HomeMy WebLinkAboutContract CAG-16-069
� WASHINGTON STATEWIDE
CUST DY P
O ROVIDER PROGRAM
Agreement
for
Custody Services
APRIL 1, 2016 I
WASHINGTON STATEWIDE CONTRACT
FOR SECURITY CUSTODY SERVICES
Table of Contents
GENERAL PROVISIONS............................................................................................................ 1
1. CONTRACTING PARTIES.............................................................................................. 1
2. HEREBYWITNESSETH.................................................................................................. i
3. ADDITIONAL SERVICES............................................................................................... 1
4. ENTIRE AGREEMENT;MODIFICATION;AMENDMENT......................................... 1
5. DEFINITIONS...................................................................................................................2
6. APPOINTMENT OF CUSTODIAN.................................................................................. 3
7. PERSONAL LIABILITY...................................................................................................3
8. LIABILITY AND HOLD HARMLESS............................................................................. 3
9. SEVERABILITY...............................................................................................................4
10. NONDISCRIMINATION AND AFFIRMATIVE ACTION.............................................4
11. GIFTS AND GRATUITIES...............................................................................................5
12. RIGHTS AND REMEDIES............................................................................................... 5
13. PERFORMANCE..............................................................................................................6
14. GOVERNING LAW;JiJRY TRIAL..................................................................................6
15. SUBCONTRACT/ASSIGNMENT....................................................................................6
16. SCOPE OF SERVICES......................................................................................................6
AGREEMENT TERM AND TERMINATION..........................................................................7
17. TERM OF AGREEMENT AND SURVIVORSHIP OF TERMS......................................7
18. TERMINATION AND REMEDIES..................................................................................7
19. FORCE MAJEURE.......................................................................................................... 10
20. CONFLICT OF INTEREST............................................................................................. 10
CONTRACT ADMINISTRATION........................................................................................... 11
21. INCORPORATED DOCUMENTS ................................................................................. 11
22. �RDEROFPRECEDENCE............................................................................................ 11
23. ENTIRE AGREEMENT.................................................................................................. 11
24. LIMITATION OF AGENCY'S AUTHORITY................................................................ 12
25. AGENCY CONTRACT ADMINISTRATOR................................................................. 12 �
26. BANK'S ACCOLTNT MANAGER................................................................................... 12 �
27. AMENDMENTS.............................................................................................................. 12 I
28. DISPUTES....................................................................................................................... 12
29. CONSENT....................................................................................................................... 13 I
BANK RESPONSIBILITIES..................................................................................................... 13 '
30. RESPONSIBILITY OF BANK........................................................................................ 13 I
31. CONFIDENTIALITY OF AGENCY RECORDS ........................................................... 14 I
32. AUDITING...................................................................................................................... 15 �
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33. COMMITMENTS,WARRANTIES,AND REPRESENTATIONS................................ 15
34. PRICE INCREASES........................................................................................................ 17
35. ANCILLARY SERVICES............................................................................................... 17
36. PROPER INSTRUCTIONS AND EVIDENCE OF AUTHORITY................................. 17
37. SECURITY CODES ........................................................................................................ 18
38. REGISTR.ATION WITH THE DEPARTMENT OF REVENUE.................................... 18
39. LICENSING AND ACCREDITATION STANDARDS.................................................. 18
40. WORKERS'COMPENSATION INSURANCE COVERAGE........................................ 18
� 41. ADVERTISING............................................................................................................... 18
'' CUSTODY PROVISIONS.......................................................................................................... 19
42. CUSTODY OF SECURITIES.......................................................................................... 19
43. NOTICES.........................................................................................................................22
PAYMENTPROVISIONS.........................................................................................................23
44. PAYMENTS.....................................................................................................................23
45. TAXES...............................................................................................................................23
46. INDEPENDENT CAPACITY..........................................................................................24
47. ADVANCE PAYMENTS PROHIBITED ........................................................................24
48. AMERICANS WITH DISABILITIES ACT(ADA)OF 1990,PUBLIC LAW
101-336,ALSO REFERRED TO AS THE"ADA" 28 CFR PART 35............................24
49. ATTORNEY'S FEES.........................................................................................................24
50. COPYRIGHT PROVISIONS............................................................................................24
51. COVENANT AGAINST CONTINGENT FEES..............................................................25
52. DISALLOWED COSTS....................................................................................................25
53. DUPLICATE PAYMENT................................................................................................25
54. TREATMENT OF ASSETS..............................................................................................25
55. PRIVACY.........................................................................................................................26
56. WAIVER...........................................................................................................................27
57. SEVERABILITY...............................................................................................................27
MISCELLANEOUS....................................................................................................................27
58. COUNTERPARTS........................................................................................................... 27
CONTRACTEXECUTION.......................................................................................................28
59. RELATIONSHIP BETWEEN THE PARTIES................................................................ 28
60. SIGNATURE BLOCKS................................................................................................... 28 '
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WASHINGTON STATEWIDE AGREEMENT
FOR CUSTODY SERVICES
GENERAL PROVISIONS
1. CONTRACTING PARTIES
THIS AGREEMENT is entered into by and between the Citv of Renton,
hereinafter referred to as the "Agency" and Wells Fargo Bank, N.A. hereinafter
referred to as the"Bank."
2. HEREBY WITNESSETH
The State of Washington, acting by and through the OFFICE OF THE STATE
TREASURER of the STATE OF WASHINGTON, issued a Request for Proposal
(RFP), dated October 30, 2015, for the purpose of obtaining proposals for
providing statewide custody services.
As a result of that process, the State Treasurer has designated the Bank as the
provider of statewide custody services ("Statewide Custodian"), and the Bank has
agreed to provide Statewide Custody Services, hereinafter referred to as the
"Services," as described in Bank's proposal, attached hereto at the prices stated
therein, in accordance with the terms of this Agreement.
3. ADDITIONAL SERVICES
The Parties agree that additional services, appropriate to the scope of this
Agreement, may be added to this Agreement by written amendment and only with
the written consent of both parties. Such writing shall include a specific
description of the additional services, pricing, and additional terms and conditions
as relevant. The additional services shall be available under the same terms and
conditions established herein except as specifically amended between the parties.
4. ENTIRE AGREEMENT; MODIFICATION; AMENDMENT
The Agency and the Bank agree that this Agreement is the complete and
exclusive agreement between the parties which supersedes all proposals ar prior
agreements, oral or written, and all other communications between the parties
relating to the subject matter of this Agreement.
Unless otherwise agreed in writing, all amendments, addenda, and orders signed ,
during the life of this Agreement shall be governed by these General Provisions. �I
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Agreement for Custody Services 1
5. DEFINITIONS I
Definitions as used throughout this Agreement shall have the meanings set forth
below:
"Bank" shall mean Wells Fargo Bank, N.A. It shall also include any
Subcontractor retained by the Bank as pernutted under the terms of this
Agreement.
"Bank's Account Manager" shall mean an employee of the Bank who is
permanently assigned as the primary contact person with whom the Agency
Contract Administrator shall work for the duration of this Agreement.
"Book-Entry System" shall mean the Federal Reserve/Treasury book-entty
system for receiving and delivering securities,its successors and nominees.
"Business Day" shall mean any day on which the Bank, Book-Entry System and
relevant Depositories are open for business.
"Custody Services" may also be referred to as "Services," and shall be inclusive
of all services, including associated support services and maintenance provided
pursuant to this Agreement.
"Depository" shall include the Book-Entry System, the Depository Trust
Company (DTC), and any other securities depository, book-entry system, or
clearing agency (and their respective successors and nominees) authorized to act
as a securities depository, book-entry system, or clearing agency pursuant to
applicable law.
"Exhibit A" shall mean the Request for Proposal (RFP) for Statewide Custody
Services issued by the Office of the State Treasurer,dated October 30, 2015.
"Exhibit B" shall mean the Bank's proposal in response to the State RFP for
Statewide Custody Services.
"Exhibit C" shall mean the Bank's schedule of fees for all Services provided
under this Agreement.
"RCW" shall mean the Revised Code of Washington(Washington State law).
"Agency Contract Administrator" shall mean the staff person appointed by the
Agency to administer this Agreement on behalf of the Agency.
"Subcontractor" shall mean one not in the employment of the Bank, who is
perfornung all or part of those Services under this Agreement under a separate
Statewide Custody Provider Program
Agreement for Custody Services 2
contract with the Bank. The term "Subcontractor" means Subcontractor(s) of any
tier.
6. APPOINTMENT OF CUSTODIAN
The Agency, in accordance with RCW 43.08.015, hereby appoints the Bank as
Custodian for certain assets of the Agency and authorizes the Bank to hold such
assets in registered form in its name or the name of its nominees. All property
delivered to the Bank, its agents, or Subcustodians, shall be held and dealt with as
herein provided. The Bank hereby accepts this appointment.
7. PERSONAL LIABILITY
It is agreed by and between the parties hereto that in no event shall any official,
officer, employee, or agent of the Agency be in any way personally liable or
responsible for any covenant or agreement herein contained, whether expressed or
implied, nor for any statement or representation made herein or in any connection
with this Agreement.
8. LIABILITY AND HOLD HARMLESS
8.1 The Bank shall be liable to the Agency for any direct money damages that
are caused by the Bank's own negligence, fraud, or failure to exercise Due
Care as defined in Section 30, in the Bank's performance of its duties
under this Agreement. For the purposes of this Agreement, direct money
damages shall include, but not be limited to, those situations where
interest charges are incurred by the Agency or any loss of earnings occurs
that would otherwise have been realized by the Agency through an
overnight investment of funds, and where such interest charges or loss of
earnings are caused by the Bank's own negligence, fraud, or failure to
exercise Due Care, as defined in Section 30. In no event shall the Bank be
liable to the Agency or any third party for special, indirect or
consequential damages, or lost profits or loss of business, arising in
connection with this Agreement.
8.2 Each party to this Agreement agrees to hold harmless the other party, to
the extent authorized by law, from all losses (excluding attorneys' fees and
expenses)which relate to or result from lawsuits brought by non-parties to
this Agreement from activities covered by this Agreement from:
8.2.1 A failure by a party or its subsidiaries, affiliates, agents,
Subcontractors, representatives, or employees to comply with any
applicable federal, state, or local law, rule, or regulation;
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Agreement for Custody Services 3
8.2.2 A negligent act or omission or the breach of this Agreement (as
defined in subsection 18.3) by a party, its subsidiaries, affiliates,
agents, Subcontractors, representatives, ar employees; or a failure
to exercise Due Care as defined in subsection 301 herein
("Covered Lawsuit").
8.3 Nothing in this section shall be construed to mean either party is prevented
from commencing a legal action against the other.
8.4 Any right to indemnification is contingent on the party claiming
indemnification (`Indemnitee") providing: the party from whom payment
is claimed("Indemnitor") with: timely notice of the Covered Lawsuit and;
the right to meaningful participation (at Indemnitor's expense) in any
defense or settlement proceedings.
9. SEVERABILITY
� Any provision of this document found to be prohibited by law shall be ineffective
to the extent of such prohibition without invalidating the remainder of the
document.
10. NONDISCRIMINATION AND AFFIRMATIVE ACTION
During the performance of this Agreement,the Bank shall comply with all federal
and state nondiscrimination statutes and regulations. These requirements include,
but are not limited to:
10.1 Nondiscrimination in Employment. The Bank shall not discriminate
against any employee or applicant for employment in violation of RCW
49.60.
10.2 Nondiscrimination in Client Services. The Bank shall not in violation of
RCW 49.60:
10.2.1 Deny an individual any services or other benefits provided under
this Agreement;
10.2.2 Provide any service(s) or other benefits to an individual which are
different, or are provided in a different manner, from those
provided to others under this Agreement;
10.2.3 Subject an individual to segregation or separate treatment in any
manner related to the receipt of any service(s) or other benefits
provided under this Agreement; or
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Agreement for Custody Services 4
10.2.4 Deny any individual an opportunity to participate in any program �
provided by this Agreement through the provision of services or I
otherwise, or afford any opportunity which is different from that �,
afforded others under this Agreement.
10.3 The Bank, in determining (1)the types of services or other benefits to be
provided; or (2)the class of individuals to whom, ar the situation in
which, such services or other benefits will be provided; or(3)the class of
individuals to be afforded an opportunity to participate in any services or
other benefits, will not utilize criteria or methods of administration which
have the effect of subjecting individuals to discrimination in violation of
RCW 49.60.
10.4 Noncompliance With Nondiscrimination Requirements. In the event
of the Bank's noncompliance or refusal to comply with the
nondiscrimination requirements, this Agreement may be rescinded,
canceled, or ternunated in whole or in part, and the Bank may be declared
ineligible for further contracts with the Agency. The Bank shall, however,
be given a reasonable time in which to cure the noncompliance. Any
dispute may be resolved in accordance with the Disputes section set forth
in this Agreement.
11. GIFTS AND GRATUITIES
11.1 In accordance with RCW 42.52, Ethics in Public Service Act, it is
unlawful for any person to accept, directly or indirectly, any
compensation, gratuity, or reward in connection with this Agreement from
any person beneficially interested therein. The Bank is required at all
times to comply with all provisions of RCW 42.52.
11Z The Agency may terminate this Agreement, by written notice to the Bank,
if it is found after due notice and examination that there is a violation by
the Bank of the Ethics in Public Service Act, RCW 42.52, or any other
similar statute involving the Bank in its performance under this
Agreement.
In the event this Agreement is terminated as provided in sub-section 11.2 above,
the Agency shall be entitled to pursue the same remedies against the Bank as it
could pursue in the event of a breach of this Agreement by the Bank. The rights
and remedies of the Agency provided by this clause shall not be exclusive and are
in addition to any other rights and remedies provided by law.
12. RIGHTS AND REMEDIES
In the event of any claim for default or breach of contract, no provision in this
document nor in the Bank's proposal for services shall be construed, expressly or
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Agreement for Custody Services 5
by implication, as a waiver by the Agency of any right to insist upon the strict
performance of any term or condition of the Agreement or to exercise or delay the
exercise of any right or remedy pmvided in the Agreement or by law, or as the
acceptance of(or payment for)materials, equipment, or services,or to release the
Bank from any responsibilities or obligations imposed by this Agreement or by
law.
13. PERFORMANCE
' Acceptance by the Agency of unsatisfactory performance with or without
' objection or reservation shall neither waive the right to claim damage for breach
nor constitute a waiver of requirements for satisfactory performance of any
obligation remaining to be performed by the Bank.
14. GOVERMNG LAW;JURY TRIAL
This Agreement shall be governed in all respects by, and construed in accordance
with, the law and statutes of the state of Washington. The venue of any action
hereunder shall be exclusively in the Superior Court for �j�
County, Washington. The Bank, by execution of this Agreement, a�knowledges
the jurisdiction of the courts of the State of Washington in this matter.
15. SUBCONTRACT/ASSIGNMENT
T'he Bank shall not subcontract or assign its obligations under this Agreement
without the prior written consent of the Contract Administrator. The Bank shall
be responsible to ensure that al) requirements of the Agreement shall be
communicated to any and all Subcontractors.
Substitution of another financial institution to act as the Bank under this
Agreement may occur in the event of a takeover, merger, or acquisition. In this
event, the successor bank shall provide an automatic continuation of all terms of
this Agreement, provided the successor bank can meet all required terms of the
Agreement. However, the Agency reserves the right to terminate the Agreement
in the event a successor bank is substituted, after providing b0 calendaz days'
written termination notice.
' 16. SCOPE OF SERVICES
The Bank agrees to provide custody, record keeping, and cash management, as
further described in the Office of the State Treasurer RFP {Exhibit A) and the
Bank's Proposal (Exhibit B), under the terms of this Agreement, subject to the
provisions of Section 4-Consideration. ,
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Agreement for Custody Services 6 I
AGREEMENT TERM AND TERMINATION
17. TERM OF AGREEMENT AND SURVIVORSHIP OF TERMS
This Agreement shall commence on Mav 1, 2016 and continue until March 31,
2020 (or thereafter pursuant to extensions provided for in this paragraph), unless
the Bank is no longer serving as Statewide Custodian, in which case this
Agreement shall terminate upon the termination or expiration of the Bank's
service as Statewide Custodian. Annually the term of this Agreement will be
automatically extended for a period of one year, with the total contract period
including extensions not to exceed eight years.
The Bank is not obliged to offer this contract for a time period of less than one
year.
18. TERNIINATION AND REMEDIES
18.1 Termination for Convenience. The Agency may terminate this
Agreement, in whole or in part, at any time and for any reason by giving
90 calendar days' written termination notice to the Bank. The Bank may
ternunate this Agreement, by giving 180 days' written termination notice
to the Agency.
18.2 Terminallon for Reduction of Funding or Withdrawal of Authority. !
In the event that either funding from the Agency or other sources is
withdrawn, reduced, or limited, or the authority of the Agency to perfonn
any of its duties is withdrawn, reduced, or limited in any way after the
effective date of this Agreement and prior to its normal completion, the
Agency may terminate this Agreement, in whole or in part, at any time by
giving 60 calendar days' written termination notice to the Bank.
18.3 Termination for Breach. Except in the case of delay or failure resulting
from circumstances beyond the control of and without the fault or
negligence of the Bank or of the Bank's suppliers or Subcontractors, the
Agency shall be entitled, by written or verbal notice, to cancel this
Agreement in its entirety or in part, for breach of any of the terms herein,
and to retain all other rights against the Bank by reason of the Bank's
breach as provided by law.
A breach shall mean one or more of the following events: (1)the Bank
fails to perform the services by the time and date required and such failure
is not caused by a force majeure event; (2)the Bank breaches any
warranty, or fails to perform or comply with any term in the Agreement;
(3)the Bank fails to exercise Due Care as to any aspect of this Agreement,
with Due Care being defined in subsection 30.1; or (4)the Bank makes
any general assignment of the assets held pursuant to this Agreement for
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Agreement for Custody Services 7
the benefit of creditors; If it is subsequently found that the Bank was not
in breach, the rights and obligations of the parties shall be the same as if a
Notice of Ternunation had been issued pursuant to subsection 18.1.
The Agency Contract Administrator shall issue a written notice of breach
providing a period not to exceed 30 days in which the Bank shall have an
opportunity to cure. Time allowed for cure shall not diminish or eliminate
the Bank's liability for damages.
If the breach remains after the Bank has been provided the opportunity to
cure, the Agency may do one or more of the following:
18.3.1 Exercise any remedy provided by law;
18.3.2 Terminate this Agreement and any related contracts or portions
thereof,by written or verbal notice;
, 18.3.3 Seek damages.
18.4 Termination by Mutual Agreement. The Agency and the Bank may
terminate this Agreement in whole or in part, at any time, by mutual
agreement.
18.5 Termination Procedure. Upon ternunation of this Agreement, the
Agency, in addition to any other rights provided in this Agreement, may
require the Bank to deliver to the Agency any property specifically
produced or acquired for the performance of such part of this Agreement
as has been ternunated.
The Agency shall pay to the Bank the agreed upon price, if separately
stated, for completed work and services accepted by the Agency, and the
amount agreed upon by the Bank for (a) completed work and services for
which no separate price is stated, (b)partially completed work and
services, (c)other property or services which are accepted by the Agency,
and (d)the protection and preservation of properiy, unless the termination
is for default, in which case the Agency shall determine the extent of the
liability of the Agency. Failure to agree with such determination shall be a
dispute within the meaning of Section 28, "Disputes" of this Agreement.
The Agency may withhold from any amounts due to the Bank such sum as
the Agency determines to be necessary to protect the Agency against
potential loss or liability.
The rights and remedies of the Agency provided in this clause shall not be
exclusive and are in addition to any other rights and remedies provided by
law or under this Agreement.
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Agreement for Custody Services 8
18.6 Termination-Related Obligations Antecedent to Date of Termination.
Upon nearing the end of the final term of this Agreement, and without
respect to either the cause or time of such termination, the Bank shall take
all reasonable and prudent measures to facilitate the transition to a
successor custodian's system.
The Bank shall provide, at any time during the nine (9) months preceding
ternlination, such non-proprietary, non-confidential information about the
Bank's systems as will be reasonably required by the Agency and/or the
successor for purposes of planning the transition and conversion to the
successor's system.
18.7 Obligations Upon Termination. After receipt of a notice of ternunation,
and except as otherwise directed by the Agency Contract Administrator,
the Bank shall:
18.7.1 Stop work under the Agreement on the date, and to the extent,
s ecified in the notice•
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18.7.2 Place no further orders or subcontracts for materials services or
, ,
facilities except as may be necessary for completion of such
portion of the work under the Agreement as is not terminated;
18.7.3 Assign to the Agency, in the manner, at the times, and to the extent
directed by the Agency Contract Administrator all of the rights,
titles, and interest of the Bank under the orders and subcontracts so
terminated, in which case the Agency has the right, at its
discretion, to settle or pay any or all claims arising out of the
termination of such orders and subcontracts;
18.7.4 Settle all outstanding liabilities and all claims arising out of such
termination of orders and subcontracts, with the approval or
ratification of the Agency Contract Administrator to the extent he
or she may require, which approval or ratification shall be fmal for
all the purposes of this clause;
18.7.5 Transfer title to the Agency and deliver in the manner, at the times,
and to the extent, if any, as directed by the Agency Contract
Administrator, any property which, if the Agreement had been
completed, would have been required to be furnished to the
Agency;
18.7.6 Complete performance of such part of the work as shall not have
been terminated; and
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Agreement for Custody Services 9
18.7.7 Take such action as may be necessary, or as the Agency Contract
' Administrator may direct, for the protection and preservation of the
property related to this Agreement which is in the possession of the
Bank and in which the Agency has or may acquire an interest and
to transfer that ro e to the successor Bank.
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By such ternunation, neither the Agency nor the Bank may nullify
obligations already incurred for performance or failure to perform
prior to the date of termination.
19. FORCE MAJEURE
19.1 Definition. Neither party shall be liable to the other or deemed in default
under this Agreement if and to the extent that such party's performance of
this Agreement is prevented by reason of force majeure. The term "force
„
ma'eure means an occurrence that is be ond the control of the pa
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affected and could not have been avoided by exercising Due Care. Force
majeure shall include acts of God, war, riots, strikes, fire, floods,
earthquakes, epidemics, or other similar occurrences.
19.2 Allocation of Serviee. When force majeure affects only part of the
Bank's capacity to perform, the Bank may allocate services among its
customers, including regular customers not included in this Agreement, in
any manner which is fair and reasonable.
19.3 NoNticallon. If either party is delayed by force majeure, said party shall
provide reasonable notice that there will be delay or non-delivery of
reports or services. The notification shall provide evidence of the force
majeure to the reasonable satisfaction of the other party. Such delay shall
cease as soon as practicable and written notification of same shall be
provided. The time of completion shall be extended for a period of time
equal to the time that the results or effects of such delay prevented the
delayed party from performing in accordance with this Agreement.
19.4 Rights Reserved. The Agency reserves the right to cancel the Agreement
and/or purchase services from the best available source during the time of
force majeure, and Bank shall have no recourse against the Agency.
20. CONFLICT OF INTEREST
The Bank warrants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of services required under this Agreement.
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Agreement for Custody Services 10
CONTRACT ADMINISTRATION
21. INCORPORATED DOCUMENTS
This Agreement shall consist of the terms and conditions as set forth herein, and
the following documents which are incorporated herein by reference:
21.1 "Exhibit A" - The Request for Proposal (RFP) for Statewide Custody
Services, dated October 30, 2015.
21.2 "Exhibit B" - The Bank's proposal in response to the State RFP for
Statewide Custody Services.
21.3 "Exhibit C" - The Bank's schedule of fees for all Services provided under
this Agreement.
22. ORDER OF PRECEDENCE
22.1 The headings used herein are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions.
22.2 If any provision of this Agreement shall be deemed to be in conflict with
state or federal law, such provisions shall be deemed modified to conform
with said law. In the event of any inconsistency in this Agreement, the
inconsistency shall be resolved in the order of precedence stated below:
22.2.1 Applicable Federal and State Statutes and Regulations.
22.2.2 The Terms and Conditions of this Agreement.
, 22.2.3 Exhibit A - The Request for Proposal (RFP) for Statewide
Custody Services issued by the Office of the State Treasurer, dated
October 30, 2015.
22.2.4 Exhibit B - The Bank's proposal in response to the State RFP for
Statewide Custody Services.
22.2.5 Exhibit C —The Bank's schedule of fees for all Services provided
under this Agreement.
23. ENTIRE AGREEMENT
This document, including all addenda and subsequent amendments, comprises the
entire agreement between the Agency and the Bank and shall be governed by the
laws of the State of Washington incorporated herein by reference.
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Agreement for Custody Services 11
24. LIMITATION OF AGENCY'S AUTHORITY
Only the Agency Contracting Officer, or delegate by writing, shall have the
express, implied, or apparent authority to alter, amend, modify, or waive any
clause or condition of this Agreement. Furthermore, any alteration, amendment,
modification, or waiver of any clause or condition of this Agreement is not
effective or binding until made in writing and signed by the Agency and the Bank
unless otherwise provided herein.
25. AGENCY CONTRACT ADMINISTRATOR
The Agency shall appoint an individual who will be the Contract Administrator
for this Agreement and will provide oversight of the activities conducted
hereunder. The Agency Contract Administrator will manage this Agreement on
behalf of the Agency, and will be the Agency point of contact for the Bank
concerning the Bank's performance hereunder. The Agency shall notify the Bank,
in writing, when there is a change in staffing and a new Contract Administrator is
assigned to this Agreement.
26. BANK'S ACCOUNT MANAGER
The Bank shall appoint an individual who will be the Account Manager for the
Agency account. The Bank's Account Manager will be the principal point of
contact for the Agency concerning the Bank's performance hereunder. The '
Bank's Account Manager will also serve as the focal point for business matters,
support coordination, and administrative activities. The Bank shall notify the
Agency in writing if a new Account Manager is assigned.
27. AMENDMENTS
No modifications or amendments to this Agreement shall be effective unless it is
in a written amendment signed by an authorized officer of the Bank and an
individual duly authorized on behalf of the Agency.
28. DISPUTES
28.1 Except as otherwise provided in this Agreement, when a bona fide dispute
concerning a question of fact arises between the Agency and the Bank and
it cannot be resolved, either party may initiate the dispute resolution
procedure provided herein.
28.2 Time is of the essence in resolving disputes. The initiating party shall
reduce its description of the dispute to writing and deliver it to the
responding party. The responding party must respond in writing within
two (2) Agency working days. Then, both parties shall have three (3)
Agency working days to negotiate in good faith to resolve the dispute.
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Agreement for Custody Services 12
28.3 Both parties agree to exercise good faith in dispute resolution and to avoid
arbitration and litigation whenever reasonably possible. Nothing in this
Agreement shall prevent either party, after the expiration of the three (3)
day period in subsection 28.2, from pursuing other methods of dispute
resolution.
28.4 The Agency and the Bank agree that, the existence of a dispute
notwithstanding, they will continue without delay to carry out all their
respective responsibilities under this Agreement which are not affected by
the dispute.
29. CONSENT
Both parties agree that whenever a party's consent is required under the terms of
this Agreement,that consent shall not be unreasonably delayed or withheld.
BANK RESPONSIBILITIES
30. RESPONSIBILITY OF BANK
30.1 The Bank shall perform its duties hereunder with "Due Care." For the
purposes of this agreement, "Due Care" shall mean the degree of care and
skill demonstrated by agents acting in like capacity as a safekeeping
custodian. The Bank shall not be responsible for the title, validity, or
genuineness, including good deliverable form, of any property or evidence
of title thereto received by it or delivered by it pursuant to this Agreement.
The Bank may at its discretion appoint and remove agents or
Subcustodians to carry out such of the provisions of this Agreement as the
Bank may from time to time direct; provided, however, that such
' appointment shall not relieve the Bank of its responsibilities or liabilities
under this A reement and rovided further that an de osito selected
g � P Y P rY
with Due Care by the Bank shall not be deemed for purposes of this
Agreement an agent or Subcustodian of the Bank.
30.2 Provided always that the Bank and its agents and Subcustodians act in
good faith and with the exercise of Due Care in performance of such
duties as would ordinarily be expected of a financial institution in the
relevant market and subject to the terms of the Agreement:
30.2.1 It is not liable for any loss or damage caused by the delay or failure
of any central bank, any depository, or any commercially prevalent
payment or clearing system to deliver to or for the Bank or its
Subcustodians securities purchased or sold, or to make or receive
and remit, any payment in connection with purchases or sales of
securities, for delays or failures in providing corporate action
notices, or for delays or inability by the Bank to perform its duties
Statewide Custody Provider Program
Agreement for Custody Services 13
due to acts or omissions of any depository or to disorder in market
infrastructure with respect to any particular security, security
exchange, central depository, or clearing system; and
30.2.2 It is not liable for any delay or failure of any non-parties, company,
corporation, or other body in charge of registering or transferring
securities in the name of the Bank, any customer of the Bank, or
the Subcustodian, its nominee or agent, or for any consequential
losses arising out of such delay or failure to transfer such securities
including non-receipt of bonus, dividends, and rights and other
accretions or benefits.
30.2.3 The Bank's performance under this Agreement is subject to any
relevant regulations, as well as the rules, operating procedures and
practices of any relevant stock exchange, clearing systems or
depositories or market where or through which Proper Instructions
are to be carried out and to which the Bank is subject and as exist
in the market in which any securities or cash are held.
30Z.4 The Bank shall be under no obligation to take action to collect any
amount payable on securities in default, or if payment is refused
after due demand and presentment. The Bank shall have no duty
or responsibility to inquire into,make recommendations, supervise,
or determine the suitability of any transactions affecting any of the
Agency's accounts ("Account").
30.2.5 The Bank may debit the Account for fees and expenses payable
hereunder which remain in arrears for over 60 days.
30.2.6 The Bank shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied
against the Bank in connection with this Agreement.
31. CONFIDENTIALITY OF AGENCY RECORDS
31.1 The Bank acknowledges that material and information which has or will
come into its possession or knowledge in connection with this Agreement
or its performance, may consist of confidential and proprietary data, the
disclosure of which to, or use by, third parties could be damaging.
31.2 Access to information concerning the Agency or individual recipients of
the Agency's services shall not be granted except as authorized by law or
in writing by the Agency.
Statewide Custody Provider Program '
Agreement for Custody Services 14
�
31.3 The Bank, therefore, agrees to hold all such material and information in
strictest confidence, not to make use thereof other than for the
performance of this Agreement, to release it only to authorized employees
requiring such information, and not to release or disclose it to any other
party.
31.4 Notwithstanding anything apparently to the contrary in the preceding
provisions of this section, the Bank may release the material and
information described in this section to authorized bank examiners and to
its internal and external auditors for official use and may also release it
pursuant to a subpoena or other order issued by a court of competent
jurisdiction, as otherwise required by law or regulation, and to its
attorneys, agency or affiliates having the need to know the same, provided
that the Bank advises such recipient of the confidential nature of the
information being disclosed. The Bank shall promptly notify the Agency
of any such subpoena or order upon its receipt.
32. AUDITING
The Bank shall permit representatives of the Agency, an auditor selected by the
Agency, and/or the Auditor of the State of Washington or their authorized
assistant to examine the records of the Bank relating to the services rendered
under this Agreement, including securities transactions. Such audits may include,
but are not limited to, examination of the securities themselves. If the Bank has
contracted for deposit of the securities with another bank, the Bank shall require
its Subcontractor to provide similar access to the designated Agency officials or
their representatives. Any audits required by this section which do not necessitate
the compilation of records in addition to those which are otherwise required by
other sections of this Agreement may be conducted without notice. Any audits
required by this section which require the compilation of records in addition to
those which are otherwise required by this Agreement may be conducted upon
reasonable written notice from the Agency to the Bank. The provisions of this
section shall remain in effect for eighteen (18) months after the expiration, or
sooner ternunation, of this Agreement. Records of Agency transactions must be
kept and maintained by the Bank for a period of no less than seven(7) years from
the date of the transaction. '
33. COMMITMENTS,WARRANTIES, AND REPRESENTATIONS
33.1 Any written commitment by the Bank within the scope of this Agreement
shall be binding upon the Bank. Failure of the Bank to fulfill such a
commitment may constitute breach and shall render the Bank liable for
damages due the Agency under the terms of this Agreement.
33.2 For purposes of this Agreement, a commitment by the Bank, which must
be in writing, includes: (1)prices and options committed to remain in
Statewide Custody Provider Program
Agreement for Custody Services 15
force over a specified period(s) of time; (2) any warranty or representation
made by the Bank in a proposal as to Service performance; (3) any
warranty or representation made by the Bank conceming the
characteristics of items in (2) above, contained in any literature,
descriptions, or specifications accompanying or referred to in a proposal;
(4) any modification of or affirmation or representation as to the above
� which is made by the Bank in writing whether or not incorporated into a
formal amendment to the proposal in question; and (5) any representation
by the Bank in a proposal, supporting documents or amendments thereto
as to services to be performed, prices, and options committed to remain in
force over a fixed period of time, or any other similar matter regardless of
, the fact that the duration of such commitment may exceed the duration of
this Agreement.
33.3 The Agency hereby represents and warrants, which representations and
warranties shall be continuing and shall be deemed to be reaffirmed upon
each Proper Instruction given by the Agency, that:
(a) The Agency is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted,to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and delivered
by the Agency, constitutes a valid and legally binding obligation of the
Agency, enforceable in accordance with its terms, and no statute,
regulation, rule, order, judgment or contract binding on the Agency
prohibits the Agency's execution or performance of this Agreement; and I
(c) Either the Agency owns the securities in the Account free and clear
of all liens, claims, security interests and encumbrances (except those
granted herein) or, if the securities are owned beneficially by others, the
Agency has the right to pledge such securities to the extent necessary to
secure the Agency's obligations hereunder, free of any right of redemption
or prior claim by the beneficial owner. The Bank's security interest
pursuant to Section 42.5.4.1 hereof shall be a first lien and security interest
subject to no setoffs, counterclaims or other liens prior to or on a parity
with it in favor of any other party (other than specific liens granted
preferred status by statute), and the Agency shall take any and all
additional steps which are required to assure the Bank of such priority and
status, including notifying third parties or obtaining their consent to, the
Bank's security interest.
Statewide Custody Provider Program
Agreement for Custody Services 16
34. PRICE INCREASES
34.1 The Bank agrees to provide the Services at the costs, rates, and fees set
forth in Exhibit C, Custody Fee Schedule. No other costs, rates, or fees
shall be payable to the Bank for services covered under this Agreement.
35. ANCILLARY SERVICES
351 Contingency Plan. The Bank shall have a comprehensive contingency
plan for timely disaster recovery in the event systems are rendered
inoperative due to fire, flood, or other disaster.
35.2 Pricing Services. To the extent that the Bank provides values of, and
pricing information with respect to, securities, the Bank is authorized to
utilize generally recognized pricing services (including brokers, dealers,
and market makers). The Bank shall not be liable or responsible for or be
under any duty to inquire into, nor be deemed to make any assurances or
warranties with respect to, the accuracy or completeness of such values or
information, even if the Bank, in performing services for itself and others,
including services similar to those performed for the Agency, receives
different valuations of the same or similar securities of the same issuer. In
the event such services are unable to provide a value of or pricing
information with respect to securities, and the Bank, nevertheless,
provides values and pricing information, the Bank shall so advise the
Agency, but shall have no other obligation or liability with respect to such
valuation or pricing information.
36. PROPER INSTRUCTIONS AND EVIDENCE OF AUTHORITY
�� ��
The term Proper Instructions shall mean instructions received by the Bank from
the Agency or any person duly authorized by it. Such instructions may be in
writing signed by the authorized person or may be in a tested communication or in
a communication utilizing access codes effected between electro-mechanical or
electronic devices or may be by such other means as may be agreed to from time
to time by the Bank and the party giving such instructions (including, without
limitation, oral instructions if so agreed). The Agency shall cause its duly
authorized officer to certify to the Bank in writing the names and specimen
signatures of persons authorized to give proper instructions. The Bank shall be
entitled to rely upon the identity and authority of such persons until it receives
notice from the Agency to the contrary.
The Bank shall be protected in acting upon any instructions, notice, request,
consent, certificate, instrument, or paper reasonably believed by it to be genuine
and to have been properly executed or otherwise given by or on behalf of the
Agency. The Bank may receive and accept a certificate from the Agency as
conclusive evidence (i)of the authoriry of any person to act in accordance with
Statewide Custody Provider Program
Agreement for Custody Services 17
such certificate or (ii) of any determination or of any action by the Agency as
described in such certificate, and such certificate may be considered as in full
force and effect until receipt by the Bank of written notice to the contrary.
37. SECURITY CODES
If the Bank has issued security codes or passwords to the Agency in order that the
Bank may verify that certain transmissions of information, including proper
instructions, have been originated by the Agency, the Bank shall, to the extent
authorized by law, be without liability to the Agency for any action taken or
omitted by it in reliance upon receipt by the Bank of transmissions of infonnation
with the proper security code or password, including instructions purporting to be
proper instructions, which the Bank reasonably believes to be from the Agency.
38. REGISTRATION WITH THE DEPARTMENT OF REVENUE
The Bank shall complete registration with the Department of Revenue, Olympia,
Washington 98504, and be responsible for payment of all taxes due on payments
made under this Agreement.
39. LICENSING AND ACCREDITATION STANDARDS
The Bank shall comply with all applicable federal and state licensing
requirements and standards necessary in the performance of this Agreement.
40. WORKERS' COMPENSATION INSURANCE COVERAGE
The Bank shall provide or purchase applicable workers' compensation insurance
coverage prior to performing work under this Agreement. The Agency will not be
responsible for payment of industrial insurance premiums for the Bank or any
Subcontractor or employee of the Bank, which might arise under the workers'
compensation insurance laws during performance of duties and services under this
Agreement. Should the Bank fail to secure workers' compensation insurance
coverage or fail to pay premiums on behalf of its employees, the Agency may
deduct the amount of premiums owing from the amounts payable to the Bank
under this Agreement and transmit the same to the appropriate workers'
compensation insurance fund.
41. ADVERTISING
The Bank shall not advertise ar publish information concerning this Agreement in
any form or media without prior written consent from the Agency.
Statewide Custody Provider Program
Agreement for Custody Services 18
CUSTODY PROVISIONS
42. CUSTODY OF SECURITIES
42.1 Custodial Services. The Bank shall take custody of the securities owned
by the Agency and tendered for transfer to its custody; provide
safekeeping services for them and accept complete responsibility as an
agent for their safekeeping from the moment of delivery to it and/or its
transfer agent until their safe return and delivery to the Agency or its
designated agent upon expiration or sooner termination of this Agreement.
When ownership of a security is manifested by a certificate, bond, note, or
other physical document, the Bank will verify proper registration of the
security in the name of the Agency or nominee of Bank; keep the physical
specimen in a secure vault, safe from destruction, damage, embezzlement,
and/or other loss; readily available to the Agency; and in a condition
suitable for sale or transfer. When ownership is reflected in a book entry
on official records only, the Bank shall be shown on the books of the
Federal Reserve System, DTC, or other depository agencies, as custodian
of the Agency's book-entry security; the Bank shall verify the proper
registration, evidenced by an entry in the Bank's books reflecting that the
Bank holds those particular securities (or a quantity of securities that are
part of a fungible bulk of government book-entry securities) as custodian
for the Agency; and the Bank shall obtain and maintain the confirmatory
documents in a secure area and unless expressly authorized by the
Agency, keep the securities ready for immediate sale or transfer free and
clear of all encumbrances.
With respect to securities issued in the United States, the Shareholders
Communications Act of 1985 (the "Act") requires the Bank to disclose to
the issuers, upon their request, the name, address and securities position of
its customers who are(a) the "beneficial owners" (as defined in the Act)of
the issuer's securities, if the beneficial owner does not object to such
disclosure, or (b) acting as a "respondent bank" (as defined in the Act)
with respect to the securities. (Under the Act, "respondent banks" do not
have the option of objecting to such disclosure upon the issuers' request.)
The Act defines a"beneficial owner" as any person who has, or shares, the
power to vote a security (pursuant to an agreement or otherwise), or who
directs the voting of a security. The Act defines a "respondent bank" as
any bank, association or other entity that exercises fiduciary powers which
' holds securities on behalf of beneficial owners and deposits such securities
for safekeeping with a bank, such as the Bank. Under the Act,the Agency
is either the "beneficial owner" or a "respondent bank."
Statewide Custody Provider Program
Agreement for Custody Services 19
[x ] The Agency is the "beneficial owner," as defined in the Act, of the
securities to be held by the Bank hereunder.
[ ] The Agency is not the beneficial owner of the securities to be held
by the Bank, but is acting as a "respondent bank," as defined in the Act,
with respect to the securities to be held by the Bank hereunder.
IF NO BOX IS CHECKED, THE BANK SHALL ASSUME THAT THE
AGENCY IS THE BENEFICIAL OWNER OF THE SECURITIES.
For beneficial owners of the securities onlv:
[ ] The Agency objects
[x ] The Agency does not object
to the disclosure of its name, address and securities position to any issuer
which requests such information pursuant to the Act for the specific
purpose of direct communications between such issuer and the Agency.
IF NO BOX IS CHECKED, THE BANK SHALL RELEASE SUCH
1NFORMATION UNTIL IT RECENES A CONTRARY WRITTEN
INSTRUCTION FROM THE AGENCY.
42.2 Inventory; Delivery and Redelivery. The Bank shall keep an accurate,
current inventory of all securities held within its custody for the Agency.
The inventory will contain precise identification of each security
including, when applicable, the date of purchase and maturity date; CUSIP
numbers; and other sources of identification.
42.3 Transactions. The Bank shall assist the purchase of securities and the
sale of securities within its possession, owned by the Agency. When so
instructed,the Bank will:
42.3.1 Take possession of securities purchased by the Agency, and when
authorized, make payment from the clearing accounts as
established under this Agreement therefor;
42.3.2 Deliver securities sold or transferred by the Agency to the
appropriate entity or person versus payment;
42.3.3 Register in its name or in its name as the Bank, securities owned
by the Agency and held in its physical custody or those securities
indicated on the records of the Federal Reserve System, DTC, ar '
another depository, provided that adequate records are maintained
to identify the actual ownership of the securities by the Agency
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Agreement for Custody Services 20
and all rights to interest and sale proceeds are vested in the
Agency;
42.3.4 Credit or debit the appropriate money account of the Agency in
connection with the purchase, sale, maturity, redemption, income,
dividends, or other disposition of securities and other assets held
for the time being on behalf of the Agency in said accounts on a
contractual settlement basis. The Bank reserves the right to
reverse any such crediting at any time before actual receipt of the
item associated with the credit when the Bank deternunes that
actual receipt will not be received in due course for such an item.
42.3.4.1 In order to secure repayment of an advance of funds
made in connection with a purchase of securities, the
Bank shall have a purchase money security interest in,
and a security entitlement with respect to, all of the
Agency's right, title, and interest in and to the securities
acquired with such advance (including proceeds
thereo fl. The Bank shall, with respect to such purchase
money security interest, be entitled to all the rights and
remedies of a pledgee and secured creditor under
applicable laws, rules, or regulations as then in effect.
42.4 Agency Clearing Account. The Bank shall establish clearing accounts
for the Agency, as directed by the Agency. These accounts shall
accurately reflect transactions of all kinds, with respect to securities of the
Agency. These accounts are not to be construed as Depository Accounts.
The Bank shall, on a contractual basis, credit or debit the Agency account
on the contractual settlement date in connection with all trading
transactions, income and principal payments to include, but not be limited
to purchases, sales,maturities, redemptions, interest, or any other principal
and income event.
At the close of each business day, there shall be no "public funds" (as
defined in RCW 39.58.010(16) now or as hereafter amended) in the
clearing accounts.
All "public funds" (as defined above) in an account shall be retumed to
the Agency prior to the close of business.
42.4.1 The Agency retains the exclusive authority to manage the assets of
the Agency within the Bank's custody. This includes the
deternunation of which investments shall be made, what and when
securities shall be sold or encumbered, the terms or conditions of
any transaction, and the disposition of cash on hand. The Bank
Statewide Custody Provider Program
Agreement for Custody Services 21
shall make no transaction without instructions from the Agency,
except the advance crediting of principal, interest, and other
proceeds to the Agency's clearing account.
43. NOTICES
Notices and other writings shall be delivered by the most expeditious means
available, with due regard given to the time sensitivity of the notice or demand
being made:
To the Agency: To the Bank:
C�ty of Renton Wells Fargo Bank.N.A.
5 floor Finance 999 3rd Ave
�
1055 S Grady Way 11 th Floor, MAC P6540-11 H
Renton, WA 98057 Seattle, WA 98104-4019
, Attention: Kristi Rowland Attention: Cindy M. Parsons
or to such other address as the Agency or the Bank may hereafter specify in
writing. Telephone and facsimile notices shall be sufficient if communicated to
the party entitled to receive such notice at the following numbers:
If to the Agency:
Telephone: 425.430.6947 Fax: 425.430.6957
If to the Bank:
Telephone: 206-292-3469 Fax: 206-292-3682
or to such other numbers as either party may furnish the other party by written
notice under this section.
The Bank agrees to accept and act upon instructions or direchons pursuant to this
Agreement sent by unsecured e-mail, facsimile transmission or other similar
unsecured electronic methods, provided, however, that, the Bank shall have
received an incumbenc certificate listin ersons desi at iv
y g p gn ed to g e such
instructions or d'uections and containing specimen signatures of such designated
persons, which such incumbency certificate shall be amended and replaced
whenever a person is to be added or deleted from the listing. If the Agency elects
to give the Bank e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Bank in its discretion elects to act upon such
instructions, the Bank's reasonable understanding of such instructions shall be
deemed controlling.
Statewide Custody Provider Program
Agreement for Custody Services 22
The Bank shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Bank's reliance upon and compliance with instructions
provided by the Agency pursuant to this Agreement. This includes, but is not
limited to, Bank's reliance upon instructions that may later conflict or be
inconsistent with subsequent written instructions. The Agency agrees to assume
all risks arising out of the use of such electronic methods to submit instructions
and directions to the Bank, including the risk of the Bank acting on unauthorized
instructions by an individual purporting to be a designated person on the
incumbency certificate, and the risk of interception and misuse by third parties.
Notwithstanding the foregoing, the Bank will accept transaction requests that it
reasonably believes to be from Authorized Signers by telephone, letter, facsimile,
or E-mail. However, in order to prevent fraud related activity, the Bank prohibits
the use of public, non-firewall protected E-mail domain names (e.g. aol, hotmail,
gmail, yahoo, etc.) as a method for submitting transaction requests.
PAYMENT PROVISIONS
44. PAYMENTS
uarterl after the last business da of each c 1
Q y, y a endar quarter, the Bank shall
submit to the Agency an invoice containing an itemized list of all costs and
expenses incurred by the Bank in connection with this Agreement. The first
payment will be for the calendar quarter ending September 30, 2016.
The Agency will forward payment for service charges to the Bank, after the
Agency verifies all activity and charges, within thirty (30) days of receipt of the
invoice,provided there are no significant unreconciled differences.
In the event services are rendered for less than a calendar quarter, or this
Agreement is terminated prior to the end of a calendar quarter, the Agency shall
pay the Bank's fee prorated for the portion of the calendar quarter such services
are rendered or the Agreement is in effect, plus any costs and expenses incurred
by the Bank for the Accounts up to or subsequent to the date of termination.
If the Bank does not meet its Service obligations, the Bank shall be required to
', negotiate a settlement with the Agency Contract Administrator for an appropriate
, reduction in charges. Such settlement shall be in addition to other rights and
remedies available to the Agency under law and this Agreement.
45. TAXES
It is mutually agreed and understood that all payments accrued on account of
payroll taxes, unemployment contributions, any other taxes, insurance, or other
, expenses for the Bank's staff shall be the sole liability of the Bank.
Statewide Custody Provider Program
Agreement for Custody Services 23
46. INDEPENDENT CAPACITY
The parties intend that an independent contractor relationship will be created by
this Agreement. The Bank, the Bank's employees, and subcontractors perfomung
under this Agreement are not employees of the Agency. The Bank will not hold
itself out as, nor claim to be, an officer or an employee of the Agency by reason
hereof, nor with the Bank make any claim of right, privilege or benefit which
would accrue to such employee under law. Conduct and control of the work will
be solely with the Bank.
47. ADVANCE PAYMENTS PROHIBITED
No advance payment shall be made for services furnished by the Bank pursuant to
this Agreement.
48. AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW
101-336,ALSO REFERRED TO AS THE"ADA"28 CFR PART 35
The Bank must comply with the ADA, which provides comprehensive civil rights
protection to individuals with disabilities in areas of employment, public
accommodations, state and local government services, and telecommunications.
49. ATTORNEYS' FEES
In the event of litigation or other action brought to enforce the terms of this
Agreement, each party agrees to bear its own attorney fees and costs.
50. COPYRIGHT PROVISIONS
Unless otherwise provided, all Materials produced under this Agreement shall be
considered "works for hire" as defined by the U.S. Copyright Act and shall be
owned by the Agency. The Agency shall be considered the author of such
Materials. In the event the Materials are not considered "works for hire" under
the U.S. Copyright laws, the Bank hereby irrevocably assigns all right, title and
interest in Materials, including all intellectual property rights, to the Agency
effective from the moment of creation of such Materials.
Materials means all items in an format and includes but is not limited to data
Y , , ,
reports, documents, pamphlets, advertisements, books, magazines, surveys,
studies, computer programs, films, tapes, and/or sound reproductions. Ownership
includes the right to copyright, patent, register and the ability to transfer these
rights.
Statewide Custody Provider Program
Agreement for Custody Services 24
For Materials that are delivered under this Agreement but that incorporate pre-
existing materials not produced under this Agreement, the Bank hereby grants to
the Agency a nonexclusive, royalty-free, irrevocable license (with rights to
sublicense others) in such Materials to translate, reproduce, distribute, prepare
derivative works, publicly perform, and publicly display. The Bank warrants and
represents that it has all rights and pernussions, including intellectual property
rights, moral rights, and rights of publicity, necessary to grant such a license to
i the Agency.
The Bank shall exert all reasonable effort to advise the Agency, at the time of
delivery of Materials furnished under this Agreement, of all known or potential
invasions of privacy contained therein and of any portion of such document which
, was not produced in the performance of this Agreement. The Agency shall
receive prompt written notice of each notice or claim of infringement received by
' the Bank with respect to any data delivered under this Agreement.
51. COVENANT AGAINST CONTINGENT FEES
The Bank warrants that no person or selling agent has been employed or retained
to solicit or secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage or contingent fee, excepting bona fide
employees or bona fide established agents maintained by the Bank for the purpose
of securing business. The Agency shall have the right, in the event of breach of
, this clause by the Bank, to annul this Agreement without liability or, in its
discretion, to deduct from the Agreement price or consideration or recover by
other means the full amount of such commission, percentage, or brokerage or
contingent fee.
52. DISALLOWED COSTS
The Bank is responsible for any audit exceptions or disallowed costs incurred by
its own organization or that of its Subcontractors.
53. DUPLICATE PAYMENT
The Agency shall not pay the Bank, if the Bank has charged or will change the
Agency of any other party under any other contract or agreement for the same
services or expenses.
54. TREATMENT OF ASSETS
A. Title to all property furnished by the Agency shall remain in the Agency.
Title to all property furnished by the Bank, for the cost of which the Bank
is entitled to be reimbursed as a direct item of cost under this Agreement,
shall pass to and vest in the Agency upon delivery of such property by the
Statewide Custody Provider Program
Agreement for Custody Services 25
Financial Advisor. Title to other property, the cost of which is
reimbursable to the Agency under this Agreement shall pass to and vest in
the Agency uon(i) issuance for use of such properiy in the performance of
this Agreement or (ii) commencement of use of such property in the
performance of this Agreement, or (iii) reimbursement of the cost thereof
by the State, in whole or in part, whichever first occurs.
B. Any property of the Agency furnished to the Bank shall, unless otherwise
provided herein or approved by the Agency, be used only for the
performance of this Agreement.
C. The Bank shall be responsible for any loss or damage to property of the
Agency which results from the negligence of the Bank or which results
from the failure on the part of the Bank to maintain and administer that
property in accordance with sound management practices.
D. If any Agency properly is lost, destroyed or damaged, the Bank shall
immediately notify the Agency and shall take all reasonable steps to
protect the property from further damage.
E. The Bank shall surrender to the Agency all property of the Agency prior to
settlement upon completion, termination or cancellation of this
Agreement.
F. All reference to the Bank under this clause shall also include Bank's
employees, agents or Subcontractors.
55. PRIVACY
Personal information collected, used or acquired in connection with this
Agreement shall be used solely for the purposes of this Agreement. Bank and its
Subcontractors agree not to release, divulge, publish, transfer, sell or otherwise I�
make known to unauthorized persons personal information without the express '
written consent of the Agency or as provided by law. Bank agrees to implement
physical, electronic and managerial safeguards to prevent unauthorized access to
personal information.
The Agency reserves the rights to monitor, audit or investigate the use of personal
information collected, used or acquired by the Bank through this Agreement. The
monitoring, auditing or investigating may not include "salting" by the Agency.
Bank shall certify the return or destruction of all personal information upon
expiration of the Agreement. Salting is the act of placing a record containing
unique but false information in a database that can be used later to identify
inappropriate disclosure of data contained in the database.
Any breach of the provisions may result in termination of the Agreement and the
demand for return of all personal information. The Bank agrees to indemnify and
hold harmless the Agency for any damages related to Bank's unauthorized use of
personal information.
Statewide Custody Provider Program
Agreement for Custody Services 26
The Agency's right to monitor, audit, or investigate shall be subject to the Bank's
right to limit those activities that are prohibited by its internal policies ar that the
Bank, in good faith, believes will compromise the security of its systems or the
rights of other customers of Bank.
56. WAIVER
Waiver of any default or breach shall not be deemed to be a waiver of any
subsequent default or breach. Any waiver shall not be construed to be a
modification of the terms of this Agreement unless stated to be such in writing
and signed by authorized representatives of the Agency.
57. SEVERABILITY
The provisions of this Agreement are to be severable. If any term or provision is
illegal or invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remainder of this Agreement.
MISCELLANEOUS
58. COUNTERPARTS
This Agreement is to be executed in duplicate originals and each duplicate shall
be deemed an original copy of the Agreement signed by each party, for all
purposes.
Statewide Custody Provider Program
Agreement for Custody Services 27
1
CONTRACT EXECUTION
59. RELATIONSHIP BETWEEN THE PARTIES
The parties hereto agree that in perfornung hereunder,the Bank is acting solely on
behalf of the Agency and no contractual or service relationship shall be deemed to
be established hereby between the Bank and any other person.
60. SIGNATURE BLOCKS
IN WITNESS WHEREOF the parties hereto, having read this Agreement in its
entirety, including all attachments hereto,do agree in each and every particulaz.
APPROVED: APPROVED:
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Date � � Date �
Statewide Custody Provider Program
Agreement for Custody Services 28
Exhibit C
� - • Institutional Retirement and Trust
Trust and Custody Fee Agreement
Method of Payment: Bill Client
TRUST AND CUSTODY PER ANNUM FEES
Domestic Administration
Annual Tiered Flat Fee Market Value Annual Fee
Tier I $0-50 Million $3,000.00
Tier II $50- 100 Million $3,500.00
Tier III $100-250 Million $4,000.00
� T�er IV $250-750 Mtlhon $4,500.00
Tier V $750 Mi(lion- 1.250 Billion $5,500.00
Tier VI Greater than 1.250 Billion $6,000.00
Accounting& Reporting PerAccount
Web-Based On-line Daily Access—TPR, TID Included
DOMESTIC TRANSACTIONS
SECURITYSETTLEMENTS&MONEYMOI/EMENT Per Transaction
Repurchase Settlements $5.00
(overnight repos)
Other Per Account
Sub Account Charge $750.00
(any entity requiring additional sub accounts)
Owner Acknowledgement
Fees and expenses described in this Fee Agreement,together with any fees described in other agreements
and/or disclosures, constitute amounts payable to Wells Fargo Bank,N.A. ("Wetls Fargo") for services
provided to the Owner on the Account.
Wells Fargo shall be paid the fees as described above at the time such services are rendered. If such fees
are not paid by the Account, such payment shall be made by the Owner. Wells Fargo may deduct fees
Fee Schedule(Unbundled) Page 1 of 2
July 2013 Wells Fargo Institutional Retirement and Trust
due for services rendered directly from the Account assets. Fees for services rendered shall be payable
upon presentation of invoices by Welis Fargo and may be subject to late payment penalties. Past due fees
may be deducted from the Account assets. Wells Fargo, in its sole discretion,may suspend services
during any period in which any unpaid amounts are 90 days overdue or may deduct such amounts from
the Trust.
No Asset Based Domestic Administration fee nor fund settlement transaction fees will be assessed for
assets held in a Wells Fargo Proprietary Fund or Wells Fargo Deposit Account. There is no charge for
the collection of interest income and dividends.
The Owner has identified all assets held in the Account to Wells Fargo. Should there be any material
change to the Account's structure or asset base, or should the Owner fail to transfer any assets scheduled
for recei t to Wells Far o within 60 da s of the Effective Date of this Fee A reement Wells Far o
P g Y g , g
, reserves the ri ht to redefine fees and/or service conditions.
g
Wells Fargo shall be entitled to charge additional fees for any additional services requested by the Owner
' or any revisions to reports, forms,and documents resulting from (i) inaccurate or incomplete information
' supplied by the Owner, (ii)untimely payments of contributions or reimbursement of fees and expenses,
(iii)retroactive amendment of the Trust, (iv)failure of the Owner to timely notify Wells Fargo of any
error in reports, forms and documents prepared by Wells Fargo. If the Owner requests a rerun of an
i allocation or report due to incorrect or untimely information being furnished, the Owner shall bear the
extra costs attributable to such reallocations or new reports.
', Wells Fargo is entitled to prompt reimbursement of all extraordinary out-of-pocket expenses incurred in
the performance of rts services on behalf of the Account mcluding, but not limited to, fees for legal
process, outside legal fces, and courier services.
On a Quarterly basis, Wells Fargo will send an invoice to the Owner for fees and expenses due with
respect to the Account. The invoice will denote Account fees to be "billed"that are payable by the
Owner and/or Account fees to be "deducted" that have been deducted from Account assets held in the
Trust. Such amounts, if billed, shall be due not later than 30 days following the billing date. Additional
services not detailed in this Fee Agreement may be negotiated by and between Wells Fargo and the
Owner at normal prevailing rates. Wells Fargo retains the right to revise its fee schedule from time to
time.
If the Owner wishes to have the Account pay any fees or expenses, or wishes to be reimbursed by the
Account for any fees or expenses previously paid by the Owner,the Owner shall be responsible for
determining which fees and expenses may properly be paid or reimbursed by the Account and provide
appropriate written direction certifying this to Wells Fargo.
Initial term of Agreement is for 4 years,effective April 1,2016,with the option to renew the
Agreement.
Fee Schedule(Unbundled) Page 2 of 2 '�
July 2013 Wells Fargo Institutional Retirement and Trust '