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18-0619_MUFG UNION BANK_E7_Agenda ReportCity of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: ~jamin Siegel, City Manager SUBMITTED BY: Ken Al-lmam, Chief Financial Officer~ PREPARED BY: DATE : Michelle Short, Senior AccountantciP? June 19, 2018 6/19/2018 E7 SUBJECT: First Amendment to the Personal Services Agreement for Custodial Banking Services Provided by Mitsubishi Union Financial Group Union Bank, N.A. RECOMMENDATION: Approve and authorize the City Manager to execute the First Amendment to the Personal Services Agreement with Mitsubishi Union Financial Group Union Bank, N.A., to extend the term of the agreement through June 30, 2021. EXECUTIVE SUMMARY: One of the most important protections against investment fraud is separation of the investment custody function from the investment management function. The use of independent third-party custodians to safeguard investments is a Government Finance Officers Association Best Practice. On July 21, 2015, the City selected Mitsubishi Union Financial Group Union Bank, N.A. to provide custodial banking services through June 30, 2018, with a three-year renewal option. The proposed First Amendment to the Personal Services Agreement exercises this option and extends the term of the agreement through June 30, 2021. FISCAL IMPACT: The proposed amendment will not increase the budgeted expenditures of the City. The cost of the services rendered under this personal services agreement is approximately $9,000 per year. ENVIRONMENTAL IMPACT: Not applicable. City Council Agenda Report June 19, 2018 Page 2 of 2 PRIOR CITY COUNCIL REVI EW : On July 21, 2015, the City Council approved a Personal Services Agreement for Banking and Custodial Services with Mitsubishi Union Financial Group Union Bank, N.A. COMMISSION/COMMITTEE/BOARD REV IE W AND RECOMMENDATIONS : This item does not go through the Commission/Committee review process. NOTIFICATION: MUFG Union Bank, N.A. ATTACHMENTS: Attachment 1 -Amendment 1 to the Personal Services Agreement with Mitsubishi Union Financial Group Union Bank, N.A. Attachment 2-Personal Services Agreement dated July 21, 2015 AMENDMENT NO.1 TO THE PERSONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND MUFG UNION BANK, N.A. 1. Parties and Date. This Amendment No. 1 to the Personal Services Agreement is made and entered into as of this day of June, 2018, by and between the City of San Juan Capistrano, a municipal organization organized under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, California 92675 ("City") and MUFG Union Bank, N.A., a Corporation, with its principal place of business at 445 So . Figueroa Street, 81h Floor, Los Angeles, CA 90071 (Consultant). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties." 2. Recitals. 2.1 Consultant. The City and Consultant have entered into an agreement entitled Personal Services Agreement dated July 21, 2015 ("Agreement") for the purpose of retaining the services of Consultant to provide Custodial Banking Services. 2.2 Amendm enl Purpo se . The City and Consultant desire to amend the Agreement to extend the Term of the Agreement. 2.3 Amendment Authori ty. This Amendment No. 1 is authorized pursuant to Section 2 of the Agreement. 3. Terms. 3.1 Amendment. Section 2 of the Agreement is hereby amended in its entirety to read as follows: ATTACHMENT 1 -Page 1 of 3 Page 1 of 3 Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than June 30, 2021, unless earlier terminated as provided herein. 3.2 Con tinuing Effect of Agreement. Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term "Agreement" appears in the Agreement, it shall mean the Agreement as amended by this Amendment No.1. 3.4 Adequ ate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1. 3.5 Severabilit . If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. [Signatures on Next Page] ATTACHMENT 1 -Page 2 of 3 Page 2 of 3 SIGNATURE PAGE FOR AMENDMENT NO. 1 TO PERSONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND MUFG UNION BANK, N.A. City of San Juan Capistrano Approved By: Benjamin Siegel, City Manager Attested By: Maria Morris, City Clerk Approved As To Form: Jeffrey Ballinger, City Attorney MUFG Union Bank, N.A. John Fulton, Director Global Trust Services Scott Parker, Director Global Trust Services Page 3 of 3 nio n Bank· CUSTODY AGREEMENT For Public Funds This custody agreement is between City of San Juan Capistrano ("Client"), and MUFG Union Bank, N.A. ("Custodian"). Client desires that Custodian hold and administer on behalf of Client certain Property (as herein defined). Custodian is willing to do so on the terms and conditions set forth in this custody agreement ("Agreement"). Accordingly, Client and Custodian agree as follows: 1. DEFINITIONS 1.1 "Account" means, collectively, each account maintained by Custodian pursuant to Section 2 of this Agreement, including the earnings and proceeds thereof. 1.2 "Authorized Agent" means a party authorized by Client or Manager regarding accounting or other informational services for Property held in the Account. 1.3 Manager• means a party who has been granted investment authorHy of this Account by Client. If no Manager has been appointed, the term "Manager" shall be deemed to refer to Client. 1.4 "Property" means all Securities and all Special Assets . 1.5 "Securities" means cash and publicly traded securities held fn the Account. 1.6 "Special Assets" means all property other than cash and publicly traded securities held in the Account. 2. APPOINTMENT AS AGENT 2.1 Appointment as Agent. Client hereby appoints Custodian to perform the safekeeping and ministerial acts described in this Agreement, solely upon receipt of instructions from Client or designated Manager, for the Property, which may be deposited by Client with Custodian from time to time to be held in the Account. Custodian agrees to act as Client's agent for such Property according to the terms and conditions of this Agreement. Custodian shalf have no duties or responsibilities with respect to any Special Assets that may be held in this Account from time to time other than to list such other assets as Property of the Account and hold the evidenqe of ownership thereof. Custodian in its sole discretion may reasonably refuse to accept any Property now or hereafter delivered to it for inclusion in the Account and shall promptly so notify Client and return the Property to Client. 2.2 Power to Enter Agreement. The parties to this Agreement hereby represent and warrant that they have the power to enter into this Agreement; that the Manager has been properly appointed; and that all instructions given to Custodian shall be made in accordance with applicable law and regulation. 3. CUSTODY AND REGISTRATIONS 3.1 Identification of Property. Custodian shall ensure the Property is at all times properly identified as being held for the appropriate Account. Custodian shall segregate physically the Securities from other securities or property owned by Custodian. Custodian shall not be required to segregate physically Securities or other Property held from other securities or property held by Custodian for third parties as custodian or other representative capacity, but Custodian shall maintain adequate records showing the true ownership of the Property. 3.2 Use of Depositories and Sub-Custodians. Custodian may, ·m its discretion, deposit any Securities which, under appiicable law, are eligible to be so deposited in a securities depository or sub-custodian account (hereinto referred to collectively as "Depository") according to Custodian's operational procedures in effect at the time . If Custodian oeposits Securities with a Depository, Custodian shall maintain adequate records showing the identity and location of the Depository, the Securities held by the Depository and each account to which such Securities belong . ©MUFG Union Bank, N.A. (2015_0212) modified 2015_0713 1 of9 ATTACHMENT 2-Page 1 of 16 3.3 Use of Nominees. Custodian shall have the right to hold all registered Securities in the name of its nominee, or for Depository-eligible Securities, in the Depository's nominee. 3.4 Delivery of Securities. If Client or Manager directs Custodian to deliver assets , certificates or other physical evidence of ownership of Securities to any broker or other party, other than a Depository employed by Custodian for purposes of maintaining the Account, Custodian's sole responsibility shall be to exercise care and diligence in effecting the delivery as instructed by Client or Manager. Upon completion of the delivery, Custodian shall be discharged completely of any further liability or responsibility with respect to the safel<eeping and custody of Securities or other Property so delivered. 3.5 Identification of Special Assets. Custodian shall have no duty or obligation to hold, verif y or perfect title or ownership to any Special Asset, review or make recommendations as to the disposition of such Special Asset or to authenticate the existence or nature of any Special Asset. 3.6 Delivery of Special Assets. To the extent the Account includes investments in repurchase agreements, non-publi cly traded or restricted Securities , or other Special Assets the parties hereto agree that the Client or Manager as the case may be has the sole responsibility to review any governing documents , certificates, documents of title or other instruments concerning the Property for legal validity, suitability, marketability, transferability, perfection of any applicable security interest, adequacy of collateral or any other purpose. Custodian's responsibility is limited to the safekeeping and reporting of such Property. 4. TRANSACTIONS 4.1 Timely Instructions . Client and Manager are responsible for ensuring that Custodian receives timely instructions and/or funds to enable Custodian to effect settlement of any purchase or sale of Securities. If Custodian does not receive such timely instructions or funds, Custodian shall have no liability of any kind to any person, including Client, for failing to effect settlement. However, Custodian shall use reasonable efforts to effect settlement as soon as possible after receipt of appropriate instructions and funds. 4.1.1 Use of Institutional Delivery System. Notwithstanding any other language in this Agreement, Custodian may settle all Securities transactions effected by Manager through the use of an institutional delivery system. Custodian may deliver or receive Securities in accordance with appropriate trade reports or statements received through an institutional delivery system without having received written direction directly from Manager. 4.2 Additions to and Withdrawals from Account. Custodian shall make all additions and withdrawals of Securities and other Property to and from this Account only upon receipt of and pursuant to written instructions from Client or Manager. 4.3 Purchase or Sales. Client or Manager from time to time may instruct Custodian regarding the purchase or sale of Securities in accordance with this Section 4.3 . 4.3. 1 Purchases. Custodian shall settle purchases by charging the Account with the amount necessary to make the purchase and effecting payment to the seller or broker for the Securities . Custodian shall have no liability of any kind to any person, including Client, if Custodian effects payment on behalf of the Account, and the settler or broker specified by Manager fails to deliver the Securities or other Property purchased. Custodian shall exercise such ordinary care and diligence as would be employed by a reasonably prudent custodian in examining and verifying the certificates or other indicia of ownership of the Property purchased before accepting them, except with respect to assets described in Section 4.5 . 4.3.2 Sales. Custodian shall settle sales by delivering certificates or other indicia of ownership of the Securities, and as instructed, shall receive cash for such sales . Custodian shall have no liability of any kind to any person, including Client; if Custodian exercises due diligence and delivers such certificates or indicia of ownership and the purchaser or broker fails to effect payment ©MUF G Un ion Bank, N.A (2015_0212.) modified 2015_07 13 2 of9 ATTACHMENT 2-Page 2 of 16 4.4 Depository Settlement. If a purchase or sale is settled through a Depository, Custodian shall exercise such ordinary care and diligence as would be employed by a reasonably prudent custodian in verifying proper consummation of the transaction by the Depository. 4.5 Special Assets Settlement. Custodian shall have no duty to !)ndertake collection or similar actions or delivery of any Special Asset according to the instructions provided by Client or Authorized Agent other than the delivery or receipt of funds as instrt1cted by Client or Authorized Agent. 4.6 Income. Custodian shall collect the income when paid on Securities and invest it in the cash management vehicle designated from time to time by Client or Manager. 4. 7 Principal. Custodian shali collect principal of Securities when paid on maturity, redemption, sale or othervvise and invest it in that cash management vehicle designated from time to time by Client or Manager. 4.8 Colfection Obligations. Custodian shall diligently collect income and principal of Securities which the Custodian has received actual notice in accordance with normal industry practices . However, Custodian shall be under no obligation or duty to take any action to effect collection of any amount if the Securities upon which such amount is payable is in default, or if payment is refused after due demand. Custodian shall notify Client and Manager promptly of such default or refusal to pay. Custodian shall have no duty to file or pursue any bankruptcy claims or class aCtion claims with respect to Account, unless indemnified by Client in manner and amount satisfactory to Custodian, provided however, unless Client directs otherwise, Custodian will use its best efforts to file claims in class actions and pay any recovery to Account, net of Custodian's fees as disclosed in the fee schedule. 4.9 Special Assets Collection Obligations. Custodian shall have no duty or obligation to make demand or take any action to effect coliectlon of any payments that may become due and shalf not be required to notify Client or Authorized Agent of any default or refusal to pay. 4.10 Capital Changes. Custodian may, without further instruction from Client or Manager, exchange temporary certificates and may surrender and exchange Securities for other securities in connection with any reorganization , recapitalization or similar transaction in which the owner of the Securities is not given an option. Custodian has no responsibility to effect any such exchange unless it has received notice of the event permitting or requiring such exchange at the office of Custodian's designated agents. 4. 11 Fractional Interest. Custodian shall receive and retain all stock distributed by a corporation as a dividend, stock split, or otherwise and in connection therewith, any fractional shares unless otherwise instructed or without authorization to sell. 4.12 Deposit of Monies. If Client is a political subdivision of a state of the United States ("State") other than California, Client hereby waives security, if security is required by the taws of the State, for that portion of the total amount of cash held in the Account which is insured pursuant to federal law and Client and Custodian agree that cash held in the Account includes funds held pursuant to Section 4.6 hereof and any moneys which Client instructs Custodian to hold uninvested or to deposit in MUFG Union Bank, N.A deposit accounts or certificates of deposit. If Client is a political subdivision of the State of California, it has either (a) previously entered into a Contract for Deposit of Moneys ("Deposit Contract") with MUFG Union Bank, N.A. and a copy of the executed contract is attached hereto; or (b) will execute and deliver to Custodian a Deposit Contract in the form attached hereto. The parties agree that the Deposit Contract shall apply to any moneys deposited by Client with Custodian and any cash held in the Account pursuant to Section 4.6 . hereof and any moneys which Client instructs Custodian to hold uninvested or to deposit in MUFG Union Bank, N.A. deposit accounts or certificates of deposit. 5. CREDITS TO ACCOUNT Custodian may as a matter of bookkeeping convenience or by separate agreement with the Client, credit the Account wjth the proceeds from the sale, redemption or other disposition of Securities or interest or ©MUFG Union Bank, N.A. (2015_0212) modified 2015_0713 3 of9 ATTACHMENT 2-Page 3 of 16 dividends or other distributions payable on Securities prior to its actual receipt of final payment: therefore, all such credits shall be conditional until the Custodian's actual receipt of final payment and may be reversed by Custodian to the extent that final payment is not received. Payment with respect to a transaction will not be final until Custodian receives immediately available funds under which applicable local law, rule and/or practice are irreversible and not subject to any security interest, levy or other encumbrance, and which are specifically applicable to such transaction. 6. PLEDGE OF SECURITIES Client shaH inform Custodian in writing in the event that Client has pledged any Property held in the Account as collateral ("Pledged Collateral") for any loan or advance ("Secured Obligation") made to Client by any lender designated by Client ("Secured Party"). Custodian may enter into documentation with Client and/or Secured Party that is acceptable to Custodian, including without limitation a securities account control agreement. Custodian shall segregate and identify Property subject to any such pledge in its records as pledged and otherwise act in accordance with the terms of any such documentation to which it has agreed. 7. OVERDRAFT AND INDEBTEDNESS 7. 1 Advance Funds. If Custodian advances funds to or for the benefit of Account in connection with the settlement of securities transactions or other activity in the Account including overdrafts incurred in connection with the settlement of securities transactions, maturity or income payments or funds transfers, Client agrees to reimburse Custodian on demand the amount of the advance or overdraft and, provided such advances or overdrafts are not related to Custodian errors or omissions, all related fees as established in Custodian's published fee schedule, subject to the daily rates published on Custodian's online service. Custodian shall also have the right to utilize any cash in the Account in order to obtain reimbursement hereunder and to set off Custodian's obligations with respect to any deposits or credit balances in the Account against any obligation of Client hereunder. 7.2 Repayment. To the extent permissible by applicable law, in order to secure repayment of Account's obligations to Custodian hereunder, Client hereby pledges and grants to Custodian a continuing lien and security interest in, and right of set-off against, all of Account's right, title and interest in and to (a) all Accounts in C!ient's name and the Securities, money and other Property now or hereafter held in such Accounts (including proceeds thereof); (b) each Accounting in respect of which or for whose benefit the advance or overdraft relates and the Securities, money and other Property now or hereafter held in such Accounts, including proceeds thereof. ln this regard, Custodian shall be entitled to all the rights and remedies of a pledgee and secured creditor under applicable laws, rules or regulations as then in effect. Client authorizes the Custodian. in the Custodian's sole discretion, at any time to charge any overdraft or indebtedness, together with interest due thereon, against any balance of Account standing to the credit of the Client on the Custodian's books. In addition, the Custodian shall be entitled to utilize available cash and to dispose of such Client's Securities to the extent necessary to obtain reimbursement. 8. CORPORATE ACTIONS, PROXIES AND LITERATURE 8. 1 Corporate Actions. Custodian shall notify Manager of the receipt of notices of redemptions, conversions, exchanges, calls, puts, subscription rights, and scrip certificates ("Corporate Action(s)''). Custodian need not monitor financial publications for notices of Corporate Actions and shall not be obligated to take any action unless actual notice has been received by Custodian. Manager shall have full responsibility for all monitoring, notices, and other actions necessary in connection with Corporate Actions and Custodian shall have no duty to provide notification to Client. Custodian shall take no actions in connection with any such Corporate Actions except upon receipt of appropriate written direction from Manager within the timeframes for response specified in any notices sent by Custodian to Manager. 8.2 Proxies. Custodian shall forward all proxies and accompanying material actually received by Custodian which is issued by any company whose securities are held in the Account to Manager or Client, as directed. 8.3 Corporate Literature. Custodian shall have no duty to forward or to retain any other corporate material received by Custodian for the Account unless required to do so by law. ©MUFG Union Bank, N.A. (2015_0212) modified 2015_0713 4 of 9 ATTACHMENT 2-Page 4 of 16 8.4 Disclosure to Issuers of Securities. Unless Client directs Custodian in writing to the contrary, Client agrees that Custodian may disclose the name and address of the party with · the authority to vote the proxies of the Securities held in this Account as well as the number of shares held, to any issuer of said Securities or its agents upon the written request of such issuer or agent in conformity With the provisions of the applicable law. 9. INSTRUCTIONS 9. 1 Written. All instructions from Client or Manager except those described in Section 4 shall be in writing, and shall continue in force until changed by subsequent instructions . Pending receipt of written authority, Custodian may in its absolute discretion at any time, accept oral, faxed, wired and electronically transmitted instructions from Client or Manager provided Custodian believes in good faith that the instructions are genuine. If oral instructions are received, Client or Manager shaH promptly confirm such instructions in writing or by telecopy or other means permitted hereunder. Client will hold Custodian harmless for the failure of Client or Manager to send confirmation in writing, the failure of such confirmation to conform to the telephone instructions received or Custodian's failure to produce such confirmation at any subsequent time. Only those individuals as may be designated by Client from time to time are authorized to give instructions as described in this Agreement. 9.2 Reliance on Instructions. Except as otherwise provided herein, all instructions shall be in writing and shall continue in force until changed by subsequent instructions. Pending receipt of written authority, Custodian may in its absolute discretion at any time accept oral, wired or electronically transmitted instructions from Client or Manager provided Custodian believes in good faith that the instructions are genuine. Further, Custodian may assume that any written or oral instructions received hereunder are consistent with the provisions of organizational documents of the Client or of any vote, resolution or proceeding of the Client's board of directors or the Client's shareholders, unless and until Custodian receives written instructions to the contrary. 10. ACCOUNTING AND REPORTING 10.1 Cost and Nominal Value . Client agrees to furnish Custodian with the income tax cost bases and dates of acquisition of all Property held in the Account to be carried on its records. If Client does not furnish such information for any such Property, Custodian shall carry the Property at any such nominal value it determines, such value to be for bookkeeping purposes only. All statements and reporting of any matters requiring this information will use this nominal value. Custodian shall have no duty to verify the accuracy of the cost bases and dates of acquisition furnished by Client. Property purchased in the Account shall be carried at cost. 10.2 Valuations. To the extent that Custodian has agreed to provide pricing or other information services. Custodian is authorized to utilize any vendor (including brokers and dealers of Securities and pricing services embedded in Custodian's securities processing or accounting systems) reasonably believed by Custodian to be reliable to provide such information. Client understands that certain pricing information with respect to complex financial instruments including, without limitation , derivatives, may be based on calculated amounts rather than actual market transactions and may not reflect actual market values, and that the variance between such calculated amounts and actual market values may or may not be materiaL Where pricing vendors used by Custodian do not provide information for Securities, or other Property, Client or Authorized Agent may advise Custodian regarding the fair market value of, or provide other information with respect to, such held Securities or Property. If C!ient or authorized party does not provide such information, Custodian shall use the cost or nominal value for such Securities or Property, solely for administrative convenience. Custodian shall not be liable for any loss, damage or expense incurred as a result of errors or omissions with respect to any pricing or other information utilized by Custodian hereunder and shall have no responsibility or duty to ascertain or authenticate the value of pricing applied to any such Security or Property. 10.3 Activity Reports. Custodian shall provide access to Ciient and Manager and other persons authorized by Client to access advices of securities transactions and other information regarding the Account by means of Custodian's online service. ©MUFG Union Bank. NA (2015_0212) modified 2015_0713 5of9 ATTACHMENT 2-Page 5 of 16 10.4 Statements. Custodian shall provide Client and Manager Account statements and other reports periodically via paper delivery or electronically by means of the Custodian 's online service or as otherwise agreed to by Client and Custodian showing all income and principal transactions and cash positions, and a list of Property. Client may approve or disapprove any such statement within thirty (30) days of its receipt, and, if no written objections are received within the thirty (30) day period, such statement of Account shall be deemed approved. Client acknowleclges and agrees that if Custodian's online service is selected , paper statements will be provided only upon request and that the Custodian's online statements, trade confirms and related online communications satisfy all of Custodian's existing legal and contractual obligations to provide statements , reports and confirmations with respect to the Account. Printed trade confirmations for trades effected by the Custodian will be available upon request and at no additional cost Client and Manager may request printed trade confirmations for other securities transactions from the broker through which they direct such trades. 10.5 Shared Data . For the purpose of operational efficiencies, including trade settlement, proxy voting, trade reconciliation, performance reporting, on-line access and the like, Custodian, upon direction of the Client's appointed Manager, on occasion may send electronic trade, holdings and or client information to third party vendors {TPV) who are agents of the aforementioned Manager. Client's appointed Manager is responsible for any due diligence and monitoring of TPV with whom they have contracted and the Custodian shall have no obligation to do so. 11. USE OF OTHER BANK SERVICES 11.1 Mutual Fund Investments. Client or Manager may direct Custodian to utilize for the Account any mutual fund available in the market as permitted by law. These investment directions may include, but are not limited to, money market mutual funds or long equity and fixed income mutual funds. Such funds may be sub-advised by an affiliate or subsidiary of Custodian and/or for which Custodian may also act as the mutual fund's custodian and/or provide other services for the mutual fund. Client or Manager shall designate the particular mutual fund that Client or Manager deems appropriate for the Account. Client hereby acknowledges that Custodian or its affiliate or subsidiary will receive fees for such services which are in addition to those fees charged by Custodian as agent for the Client's custody Account. 11 .2 Interest Bearing Deposits. Client or Manager may direct that assets of the Account be invested in deposits with Custodian as a SWEEP vehicle or other deposit held in Custodian's street name for the benefit of its clients. Such deposits if covered by FDIC insurance will be insured up to the designated value in effect for each beneficial owner. 11.3 Other Transaction Services. Client or Manager may direct Custodian to utilize for the Account other services or facilities provided by Custodian, its subsidiaries or affiliates. Such services may include, but are not limited to, the placing of orders for the purchase or sa le of units or shares of any registered investment company including such registered investment companies to which Custodian , MUFG Americas Holdings Corporation, or their subsidiaries or affiliates, manage, provide investment advice, act as custodian or provide other services. If Client or Manager uses UnionBanc Investments Services ("UBIS"), or other brokerage affiliate of Custodian , for the purchase or sale of securities as principal to or from, or the placing of orders for the purchase , safe, exchange , investment or reinvestment of securities, Client authorizes and directs Custodian to accept the confirmation of security transactions received from UBIS as the instructions from Client or Manager contemplated by this Agreement and no further instructions to Custodian shall be required. 11.4 Other Compensation Services. All disbursements from the Account are drawn on an account in the Custodian's or its affiliate's name. Any "float" (earnings from the investment of funds pending negotiation of the disbursement or check) is retained by Custodian or its affiliate as partial compensation for handling such transaction ©M UFG Unio n Ba nk , N .A. (2 01 5_0 2 12) modifie d 201 5_07 13 6 ot 9 ATTACHMENT 2-Page 6 of 16 12. CUSTODIAN'S RESPONSIBILITIES AND LIABILITIES 12.1 Standard of Care. In performing the responsibilities delegated to it under this Agreement, Custodian agrees to exercise reasonable care and shall not be held liable for any damages arising out of Custodian's performance of or failure to perform its duties under this Agreement except to the extent that damages arise directly out of the Custodian's willful misfeasance, gross negligence or otherwise from a material breach of Custodian's standard of care under this Agreement. Custodian shall not be liable for the acts or omissions of (i) any broker or other agent to which Client or Manager has directed any securities transactions or granted discretionary authority or (ii) any broker, Depository or other agent selected by Custodian with reasonable care. In no event shall either party to this Agreement be entitled to consequential or exemplary damages. In the event of any claim brought by a third party to obtain Account Property, Client agrees to indemnify and defend Custodian against all demands, costs, and liability, includ ing attorneys' fees. 12.2 Investment Authority. Client and Manager shall have sole responsibility for the investment, review, and management of all Property held in this Account Custodian shall mal<e or settle all purchases, sales, exchanges, investments and reinvestments of the Property held in this Account only upon receipt of, and pursuant to, Client's or Manager's instructions, and shall have no liability for any actions or inactions based on Client's or Manager's directions or lack thereof. Custodian shari have no duty or obligation to review, or to make recommendations for, the investment and reinvestment of any of the Property held in this Account, including uninvested cash. 12.3 Special Assets Due Diligence and Accreditation. Client hereby represents that Client or Client's Authorized Agent has completed such diligence as needed to confirm the value and substance of each and every Special Asset as applicable, including, but not limited to any credit questions relating to the Special Asset. Client hereby certifies to Custodian that Client meets any and all required accreditation or other standards needed to invest in any Special Assets and that no license of any nature or consent by any governmental entity is required in connection with the ownership of any Special Asset. 12.4 Custodian not a Fiduciary. The parties intend that Custodian shall not be considered a fiduciary of the Account Accordingly, Custodian shall have no power to make decisions regarding any policy, interpretation, practice, procedure or direction with respect to the Account, but shall perform the ministerial and administrative functions described in the Agreement as provided herein and within the framework of policies, in.terpretations, rules, practices, and procedures made by Client or Manager, and the same shall be reflected in instructions to Custodian from Client or Manager. 13. COMPENSATION AND OTHER CHARGES 13.1 Compensation. Custodian 's annual fee st1all be based on the fee schedule attached hereto, Appendix A, as amended by Custodian from time to time with thirty (30) days advance written notice to Client. Fees shall accrue and be taken in arrears as specified on the active fee schedule and charged to the Account unless C!ient has requested that it be billed directly. However, any fees not paid within sixty (60) days of billing will be charged to the Account. 13.2 Other Charges and Expenses. Custodian is authorized to charge the Account for incidental expenses as well as for the funds necessary for Custodian to complete any purchase or expense, to make any directed disbursement or to take any other action regarding the Account. Custodian shall have no duty to make any purchases, exchanges, or disbursements or to incur any expenses, unless and until the funds necessary to cover the amount of expense are available in the Account. Client and Manager shall ensure sufficient liquidity prior to directing transactions in the Account. 13.3 Manager Fees. Unless otherwise instructed by Client, Custodian is authoriz.ed to charge the fees of Manager to the Account and to pay the same to Manager. 14. LIMITED POWER OF ATTORNEY Custodian is hereby granted a limited power of attorney by Client to execute on Client's behalf any declarations, endorsements, assignments, stock or bond powers, affidavits, certificates of ownership or other documents required (i) to effect the sale, transfer, or other disposition of Property held in the ©MUFG Union Ban~ .• N A. (2015_0212} modified 2015_0713 7 of9 ATTACHMENT 2-Page 7 of 16 Account, (ii) to obtain payment with respect to Property held in the Account, or (iii) to take any other action required with respect to the Property held in the Account, and in the Custodian's own name to guarantee as Client's signature any signature so affixed. 15. Section removed from Agreement 16. AMENDMENT AND TERMINATION 16.1 Amendment. This Agreement may be amended only by a written agreement executed by Custodian and Client. Custodian may from time to time amend service provisions under separate notice within thirty (30) days of writlen notice . Client will be deemed to accept terms if no written objection is received by Custodian within the 30-day period . 16.2 Termination. Custodian may terminate the Agreement if required to do so to comply with any law applicable to Custodian or if required to do so by any governmental regulator with jurisdiction over Custodian. Upon termination, Custodian shall have a reasonable amount of time to transfer the Property held in the Account in accordance with the written instructions of Client or Manager, as the case may be. Custodian's fees and costs related to termination, including without !imitations, costs for shipping Property held in the Account and costs of re-registering securities, generating reports and accounting for disposition of cash shall be charged to the Account in addition to any outstanding accrued fees and expenses. 16.3 Successors. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors in interest. Without consent of the parties, this Agreement cannot be assigned to any third party. 17. SINGULAR OR PLURAL ff more than one person s!1all execute this Agreement, then where the context permits, singular pronouns shall be deemed to be plural personal pronouns. 18. Section removed from Agreement. 19. GOVERNING LAW This Agreement shall be governed by, and construed under, the laws of the State of California . 20. NOTICES Notwithstanding Section 16 of Client's Professional Services Agreement, notices can be sent through Custodian's online secure messaging service via email with an imaged or scanned attachment (such as a .PDF), or similar electronic transmission, with electronic signature pursuant to security protocols established and agreed by the parties, unless otherwise specified herein. Signatures delivered via fax, email, or similar electronic transmission shall be effective as original signatures in binding the parties and shall be effective upon receipt. 21. CONFIDENTIALITY All non-public information and advice furnished by either party to the other shall be treated as confidential and will not be disclosed to third parties unless required by raw, except that Custodian may disclose (a) the identity of Client as a client or client reference of Custodian; (b} any information to any government regulator of Custodian or affiliated entities; and (c) any information to Custodian's affiliated entities and product and service providers to the extent necessary to provide the financial products and services under this Agreement. ©MUFG Union Bank, N.A. (2015_0212) modified 2015 __ 0713 8 of9 ATTACHMENT 2-Page 8 of 16 22. EFFECTIVE DATE This Agreement shalt be effective upon the date of receipt and acceptance by the Custodian of Property to fund the Account BY CLI ~~ ~ACCEPTED: M ~n;on Bank, N.A. By: By: . -~ L ~~ Name and Title: D '!if-fjR!;."'!f /!~&.p( Nam e an d Till . Date: ~~ 1 ~h Da te: _7_11_3_12_0_1_5 _____ _ /tl'f rove-J ~s hJ {:, rM :/}IJ : _ ) ; "'1 . j , _ ;,.,~ /.' By : ~ ~ .0::::::::::::: By: LJ..im.tt.h!< J.-.!.(A.-UJX£-C_,r~~c Name and Title: ~fi<U /Jo;~ (.:J.,!Jihr ~e yName and Title: Christina Ledendecker, VP Date: "} .... 1., Zl, ZotS: Date: _7_11_3_12_0_15 ______ _ ©MUFG Union Bank, N.A. (2015_0212} modified 2015_0713 9 of 9 ATTACHMENT 2-Page 9 of 16 PERSONAL SERVICES AGREEMENT T~l . AGREEMENT is made, entered into, and shall become effective this G { day of 1 2015, by and between the City of San Juan Capistrano (hereinafter referred-o a the "City") and MUFG Union Bank, N.A. (hereinafter referred to as the "Consuiiant"). RECITALS : WHEREAS, City desires to retain the services of Consultant to provide Custodial Banking Services; and, WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Consultant shall consist of those tasks as set forth in Exhibit "A," attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit "A" and those provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than June 30, 2018. The City shall have the option to renew this Agreement for no more than three additional one-year terms. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed the total amount in the City's adopted fiscal year operating budget for custodial services at the rates as set forth in Exhibit "B," attached, and incorporated herein by reference, for the first custodial account and a $1,500 annual fee for each additional account, fixed for the entire term of this Agreement. 1 ATTACHMENT 2-Page 10 of 16 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit quarterly invoices based on total services which have been satisfactorily completed for such quarterly period. The City will pay quarterly progress payments based on approved invoices in accordance with this Section. 3.3 Records of Expenses. Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to the City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work . For extra work not part of this Agreement, a written authorization from City is required prior to Consultant undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Consultant's fees . Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the work site(s), and is aware 'of all conditions there; and (3) it understands the facilities, difficulties and restrictions of 2 ATTACHMENT 2-Page 11 of 16 the work to be performed under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law . Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Consultant. Section 11. Copies of Work Product. At the completion of the work, Consultant shall have delivered to City at least one (1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City in writing. Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the -City, except in the case of regulatory examinations of Consultant or where prohibited by court order or by legal process. All such reports, information, data, designs, and exhibits shall be the property of the Consultant, however, any information, data, designs, and exhibits can be exclusively trademarked or copyrighted, as applicable, by the City at any time and shall be delivered to the City upon demand without additional costs or expense to the City, with the exception only for copies kept exclusively pursuant to internal records retention policies established pursuant to applicable laws and regulatory requirements governing Consultant. The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. Consultant agrees to indemnify, save, hold harmless, and at City's request, 3 ATTACHMENT 2-Page 12 of 16 defend the City, its officers, agents, and employees from any and all costs and expenses, damages, liabilities, claims, and losses occurring or resulting to City arising from Consultant's or its · officers', agents' or employees' negligence in performance, or negligent failure to perform under this Agreement, and from any and all costs and expenses, damages, liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may be injured or damaged by the Consultant's or its officers', agents' or employees' negligence in performance or failure to perform. City agrees to indemnify, save, hold harmless, and at Consultant's request, defend Consultant, its officers, agents, and employees from any and all costs and expenses, damages, liabilities, claims, and losses occurring or resulting to Consultant arising from City's or its officers', agents' or employees' negligence in performance, or negligent failure to perform under this Agreement, and from any and all costs and expenses, damages, liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may be injured or damaged by the City's or its officers', agents' or employees' negligence in performance or failure to perform. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof the insurance specified below. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A-Class VII or better. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than two million dollars per occurrence ($2,000,000.00), single limit coverage for risks associated with the work contemplated by this agreement 14.2 Comprehensive Automobile Liability . Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non-owned vehicles ·in an amount not less than two million dollars per occurrence ($2,000,000.00). 14.3 Workers' Compensation . If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Workers' Compensation Employer's Liability Insurance in the statutory amount as required by state law. 4 ATTACHMENT 2-Page 13 of 16 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall provide a link to its Memorandum of Insurance including evidence of a blanket additional insured endorsement as respects each of the following: Liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (1 0) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.6 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. In addition, this Agreement may be terminated by any party for cause by providing ten (1 0) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequentto the ten (1 0) day cure period. Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: 5 ATTACHMENT 2-Page 14 of 16 To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Michelle Bannigan, Assistant Finance Director To Consultant: MUFG Union Bank, N.A. 445 So. Figueroa Street, 8th Floor Los Angeles, CA 90071 Attn: Eileen Perez, Vice President & Relationship Manager Section 17. Attorneys' Fees . If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement. the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19. Entire Agreement. Except as noted in Section 21, this Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. Section 20. Counterparts and Facsimile signatures. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same affect as if all the Parties had executed the same instrument. Counterpart signatures may be transmitted by facsimile, email, or other electronic means and has the same force and effect as if they were original signatures. Section 21 . Other Banking Agreements. This Agreement is subject to the provisions of Consultant's Custody Agreement, dated the same date as this agreement, between the City and Consultant and is incorporated herein by reference. To the extent that the terms of this Agreement are inconsistent with the Custody Agreement, the terms and conditions of this Agreement shall control. (SIGNATURE PAGE FOLLOWS) 6 ATTACHMENT 2-Page 15 of 16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. APPROVED AS TO FORM: Je;e 8 llinge(,-tfty Attorney CITY OF SAN JUAN CAPISTRANO :0~~ By: ----:-------:-------- Derek Reeve, Mayor CONSULTANT 7 ATTACHMENT 2-Page 16 of 16