Resolution No. 84911
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RESOLUTION NO. 8491
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN ESCROW AGREEMENT BY AND BETWEEN THE CITY OF
VERNON AND BNY WESTERN TRUST COMPANY
WHEREAS, the City of Vernon (the "City") is a municipal
corporation and a chartered city of the State of California organized
and existing under its Charter and the Constitution of the State of
California; and
WHEREAS, on July 13, 2004, the Finance Committee considered
the recommendation of Bruce V. Malkenhorst, Director of Finance, that
the City enter into an Escrow Agreement with BNY Western Trust Company
to open a City of Vernon General Custody Escrow Account to allow the
City's investment advisors to competitively place funds with the
marketplace:
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Escrow Agreement dated as of July 14, 2004, with BNY
Western Trust Company, a copy of which is attached hereto as Exhibit A
and incorporated by reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the City Administrator to execute said Agreement for, and
on behalf of, the City of Vernon.
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SECTION 4: The City Council of the City of Vernon hereby
authorizes the City Administrator, the Finance Administrator, or the
Deputy City Treasurer to act as its "Authorized Officer" pursuant to
the Escrow Agreement, to execute any and all documents necessary to
implement and carry out the purposes specified in the Escrow Agreement
on behalf of the City of Vernon and to perform such other actions
deemed necessary or advisable.
SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send one fully executed
Agreement and the special escrow fee of $2,000.00 to:
BNY Western Trust Company
Attn. Corporate Trust Department
700 South Flower, 2nd Floor
Los Angeles, CA 90017
SECTION 6: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 14th day of July, 2004.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
r
LEONIS C. MA BURG, ayor
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8491, was duly adopted by the City Council of the City of Vernon at an
adjourned regular meeting of the City Council duly held on Wednesday,
July 14, 2004, and thereafter was duly signed by the Mayor of the City
of Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
n
ESCROW AGREEMENT
Between
The City of Vernon
And
BNY WESTERN TRUST COMPANY
Dated as of July 14, 2004
ACCOUNT NUMBER 800455
City of Vernon General Custody Escrow Account
ESCROW AGREEMENT made this 14'h day of July, 2004 and between BNY
WESTERN TRUST COMPANY ('Escrow Agent") and the undersigned (collectively the
"Depositors" and individually the 'Depositor").
Depositors and Escrow Agent hereby agree that, in consideration of the mutual promises
and covenants contained herein, Escrow Agent shall hold in escrow and shall distribute
Escrow Property (as defined herein) in accordance with and subject to the following
Instructions and Terms and Conditions:
I.. INSTRUCTIONS:
1. Escrow Property
The property and/or funds deposited or to be deposited with Escrow Agent by
Depositors shall be as follows:
$1,000,000.00 Amount deposited on 7/15/04 and additional amounts to be
received by city from time to time.
The foregoing property and/or funds, plus all interest, dividends and other
distributions and payments thereon (collectively the "Distributions") received by
Escrow Agent, less any property and/or funds distributed or paid in accordance
with this Escrow Agreement, are collectively referred to herein as 'Escrow
Property."
2. Investment of Escrow Property (Depositors are to select one of the following
options, initial the option selected and, if "(b)" is selected, insert the appropriate
information.)
(a) Escrow Agent shall have no obligation to pay interest on or to
invest or reinvest any Escrow Property deposited or received
hereunder.
X (b) Escrow Agent shall invest or reinvest Escrow Property, without
distinction between principal and income, in accordance with the
following:
Wells Fargo Treasure Plus Money Market Fund
Escrow Agent shall have no liability for any loss arising from or
related to any such investment other .than in accordance with
paragraph 4 of the Terms and Conditions.
3. Distribution of Escrow Property
Escrow Agent is directed to hold and distribute the Escrow Property in the
following manner:
Upon written direction received from an "Authorized Officer" of the City of
Vernon.
4. Addresses
Notices, instructions and other communications shall be sent to Escrow Agent,
Corporate Trust Department, 700 South Flower Street - 2°d Floor, Los Angeles,
CA 90017 and to Depositors as follows:
City of Vernon, 4305 Santa Fe Avenue, Vernon, CA 90058
5. Distribution of Escrow Property Upon Termination
Upon termination of this Escrow Agreement, Escrow Property then held
hereunder shall be distributed as follows:
Upon written direction received from an "Authorized Officer" of the City of
Vernon.
6. Compensation
(a). At the time of execution of this Escrow Agreement, Depositors shall pay
Escrow Agent Special Escrow fee of $2,000.00 , payable upon
execution of this Agreement. Said fee will be payable annually in
advance.
(b). Depositors shall pay a disbursement transaction fee of $35 for
each disbursement directed by Depositor.
(c). Depositors shall be responsible for and shall reimburse Escrow Agent
upon demand for all expenses, disbursements and advances incurred or
made by Escrow Agent in connection with this Agreement. In accordance
with Escrow Agent's fee schedule dated as of July 23, 2003.
II. TERMS AND CONDITIONS
The duties, responsibilities and obligations of Escrow Agent shall be limited to
those expressly set forth herein and no duties, responsibilities or obligations shall
be inferred or implied. Escrow Agent shall not be subject to, nor required to
comply with, any other agreement between or among any or all of the Depositors
or to which any Depositor is a party, even though reference thereto may be made
herein, or to comply with any direction or instruction (other than those contained
herein or delivered in accordance with this Escrow Agreement) from any
Depositor or any entity acting on its behalf. Escrow Agent shall not be required
to, and shall not, expend or risk any of its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder.
2. This Agreement is for the exclusive benefit of the parties hereto and their
respective successors hereunder, and shall not be deemed to give, either express
or implied, any legal or equitable right, remedy, or claim to any other entity or
person whatsoever.
3. If at any time Escrow Agent is served with any judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative process which in
any way affects Escrow Property (including but not limited to orders of
attachment or garnishment or other forms of levies or injunctions or stays relating
to the transfer of Escrow Property), Escrow Agent is authorized to comply
therewith in any manner as it or its legal counsel of its own choosing deems
appropriate; and if Escrow Agent complies with any such judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process, Escrow Agent shall not be liable to any of the parties
hereto or to any other person or entity even though such order, judgment, decree,
writ or process may be subsequently modified or vacated or otherwise determined
to have been without legal force or effect.
4. (a) Escrow Agent shall not be liable for any action taken or omitted or for any
loss or injury resulting from its actions or its performance or lack of performance
of its duties hereunder in the absence of gross negligence or willful misconduct on
its part. In no event shall Escrow Agent be liable (i) for acting in accordance
with or relying upon any instruction, notice, demand, certificate or document from
any Depositor or any entity acting on behalf of any Depositor, (ii) for any
consequential, punitive or special damages, (iii) for the acts or omissions of its
nominees, correspondents, designees, subagents or subcustodians, or (iv) for an
amount in excess of the value of the Escrow Property, valued as of the date of
deposit.
(b) If any fees, expenses or costs incurred by, or any obligations owed to, escrow
Agent hereunder are not promptly paid when due, Escrow Agent may reimburse
itself therefor from the Escrow Property and may sell, convey or otherwise
dispose of any Escrow Property for such purpose.
(c) As security for the due and punctual performance of any and all of Depositors'
obligations to Escrow Agent hereunder, now or hereafter arising, Depositors,
individually and collectively, hereby pledge, assign and grant to Escrow Agent a
continuing security interest in, and a lien on, the Escrow Property and all
Distributions thereon or additions thereto (whether such additions are the result of
deposits by Depositors or the investment of Escrow Property). The security
interest of Escrow Agent shall at times be valid, perfected and enforceable by
Escrow Agent against Depositors and all third parties in accordance with the
terms of this Escrow Agreement.
(d) Escrow Agent may consult with legal counsel at the expense of the
Depositors as to any matter relating to this Escrow Agreement, and Escrow Agent
shall not incur any liability in acting in good faith in accordance with any advice
from such counsel.
(e) Escrow Agent shall not incur any liabilityfor not performing any act or
fulfilling any duty, obligation or responsibility hereunder by reason of any
occurrence beyond the control of Escrow Agent (including but not limited to any
act or provision of any present or future law or regulation or governmental
authority, any act of God or war, or the unavailability of the Federal Reserve
Bank wire or telex or other wire or communication facility).
5. Unless otherwise specifically set forth herein, Escrow Agent shall proceed as soon
as practicable to collect any checks or other collection items at any time deposited
hereunder. All such collections shall be subject to Escrow Agent's usual
collection practices or terms regarding items received by Escrow Agent for
deposit or collectiop. Escrow Agent shall not be required, or have any duty, to
notify anyone of any payment or maturity under the terms of any instrument
deposited hereunder, nor to take any legal action to enforce payment of any
check, note or security deposited hereunder or to exercise any right or privilege
which may be afforded to the holder of any such security.
6. Escrow Agent shall provide to Depositors monthly statements identifying
transactions, transfers or holdings of Escrow Property and each such statement
shall be deemed to be correct and final upon receipt thereof by the Depositors
unless Escrow Agent is notified in writing to the contrary within thirty (30)
business days of the date of such statement.
7. Escrow Agent shall not be responsible in any respect for the form, execution,
validity, value or genuineness of documents or securities deposited hereunder, or
for any description therein, or for the identity, authority or rights of persons
executing or delivering or purporting to execute or deliver any such document,
security or endorsement.
8. Notices, instructions or other communications shall be in writing and shall be
given to the address set forth in the "Addresses" provision herein (or to such other
address as may be substituted therefor by written notification to Escrow Agent or
Depositors). Notices To Escrow Agent shall be deemed to be given when actually
received by Escrow Agent's Corporate Trust Department. Escrow Agent is
authorized to comply with and rely upon any notices, instructions or other
communications believed by it to have been sent or given by Depositors or by a
person or persons authorized by Depositors. Whenever under the terms hereof the
time for giving a notice or performing an act falls upon a Saturday, Sunday, or
banking holiday, such time shall be extended to the next day on which Escrow
Agent is open for business.
9. Depositors, jointly and severally, shall be liable for and shall reimburse and
indemnify Escrow Agent and hold Escrow Agent harmless against any and all
claims, losses, liabilities, costs, damages or expenses (including reasonable
attorneys' fees and expenses) (collectively, "Losses") arising from or in
connection with or related. to this Escrow Agreement or being Escrow Agent
hereunder (including but not limited to Losses incurred by Escrow Agent in
connection with its successful defense, in whole or in part of any claim of gross
negligence or willful misconduct on its part), provided, however, that nothing
contained herein shall require Escrow Agent to be indemnified for Losses caused
by its gross negligence or willful misconduct.
10. (a) Depositors may remove Escrow Agent at any time by giving to Escrow Agent
thirty (30) calendar days prior notice in writing signed by all Depositors. Escrow
Agent may resign at any time by giving to Depositors thirty (30) calendar days
prior written notice thereof.
(b) Within ten (10) calendar days after giving the foregoing notice of removal to
Escrow Agent or receiving the foregoing notice of resignation from Escrow
Agent, all Depositors shall jointly agree on and appoint a successor Escrow
Agent. If a successor Escrow Agent has not accepted such appointment by the
end of such 10-day period, Escrow Agent may, in its sole discretion, deliver the
Escrow Property to any of the Depositors at the address provided herein or may
apply to a court of competent jurisdiction for the appointment of a successor
Escrow Agent or for other appropriate relief. The costs and expenses (including
reasonable attorneys' fees and expenses) incurred by Escrow Agent in connection
with such proceeding shall be paid by, and be deemed a joint and several
obligation of, the Depositors.
(c) Upon receipt of the identity of the successor Escrow Agent, Escrow Agent
shall either deliver the Escrow Property then held hereunder to the successor
Escrow Agent, less Escrow Agent's fees, costs and expenses or other obligations
owed to Escrow Agent, or hold such Escrow Property (or any portion thereof),
pending distribution, until all such fees, costs and expenses or other obligations
are paid.
(d) Upon delivery of the Escrow Property to successor Escrow Agent, Escrow
Agent shall have no further duties, responsibilities or obligations hereunder.
11. (a) In the event of any ambiguity or uncertainty hereunder or in any notice,
instruction or other communication received by Escrow Agent hereunder, Escrow
Agent may, in its sole discretion, refrain from taking any action other than retain
possession of the Escrow Property, unless Escrow Agent receives written
instructions, signed by all Depositors, which eliminates such ambiguity or
uncertainty.
(b) In the event of any dispute between or conflicting claims by or among the
Depositors and/or any other person or entity with respect to any Escrow Property,
Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any
and all claims, demands or instructions with respect to such Escrow Property so
long as such dispute or conflict shall continue, and Escrow Agent shall not be or
become liable in any way to the Depositors for failure or refusal to comply with
such conflicting claims, demands or instructions. Escrow Agent shall be entitled
to refuse to act until, in its sole discretion, either (i) such conflicting or adverse
claims or demands shall have been determined by a final order, judgment or
decree of a court of competent jurisdiction, which order, judgment or decree is not
subject to appeal, or settled by agreement between the conflicting parties as
evidenced in a writing satisfactory to Escrow Agent or (ii) Escrow Agent shall
have received security or an indemnity satisfactory to its sufficient to hold it
harmless from and against any and all Losses which it may incur by reason of so
acting. Escrow Agent may, in addition, elect, in its sole discretion, to commence
an interpleader action or seek other judicial relief or orders as it may deem, in its
sole discretion, necessary. The costs and expenses (including reasonable
attorneys' fees and expenses) incurred in connection with such proceeding shall be
paid by, and shall be deemed a joint and several obligation of, the Depositors.
12. This Agreement shall be interpreted, construed, enforced and administered in
accordance with the internal substantive laws (and not the choice of law rules) of
the State of California Each of the Depositors hereby submits to the personal
jurisdiction of and each agrees that all proceedings relating hereto shall be
brought in courts located within the City and State of California or elsewhere as
Escrow Agent may select. Each of the Depositors hereby waives the right to trial
by jury and to assert counterclaims in any such proceedings. To the extent that in
any jurisdiction any Depositor may be entitled to claim, for itself or its assets,
immunityfrom suit, execution, attachment (whether before or after judgment) or
other legal process, each hereby irrevocably agrees not to claim, and hereby
waives, such immunity. Each Depositor waives personal service of process and
consents to service of process by certified or registered mail, return receipt
requested, direction to it at the address last specified for notices hereunder, and
such service shall be deemed completed ten (10) calendar days after the same is
so mailed.
13. Except as otherwise permitted herein, this Escrow Agreement may be modified
only by a written amendment signed by all the parties hereto, and no waiver of
any provision hereof shall be effective unless expressed in a writing signed by the
party to be charged.
14. The rights and remedies conferred upon the parties hereto shall be cumulative,
and the exercise or waiver of any such right or remedy shall not preclude or
inhibit the exercise of any additional rights or remedies. The waiver of any right
or remedy hereunder shall not preclude the subsequent exercise of such right or
remedy.
15. Each Depositor hereby represents and warrants (a) that this Escrow Agreement
has been duly authorized, executed and delivered on its behalf and constitutes its
legal, valid and binding obligation and (b) that the execution, delivery and
performance of this Escrow Agreement by Depositor do not and will not violate
any applicable law or regulation.
16. The invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability of any other
provision; and if any provision is held to be enforceable as a matter of law, the
other provisions shall not be affected thereby and shall remain in full force and
effect.
17. This Agreement shall constitute the entire agreement of the parties with respect to
the subject matter and supersedes all prior oral or written agreements in regard
thereto.
18. This Agreement shall terminate upon the distribution of all Escrow Property from
the Account. The provisions of these Terms and Conditions shall survive
termination of this Escrow Agreement and/or the resignation or removal of the
Escrow Agent.
19. No printed or other material in any language, including prospectuses, notices,
reports, and promotional material which mentions "BNY Western Trust
Company" by name or the rights, powers, or duties of the Escrow Agent under
this Agreement shall be issued by any other parties hereto, or on such party's
behalf, without the prior written consent of Escrow Agent.
20. The headings contained in this Agreement are for convenience of reference only
and shall have no effect on the interpretation or operation hereof.
21. This Escrow Agreement may be executed by each of the parties hereto in any
number of counterparts, each of which counterpart, when so executed and
delivered, shall be deemed to.be an original and all such counterparts shall
together constitute one and the same agreement.
A
IN WITNESS WHEREOF, each of the parties have caused this Escrow
Agreement to be executed by a duly authorized officer a of the day and year first written
above.
City of Vernon
By:
Name: Bruce V. Malkenhorst
Title: City Administrator/City Clerk
BNY WESTERN TRUST COMPANY, as Escrow Agent
By: -�
Name: Aurora Q
Title: Assistant Treasurer
WgJ--12-BNY-EscrowAgmtdoc
APPROVED AS TO FORM:
Eric Fresch, kttlJbau=k
City Attorney
Oy
C[T1 C-Ot \Cil.
LEONIS C. MALBURG 1 SOL BENUDIZ
Mayor Police Chief
THOMAS A. YBARRA ( ) / MARK C. WHITWORTH
Mayor Pro—Tem ' l Acting Fire Chief
WM. 'BILL" DAVIS i LEWIS P Z S J. O ZEBON
Councilman I �/
f Director of Environmental Health
0",
H. "LARRY" GONZALES S. KEVIN WILSON
Councilman'ea Director of Community Services
W. MICHAEL McCORMICK 4305 Santa Fe Avenue, Vernon, California 90058 SHARON L. DUCKWORTH
Councilman telephone (323) 583-8811 Acting City Treasurer
INCUMBENCY CERTIFICATE
The undersigned, Leonis C. Malburg, being the Mayor of City of Vernon (the
"Company") does hereby certify that the individual(s) listed below are qualified and
acting officers of the Company as set forth in the right column opposite their respective
names and the signatures appearing in the extreme right column opposite the name of
each such officer is a true specimen of the genuine signature of such officer and such
individuals have the authority to execute documents to be delivered to, or upon the
request of, The Bank of New York Trust Company, N.A. as Escrow/Custodial Agent
under the Escrow Agreement dated as of July 14, 2004, by and between the Company
and The Bank of New York Trust Company, N.A (formerly known as BNY Western Trust
Company).
(Print Name & Title)
Thomas A. Ybarra, Mayor Pro Tern
Hilario Gonzales, Councilman
Rory Burnett, Finance Director
(Signatures)
`G24t l-111��
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate as of the day of , 2006.
me: Leonis C. N0Iburg
Tit e: Mayor
'ExcluAlve(p wubotciat
CITY ADMINISTRATOR/CITY CLERK'S
INTER -OFFICE MEMORANDUM
DATE: July 21, 2004
TO: Sharon Johnson, Deputy City Treasurer
FROM: Gloria Molleda
Assistant City Clerk
RE: BNY Western Trust Company - Escrow Agreement
Transmitted herewith is an original of the above referenced agreement
approved by the Vernon City Council.on July 14, 2004. Please forward
the agreement to BNY Western Trust Company and include a check for the
special escrow fee in the amount of $2,000.00. I have also included a
copy of Resolution No. 8491 for your records. If you have any
questions please contact the City Administrator/City Clerk's Office.
Thank you.
CC: Resolution No. 8491
Agreement No. 04-058
ESCROW AGREEMENT
Between
The City of Vernon
And
BNY WESTERN TRUST COMPANY
Dated as of July 14, 2004
ACCOUNT NUMBER 800455
City of Vernon General Custody Escrow Account
ESCROW AGREEMENT made this 141h day of July, 2004 and between BNY
WESTERN TRUST COMPANY ("Escrow Agent") and the undersigned (collectively the
"Depositors" and individually the "Depositor").
Depositors and Escrow Agent hereby agree that, in consideration of the mutual promises
and covenants contained herein, Escrow Agent shall hold in escrow and shall distribute
Escrow Property (as defined herein) in accordance with and subject to the following
Instructions and Terms and Conditions:
I.. INSTRUCTIONS:
1. Escrow Property
The property and/or funds deposited or to be deposited with Escrow Agent by
Depositors shall be as follows:
$1,000,000.00 Amount deposited on 7/15/04 and additional amounts to be
received by city from time to time.
The foregoing property and/or funds, plus all interest, dividends and other
distributions and payments thereon (collectively the "Distributions") received by
Escrow Agent, less any property and/or funds distributed or paid in accordance
with this Escrow Agreement, are collectively referred to herein as "Escrow
Property."
2. Investment of Escrow Property (Depositors are to select one of the following
options, initial the option selected and, if "(b)" is selected, insert the appropriate
information.)
(a) Escrow Agent shall have no obligation to pay interest on or to
invest or reinvest any Escrow Property deposited or received
hereunder.
X (b) Escrow Agent shall invest or reinvest Escrow Property, without
distinction between principal and income, in accordance with the
following:
Wells Fargo Treasure Plus Money Market Fund
Escrow Agent shall have no liability for any loss arising from or
related to any such investment other than in accordance with
paragraph 4 of the Terms and Conditions.
Distribution of Escrow Property
Escrow Agent is directed to hold and distribute the Escrow Property in the
following manner:
Upon written direction received from an "Authorized Officer" of the City of
Vernon.
4. Addresses
Notices, instructions and other communications shall be sent to Escrow Agent,
Corporate Trust Department, 700 South Flower Street - 2"d Floor, Los Angeles,
CA 90017 and to Depositors as follows:
City of Vernon, 4305 Santa Fe Avenue, Vernon, CA 90058
5. Distribution of Escrow Property Upon Termination
Upon termination of this Escrow Agreement, Escrow Property then held
hereunder shall be distributed as follows:
Upon written direction received from an "Authorized Officer" of the City of
Vernon.
6. Compensation
(a). At the time of execution of this Escrow Agreement, Depositors shall pay
Escrow Agent Special Escrow fee of $2,000.00 , payable upon
execution of this Agreement. Said fee will be payable annually in
advance.
(b). Depositors shall pay a disbursement transaction fee of $35 for
each disbursement directed by Depositor.
(c). Depositors shall be responsible for and shall reimburse Escrow Agent
upon demand for all expenses, disbursements and advances incurred or
made by Escrow Agent in connection with this Agreement. In accordance
with Escrow Agent's fee schedule dated as of July 23, 2003.
II. TERMS AND CONDITIONS
1. The duties, responsibilities and obligations of Escrow Agent shall be limited to
those expressly set forth herein and no duties, responsibilities or obligations shall
be inferred or implied. Escrow Agent shall not be subject to, nor required to
comply with, any other agreement between or among any or all of the Depositors
or to which any Depositor is a party, even though reference thereto may be made
herein, or to comply with any direction or instruction (other than those contained
herein or delivered in accordance with this Escrow Agreement) from any
Depositor or any entity acting on its behalf. Escrow Agent shall not be required
to, and shall not, expend or risk any of its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder.
2. This Agreement is for the exclusive benefit of the parties hereto and their
respective successors hereunder, and shall not be deemed to give, either express
or implied, any legal or equitable right, remedy, or claim to any other entity or
person whatsoever.
3. If at any time Escrow Agent is served with any judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative process which in
any way affects Escrow Property (including but not limited to orders of
attachment or garnishment or other forms of levies or injunctions or stays relating
to the transfer of Escrow Property), Escrow Agent is authorized to comply
therewith in any manner as it or its legal counsel of its own choosing deems
appropriate; and if Escrow Agent complies with any such judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process, Escrow Agent shall not be liable to any of the parties
hereto or to any other person or entity even though such order, judgment, decree,
writ or process may be subsequently modified or vacated or otherwise determined
to have been without legal force or effect.
4. (a) Escrow Agent shall not be liable for any action taken or omitted or for any
loss or injury resulting from its actions or its performance or lack of performance
of its duties hereunder in the absence of gross negligence or willful misconduct on
its part. In no event shall Escrow Agent be liable (i) for acting in accordance
with or relying upon any instruction, notice, demand, certificate or document from
any Depositor or any entity acting on behalf of any Depositor, (ii) for any
consequential, punitive or special damages, (iii) for the acts or omissions of its
nominees, correspondents, designees, subagents or subcustodians, or (iv) for an
amount in excess of the value of the Escrow Property, valued as of the date of
deposit.
(b) If any fees, expenses or costs incurred by, or any obligations owed to, escrow
Agent hereunder are not promptly paid when due, Escrow Agent may reimburse
itself therefor from the Escrow Property and may sell, convey or otherwise
dispose of any Escrow Property for such purpose.
(c) As security for the due and punctual performance of any and all of Depositors'
obligations to Escrow Agent hereunder, now or hereafter arising, Depositors,
individually and collectively, hereby pledge, assign and grant to Escrow Agent a
continuing security interest in, and a lien on, the Escrow Property and all
Distributions thereon or additions thereto (whether such additions are the result of
deposits by Depositors or the investment of Escrow Property). The security
interest of Escrow Agent shall at times be valid, perfected and enforceable by
Escrow Agent against Depositors and all third parties in accordance with the
terms of this Escrow Agreement.
(d) Escrow Agent may consult with legal counsel at the expense of the
Depositors as to any matter relating to this Escrow Agreement, and Escrow Agent
shall not incur any liability in acting in good faith in accordance with any advice
from such counsel.
(e) Escrow Agent shall not incur any liability for not performing any act or
fulfilling any duty, obligation or responsibility hereunder by reason of any
occurrence beyond the control of Escrow Agent (including but not limited to any
act or provision of any present or future law or regulation or governmental
authority, any act of God or war, or the unavailability of the Federal Reserve
Bank wire or telex or other wire or communication facility).
5. Unless otherwise specifically set forth herein, Escrow Agent shall proceed as soon
as practicable to collect any checks or other collection items at any time deposited
hereunder. All such collections shall be subject to Escrow Agent's usual
collection practices or terms regarding items received by Escrow Agent for
deposit or collection. Escrow Agent shall not be required, or have any duty, to
notify anyone of any payment or maturity under the terms of any instrument
deposited hereunder, nor to take any legal action to enforce payment of any
check, note or security deposited hereunder or to exercise any right or privilege
which may be afforded to the holder of any such security.
6. Escrow Agent shall provide to Depositors monthly statements identifying
transactions, transfers or holdings of Escrow Property and each such statement
shall be deemed to be correct and final upon receipt thereof by the Depositors
unless Escrow Agent is notified in writing to the contrary within thirty (30)
business days of the date of such statement.
7. Escrow Agent shall not be responsible in any respect for the form, execution,
validity, value or genuineness of documents or securities deposited hereunder, or
for any description therein, or for the identity, authority or rights of persons
executing or delivering or purporting to execute or deliver any such document,
security or endorsement.
8. Notices, instructions or other communications shall be in writing and shall be
given to the address set forth in the "Addresses" provision herein (or to such other
address as may be substituted therefor by written notification to Escrow Agent or
Depositors). Notices To Escrow Agent shall be deemed to be given when actually
received by Escrow Agent's Corporate Trust Department. Escrow Agent is
authorized to comply with and rely upon any notices, instructions or other
communications believed by it to have been sent or given by Depositors or by a
person or persons authorized by Depositors. Whenever under the terms hereof the
time for giving a notice or performing an act falls upon a Saturday, Sunday, or
banking holiday, such time shall be extended to the next day on which Escrow
Agent is open for business.
9. Depositors, jointly and severally, shall be liable for and shall reimburse and
indemnify Escrow Agent and hold Escrow Agent harmless against any and all
claims, losses, liabilities, costs, damages or expenses (including reasonable
attorneys' fees and expenses) (collectively, "Losses") arising from or in
connection with or related to this Escrow Agreement or being Escrow Agent
hereunder (including but not limited to Losses incurred by Escrow Agent in
connection with its successful defense, in whole or in part of any claim of gross
negligence or willful misconduct on its part), provided, however, that nothing
contained herein shall require Escrow Agent to be indemnified for Losses caused
by its gross negligence or willful misconduct.
10. (a) Depositors may remove Escrow Agent at any time by giving to Escrow Agent
thirty (30) calendar day's prior notice in writing signed by all Depositors. Escrow
Agent may resign at any time by giving to Depositors thirty (30) calendar days
prior written notice thereof.
(b) Within ten (10) calendar days after giving the foregoing notice of removal to
Escrow Agent or receiving the foregoing notice of resignation from Escrow
Agent, all Depositors shall jointly agree on and appoint a successor Escrow
Agent. If a successor Escrow Agent has not accepted such appointment by the
end of such 10-day period, Escrow Agent may, in its sole discretion, deliver the
Escrow Property to any of the Depositors at the address provided herein or may
apply to a court of competent jurisdiction for the appointment of a successor
Escrow Agent or for other appropriate relief. The costs and expenses (including
reasonable attorneys' fees and expenses) incurred by Escrow Agent in connection
with such proceeding shall be paid by, and be deemed a joint and several
obligation of, the Depositors.
(c) Upon receipt of the identity of the successor Escrow Agent, Escrow Agent
shall either deliver the Escrow Property then held hereunder to the successor
Escrow Agent, less Escrow Agent's fees, costs and expenses or other obligations
owed to Escrow Agent, or hold such Escrow Property (or any portion thereof),
pending distribution, until all such fees, costs and expenses or other obligations
are paid.
(d) Upon delivery of the Escrow Property to successor Escrow Agent, Escrow
Agent shall have no further duties, responsibilities or obligations hereunder.
11. (a) In the event of any ambiguity or uncertainty hereunder or in any notice,
instruction or other communication received by Escrow Agent hereunder, Escrow
Agent may, in its sole discretion, refrain from taking any action other than retain
possession of the Escrow Property, unless Escrow Agent receives written
instructions, signed by all Depositors, which eliminates such ambiguity or
uncertainty.
(b) In the event of any dispute between or conflicting claims by or among the
Depositors and/or any other person or entity with respect to any Escrow Property,
Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any
and all claims, demands or instructions with respect to such Escrow Property so
long as such dispute or conflict shall continue, and Escrow Agent shall not be or
become liable in any way to the Depositors for failure or refusal to comply with
such conflicting claims, demands or instructions. Escrow Agent shall be entitled
to refuse to act until, in its sole discretion, either (i) such conflicting or adverse
claims or demands shall have been determined by a final order, judgment or
decree of a court of competent jurisdiction, which order, judgment or decree is not
subject to appeal, or settled by agreement between the conflicting parties as
evidenced in a writing satisfactory to Escrow Agent or (ii) Escrow Agent shall
have received security or an indemnity satisfactory to its sufficient to hold it
harmless from and against any and all Losses which it may incur by reason of so
acting. Escrow Agent may, in addition, elect, in its sole discretion, to commence
an interpleader action or seek other judicial relief or orders as it may deem, in its
sole discretion, necessary. The costs and expenses (including reasonable
attorneys' fees and expenses) incurred in connection with such proceeding shall be
paid by, and shall be deemed a joint and several obligation of, the Depositors.
12. This Agreement shall be interpreted, construed, enforced and administered in
accordance with the internal substantive laws (and not the choice of law rules) of
the State of California. Each of the Depositors hereby submits to the personal
jurisdiction of and each agrees that all proceedings relating hereto shall be
brought in courts located within the City and State of California or elsewhere as
Escrow Agent may select. Each of the Depositors hereby waives the right to trial
by jury and to assert counterclaims in any such proceedings. To the extent that in
any jurisdiction any Depositor may be entitled to claim, for itself or its assets,
immunity from suit, execution, attachment (whether before or after judgment) or
other legal process, each hereby irrevocably agrees not to claim, and hereby
waives, such immunity. Each Depositor waives personal service of process and
consents to service of process by certified or registered mail, return receipt
requested, direction to it at the address last specified for notices hereunder, and
such service shall be deemed completed ten (10) calendar days after the same is
so mailed.
13. Except as otherwise permitted herein, this Escrow Agreement may be modified
only by a written amendment signed by all the parties hereto, and no waiver of
any provision hereof shall be effective unless expressed in a writing signed by the
party to be charged.
14. The rights and remedies conferred upon the parties hereto shall be cumulative,
and the exercise or waiver of any such right or remedy shall not preclude or
inhibit the exercise of any additional rights or remedies. The waiver of any right
or remedy hereunder shall not preclude the subsequent exercise of such right or
remedy.
15. Each Depositor hereby represents and warrants (a) that this Escrow Agreement
has been duly authorized, executed and delivered on its behalf and constitutes its
legal, valid and binding obligation and (b) that the execution, delivery and
performance of this Escrow Agreement by Depositor do not and will not violate
any applicable law or regulation.
16. The invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability of any other
provision; and if any provision is held to be enforceable as a matter of law, the
other provisions shall not be affected thereby and shall remain in full force and
effect.
17. This Agreement shall constitute the entire agreement of the parties with respect to
the subject matter and supersedes all prior oral or written agreements in regard
thereto.
18. This Agreement shall terminate upon the distribution of all Escrow Property from
the Account. The provisions of these Terms and Conditions shall survive
termination of this Escrow Agreement and/or the resignation or removal of the
Escrow Agent.
19. No printed or other material in any language, including prospectuses, notices,
reports, and promotional material which mentions "BNY Western Trust
Company" by name or the rights, powers, or duties of the Escrow Agent under
this Agreement shall be issued by any other parties hereto, or on such party's
behalf, without the prior written consent of Escrow Agent.
20. The headings contained in this Agreement are for convenience of reference only
and shall have no effect on the interpretation or operation hereof.
21. This Escrow Agreement may be executed by each of the parties hereto in any
number of counterparts, each of which counterpart, when so executed and
delivered, shall be deemed to be an original and all such counterparts shall
together constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties have caused this Escrow
Agreement to be executed by a duly authorized officer a of the day and year first written
above.
City of Vernon
By:
Name: Bruce V. Malkenhorst
Title: City Administrator/City Clerk
APPROVED AS TO FORM:
Eric Fresch, City Attorney
BNY WESTERN TRUST COMPANY, as Escrow Agent
By:
Name: Aurora Quiazon
Title: Assistant Treasurer
W gJ-12-MY-EscrowAgmt.doc
IN WITNESS WHEREOF, each of the parties have caused this Escrow
Agreement to be executed by a duly authorized officer a of the day and year first written
above.
City of Vernon
By:
Name: Bruce V. Malkenhorst
Title: City Administrator/City Clerk
BNY WESTERN TRUST COMPANY, as Escrow Agent
By:
Name: Aurora Qui o
Title: Assistant Treasurer
Wg:f-1 2-BNY-EscrowAgmt.doc
APPROVED AS TO FORM:
7-k
Eric Fresch, Ixx
City Attorney