communications delivered to Custodian
pursuant to (ii) and (iii) of this Section 13, such communications shall be deemed to have
been given on the date received by Custodian. In the event that Custodian, in its sole
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discretion, shall determine that an emergency exists, Custodian may use such other means
of communication as Custodian deems appropriate. `Business Day"' shall mean any day
other than a Saturday, Sunday or other day on which Custodian located at the notice
address set forth in this Section 13 is authorized or required by law or executive order to
remain closed.
14. Miscellaneous. The provisions of this Agreement may be waived, altered,
amended or supplemented, in whole or in part, only by a writing signed by all of the
parties hereto. Neither this Agreement nor any right or interest hereunder may be
assigned in whole or in part by any party, except as provided in Section 9, without the
prior consent of the other parties hereto. This Agreement shall be governed by and
construed under the laws of the State of Florida. Each party hereto irrevocably waives
any objection on the grounds of venue, forum non - conveniens or any similar grounds and
irrevocably consents to service of process by mail or in any other manner permitted by
applicable law and consents to the jurisdiction of the courts located in the State of
Florida. The parties further hereby waive any right to a trial by jury with respect to any
lawsuit or judicial proceeding arising from or relating to this Agreement.
15. Force Majeure. No parry to this Agreement is liable to any other party for losses
due to, or if it is unable to perform its obligations under the terms of this Agreement
because of.. acts of God, fire, floods, earthquake, strikes, equipment or transmission
failure, war, riot, nuclear accident, terror attack, computer piracy, cyber - terrorism, or
other causes reasonably beyond its control.
16. Execution. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same instrument. The effective date of this Agreement shall be the date it is executed by
the last party to do so.
17. Identifying Information. Depositor acknowledges that a portion of the
identifying information set forth on Exhibit "B" is being requested by Custodian in
connection with the USA PATRIOT Act, Pub.L.107 -56 (the "Act "), and Depositor agrees
to provide any additional information requested by Custodian in connection with the Act
or any similar legislation or regulation to which Custodian is subject, in a timely manner.
Depositor represents that all identifying information set forth on Exhibit `B" including
without limitation, its Taxpayer Identification Number assigned by the Internal Revenue
Service or any other taxing authority, is true and complete on the date hereof and will be
true and complete at the time of any disbursement of the funds in the Account. Depositor
shall notify Custodian immediately upon any changes to the identifying information of
Depositor as is set forth on Exhibit `B."
18. Representations and Warranties. Depositor makes the following
representations and warranties to Custodian:
(i) It is duly organized, validly existing, and in good standing under
the laws of the state of its incorporation or organization, and has full power and
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authority to execute and deliver this Agreement and to perform its obligations
hereunder.
(ii) This Agreement has been duly approved by all necessary action,
including any necessary shareholder or membership approval, has been executed
by its duly authorized officers, and constitutes its valid and binding agreement
enforceable in accordance with its terms.
(iii) The execution, delivery, and performance of this Agreement will
not violate, conflict with, or cause a default under its articles of incorporation,
articles of organization, bylaws, management agreement or other organizational
document, as applicable, any applicable law or regulation, any court order or
administrative ruling or decree to which it is a party or any of its property is
subject, or any agreement, contract, indenture, or other binding arrangement to
which it is a party or any of its property is subject.
(iv) The applicable persons designated on Exhibit `'B'' hereto have
been duly appointed to act as its representatives hereunder and have full power
and authority to execute and deliver any written directions, to amend, modify or
waive any provision of this Agreement and to take any and all other actions on
behalf of Depositor under this Agreement, all without further consent or direction
from, or notice to, it or any other party.
19. EXHIBITS. The Exhibits attached hereto are by this reference incorporated into
this Agreement and made a part hereof.
20. STATEMENTS. Custodian shall provide Depositor monthly and annual
statements setting forth all transactions and investments with respect to the Depositor's
Account, which statement shall be provided within a reasonable time following the close
of the calendar quarter and year.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above.
CITY OF WINTER SPRINGS,
as Depositor
By: �. 'ct..� 124114�f--,._ �
Name: to c✓ jn c «✓ . o-
Title: CI17n jqj,4 y t G,. t'd
REGIONS BANK,
as Cusodian
Stacey Johnson
Vice President and Trust Officer
Exhibit "A"
Fee Schedule
These fees are based upon Custodian's current understanding of its duties under the
Agreement. Custodian reserves the right to adjust its fees should its duties change under
the Agreement.
• Acceptance Fee: Waived, provided our standard form Custody Agreement is
used with minimal changes;
• Annual Administration Fee: $1,000, payable in advance. This fee covers the
first four (4) trades per month for the account. Additional accounts under the
same agreement (if any) will incur a base administration fee of $300 per account,
plus transaction fees as shown below;
• Transaction Fees: $30 per transaction (purchase, sale, free receipt or free
delivery) for each trade in excess of the four (4) mentioned above.
These fees cover:
• Account set -up and maintenance;
• Investment, safekeeping and valuation of funds;
• Settling trades as directed by client (or authorized investment manager);
• Proper allocation of investment earnings;
• Online access to account holdings, historical transactions and account
statements:
• Timely response to client's audit confirmation requests; and
• Sweeping cash into a designated Money Market Fund, if applicable.
The Annual Administration Fee is payable in advance. All other fees and expenses, if
any, will be billed to the client in arrears.
Exhibit "B"
1. Depositor's Taxpayer Identification Number: 59-1026364
2. Depositor Representative: The following individuals are hereby designated as representatives
of Depositor under the Agreement:
Name Title Specimen Signature
Ronald W. McLemore City Manager
Michelle Greco Finance Director /�Wfi