HomeMy WebLinkAboutORANGE COUNTY FIRE AUTHORITY - 2012 ESCROWN
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A-2012-038-02
ESCROW AGREEMENT
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THIS ESCROW AGREEMENT dated as oi?e 444-2.5 fo? he "Agreement") by and
among the City of Santa Ana, a Charter City and Municipal Corporation duly organized and
-4- existing under the laws of the State of California ('City'); the Orange County Fire Authority a
Q11 Joint Powers Authority duly organized and existing under the laws of the State of California
q ("OCFA"); and Grandpoint Bank, a California State Banking Association ("Escrow Agent").
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RECITALS
A. CITY and OCFA are parties to that certain Fire Services and Emergency Medical
p[ Services Agreement A-2012-038, dated March 5, 2012 (said Agreement").
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B. Section VIIA. of said Agreement requires the CITY, on or before September 30,
U 2012, to provide OCFA with security in the form of a bond or escrow account with
OCFA named as beneficiary, in the amount of one full monthly payment for services
rendered by OCFA pursuant to said Agreement. For purposes of reference, Section
VII. 4. of the Fire Services Agreement reads in its entirety as follows:
"4. On or before September 30, 2012, CITY shall either (a) obtain a bond,
in form and substance acceptable to OCFA in its sole and absolute
discretion, from a bonding company or insurer acceptable to OCFA in its
sole and absolute discretion, in the amount of one full monthly payment
for services rendered by OCFA under this Agreement (the "Bond"), or (b)
establish an escrow account, naming OCFA as beneficiary and on terms
and conditions acceptable to OCFA in its sole and absolute discretion,
with an escrow agent acceptable to OCFA in its sole and absolute
discretion and funded with cash in the amount of one full monthly
payment for services rendered by OCFA under this Agreement (the
"Escrow" and, collectively with the Bond, the "Security"). On or before
duly I, 2013, and thereafter on or before July 1 of each succeeding year,
CITY shall make payments sufficient to adjust the amount of the Security
to equal the amount of one monthly payment for the final charges as
established pursuant to Paragraph 5 of this Section VII, below.
The Security shall serve as security for CITY's obligations under this
Agreement. In the event that CITY defaults in any of such obligations,
without in any way limiting any of OCFA's other rights and remedies,
OCFA shall be entitled to collect upon the Bond or draw upon the Escrow,
as applicable, in partial compensation for such default and in accordance
with the terms of the documentation governing such Security. In the event
that OCFA collects upon the Bond or draws upon the Escrow, CITY shall
have a period of thirty (30) days to establish new Security in the amount
and as set forth in the preceding Paragraph. If CITY-fails to do so, OCFA
shall have the right to terminate this Agreement upon written notice to
CITY.
SantaAna0CFA9/2012 Page 1
On or after July 1, 2014, CITY may present information to the OCFA
Board of Directors that the City's financial condition has improved such
that the need for the Security has changed and that the requirement for the
Security should be reduced, eliminated or otherwise modify the
requirement of this Section VII. 4."
C. CITY desires to meet the obligation set forth in Section VIIA. of said Agreement, by
entering into this Escrow Agreement with OCFA as beneficiary, funded with cash in
the amount of one full monthly payment for services provided by OCFA pursuant to
said Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby
covenant and agree as follows:
Section 1. Appointment of Escrow Agent. CITY and OCFA hereby appoint Escrow
Agent to act as escrow agent in accordance with the terms and conditions set forth herein, and
Escrow Agent hereby accepts such appointment.
Section 2. Establishment of Escrow Account. Escrow Agent shall open and maintain
an escrow account on the terms and conditions set forth herein (the "Escrow Account"). The
Escrow Funds (as defined below) held in the Escrow Account shall not bear interest
independently of the interest, dividends and other distributions and payments that may arise from
Permitted Investments (as defined below) made pursuant to Section 5 hereof.
Section 3. Wire Instructions. Wire transfer instructions for sending the Escrow
Funds, as hereinafter defined, to Escrow Agent are as follows:
Grandpoint Bank
ABA: 122244566
Account: 6002158
Account Name: City of Santa Ana/OCFA
Attention: Larry A. Sallinger, EVP
Section 4. Deposits into the Escrow Account. CITY simultaneously with or within
three Business Days after the execution and delivery of this Agreement will make a deposit with
Escrow Agent in the sum of $2,867,470.50 in immediately available funds (the "Escrow
Funds"), which Escrow Funds shall be held by Escrow Agent under the terms and conditions set
forth herein. In addition, in accordance with Section V11. 4. of the Fire Services Agreement, on
or before July 1, 2013, and thereafter on or before July 1 of each succeeding year, CITY shall
make a deposit with Escrow Agent in immediately available funds in a sum necessary to cause
the amount of Escrow Funds to equal the Security required by the Fire Services Agreement,
which deposit shall be added to and considered part of the Escrow Funds. The Escrow Funds,
plus all interest, dividends and other distributions and payments thereon received by Escrow
Agent from time to time, less any property distributed and/or disbursed in accordance with this
Agreement, from time to time are collectively referred to hereinafter as the "Escrow Property".
Escrow Agent shall have no duty to solicit delivery of the Escrow Funds. For purposes of this
Agreement "Business Day" shall mean any day Grandpoint Bank is open for business at the
address set forth herein, excluding Saturdays and Sundays.
Section 5. Investment of the Escrow Property.
(a) As soon as practicable after the receipt thereof, Escrow Agent shall cause the
Escrow Property to be invested in such Permitted Investments as defined below as CITY may
specify in writing from time to time. During the term of this Agreement, CITY shall bear and
retain the sole responsibility for the selection of the investments of the Escrow Property and all
risks from any such investments.
(b) "Permitted Investments" shall be one or more of the following:
i. Money market or mutual funds registered under the Investment Company
Act of 1940 t including any fund for which Escrow Agent or an affiliate of
Escrow Agent serves as an investment advisor, administrator, shareholder
servicing agent, custodian or sub-custodian, notwithstanding that (A)
Escrow Agent or an affiliate of Escrow Agent charges and collects fees
and expenses from such funds for services rendered (provided that such
charges, fees and expenses are on terms consistent with terms negotiated
at arm's length) and (B) Escrow Agent charges and collects fees and
expenses for services rendered, pursuant to this Agreement;
ii. Direct obligations of, or obligations fully guaranteed as to principal and
interest by, the United States or any agency or instrumentality thereof,
provided such obligations are backed by the full faith and credit of the
United States; or
iii. An interest bearing deposit account of Escrow Agent.
(c) In the absence of written instructions, Escrow Agent will invest the Escrow
Property in the Money Market Account as set forth in Section 5(b)(i), above. Escrow Agent
shall have no obligation to invest the Escrow Property if deposited with Escrow Agent after
10:30 a.m. Pacific Time 11:30 p.m. Eastern Time on the day of deposit. Instructions received
after 10:30 a.m. Pacific Time /1:30 p.m. Eastern Time will be treated as if received on the
following Business Day. Escrow Agent shall have no responsibility for any investment losses
resulting from the investment, reinvestment or liquidation of the Escrow Property. Any interest
or other income received on such investment and reinvestment of the Escrow Property shall
become part of the Escrow Property and losses incurred on such investment and reinvestment of
the Escrow Property shall be reflected in the value of the Escrow Property from time to time.
' City hereby acknowledges that it has received and read the Prospectus for the selected investment of the Escrow
Property and understands that investments in the Money Market or Mutual Fund are not insured by the Federal
Deposit Insurance Corporation and are not obligations of or guaranteed by Escrow Agent.
Notwithstanding the foregoing, Escrow Agent shall have the power to sell or liquidate the
foregoing investments whenever Escrow Agent shall be required to release all or any portion of
the Escrow Property pursuant to this Agreement. In no event shall Escrow Agent be deemed an
investment manager or adviser in respect of any selection of investments hereunder.
Section 6. Distribution of the Escrow Property. Escrow Agent shall hold the Escrow
Property in its possession and disburse the Escrow Property or any specified portion thereof only
as follows:
(a) Three Business Days prior to any requested disbursement from the Escrow
Account, (i) OCFA shall deliver to Escrow Agent and CITY, a unilateral written notice signed
by an authorized person set forth on Schedule I attached hereto ("Authorized Representative") of
OCFA to disburse all or a portion of the Escrow Property to OCFA or (ii) CITY may deliver a
written notice signed by an Authorized Representative of CITY and OCFA to disburse all or part
of the Escrow Property to CITY or such other party so specified therein (the "Disbursement
Instruction"). A Disbursement Instruction to disburse all or a portion of the Escrow Property to
OCFA must be signed by an Authorized Representative of OCFA; a Disbursement Instruction to
disburse all or a portion of the Escrow Property to CITY or party other than OCFA must be
signed by each party's Authorized Representative; and any Disbursement Instruction must be
delivered pursuant to Section I 1 below. Escrow Agent shall be and is hereby authorized to
withdraw and pay said disbursement as specified in a Disbursement Instruction. Escrow Agent
may act upon a Disbursement Instruction received pursuant to Section 11 hereunder and may
rely upon the signature(s) thereon of an Authorized Representative regardless of by whom or by
what means the actual or purported signature(s) thereon may have been affixed thereto if such
signature(s) resemble the specimen on Schedule I attached hereto or as provided to Escrow
Agent from time to time. Escrow Agent shall incur no liability to CITY or OCFA or otherwise
for having acted in accordance with instructions on which it is authorized to rely pursuant to the
provisions hereof. OCFA warrants and represents to CITY and Escrow Agent that OCFA shall
only provide a unilateral Disbursement Instruction to Escrow Agent to disburse all or a portion
of the Escrow Property to OCFA to the extent it is authorized to do so pursuant to the terms of
the Fire Service Agreement.
(b) All payments of the Escrow Property will be effected by wire transfer in
immediately available funds.
Section 7. Compensation of Escrow Age . tEscrow Agent shall be entitled to receive
payment from CITY for fees, costs and expenses for all services rendered by it hereunder in
accordance with Schedule II to this Agreement. CITY shall reimburse Escrow Agent on demand
for all losses, liabilities, damages, disbursements, advances or expenses paid or incurred by it in
the administration of its duties hereunder, including, but not limited to, all counsel, advisor and
agent fees and disbursements. At all times, Escrow Agent will have a right of set off and first
lien upon the Escrow Account for payment of customary fees, costs and expenses and all such
losses, liabilities, damages or expenses from time to time. Such fees, costs and expenses shall be
paid from the Escrow Property to the extent not otherwise paid hereunder and Escrow Agent
may sell, convey or otherwise dispose of any Escrow Property for such purpose. The obligations
contained in this Section shall survive the termination of this Agreement and the resignation or
removal of Escrow Agent.
Section 8. Resignation or Removal of Escrow Agent. Escrow Agent may resign and
be discharged from its duties hereunder at any time by giving written notice thirty calendar days
prior to such resignation to CITY and OCFA as provided in this Section. CITY and OCFA may
remove Escrow Agent at any time by giving written notice signed by each party's Authorized
Representative at least thirty calendar days prior to such removal to Escrow Agent. Following
such resignation or removal, a successor Escrow Agent shall be appointed by CITY and OCFA,
who shall provide written notice of such to the resigning or removed Escrow Agent. Such
successor Escrow Agent shall become Escrow Agent hereunder, and all Escrow Property shall
be transferred to it upon the resignation or removal date specified in such notice. If CITY is
unable to appoint a successor Escrow Agent within thirty calendar days after such notice,
Escrow Agent may, in its sole discretion, deliver the Escrow Property to OCFA at the address
provided herein or may petition any court of competent jurisdiction for the appointment of a
successor Escrow Agent or for other appropriate relief. The costs and expenses (including but
not limited to its attorney fees and expenses) incurred by Escrow Agent in connection with such
proceeding shall be paid by CITY. On the resignation/removal date and after receipt of the
identity of the successor Escrow Agent, Escrow Agent shall either deliver and/or disburse 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. Upon its resignation or removal
and delivery and/or disbursement of the Escrow Property in its entirety as set forth in this
Section, Escrow Agent shall be discharged of and from any and all future obligations arising in
connection with the Escrow Property or this Agreement.
Section 9. Indemnification of Escrow Agent. CITY and OCFA jointly and severally
agree to indemnify and hold Escrow Agent harmless against any and all liabilities, losses, claims,
damages or expenses, including reasonable attorney's fees, that Escrow Agent may incur by
reason of or based upon its actions under this Agreement other than as a result of the gross
negligence or willful misconduct of Escrow Agent. This indemnification obligation shall survive
the termination of this Agreement and the resignation or removal of Escrow Agent.
Section 10. Rights, Duties and Immunities of Escrow Agent. Acceptance by Escrow
Agent of its duties under this Agreement is subject to the following terms and conditions, which
all parties to this Agreement hereby agree shall govern and control the rights, duties and
immunities of Escrow Agent.
(a) The duties and obligations of Escrow Agent shall be determined solely by the
express provisions of this Agreement and no duties or obligations shall be inferred or implied.
Escrow Agent shall not be liable except for the performance of such duties and obligations as are
expressly and specifically set out in this Agreement. Escrow Agent shall not be liable for the
accuracy of any calculations or the sufficiency of any funds for any purpose.
(b) Escrow Agent shall not be required to expend or risk any of its own funds or
otherwise incur any liability, financial or otherwise, in the performance of any of its duties
hereunder.
(c) Escrow Agent is not a party to, and is not bound by, or required to comply with
any agreement or other document out of which this Agreement may arise. Escrow Agent shall
not be required to inquire as to the performance or observation of any obligation, term or
condition under any other agreements or arrangements between CITY and OCFA. Escrow
Agent shall be under no liability to any party hereto by reason of any failure on the part of CITY,
OCFA or any maker, guarantor, endorser or other signatory of any document or any other third
party to perform, such party's obligations under any such document. Except for the provisions
of Section VII. 4. of the Fire Services Agreement and amendments to this Agreement referred to
herein, and except for notifications or instructions to Escrow Agent under this Agreement,
Escrow Agent shall not be obliged to recognize or be chargeable with knowledge of any of the
terms or conditions of any agreement between CITY and OCFA, notwithstanding that references
thereto may be made herein and whether or not it has knowledge thereof.
(d) Escrow Agent shall not have any responsibility to determine the authenticity or
validity of any notice, direction, instruction, instrument, document or other items delivered to it
by any party, or for the identity, authority or rights of persons executing or delivering any such
notice, direction, instruction, instrument, document, or other items delivered to it by such party
or parties. Escrow Agent is authorized to comply with and rely upon any notice, direction,
instruction or other communication reasonably believed by it, to have been sent or given by CITY
and/or OCFA and shall be fully protected in acting in accordance with such written direction or
instructions given to it under, or pursuant to, this Agreement.
(e) Escrow Agent shall not be bound by any waiver, modification, termination or
rescission of this Agreement or any of the terms hereof, unless evidenced in writing and
delivered to Escrow Agent signed by each party's Authorized Representative and, if the duties or
rights of Escrow Agent are affected, unless it shall give its prior written consent thereto. No
person, firm or corporation will be recognized by Escrow Agent as a successor or assignee of
CITY or OCFA until there shall be presented to Escrow Agent evidence satisfactory to it of such
succession or assignment. This Agreement shall not be deemed to create a fiduciary relationship
among the parties hereto under state or federal law.
(f) 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 the Escrow Property (including but not limited to orders of attachment or any other forms
of levies or injunctions or stays relating to the transfer of the Escrow Property), Escrow Agent is
authorized to comply therewith in any manner as it or its legal counsel of its own choosing
reasonably 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.
(g) Escrow Agent shall not be liable for any action taken or omitted or for any loss or
damage resulting from its actions or its 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 CITY and/or OCFA, or any entity acting on behalf of either, (ii) for any
consequential, punitive or special damages, or (iii) for an amount in excess of the value of the
Escrow Property, valued as of the date of loss.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice or other
communication received by Escrow Agent hereunder, Escrow Agent is hereby authorized by
CITY and OCFA to refrain from taking any action other than to retain possession of the Escrow
Property, unless Escrow Agent receives written instructions, signed by an Authorized
Representative of both CITY and OCFA which eliminates such ambiguity or uncertainty.
Notwithstanding the foregoing, Escrow Agent acknowledges that OCFA may unilaterally
provide a Disbursement Instruction signed only by an Authorized Representative of OCFA
directing all or a portion of the Escrow Property to be distributed to OCFA, and that the
unilateral nature of such a Disbursement Instruction from OCFA shall not be deemed an
ambiguity or uncertainty.
(i) Escrow Agent may consult with legal counsel of its own choosing, at its own
expense as to any matter relating to this Agreement and Escrow Agent shall incur no liability and
shall be fully protected in respect of any action taken, omitted or suffered by it in good faith in
accordance with the advice or opinion of such counsel.
0) In the event of any dispute or conflicting claim with respect to the payment,
ownership or right of possession of the Escrow Account or the Escrow Property, Escrow Agent
shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or
instructions. Escrow Agent is authorized and directed to retain in its possession, without liability
to anyone, except for its own gross negligence or willful misconduct, all or any part of the
Escrow Property until such dispute shall have been settled either by mutual agreement of the
parties concerned or by final order, decree or judgment of a court or other tribunal of competent
jurisdiction in the United States of America (as notified to Escrow Agent in writing by the parties
to the dispute or their authorized representatives and setting forth the resolution of the dispute).
Escrow Agent shall be under no duty whatsoever to institute, defend or partake in such
proceedings. The rights of Escrow Agent under this paragraph are in addition to all other rights
which it may have by law or otherwise including, without limitation, the right to file an action in
interpleader. Notwithstanding the foregoing, Escrow Agent acknowledges that CITY has agreed
that OCFA may deliver to Escrow Agent and CITY a Disbursement Instruction signed solely by
an Authorized Representative of OCFA directing all or a portion of the Escrow Property to be
distributed to OCFA, and that CITY's subsequent objection to such a unilateral Disbursement
Instruction from OCFA shall not constitute a dispute entitling Escrow Agent to refuse to comply
with such Disbursement Instruction pursuant to this subdivision 0). CITY and OCFA hereby
expressly agree that Escrow Agent shall not be liable for any losses, costs or expenses arising
directly or indirectly from Escrow Agent's reliance upon and compliance with such a
Disbursement Instruction delivered to both Escrow Agent and CITY, notwithstanding any
objection regarding such Disbursement Instruction made by CITY subsequent to execution of
this Agreement.
(k) Escrow Agent shall not incur liability for not performing any act or not 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, terrorism or the unavailability of
the Federal Reserve Bank or other wire or communication facility).
(1) When Escrow Agent acts on any communication (including, but not limited to,
communication with respect to the delivery of securities or the wire transfer of funds) sent by
electronic transmission, Escrow Agent, absent gross negligence or willful misconduct, shall not.
be responsible or liable in the event such communication is not an authorized or authentic
communication of the party involved or is not in the form the patty involved sent or intended to
send (whether due to fraud, distortion or otherwise). Escrow Agent shall not be liable for any
losses, costs or expenses arising directly or indirectly from Escrow Agent's reasonable reliance
upon and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. CITY or OCFA, as the case may be, agrees to
assume all risks arising out of the use of such electronic transmission to submit instructions and
directions to Escrow Agent, including without limitation the risk of Escrow Agent acting on
unauthorized instructions, and the risk or interception and misuse by third parties.
(m) Escrow Agent shall furnish CITY and OCFA monthly cash transaction statements
which include detail for all investment transactions effected by the Escrow Agent or brokers
selected by CITY or any investment advisor. Upon CITY'S/OCFA's election, such statements
will be delivered via Escrow Agent's Online Trust and Custody service and upon electing such
service, paper statements will be provided only upon request. Statements will be deemed to be
correct and final upon receipt thereof by CITY and OCFA unless CITY or OCFA notifies
Escrow Agent in writing to the contrary within thirty Calendar Days of the date of such
statement. CITY and OCFA waive the right to receive brokerage confirmations of security
transactions effected by the Escrow Agent as they occur, to the extent permitted by law. CITY
and OCFA further understand that trade confirmations for securities transactions effected by
Escrow Agent will be available upon request and at no additional cost, and other trade
confirmations may be obtained from the applicable broker.
(n) Escrow Agent will not be under any duty to give the Escrow Property held by it
hereunder any greater degree of care than it gives its own similar property and will not be
required to invest any funds held hereunder except as directed in this Escrow Agreement.
Uninvested funds held hereunder will not earn or accrue interest.
Section 11. Notices. All notices, consents, requests, instructions, approvals and other
communications provided for in this Agreement shall be in writing, signed by each party's
Authorized Representative and sent by: (i) personal delivery, overnight delivery by a recognized
courier or delivery service, (ii) mailed by registered or certified mail, return receipt requested,
postage prepaid, or (iii) electronic transmission, which includes fax machine, email with an
imaged or scanned attachment (such as a pdf) or other similar electronic transmission, (receipt
confirmed); and shall become effective when delivered to the addresses noted below or such
other address as may be substituted therefor by written notification by each party's Authorized
Representative. Notices to Escrow Agent shall be deemed to be effective when actually received
by Escrow Agent's Corporate Office.
If to CITY, to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza (M30)
Santa Ana, CA 92702
mhuizar@santa-ana.org
Fax: 714.647.6956
Telephone: 714.647.6520
with a copy to:
Finance & Management Services -Administration
City of Santa Ana
20 Civic Center Plaza (Ml 7)
Santa Ana. CA 92702
Email: rcortez5@santa-ana.org
Fax: 714-647-5414
Telephone: 714-647-5295
If to OCFA, to:
Orange County Fire Authority
P.O. Box 57115
Irvine, CA 92619-7115
Attention: Lori Zeller, Assistant Chief/Business Services
Email: LoriZeller@ocfa.org
Fax:
Telephone: (714) 573-6020
with a copy to:
Woodruff, Spradlin & Smart
555 Anton Blvd., Suite 1200
Costa Mesa, CA 92626
Attention: David Kendig, General Counsel
Email: dkendig@wss-law.com
Fax: (714) 415-1183
Telephone: (714) 558-7000
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If to Escrow Agent, to:
Grandpoint Bank
1045 West Katella Ave, Suite 100
Orange, CA 92867
Attn: Larry A. Sallinger, EVP
Email: Isailinger@grandpointbank.com
Fax: 714.532.0701
Telephone :714.787.3701
Section 12. Wiring Instructions. In the event fund transfer instructions are given other
than as set forth on Schedule III attached hereto, such instructions must be communicated to
Escrow Agent in writing delivered pursuant to Section 11. Escrow Agent shall seek
confirmation of such instructions by telephone call-back to an Authorized Representative, and
Escrow Agent may rely upon the confirmations of anyone purporting to be the Authorized
Representative so designated. Escrow Agent and the beneficiary's bank in any funds transfer
may rely solely upon any account numbers or similar identifying numbers provided by CITY and
OCFA to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank.
Escrow Agent may apply any of the Escrow Funds for any payment order it executes using any
such identifying number, even when its use may result in a person other than the beneficiary
being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary
bank designated. The parties to this Agreement acknowledge that such security procedure is
commercially reasonable.
Section 13. Termination. This Agreement shall terminate on the date on which all the
Escrow Property has been disbursed or returned pursuant to Section 6 or Section 8 of this
Agreement.
Section 14. Continuing Obli ations. The obligations under Sections 6, 7, 8, 9 and 10
hereof shall survive the resignation or removal of Escrow Agent, the termination of this
Agreement and the payment of all amounts hereunder.
Section 15. Inconsistent Provisions. CITY and OCFA agree that to the extent that the
provisions of any other agreement relating to the Escrow Property are inconsistent with the terms
of this Agreement, the terms of this Agreement shall control. [The English language version of
this Agreement shall control in the event of any inconsistencies between the English
language version and any foreign language translation.]
Section 16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of [California].2
Section 17. Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original, and all of which together shall
constitute but one and the same instrument. Executed copies of this Agreement delivered
pursuant to Section I 1 above shall be as effective as an original to bind the parties.
2 Governing law shall be California for escrow accounts administered from our CA office.
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Section 18. Sever ability. 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 unenforceable as a matter of law, the other
provisions shall not be affected thereby and shall remain in full force and effect.
Section 19. Authorized Representative. CITY and OCFA hereby identify to Escrow
Agent the officers, employees or agents designated on Schedule I attached hereto as an
Authorized Representative with respect to any notice, certificate, instrument, demand, request,
direction, instruction, waiver, receipt, consent or other document or communication required or
permitted to be furnished to Escrow Agent. Such Schedule I may be amended and updated by
written notice to Escrow Agent with a copy to the other party to this Agreement provided that
failure to furnish such copy shall not affect the validity of such notice to Escrow Agent. Escrow
Agent shall be entitled to rely on such original or amended Schedule I with respect to any party
until a new Schedule I is furnished by such party to Escrow Agent.
Section 20. Jurisdiction. Each of the parties hereto hereby irrevocably agrees that any
action, suit or proceedings against any of them by any of the other aforementioned parties with
respect to this Agreement shall be brought before the jurisdiction of any federal or state court of
competent jurisdiction located in the Superior Court of Orange County, California. Each party
hereto further irrevocably consents to the service of any complaint, summons, notice or other
process relating to any such action or proceeding by delivery thereof to it by hand or by
registered or certified mail, return receipt requested, in the manner provided for herein. Each
party hereto hereby expressly and irrevocably waives any claim or defense in any such action or
proceeding based on improper venue or forum non conveniens or any similar basis. To the extent
permitted by law, in connection with any claim, cause of action, proceeding or other dispute
concerning this Agreement (each a "Claim"), the parties to this Agreement expressly,
intentionally, and deliberately waive any right each may otherwise have to trial by jury. In the
event that the waiver of jury trial set forth in the previous sentence is not enforceable under the
law applicable to this Agreement, the parties to this Agreement agree that any Claim, including
any question of law or fact relating thereto, shall, at the written request of any party, be
determined by judicial reference pursuant to California law. The parties shall select a single
neutral referee, who shall be a retired state or federal judge. In the event that the parties cannot
agree upon a referee, the court shall appoint the referee. The referee shall report a statement of
decision to the court. Nothing in this paragraph shall limit the right of CITY or OCFA at any
time to exercise self-help remedies, foreclose against collateral or obtain provisional remedies.
The parties shall bear the fees and expenses of the referee equally, unless the referee orders
otherwise. The referee shall also determine all issues relating to the applicability, interpretation,
and enforceability of this paragraph. The parties acknowledge that if a referee is selected to
determine the Claims, then the Claims will not be decided by a jury. CITY and OCFA agree that
this Section 20 shall NOT apply to any action, suit or proceedings against either of them by the
other with respect to this Agreement, if Escrow Agent is not a party to such action suit or
proceeding.
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Section 21. Tax Matters.
(a) Withholding Forms. Escrow Agent does not have any interest in the Escrow
Property deposited hereunder but is serving as escrow holder only and having only possession
thereof. CITY and OCFA will pay or reimburse Escrow Agent upon request for any transfer
taxes or other taxes relating to the Escrow Property incurred in connection herewith and will
indemnify and hold harmless Escrow Agent from any amounts that it is obligated to pay in the
way of such taxes. Any payments of income from this Escrow Account will be subject to
withholding regulations then in force with respect to United States taxes. Due to the requirement
that all escrow accounts have Taxpayer Identification Numbers documented by appropriate W-8
or W-9 forms, CITY and OCFA shall return the appropriate form to Escrow Agent, duly
completed and signed by each party's Authorized Representative. CITY and OCFA
acknowledge that failure to provide such forms may prevent or delay disbursement of the Escrow
Property hereunder.
(b) Tax Reporting. Escrow Agent will report payments of income from the Escrow
Account on an annual basis as required by law, by providing the applicable IRS Form 1099 or
Form 1042-5.
(c) Owner s) of Income. For purposes of reporting the aggregate amount of income
on the Escrow Property, CITY shall be considered owner of such income.
Section 22. USA PATRIOT Act. CITY and OCFA shall provide to Escrow Agent
such information as Escrow Agent may reasonably require to permit Escrow Agent to comply
with its obligations under the federal USA PATRIOT Act (Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001).
Escrow Agent shall not credit any amount of the Escrow Fund or any interest or investment
proceeds earned thereon, or make any payment of all or a portion of the Escrow Fund or any
interest or investment proceeds earned thereon, to any person unless and until such person has
provided to Escrow Agent such documents as Escrow Agent may require to permit Escrow
Agent to comply with its obligations under such Act. Further, each of the parties represents and
warrants to Escrow Agent that it is not a hedge fund.
Section 23: Miscellaneous.
(a) 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.
(b) 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.
(c) Each party hereby represents and warrants (i) that this Agreement has been duly
authorized, executed and delivered on its behalf and constitutes its legal, valid and binding
12
obligation and (ii) that the execution, delivery and performance of this Agreement by the parties
hereto does not and will not violate any applicable law or regulation.
(d) The headings contained in this Agreement are for convenience of reference only
and shall have no effect on the interpretation or operation hereof.
(e) Except as otherwise permitted herein, this Escrow Agreement maybe modified
only by a written amendment signed by each party's Authorized Representative and Escrow
Agent, and no waiver of any provision hereof will be effective unless expressed in a writing
signed by each party's Authorized Representative and Escrow Agent.
(f) No party may assign any of its rights or obligations under this Escrow Agreement
without the written consent of the other parties.
(g) Any corporation into which Escrow Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Escrow Agent will be a party, or any corporation succeeding to all or
substantially all the business of Escrow Agent will be the successor of Escrow Agent hereunder
without the execution or filing of any paper with any party hereto or any further act on the part of
any of the parties hereto except where an instrument of transfer or assignment is required by law
to effect such succession, anything herein to the contrary notwithstanding.
[Signature Page to Follow]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
ATTEST: City of Santa Ana, a Charter City and Municipal
Corporation
Maria D..Huizar CJ
Clerk of the Council
Name: Paul M. Walters
APPROVED AS TO FORM- it le: City Manager
Orange County Fire Authority
Laura stilt Slt cd? y
Assistant City Attorney
By
Name: Keith Richter
Title: Fire Chief
Grandpoint Bank
as Escrow Agent
By
Name: Larry A. SalIinger
Title: Vice Chairman//EVP
By
Name: Jerro Otsuki
Title: Chief Financial Officer/EVP
14
SCHEDULEI
Escrow Account Signing Authority
Authorized Representative(s) of CITY
The undersigned certifies that each of the individuals listed below is an authorized representative
of CITY with respect to any instruction or other action to be taken in connection with the Escrow
Agreement and Grandpoint Bank shall be entitled to rely on such list until a new list is furnished
to Grandpoint Bank.
Signature:
Print: Paul M. Walters
Title: City Manager
Phone: (714) 647-5231
Fax: (714) 647-6954
Email: pwaltersgsanta-ana org
Signature:
Print: Francisco Gutierrez
Title: Executive Director -Finance and
Management Services Agency
Phone: (714) 647-5420
Email: futierrez@santa-ana.org
The undersigned further certifies that he or she is duly authorized to sign this Escrow Account
Signing Authority.
Signature:
Name; Maria D. Huizar
Its: Clerk of the Council
Date:
**To be signed by corporate secretary/assistant secretary. When the secretary is among those
authorized above, the president must sign in the additional signature space provided below. For
entities other than corporations, an authorized signatory not signing above should sign this
Escrow Account Signing Authority.
15
Authorized Representative(s) of OCFA
The undersigned certifies that each of the individuals listed below is an authorized representative
of OCFA with respect to any instruction or other action to be taken in connection with the
Escrow Agreement and Grandpoint Bank shall be entitled to rely on such list until a new list is
furnished to Grandpoint Bank.
Signature:
Print: Lori Zeller
Title: Assistant Chief, Business Services
Phone: (714) 573-6020
Fax:
Email: lorizeller@ocfa.org
Signature:
Print: Tricia Jakubiak
Title: Treasurer
Phone: (714) 573-6301
Fax:
Email: triciaiakubiakQocfa org
The undersigned further certifies that he or she is duly authorized to sign this Escrow Account
Signing Authority.
Signature: **
Name: Sherry Wentz
Its: Clerk of the Authority
Date:
**To be signed by corporate secretary/assistant secretary. When the secretary is among those
authorized above, the president must sign in the additional signature space provided below. For
entities other than corporations, an authorized signatory not signing above should sign this
Escrow Account Signing Authority.
(Additional signature, if required)
Signature:
Name:
Its:
Date:
16
SCHEDULEII
ESCROW AGENT COMPENSATION
(1) Annual Administrative Fee $500.00
(2) All other fees waived
17
SCHEDULE III
Wire Instructions:
If to CITY:
ABA No.:
Bank Name:
Account No.:
Account Name:
Reference:
322271627
JPMorgan Chase & Co., N.A.
935309500
City of Santa Ana
General Account
If to OCFA:
ABA No.: 122000496
Bank Name: Union Bank
Account No.: 2740013745
Account Name: Orange County Fire Authority
Reference: City of Santa Ana Escrow Disbursement
Date:
18
A-2012-038-02
ESCROW AGREEMENT
THIS ESCROW AGREEMENT dated as oi?? ¢??A?R.ZS,/jDL the "Agreement") by and
among the City of Santa Ana, a Charter City and Municipal Corporation duly organized and
existing under the laws of the State of California ("City"); the Orange County Fire Authority a
Joint Powers Authority duly organized and existing under the laws of the State of California
("OCFA"); and Grandpoint Bank, a California State Banking Association ("Escrow Agent").
RECITALS
A. CITY and OCFA are parties to that certain Fire Services and Emergency Medical
Services Agreement A-2012-038, dated March 5, 2012 (said Agreement").
B. Section VIIA. of said Agreement requires the CITY, on or before September 30,
2012, to provide OCFA with security in the form of a bond or escrow account with
OCFA named as beneficiary, in the amount of one full monthly payment for services
rendered by OCFA pursuant to said Agreement. For purposes of reference, Section
VII. 4. of the Fire Services Agreement reads in its entirety as follows:
"4. On or before September 30, 2012, CITY shall either (a) obtain a bond,
in form and substance acceptable to OCFA in its sole and absolute
discretion, from a bonding company or insurer acceptable to OCFA in its
sole and absolute discretion, in the amount of one full monthly payment
for services rendered by OCFA under this Agreement (the "Bond"), or (b)
establish an escrow account, naming OCFA as beneficiary and on terms
and conditions acceptable to OCFA in its sole and absolute discretion,
with an escrow agent acceptable to OCFA in its sole and absolute
discretion and funded with cash in the amount of one full monthly
payment for services rendered by OCFA under this Agreement (the
"Escrow" and, collectively with the Bond, the "Security"). On or before
July 1, 2013, and thereafter on or before July 1 of each succeeding year,
CITY shall make payments sufficient to adjust the amount of the Security
to equal the amount of one monthly payment for the final charges as
established pursuant to Paragraph 5 of this Section VII, below.
The Security shall serve as security for CITY's obligations under this
Agreement. In the event that CITY defaults in any of such obligations,
without in any way limiting any of OCFA's other rights and remedies,
OCFA shall be entitled to collect upon the Bond or draw upon the Escrow,
as applicable, in partial compensation for such default and in accordance
with the terms of the documentation governing such Security. In the event
that OCFA collects upon the Bond or draws upon the Escrow, CITY shall
have a period of thirty (30) days to establish new Security in the amount
and as set forth in the preceding Paragraph. If CITY fails to do so, OCFA
shall have the right to terminate this Agreement upon written notice to
CITY.
SantaAna0CFA9/2012 Pagel
On or after July 1, 2014, CITY may present information to the OCFA
Board of Directors that the City's financial condition has improved such
that the need for the Security has changed and that the requirement for the
Security should be reduced, eliminated or otherwise modify the
requirement of this Section VII. 4."
C. CITY desires to meet the obligation set forth in Section VILA. of said Agreement, by
entering into this Escrow Agreement with OCFA as beneficiary, funded with cash in
the amount of one full monthly payment for services provided by OCFA pursuant to
said Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby
covenant and agree as follows:
Section 1. Appointment of Escrow Agent. CITY and OCFA hereby appoint Escrow
Agent to act as escrow agent in accordance with the terms and conditions set forth herein, and
Escrow Agent hereby accepts such appointment.
Section 2. Establishment of Escrow Account. Escrow Agent shall open and maintain
an escrow account on the terms and conditions set forth herein (the "Escrow Account"). The
Escrow Funds (as defined below) held in the Escrow Account shall not bear interest
independently of the interest, dividends and other distributions and payments that may arise from
Permitted Investments (as defined below) made pursuant to Section 5 hereof.
Section 3. Wire Instructions. Wire transfer instructions for sending the Escrow
Funds, as hereinafter defined, to Escrow Agent are as follows:
Grandpoint Bank
ABA: 122244566
Account: 6002158
Account Name: City of Santa Ana/OCFA
Attention: Larry A. Sallinger, EVP
Section 4. Deposits into the Escrow Account. CITY simultaneously with or within
three Business Days after the execution and delivery of this Agreement will make a deposit with
Escrow Agent in the sum of $2,867,470.50 in immediately available funds (the "Escrow
Funds"), which Escrow Funds shall be held by Escrow Agent under the terms and conditions set
forth herein. In addition, in accordance with Section VII. 4. of the Fire Services Agreement, on
or before July 1, 2013, and thereafter on or before July 1 of each succeeding year, CITY shall
make a deposit with Escrow Agent in immediately available funds in a sum necessary to cause
the amount of Escrow Funds to equal the Security required by the Fire Services Agreement,
which deposit shall be added to and considered part of the Escrow Funds. The Escrow Funds,
plus all interest, dividends and other distributions and payments thereon received by Escrow
Agent from time to time, less any property distributed and/or disbursed in accordance with this
Agreement, from time to time are collectively referred to hereinafter as the "Escrow Property".
Escrow Agent shall have no duty to solicit delivery of the Escrow Funds. For purposes of this
Agreement "Business Day" shall mean any day Grandpoint Bank is open for business at the
address set forth herein, excluding Saturdays and Sundays.
Section 5. Investment of the Escrow Property.
(a) As soon as practicable after the receipt thereof, Escrow Agent shall cause the
Escrow Property to be invested in such Permitted Investments as defined below as CITY may
specify in writing from time to time. During the term of this Agreement, CITY shall bear and
retain the sole responsibility for the selection of the investments of the Escrow Property and all
risks from any such investments.
(b) "Permitted Investments" shall be one or more of the following:
Money market or mutual funds registered under the Investment Company
Act of 1940 1 including any fund for which Escrow Agent or an affiliate of
Escrow Agent serves as an investment advisor, administrator, shareholder
servicing agent, custodian or sub-custodian, notwithstanding that (A)
Escrow Agent or an affiliate of Escrow Agent charges and collects fees
and expenses from such funds for services rendered (provided that such
charges, fees and expenses are on terms consistent with terms negotiated
at arm's length) and (B) Escrow Agent charges and collects fees and
expenses for services rendered, pursuant to this Agreement;
ii. Direct obligations of, or obligations fully guaranteed as to principal and
interest by, the United States or any agency or instrumentality thereof,
provided such obligations are backed by the full faith and credit of the
United States; or
An interest bearing deposit account of Escrow Agent.
(c) In the absence of written instructions, Escrow Agent will invest the Escrow
Property in the Money Market Account as set forth in Section 5(b)(i), above. Escrow Agent
shall have no obligation to invest the Escrow Property if deposited with Escrow Agent after
10:30 a.m. Pacific Time /1:30 p.m. Eastern Time on the day of deposit. Instructions received
after 10:30 a.m. Pacific Time 1:30 p.m. Eastern Time will be treated as if received on the
following Business Day. Escrow Agent shall have no responsibility for any investment losses
resulting from the investment, reinvestment or liquidation of the Escrow Property. Any interest
or other income received on such investment and reinvestment of the Escrow Property shall
become part of the Escrow Property and losses incurred on such investment and reinvestment of
the Escrow Property shall be reflected in the value of the Escrow Property from time to time.
' City hereby acknowledges that it has received and read the Prospectus for the selected investment of the Escrow
Property and understands that investments in the Money Market or Mutual Fund are not insured by the Federal
Deposit Insurance Corporation and are not obligations of or guaranteed by Escrow Agent.
3
Notwithstanding the foregoing, Escrow Agent shall have the power to sell or liquidate the
foregoing investments whenever Escrow Agent shall be required to release all or any portion of
the Escrow Property pursuant to this Agreement. In no event shall Escrow Agent be deemed an
investment manager or adviser in respect of any selection of investments hereunder.
Section 6. Distribution of the Escrow Property. Escrow Agent shall hold the Escrow
Property in its possession and disburse the Escrow Property or any specified portion thereof only
as follows:
(a) Three Business Days prior to any requested disbursement from the Escrow
Account, (i) OCFA shall deliver to Escrow Agent and CITY, a unilateral written notice signed
by an authorized person set forth on Schedule I attached hereto ("Authorized Representative") of
OCFA to disburse all or a portion of the Escrow Property to OCFA or (ii) CITY may deliver a
written notice signed by an Authorized Representative of CITY and OCFA to disburse all or part
of the Escrow Property to CITY or such other party so specified therein (the "Disbursement
Instruction"). A Disbursement Instruction to disburse all or a portion of the Escrow Property to
OCFA must be signed by an Authorized Representative of OCFA; a Disbursement Instruction to
disburse all or a portion of the Escrow Property to CITY or party other than OCFA must be
signed by each party's Authorized Representative; and any Disbursement Instruction must be
delivered pursuant to Section I I below. Escrow Agent shall be and is hereby authorized to
withdraw and pay said disbursement as specified in a Disbursement Instruction. Escrow Agent
may act upon a Disbursement Instruction received pursuant to Section I I hereunder and may
rely upon the signature(s) thereon of an Authorized Representative regardless of by whom or by
what means the actual or purported signature(s) thereon may have been affixed thereto if such
signature(s) resemble the specimen on Schedule I attached hereto or as provided to Escrow
Agent from time to time. Escrow Agent shall incur no liability to CITY or OCFA or otherwise
for having acted in accordance with instructions on which it is authorized to rely pursuant to the
provisions hereof. OCFA warrants and represents to CITY and Escrow Agent that OCFA shall
only provide a unilateral Disbursement Instruction to Escrow Agent to disburse all or a portion
of the Escrow Property to OCFA to the extent it is authorized to do so pursuant to the terms of
the Fire Service Agreement.
(b) All payments of the Escrow Property will be effected by wire transfer in
immediately available funds.
Section 7. Compensation of Escrow Agent. Escrow Agent shall be entitled to receive
payment from CITY for fees, costs and expenses for all services rendered by it hereunder in
accordance with Schedule II to this Agreement. CITY shall reimburse Escrow Agent on demand
for all losses, liabilities, damages, disbursements, advances or expenses paid or incurred by it in
the administration of its duties hereunder, including, but not limited to, all counsel, advisor and
agent fees and disbursements. At all times, Escrow Agent will have a right of set off and first
lien upon the Escrow Account for payment of customary fees, costs and expenses and all such
losses, liabilities, damages or expenses from time to time. Such fees, costs and expenses shall be
paid from the Escrow Property to the extent not otherwise paid hereunder and Escrow Agent
may sell, convey or otherwise dispose of any Escrow Property for such purpose. The obligations
contained in this Section shall survive the termination of this Agreement and the resignation or
removal of Escrow Agent.
Section 8. Resignation or Removal of Escrow Agent. Escrow Agent may resign and
be discharged from its duties hereunder at any time by giving written notice thirty calendar days
prior to such resignation to CITY and OCFA as provided in this Section. CITY and OCFA may
remove Escrow Agent at any time by giving written notice signed by each party's Authorized
Representative at least thirty calendar days prior to such removal to Escrow Agent. Following
such resignation or removal, a successor Escrow Agent shall be appointed by CITY and OCFA,
who shall provide written notice of such to the resigning or removed Escrow Agent. Such
successor Escrow Agent shall become Escrow Agent hereunder, and all Escrow Property shall
be transferred to it upon the resignation or removal date specified in such notice. If CITY is
unable to appoint a successor Escrow Agent within thirty calendar days after such notice,
Escrow Agent may, in its sole discretion, deliver the Escrow Property to OCFA at the address
provided herein or may petition any court of competent jurisdiction for the appointment of a
successor Escrow Agent or for other appropriate relief. The costs and expenses (including but
not limited to its attorney fees and expenses) incurred by Escrow Agent in connection with such
proceeding shall be paid by CITY. On the resignation/removal date and after receipt of the
identity of the successor Escrow Agent, Escrow Agent shall either deliver and/or disburse 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. Upon its resignation or removal
and delivery and/or disbursement of the Escrow Property in its entirety as set forth in this
Section, Escrow Agent shall be discharged of and from any and all future obligations arising in
connection with the Escrow Property or this Agreement.
Section 9. Indemnification of Escrow Agent. CITY and OCFA jointly and severally
agree to indemnify and hold Escrow Agent harmless against any and all liabilities, losses, claims,
damages or expenses, including reasonable attorney's fees, that Escrow Agent may incur by
reason of or based upon its actions under this Agreement other than as a result of the gross
negligence or willful misconduct of Escrow Agent. This indemnification obligation shall survive
the termination of this Agreement and the resignation or removal of Escrow Agent.
Section 10. Rights, Duties and Immunities of Escrow A ent. Acceptance by Escrow
Agent of its duties under this Agreement is subject to the following terms and conditions, which
all parties to this Agreement hereby agree shall govern and control the rights, duties and
immunities of Escrow Agent.
(a) The duties and obligations of Escrow Agent shall be determined solely by the
express provisions of this Agreement and no duties or obligations shall be inferred or implied.
Escrow Agent shall not be liable except for the performance of such duties and obligations as are
expressly and specifically set out in this Agreement. Escrow Agent shall not be liable for the
accuracy of any calculations or the sufficiency of any funds for any purpose.
(b) Escrow Agent shall not be required to expend or risk any of its own funds or
otherwise incur any liability, financial or otherwise, in the performance of any of its duties
hereunder.
(c) Escrow Agent is not a party to, and is not bound by, or required to comply with
any agreement or other document out of which this Agreement may arise. Escrow Agent shall
not be required to inquire as to the performance or observation of any obligation, term or
condition under any other agreements or arrangements between CITY and OCFA. Escrow
Agent shall be under no liability to any party hereto by reason of any failure on the part of CITY,
OCFA or any maker, guarantor, endorser or other signatory of any document or any other third
party to perform, such party's obligations under any such document. Except for the provisions
of Section VII. 4. of the Fire Services Agreement and amendments to this Agreement referred to
herein, and except for notifications or instructions to Escrow Agent under this Agreement,
Escrow Agent shall not be obliged to recognize or be chargeable with knowledge of any of the
terms or conditions of any agreement between CITY and OCFA, notwithstanding that references
thereto may be made herein and whether or not it has knowledge thereof.
(d) Escrow Agent shall not have any responsibility to determine the authenticity or
validity of any notice, direction, instruction, instrument, document or other items delivered to it
by any party, or for the identity, authority or rights of persons executing or delivering any such
notice, direction, instruction, instrument, document, or other items delivered to it by such party
or parties. Escrow Agent is authorized to comply with and rely upon any notice, direction,
instruction or other communication reasonably believed by it to have been sent or given by CITY
and/or OCFA and shall be fully protected in acting in accordance with such written direction or
instructions given to it under, or pursuant to, this Agreement.
(e) Escrow Agent shall not be bound by any waiver, modification, termination or
rescission of this Agreement or any of the terms hereof, unless evidenced in writing and
delivered to Escrow Agent signed by each party's Authorized Representative and, if the duties or
rights of Escrow Agent are affected, unless it shall give its prior written consent thereto. No
person, firm or corporation will be recognized by Escrow Agent as a successor or assignee of
CITY or OCFA until there shall be presented to Escrow Agent evidence satisfactory to it of such
succession or assignment. This Agreement shall not be deemed to create a fiduciary relationship
among the parties hereto under state or federal law.
(f) 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 the Escrow Property (including but not limited to orders of attachment or any other forms
of levies or injunctions or stays relating to the transfer of the Escrow Property), Escrow Agent is
authorized to comply therewith in any manner as it or its legal counsel of its own choosing
reasonably 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.
(g) Escrow Agent shall not be liable for any action taken or omitted or for any loss or
damage resulting from its actions or its 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 CITY and/or OCFA, or any entity acting on behalf of either, (ii) for any
consequential, punitive or special damages, or (iii) for an amount in excess of the value of the
Escrow Property, valued as of the date of loss.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice or other
communication received by Escrow Agent hereunder, Escrow Agent is hereby authorized by
CITY and OCFA to refrain from taking any action other than to retain possession of the Escrow
Property, unless Escrow Agent receives written instructions, signed by an Authorized
Representative of both CITY and OCFA which eliminates such ambiguity or uncertainty.
Notwithstanding the foregoing, Escrow Agent acknowledges that OCFA may unilaterally
provide a Disbursement Instruction signed only by an Authorized Representative of OCFA
directing all or a portion of the Escrow Property to be distributed to OCFA, and that the
unilateral nature of such a Disbursement Instruction from OCFA shall not be deemed an
ambiguity or uncertainty.
(i) Escrow Agent may consult with legal counsel of its own choosing, at its own
expense as to any matter relating to this Agreement and Escrow Agent shall incur no liability and
shall be fully protected in respect of any action taken, omitted or suffered by it in good faith in
accordance with the advice or opinion of such counsel.
0) In the event of any dispute or conflicting claim with respect to the payment,
ownership or right of possession of the Escrow Account or the Escrow Property, Escrow Agent
shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or
instructions. Escrow Agent is authorized and directed to retain in its possession, without liability
to anyone, except for its own gross negligence or willful misconduct, all or any part of the
Escrow Property until such dispute shall have been settled either by mutual agreement of the
parties concerned or by final order, decree or judgment of a court or other tribunal of competent
jurisdiction in the United States of America (as notified to Escrow Agent in writing by the parties
to the dispute or their authorized representatives and setting forth the resolution of the dispute).
Escrow Agent shall be under no duty whatsoever to institute, defend or partake in such
proceedings. The rights of Escrow Agent under this paragraph are in addition to all other rights
which it may have by law or otherwise including, without limitation, the right to file an action in
interpleader. Notwithstanding the foregoing, Escrow Agent acknowledges that CITY has agreed
that OCFA may deliver to Escrow Agent and CITY a Disbursement Instruction signed solely by
an Authorized Representative of OCFA directing all or a portion of the Escrow Property to be
distributed to OCFA, and that CITY's subsequent objection to such a unilateral Disbursement
Instruction from OCFA shall not constitute a dispute entitling Escrow Agent to refuse to comply
with such Disbursement Instruction pursuant to this subdivision 0). CITY and OCFA hereby
expressly agree that Escrow Agent shall not be liable for any losses, costs or expenses arising
directly or indirectly from Escrow Agent's reliance upon and compliance with such a
Disbursement Instruction delivered to both Escrow Agent and CITY, notwithstanding any
objection regarding such Disbursement Instruction made by CITY subsequent to execution of
this Agreement.
(k) Escrow Agent shall not incur liability for not performing any act or not 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, terrorism or the unavailability of
the Federal Reserve Bank or other wire or communication facility).
(1) When Escrow Agent acts on any communication (including, but not limited to,
communication with respect to the delivery of securities or the wire transfer of funds) sent by
electronic transmission, Escrow Agent, absent gross negligence or willful misconduct, shall not
be responsible or liable in the event such communication is not an authorized or authentic
communication of the party involved or is not in the form the party involved sent or intended to
send (whether due to fraud, distortion or otherwise). Escrow Agent shall not be liable for any
losses, costs or expenses arising directly or indirectly from Escrow Agent's reasonable reliance
upon and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. CITY or OCFA, as the case may be, agrees to
assume all risks arising out of the use of such electronic transmission to submit instructions and
directions to Escrow Agent, including without limitation the risk of Escrow Agent acting on
unauthorized instructions, and the risk or interception and misuse by third parties.
(m) Escrow Agent shall furnish CITY and OCFA monthly cash transaction statements
which include detail for all investment transactions effected by the Escrow Agent or brokers
selected by CITY or any investment advisor. Upon CITY'S/OCFA's election, such statements
will be delivered via Escrow Agent's Online Trust and Custody service and upon electing such
service, paper statements will be provided only upon request. Statements will be deemed to be
correct and final upon receipt thereof by CITY and OCFA unless CITY or OCFA notifies
Escrow Agent in writing to the contrary within thirty Calendar Days of the date of such
statement. CITY and OCFA waive the right to receive brokerage confirmations of security
transactions effected by the Escrow Agent as they occur, to the extent permitted by law. CITY
and OCFA further understand that trade confirmations for securities transactions effected by
Escrow Agent will be available upon request and at no additional cost, and other trade
confirmations may be obtained from the applicable broker.
(n) Escrow Agent will not be under any duty to give the Escrow Property held by it
hereunder any greater degree of care than it gives its own similar property and will not be
required to invest any funds held hereunder except as directed in this Escrow Agreement.
Uninvested funds held hereunder will not earn or accrue interest.
Section 11. Notices. All notices, consents, requests, instructions, approvals and other
communications provided for in this Agreement shall be in writing, signed by each party's
Authorized Representative and sent by: (i) personal delivery, overnight delivery by a recognized
courier or delivery service, (ii) mailed by registered or certified mail, return receipt requested,
postage prepaid, or (iii) electronic transmission, which includes fax machine, email with an
imaged or scanned attachment (such as a pdf) or other similar electronic transmission, (receipt
confirmed); and shall become effective when delivered to the addresses noted below or such
other address as may be substituted therefor by written notification by each party's Authorized
Representative. Notices to Escrow Agent shall be deemed to be effective when actually received
by Escrow Agent's Corporate Office.
If to CITY, to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza (M30)
Santa Ana, CA 92702
mhuizar@santa-ana.org
Fax: 714.647.6956
Telephone: 714.647.6520
with a copy to:
Finance & Management Services - Administration
City of Santa Ana
20 Civic Center Plaza (M17)
Santa Ana. CA 92702
Email: rcortez5@santa-ana.org
Fax: 714-647-5414
Telephone: 714-647-5295
If to OCFA, to:
Orange County Fire Authority
P.O. Box 57115
Irvine, CA 92619-7115
Attention: Lori Zeller, Assistant Chief/Business Services
Email: LoriZeller@ocfa.org
Fax:
Telephone: (714) 573-6020
with a copy to:
Woodruff, Spradlin & Smart
555 Anton Blvd., Suite 1200
Costa Mesa, CA 92626
Attention: David Kendig, General Counsel
Email: dkendig@wss-law.com
Fax: (714) 415-1183
Telephone: (714) 558-7000
If to Escrow Agent, to:
Grandpoint Bank
1045 West Katella Ave, Suite 100
Orange, CA 92867
Attn: Larry A. Sallinger, EVP
Email: lallinger@grandpointbank.com
Fax: 714.532.0701
Telephone :714.787.3701
Section 12. Wiring Instructions. In the event fund transfer instructions are given other
than as set forth on Schedule III attached hereto, such instructions must be communicated to
Escrow Agent in writing delivered pursuant to Section 11. Escrow Agent shall seek
confirmation of such instructions by telephone call-back to an Authorized Representative, and
Escrow Agent may rely upon the confirmations of anyone purporting to be the Authorized
Representative so designated. Escrow Agent and the beneficiary's bank in any funds transfer
may rely solely upon any account numbers or similar identifying numbers provided by CITY and
OCFA to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank.
Escrow Agent may apply any of the Escrow Funds for any payment order it executes using any
such identifying number, even when its use may result in a person other than the beneficiary
being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary
bank designated. The parties to this Agreement acknowledge that such security procedure is
commercially reasonable.
Section 13. Termination. This Agreement shall terminate on the date on which all the
Escrow Property has been disbursed or returned pursuant to Section 6 or Section 8 of this
Agreement.
Section 14. ContinuinObligations. The obligations under Sections 6, 7, 8, 9 and 10
hereof shall survive the resignation or removal of Escrow Agent, the termination of this
Agreement and the payment of all amounts hereunder.
Section 15. Inconsistent Provisions. CITY and OCFA agree that to the extent that the
provisions of any other agreement relating to the Escrow Property are inconsistent with the terms
of this Agreement, the terms of this Agreement shall control. [The English language version of
this Agreement shall control in the event of any inconsistencies between the English
language version and any foreign language translation.]
Section 16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of [California].2
Section 17. Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original, and all of which together shall
constitute but one and the same instrument. Executed copies of this Agreement delivered
pursuant to Section 11 above shall be as effective as an original to bind the parties.
2 Governing law shall be California for escrow accounts administered from our CA office.
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Section 18. Severability. 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 unenforceable as a matter of law, the other
provisions shall not be affected thereby and shall remain in full force and effect.
Section 19. Authorized Representative. CITY and OCFA hereby identify to Escrow
Agent the officers, employees or agents designated on Schedule I attached hereto as an
Authorized Representative with respect to any notice, certificate, instrument, demand, request,
direction, instruction, waiver, receipt, consent or other document or communication required or
permitted to be furnished to Escrow Agent. Such Schedule I may be amended and updated by
written notice to Escrow Agent with a copy to the other party to this Agreement provided that
failure to furnish such copy shall not affect the validity of such notice to Escrow Agent. Escrow
Agent shall be entitled to rely on such original or amended Schedule I with respect to any party
until a new Schedule I is furnished by such party to Escrow Agent.
Section 20. Jurisdiction. Each of the parties hereto hereby irrevocably agrees that any
action, suit or proceedings against any of them by any of the other aforementioned parties with
respect to this Agreement shall be brought before the jurisdiction of any federal or state court of
competent jurisdiction located in the Superior Court of Orange County, California. Each party
hereto further irrevocably consents to the service of any complaint, summons, notice or other
process relating to any such action or proceeding by delivery thereof to it by hand or by
registered or certified mail, return receipt requested, in the manner provided for herein. Each
party hereto hereby expressly and irrevocably waives any claim or defense in any such action or
proceeding based on improper venue or forum non conveniens or any similar basis. To the extent
permitted by law, in connection with any claim, cause of action, proceeding or other dispute
concerning this Agreement (each a "Claim"), the parties to this Agreement expressly,
intentionally, and deliberately waive any right each may otherwise have to trial by jury. In the
event that the waiver of jury trial set forth in the previous sentence is not enforceable under the
law applicable to this Agreement, the parties to this Agreement agree that any Claim, including
any question of law or fact relating thereto, shall, at the written request of any party, be
determined by judicial reference pursuant to California law. The parties shall select a single
neutral referee, who shall be a retired state or federal judge. In the event that the parties cannot
agree upon a referee, the court shall appoint the referee. The referee shall report a statement of
decision to the court. Nothing in this paragraph shall limit the right of CITY or OCFA at any
time to exercise self-help remedies, foreclose against collateral or obtain provisional remedies.
The parties shall bear the fees and expenses of the referee equally, unless the referee orders
otherwise. The referee shall also determine all issues relating to the applicability, interpretation,
and enforceability of this paragraph. The parties acknowledge that if a referee is selected to
determine the Claims, then the Claims will not be decided by a jury. CITY and OCFA agree that
this Section 20 shall NOT apply to any action, suit or proceedings against either of them by the
other with respect to this Agreement, if Escrow Agent is not a party to such action suit or
proceeding.
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Section 21. Tax Matters.
(a) Withholding Forms. Escrow Agent does not have any interest in the Escrow
Property deposited hereunder but is serving as escrow holder only and having only possession
thereof. CITY and OCFA will pay or reimburse Escrow Agent upon request for any transfer
taxes or other taxes relating to the Escrow Property incurred in connection herewith and will
indemnify and hold harmless Escrow Agent from any amounts that it is obligated to pay in the
way of such taxes. Any payments of income from this Escrow Account will be subject to
withholding regulations then in force with respect to United States taxes. Due to the requirement
that all escrow accounts have Taxpayer Identification Numbers documented by appropriate W-8
or W-9 forms, CITY and OCFA shall return the appropriate form to Escrow Agent, duly
completed and signed by each party's Authorized Representative. CITY and OCFA
acknowledge that failure to provide such forms may prevent or delay disbursement of the Escrow
Property hereunder.
(b) Tax Reporting. Escrow Agent will report payments of income from the Escrow
Account on an annual basis as required by law, by providing the applicable IRS Form 1099 or
Form 1042-5.
(c) Owner(s) of Income. For purposes of reporting the aggregate amount of income
on the Escrow Property, CITY shall be considered owner of such income.
Section 22. USA PATRIOT Act. CITY and OCFA shall provide to Escrow Agent
such information as Escrow Agent may reasonably require to permit Escrow Agent to comply
with its obligations under the federal USA PATRIOT Act (Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001).
Escrow Agent shall not credit any amount of the Escrow Fund or any interest or investment
proceeds earned thereon, or make any payment of all or a portion of the Escrow Fund or any
interest or investment proceeds earned thereon, to any person unless and until such person has
provided to Escrow Agent such documents as Escrow Agent may require to permit Escrow
Agent to comply with its obligations under such Act. Further, each of the parties represents and
warrants to Escrow Agent that it is not a hedge fund.
Section 23. Miscellaneous.
(a) 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.
(b) 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.
(c) Each party hereby represents and warrants (i) that this Agreement has been duly
authorized, executed and delivered on its behalf and constitutes its legal, valid and binding
12
obligation and (ii) that the execution, delivery and performance of this Agreement by the parties
hereto does not and will not violate any applicable law or regulation.
(d) The headings contained in this Agreement are for convenience of reference only
and shall have no effect on the interpretation or operation hereof.
(e) Except as otherwise permitted herein, this Escrow Agreement may be modified
only by a written amendment signed by each party's Authorized Representative and Escrow
Agent, and no waiver of any provision hereof will be effective unless expressed in a writing
signed by each party's Authorized Representative and Escrow Agent.
(f) No party may assign any of its rights or obligations under this Escrow Agreement
without the written consent of the other parties.
(g) Any corporation into which Escrow Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Escrow Agent will be a party, or any corporation succeeding to all or
substantially all the business of Escrow Agent will be the successor of Escrow Agent hereunder
without the execution or filing of any paper with any party hereto or any further act on the part of
any of the parties hereto except where an instrument of transfer or assignment is required by law
to effect such succession, anything herein to the contrary notwithstanding.
[Signature Page to Follow]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
ATTEST. City of Santa Ana, a Charter City and Municipal
L. Corporation
Maria D. Huizar
Clerk of the Council;
Z??ame- Paul . Walers
A< itle: City Manager
t'' R ?? 1 S) TO FORM
(7, Orange County Fire Authority
L.aura s;,,.
.'Assislail'
B
Aj /7 1
y Ue Z4
Name: eith Ric ter
Title: Fire Chief
Grandpoint Bank
as Escrow Agent
By
Name: Larry A. al linger
Title: Vice Chairman//EVP
By ..
Name: Jerro suki
Title: Chief Financial Officer/EVP
14
. (CHFDI TI F T
Escrow Account Signing Authority
Authorized Representative(s) of CITY
The undersigned certifies that each of the individuals listed below is an authorized representative
of CITY with respect to any instruction or other action to be taken in connection with the Escrow
Agreement and Grandpoint Bank shall be entitled to rely on such list until a new list is furnished
to Grandpoint B7k.
Signature. ?( a l Signature.
Print: Paul M. Walters Print: Francisco Gutierrez
Title: City Manager Title: Executive Director -Finance and
Phone: (714) 647-5231 Management Services Agency
Fax: (714) 647-6954 Phone: (714) 647-5420
Email: pwaltersAsanta-ana.org Email: fgutierrez@santa-ana.org
The undersigned further certifies that he or she is duly authorized to sign this Escrow Account
Signing Authority.
Signature: 1?? ? ?, i .4 . **
Name: Maria D. Huizar
Its: Clerk of the Council
Date:
**To be signed by corporate secretary/assistant secretary. When the secretary is among those
authorized above, the president must sign in the additional signature space provided below. For
entities other than corporations, an authorized signatory not signing above should sign this
Escrow Account Signing Authority.
15
Authorized Representative(s) of OCFA
The undersigned certifies that each of the individuals listed below is an authorized representative
of OCFA with respect to any instruction or other action to be taken in connection with the
Escrow Agreement and Grandpoint Bank shall be entitled to rely on such list until a new list is
furnished to Grandpoint Bank.
Signature: Signature: /Zze?' (4
- I 1?-- -
'?/? Print: Lori Ze er L Print: Tricia Jakubiak
Title: Assistant Chief, Business Services Title: Treasurer
Phone: (714) 573-6020 Phone: (714) 573-6301
Fax:
Email: lorizeller@ocfa.org
Fax:
Email: triciajakubiakAocfa.or
The undersigned further certifies that he or she is duly authorized to sign this Escrow Account
Signing Authority.
Signature: _' -Y ?- **
Name: Sherry Wentz
/!?
Its: Clerk of the ArCrthori y/
Date:
**To be signed by corporate secretary/assistant secretary. When the secretary is among those
authorized above, the president must sign in the additional signature space provided below. For
entities other than corporations, an authorized signatory not signing above should sign this
Escrow Account Signing Authority.
(Additional signature, if required)
Signature:
Name:
Its:
Date:
16
SCHEDULEII
ESCROW AGENT COMPENSATION
(1) Annual Administrative Fee $500.00
(2) All other fees waived
17
SCHEDULE III
Wire Instructions:
If to CITY:
ABA No.: 322271627
Bank Name: JPMorgan Chase & Co., N.A.
Account No.: 935309500
Account Name: City of Santa Ana
Reference: General Account
If to OCFA:
ABA No.: 122000496
Bank Name: Union Bank
Account No.: 2740013745
Account Name: Orange County Fire Authority
Reference: City of Santa Ana Escrow Disbursement
Date:
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•
c-
CORPORATE AUTHORIZATION RESOLUTION
GRANDPOINT BANK By: CITY OF SANTA ANA
1045 W KATELLA AVE #100 ORANGE COUNTY FIRE AUTORITY ESCROW ACCT
ORANGE, CA 92867 20 CIVIC CENTER PLAZA
SANTA ANA CA 92701
Referred to in this document as "Financial Institution" Referred to in this document as "Corporation"
MARIA D. HUIZAR , certify that I am Secretary (clerk) of the above named corporation organized under the laws of
CALIFORNIA Federal Employer I.D. Number 95-6000785 , engaged in business under the trade name of
, and that the resolutions on this document are a correct copy of the resolutions
adopted at a meeting of the Board of Directors of the Corporation duly and property called and held on (date).
These resolutions appear in the minutes of this meeting and have not been rescinded or modified.
AGENTS Any Agent listed below, subject to any written limitations, is authorized to exercise the powers granted as indicated below:
Name and Title or Position
A. LARRY A SALLINGER - ESCROW AGENT
B, JERRO OTSUKI - ESCROW AGENT
C
D
Signature
X \J\ki?`i`L?? c1+J1Af..
X - -•-- X
X X
X X
E. X X
F. X X
Facsimile Signature
(if used)
POWERS GRANTED (Attach one or more Agents to each power by placing the letter corresponding to their name in the area before each power.
Following each power indicate the number of Agent signatures required to exercise the power.)
Indicate A, B, C, Description of Power
D, E, and/or F
(1) Exercise all of the powers listed in this resolution,
(2) Open any deposit or share account(s) in the name of the Corporation.
(3) Endorse checks and orders for the payment of money or otherwise withdraw or transfer funds on deposit
with this Financial Institution.
(4) Borrow money on behalf and in the name of the Corporation, sign, execute and deliver promissory notes
or other evidences of indebtedness.
(5) Endorse, assign, transfer, mortgage or pledge bills receivable, warehouse receipts, bills of lading, stocks,
bonds, real estate or other property now owned or hereafter owned or acquired by the Corporation as
security for sums borrowed, and to discount the same, unconditionally guarantee payment of all bills
received, negotiated or discounted and to waive demand, presentment, protest, notice of protest and
notice of non-payment,
(6) Enter into a written lease for the purpose of renting, maintaining, accessing and terminating a Safe
Deposit Box in this Financial Institution,
(7) Other
LIMITATIONS ON POWERS The following are the Corporation's express limitations on the powers granted under this resolution.
Indicate number of
signatures required
EFFECT ON PREVIOUS RESOLUTIONS This resolution supersedes resolution dated If not completed; all resolutions remain in effect.
CERTIFICATION OF AUTHORITY
I further certify that the Board of Directors of the Corporation has, and at the time of adoption of this resolution had, full power and lawful authority to
adopt the resolutions on page 2 and to confer the powers granted above to the persons named who have full power and lawful authority to exercise
the same. (Apply seal below where appropriate.)
Qif checked, the Corporation is a non-profit corporation. In Witness Whereof, I have subscribed my name to this document and affixed the seal
of the Corporation on "TOBAR 1 e 2n12 (date).
EmJE W (0 1985, 1997 Bankers Systems, Inc., St. qwd. MN Form CA-1 511/2003 - fpage Y of. 2)
d
RESOLUTIONS
The Corporation named on this resolution resolves that,
(1) The Financial Institution is designated as a depository for the funds of the Corporation and to provide other financial accommodations indicated in
this resolution.
(2) This resolution shall continue to have effect until express written notice of its rescission or modification has been received and recorded by the
Financial Institution. Any and all prior resolutions adopted by the Board of Directors of the Corporation and certified to the Financial Institution as
governing the operation of this corporation's account(s), are in full force and effect, until the Financial Institution receives and acknowledges an
express written notice of its revocation, modification or replacement. Any revocation, modification or replacement of a resolution must be
accompanied by documentation, satisfactory to the Financial Institution, establishing the authority for the changes.
(3) The signature of an Agent on this resolution is conclusive evidence of their authority to act on behalf of the Corporation. Any Agent, so long as
they act in a representative capacity as an Agent of the Corporation, is authorized to make any and all other contracts, agreements, stipulations and
orders which they may deem advisable for the effective exercise of the powers indicated on page one, from time to time with the Financial
Institution, subject to any restrictions on this resolution or otherwise agreed to in writing.
(4) All transactions, if any, with respect to any deposits, withdrawals, rediscounts and borrowings by or on behalf of the Corporation with the Financial
Institution prior to the adoption of this resolution are hereby ratified, approved and confirmed.
(5) The Corporation agrees to the terms and conditions of any account agreement, properly opened by any Agent of the Corporation. The Corporation
authorizes the Financial Institution, at any time, to charge the Corporation for all checks, drafts, or other orders, for the payment of money, that are
drawn on the Financial Institution, so long as they contain the required number of signatures for this purpose.
(6) The Corporation acknowledges and agrees that the Financial Institution may furnish at its discretion automated access devices to Agents of the
Corporation to facilitate those powers authorized by this resolution or other resolutions in effect at the time of issuance. The term "automated
access device" includes, but is not limited to, credit cards, automated teller machines (ATM), and debit cards.
(7) The Corporation acknowledges and agrees that the Financial Institution may rely on alternative signature and verification codes issued to or
obtained from the Agent named' on this resolution. The term "alternative signature and verification codes" includes, but is not limited to, facsimile
signatures on file with the Financial Institution, personal identification numbers (PIN), and digital signatures. If a facsimile signature specimen has
been provided on this resolution, (or that are filed separately by the Corporation with the Financial Institution from time to time) the Financial
Institution is authorized to treat the facsimile signature as the signature of the Agent(s) regardless of by whom or by what means the facsimile
signature may have been affixed so long as it resembles the facsimile signature specimen on file. The Corporation authorizes each Agent to have
custody of the Corporation's private key used to create a digital signature and to request issuance of a certificate listing the corresponding public
key. The Financial Institution shall have no responsibility or liability for unauthorized use of alternative signature and verification codes unless
otherwise agreed in writing.
Pennsylvania. The designation of an Agent does not create a power of attorney; therefore, Agents are not subject to the provisions of 20 Pa.C.S.A.
Section 5601 at seq. (Chapter 56; Decedents, Estates and Fiduciaries Code) unless the agency was created by a separate power of attorney. Any
provision that assigns Financial Institution rights to act on behalf of any person or entity is not subject to the provisions of 20 Pa.C.S.A. Section 5601
et seq. (Chapter 56; Decedents, Estates and Fiduciaries Code).
FOR FINANCIAL INSTITUTION USE ONLY
Acknowledged and received on (date) by (initials) ? This resolution is superseded by resolution dated
Comments:
M
+Si 1986, 1997 Bankers Systems, Inc., St. CiOUA, MN Form CA-1 5/112003
(page 2 of 2)