2010R01-Bank Depository Agreement RESOLUTION NO. 10-R-Ol
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A BANK DEPOSITORY
AGREEMENT WITH SCHERTZ BANK & TRUST, AND OTHER
MATTERS IN CONNECTION THEREWITH
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with Schertz Bank & Trust pursuant to the Bank Depository Agreement attached hereto
as Exhibit A (the "Agreement").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Schertz Bank & Trust in substantially the form set forth on
Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
Resol 10-R-O1.doc
PASSED AND ADOPTED, this 5th day of January, 2010.
CITY OF RTZ TEXAS
Mayor
ATTEST:
i
rty Secretary
(CITY SEAL)
Reso1 10-R-O l .doc
EXHIBIT A
BANK DEPOSITORY AGREEMENT
Resol 10-R-01.doc A-1
BANK DEPOSITORY AGREEMENT
This Bank Depository Agreement (this "Agreement") is dated and effective the 1St day of
February, 2010 by and between the CITY OF SCHERTZ, TEXAS (the "City") and SCHERTZ
BANK & TRUST (the "Bank"), a bank chartered by the State of Texas.
Witnesseth
WHEREAS, the City desires to enter into a depository contract for the deposit of the
City's public funds; and
WHEREAS, the Bank has submitted a current statement showing the financial condition
of the Bank of even date with the Bank's application to serve as depository; and
WHEREAS, the City, after due consideration of all applications for City depository, has
selected the Bank as the applicant offering the most favorable terms and conditions for the
handling of the City's funds.
NOW, THEREFORE, the City and the Bank agree as follows:
Section 1. Designation as Depository
The City, through action of its City Council, hereby designates the Bank as its depository
for banking services for a three (3) year period commencing February 1, 2010 and extending
through January 31, 2013 with two options for one-year extensions, if approved by the City
Council.
Section 2. Designation of Custodian
The City and Bank hereby designate The Frost National Bank (the "Custodian") to hold
in trust, according to the terms and conditions of the City Request for Proposal, dated October 1,
2009 (the "RFP") and pursuant to a separate Safekeeping Agreement, attached as Exhibit A, all
securities pledged as depository collateral in accordance with the City's Investment Policy.
Any and all fees from the Custodian associated with the safekeeping of securities pledged
to the benefit of the City shall be borne by the Bank.
Section 3. Collateral
City time and demand deposits, inclusive of interest, in excess of the Federal Deposit
Insurance Corporation insurance shall be secured at all times by collateral, acceptable to the City
and in accordance with the Public Funds Collateral Act (Texas Government Code 2257, as
amended), pledged by the Bank and held in trust by the Custodian named in Section 2 in an
amount equal to at least 102% of the total of those funds. The Custodian will provide a monthly
report of the collateral directly to the City.
The selection of such pledged securities shall be subject only to the joint written
instructions of both (a) authorized representatives of the City and (b) specifically authorized
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representatives of the Bank, as set forth on Exhibit B. The Bank shall have the right, with the
prior written consent of the City, to substitute or replace any or all of the pledged securities with
collateral acceptable to the City.
Section 4. Financial Position
The Bank will provide the City with a statement of its financial position on at least a
quarterly basis. The Bank will provide an annual statement audited by its independent auditors
including a letter as to its "fair representation".
Section 5. Authorized City Representative
For the term of this contract, the City and Bank designate the individuals as listed in
Exhibit B as authorized to represent and act for the City and the Bank, respectively, in any and
all matters including collateral assignment and substitution, and, upon further written
authorization by the City with respect to the designated Bank officials, execution of agreements
and transfers of funds. Any change in these representatives by either party will be made in
writing to the other party.
Section 6. Scope of Services
The Bank's response to the RFP (the "Response") is attached as Exhibit C, and is
incorporated into this Agreement for all purposes. If any provisions of the Response and this
Agreement are in conflict, this Agreement will control. The City hereby designates its choice of
Option Two for Bank Deposit Services under Exhibit B to the Response.
Subject to the service Option selected by the City above, the Bank shall provide or
perform those banking services detailed in the Response (the "Services") at the rates stated. The
Bank shall document the charges for the Services on a ;monthly account analysis submitted by
the Bank to the City. The City shall, within ten (10) business days of receipt of a billing
accompanied by documentation reasonably required by the City and subject to the review and
approval of the Finance Director of the City make provision for payment to the Bank for
Services performed in accordance with the fees stipulated in the Response.
The Bank shall faithfully perform all of its duties and obligations required by the laws of
the State of Texas for public funds depositories and shall upon presentation pay all checks drawn
on it against collected funds on demand deposits, and shall, at the expiration of the Agreement,
turn over to its successor all funds, City-owned securities, property, and things of value held as
depository.
The City shall have the power to determine and designate the character and amount of the
funds to be deposited in the Bank. The City may arrange for time deposits, and Bank may accept
such deposits subject to the terms of the Bank's Response.
This Agreement, along with all Exhibits and other incorporated documents shall
constitute the entire Agreement between the parties.
Bank Depository Agreement.doc -2-
Section 7. Bank Compensation
Subject to the service Option selected by the City in Section 6, the Bank will be
compensated for any and all services rendered to City under this Agreement. The Bank agrees to
offset monthly service fees against its customary earnings credit for balances in the City's own-
interest bearing accounts.
Section 8. Default
The Bank shall be in default if it fails to pay all or part of a demand deposit, a matured
time deposit, or a matured certificate of deposit, including accrued but unpaid interest, at a
specified maturity date. The Bank shall also be in default if ruled "bankrupt", "insolvent", or
"failed" by a federal or state banking regulator, or if a receiver is appointed for the Bank.
In the event of a default, failure, or insolvency of the Bank, the City shall be deemed to
have vested full title to all securities pledged under this Agreement. The City is empowered to
take possession of and transfer and or sell any and all securities. If the security is liquidated, any
proceeds in excess of the defaulted amount, plus expenses related to liquidation, shall be returned
to the Bank. This power is in addition to other remedies which the City may have under this
Agreement or otherwise under law and without prejudice to its rights to maintain any suit in any
court for redress of injuries sustained by the City under this Agreement.
Section 9. Non-Assignability
This Agreement is not assignable in whole or in part but is binding on the parties, their
successors and assigns.
Section 10. Amendment
This Agreement shall remain in full force and effect until the end of its term or until
amended, cancelled, or superseded by a new bank depository contract. No provisions of this
Agreement shall be deemed waived, amended, or modified by either party unless and until such
waiver, amendment, or modification is in writing and signed by the parties to this Agreement.
Section 11. Termination
This Agreement may be terminated by the City at any time with or without cause by
giving thirty (30) days prior written notice to the Bank.
Section 12. Notices
All notices and correspondence to the City by the Bank or to the Bank by the City shall
be deemed given when either delivered in person or deposited in the U.S. Mail, Postage Prepaid,
Certified Mail, Return Receipt Requested, addressed to the appropriate party at the following
address:
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If to the City: City of Schertz
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
If to the Bank Schertz Bank & Trust
519 Main Street
Schertz, Texas 78154
Attention: Operations Officer
Section 13. Governing Law
All applicable provisions and requirements of the laws of the State of Texas and the
FDIC governing depositories for the City shall be a part of this Agreement.
Section 14. Precedence of Agreement
This Agreement and attached Exhibit A, B, and C constitute the sole and only agreement
between the parties hereto with respect to the subject matter hereof and supersede any prior
understanding, written or oral, between the parties respecting the matters herein contained.
Section 15. Legal Construction
In case any one or more of the provisions contained in this Agreement shall for any
reason be held invalid, illegal, or unenforceable in any respect, such invalid, illegal, or
unenforceable provision shall not affect any other provisions thereof and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
Section 16. Bank Authorization
The Bank represents and warrants that this Agreement is made pursuant to and is duly
authorized by the Board of Directors of the Bank and recorded in the official records of the
Bank.
[The remainder of this page intentionally left blank.]
Bank Depository Agreement.doc -4-
EXHIBIT A
Safekeeping Agreement
~AI'~T~EEI'gNG AGI~EIi~g~N'i'
tconrouATC No rolt~ICN srcultlTrr;s>
THIS SAFEKEEPING AGREEIVIENT (this "Agreement") is entered into as of tl~e ~ day of
~U,At ~ 2000 by and betweenTllE I+ROST NATIONAL I3ANI~, a national
banking association organized and existing under the laws of the United States of America (the "Bank")
and ~herf•z Sank ~ '1'r„st: Cast > a Tiank (the "Iepositor"). The
Bank and the Depositor agree that all securities and/or other property deposited with and accepted by $ank
("Security") shall be governed by the temps and conditions herein set forth, and agree to the following
'WITNESSETII:
The Bank shall establish and maintain a custody account {the "Account") for and in the name of
the Depositor and hold therein all securities deposited with or collected by the Sank in its capacity as
custodian for the Account. The terms "security" or "Securities" shall mean any negotiable or nan-
negotiable investment instrument(s) commonly known as a security or securities in banking custom or
practice, and so long as held by the Bank; all income therefrom and all cash deposited by, or for the
account of, the Depositor. The Bank agrees to open the Account and hold all Securities and other
property, from time to time, deposited with or collected by the Bank for the Account, subject to the
terms and conditions of this Agreement, as the same may be amended from time to time.
SECTION I
ACCEPTANCE OF SECURITIES
(a) The Bank shall accept delivery from and on behalf of the Depositor such Securities as
shall, from time to time, be acceptable to it. Any Securities now held by the Bank for the Depositor
under a prior custody agreement shall be deemed to have been deposited hereunder. The Bank shall have
no responsibility to (i) determine the validity, genuineness or alteration of the Securities or related
instruments delivered pursuant to the terms hereof; (ii) review the Securities; or (iii) advise the Depositor of
the purchase, retention, sale, exchange, disposition, call for redemption of the. Securities or related
instruments.
(b) The Bank shall supply to the Depositor from time to time as mutually agreed by the
Bank and the Depositor a written statement with respect to all of the Securities held in the Account. In
the event that the Depositor does not inform the Bank in writing of any exceptions or objections to such
statement within thirty (30) days after receipt of such statement, the Depositor shall be deemed to have
approved such statement.
(c) The Bank shall segregate and identify on its books and records as belonging to the
Depositor all Securities delivered by or for the account of the Depositor which are held by die Bank in
the Account.
(d) The Depositor authorizes the Bank, for any Securities held hereunder, to use the
services of any United States central securities depository it deems appropriate and where it may hold any
of its own securities, including, but not limited to, the Depository Trust Company and the Federal
Reserve Book Entry System. The term "central securities depository" shall also include any depository
service which acts as a custodian of securities in connection with a system for the central Handling of
securities whereby all securities of a particular class or series of any issuer deposited within the system
are treated as fungible and may be transferred by bookkeeping entry without physical delivery of security
certificates. Placement by Ylte Bank of Securities into a central securities depository or .safekeeping
facility shall neither augment nor diminish the Bank's duties or obligations under any other paragraph of
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this Agreement, provided Chat the Bank shall have no liability for the acts or failure to act of any such
central securities depository.
(e} The Bank is authorized to re-register the Securities in the nan~e of the Bank or its
nominee unless alternative and acceptable registration instructions are promptly furnished by the
Depositor.
SIGCTION ~
COLLECTION OF INCOME
The Bank agrees to collect and receive the dividends, interest and other income from the Securities, as
directed by the Depasitor, and will credit the Depositor's designated deposit account for such items.
Charges, if any, will be charged to the Depositor's deposit account under advice. The Bank assumes no
liability for failure to perform this service, as it is intended merely as an aid to the Depositor and does not
zelieve the Depositor of its own duty to keep itself informed of information affecting its own portfolio. The
Bank is hereby authorized to sign, on the Depositor's behalf, any declarations, affidavits, certificates of
ownership, or otter documents which are now or may hereafter be required with'respect to coupons,
registered interest, dividends or otter income on Securities. THE DEPOSITOR HEREBY AGREES TO
REIMBURSE, INDEMN4
i', AND BOLD HARMLESS, THE BAND, ITS OFFICERS,
DIRECTORS AND EMPLOYEES FROM ANY LIABILITY, CLAIM, LOSS, DAMAGE OR
EXPENSE (INCLUDING ATTORNEYS' FEES AND COURT COSTS} TFIAT MAY ARISE I3Y
REASON OF THE EXECUTION OF ANY SUCH DOCUMENTS BY THE BAND.
SECTION 3
COLLECTION OF PRINCIPAL
The Bank is authorized to collect, receive and receipt for the principal of all Securities when and as
the same may nriature, 'be redeemed, or be sold upon the order of the Depositor. The proceeds of such
collections, as well as any other principal payments received for any Securities, wit! be credited to the
Depositor's designated deposit account. The Bank will use commercially reasonable efforts to collect the
Securities and other property at maturity and at dates of call for payment, but assumes no responsibility for
its failure to do so and shall not be obligated to institute or parficipate in any legal proceedings relative
thereto. The Bank will not be liable for the insolvency, or default in the payment of principal or interest or
in Ute performance, of the issuer of any Securities.
' SECTION 4
1t>iyi2A w Ai Oi~~ Sl~C"tTiZi i
ir:S
T'he Securities will be released only upon the Bank's receipt of written instntetions from the
Depositor. In the event the Depositor is a corporation or limited }lability company, Securities will be
released upon the instructions of such officer(s) as are authorized by corporate/company resolution
("Authorized Representative"), and the Depositor shall furnish the Bank on or before such withdrawal,
certified copies of resolutions relating to or changing such authority. The Depositor expressly agrees that tte
Bank shall not he liable far any loss, damage, or liability resulting from the Bank's actions taken in
accordance with instructions given to the Bank by an Authorized Representative. If the Depositor has
delivered to the Bank Securities subject to a pledge, such Securities will be released only upon the receipt of
(i) a written notice by the Depositor or an Authorized Representative, if requested by Bank, (ii} a written
release of tte pledgee, and (iii) a certificate of the Depositor certifying that the signature of tte pledgee is
authorized and authentic.
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SECTION 5
STANDARY2 OIL CARE
The Bank shall exercise commercially reasonable care in receiving, holding and handling the
Securities. The Bank will exercise the commercially reasonable care expected of a professional custodian
for hire with respect to the Securities in its possession or control.
SECTION
DEPOSITOR IDUTII;S
(a) The Depositor shall provide the Bank with a written certificate signed by an Authorized
Representative containing the specimen signatures of each person authorized to act and give direction on
behalf of the Depositor. The Banlc shall be entitled to rely upo~t such certificate until notified in writing
otherwise by the Depositor.
(b) The Bank is further authorized to rely upon any written instructions or instructions
received by any outer means and identified as having been given or authorized by any person named to
the Bank as authorized to give written instnictiotts, regardless of wltetiter such instructions shall in fact
have been authorized or given by any of such persons, provided that the Bank and the Depositor shall
have agreed in writing upon the means of transmission and the method of identification for such
instructions. Instntetions received by any other means shall include verbal instructions, provided That
any verbal instruction shall be promptly confirmed in writing. In the event verbal instructions are not
subsequently confirmed in writing, as provided above, the Depositor agrees to ]told the Bank harmless
and without liability for any claims or losses in connection with such verbal instructions.
Notwithstanding ilte above, instructions for the withdrawal of securities "free of payment" sitatl be given
only in writing, manually signed by any such authorized persons.
(c) The Depositor may appoint one or more investment managers ("Investment
Managers") with. respect to the Account. The Bank is authorized to act upon instructions received from
any Investment Manager to the same extent that the Bank would act upon the instructions of the
Depositor, provided that the Bank has received copies of the instruments appointing the Investment
Manager and written eonfirtnation fcom the Investment Manager evidencing its acceptance of such
appointment, or other evidence satisfactory to the Bank.
(d) If the Depositor should choose to have telecommunication or other means of direct
access to the Bank's reporting system for Securities in the Account pursuant to paragraph (e) ofSection
7, the Bank is also authorized to rely and act upon any instructions received by it through a terminal
device, provided that such instructions are accompanied by code words which the Bank Itas furnished to
the Depositor by any method mutually agreed to by the Bank and the Depositor, and which Elte Bank
shall not have then been notified by the Depositor to cease to recognize regardless whether such
instructions shall in fact have been given or authorized by the Depositor or any such person. The
Depositor's delegates shall be named by a certificate provided to the Bank from time to time by the
Depositor.
(e) In the event that the Bank 'shall receive conflicting instructions from Depositor
regarding any particular transaction, the Bank shall have no duty to attempt to resolve such conflict;
provided, however, the Bank may rely upon the instruction first received by the Bank and the Bank is
hereby held harmless from all consequences of such reliance.
SECTION 7
BAND DTJTIES
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(a) The Bank shall receive or deliver, or shall instruct any other entity aud~orized to hold
Securities hereunder to receive or deliver, Securities anti credit or debit die Account, In accordance with
written instructions from the Depositor. The Bank or such entity shall also receive in custody all stock
dividends, rights and similar securities issued in connection with Securities held hereunder, shall
surrender for payment, in a timely manner, all items maturi~xg or called for redemption and shall take
such other action as the Depositor may direct in properly authorized and timely written instructions to the
Bank.
(b) All cash received or held by the Bank as custodian or by any entity authorized to hold
the Securities hereunder as interest, dividends, proceeds from transfer, and other payments for or with
respect to the Securities shall be (i) held in a cash account, or (ii) in accordance with .written instructions
received by the Bank, remitted to the Depositor.
(c) If the Bank has in place a system for providing telecommunication or other electronic
access or other means of direct access by customers to the Bank's reporting system for.Securities in the
Account, then upon, separate written agreement between the Bank and the Depositor, the Banlc shall
provide such service to the Depositor.
(d) During the Bank's regular banking hours and upon receipt of reasonable notice from the
Depositor, any officer or employee of the Depositor, any independent accountant(s) selected by the
Depositor and any person designated by any regulatory authority having jurisdiction over the Depositor
shall be entitled to examine on the Bank's premises, the Securities Held Uy the Bank on its premises, but
only upon the Depositor's furnishing the Bank with properly authorized instructions to that effect,
provided, such examination shall be consistent witlt the Bank's obligations of confidentiality to other
parties. The Bank's costs and expenses in facilitating such examinations, including but not limited to the
cost to the Bank of providing personnel in connection with examinations shall be borne by the Depositor.
The Bank shall also, subject to restrictions under applicable law, seek to obtain from any entity with
which the Bank maintains the physical possession of any of the Securities in the Account such records of
such entity relating to the Account as may be required by the Depositor or its agents in connection with
an internal examination by the Depositor of its own affairs. Upon a reasonable request from the
Depositor, die Bank shall use its reasonable efforts to furnish to the Depositor such reports (or portions
thereof) of the external auditors of each such entity as related directly to such entity's system of.internal
accounting controls applicable to its duties under its agreement with the Bank.
{e) The Bank will transmit to the Depositor upon receipt, all financial reports, stockholder
communications, notices, proxies and. proxy soliciting materials received from issuers of the Securities,
and all information relating to exchange or tender offers received from offerors with respect to die
Securities. Proxies will be executed by the registered holder if the registered holder is other than the
Depositor, but the manner in which the Securities are to be voted wilt not be indicated. Specific
instructions regarding proxies will be provided when necessary. The Bank shall not vote any of the
Securities or authorize the voting of any Securities or give any consent or take any other action with
respect hereto, except as provided herein. The Bank is authorized to accept and open in the Depositor's
behalf all mail or communications received by it or directed to its care.
In the event of tender offers, the Depositor shall mail or fax instructions to the Bank as
to the action to be taken with respect thereto or telephone such instructions to the Depositor's account
administrator at the Bank, designating such instruction as being related to a tender offer. The Depositor
shall deliver to the Bank, by 4:00 p.m., San Antonio, Texas time on the following calendar day, written
confirmation. The Depositor shall hold the Bank harmless from any adverse consequences of the
Depositor's use of any other method of transmitting instructions relating to a tender offer. The Depositor
agrees drat if it gives an instruction for the performance of an act on die past permissible date of a period
established by the tender offer or for the performance of such act or dial it fails to provide next day
written confirmation of an oral instruction, the Depositor shall hold the Bank harmless from any adverse
consequences of failing to follow said instructions.
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(g) 17te Bank shall promptly notify the Depositor of any calls for redemption, mergers,
tenders, consolidations, reorganizations, recapitalizations, or similar proceedings affecting the Securities
(other than those Securities registered in the Depositor's name) held in the Account, provided notice of
such proceedings appears in standard New York financial pvblieations or a service to which the Bank
subscribes. The Bank shall not be liable for late presentation of such items when the Depositor has failed
to timely instruct the Banlc in writing. Should any Security held in a central securities depository be
called for a partial redemption by the issuer of such Security, the Bank is authorized, in its sole
discretion, to allot the called portion to the respective holders in any manner it deems fair and equitable.
(lt) The Bank shall present all maturing bonds and coupons for collection and is authorized
to receive payment of income and principal on other items in accordance with their terms. All funds so
collected shall he credited to the Account or remitted in accordance with the instructions of the
Depositor.
(i) The Depositor acknowledges and agrees that the Bank shall not be liable for any loss or
damage arising out of cause beyond the Bank's control.
S)tiCTTON S
~`OREIGN S1;CURI7'IIJS
The Battk sltatl not hold Securities which are issued by foreign governments ar foreign
companies or for which the principal trading market is located outside the United States hereunder.
Should the Bank elect to hold such securities, such activities shall be governed by a separate agreement
between the bank and the Depositor.
51;CTTON 9
I')C~S AND ~XI'I?NSli,S
(a) The Depositor agrees to ~tromptly pay upon receipt of an invoice from the Bank the fees
and expenses set forth therein. Bees and expenses for the services to be rendered under this Agreement
are set forth in lGxhibit A attached hereto and incorporated herein for all purposes, as such may be
amended from time to time, effective upon 30 days' prior written notice by the Bank to the Depositor. In
addition, if the Bank advances securities to the Depositor for any purpose or in the event that the Bank or
its nominee shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in
connection with the performance of its duties hereunder, except such as may arise from or be caused by
the Bank's or its nominee's gross negligence or willful misconduct, Depositor shall immediately
reimburse the Bank, or its nominee, for such advances, taxes, charges, expenses, assessments, claims or
liabilities, or replace such securities.
(b) The Bank may, in its sole discretion, advance funds on behalf of the Depositor which
results in an overdraft if the monies held in the Account are insufficient to pay the total amount payable
upon purchase of Securities as instructed. Any such overdrafts shall be deemed to be a loan made by the
Bank to the Depositor payable promptly upon demand and bearing interest at The Frost National Bank's
prime rate plus [wo percent per annum from the date incurred. Notwithstanding anything contained in
this Agreement to the contrary, the Bank shall have no obligation to advance funds on behalf of the
Depositor.
(c) The Bank shall have a lien on rite Securities in the Account to secure payment of such
fees and expenses, taxes, advances and other charges incurred under this Section 9. The Depositor
agrees that the Bank's lien shall be a continuing lien and security interest in and on any Securities at any
time held by or through it in accordance with dtis Agreement, for kite benefit of the Depositor or in
5
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which the Depositor may have an interest which is then in the Bank's possession or control or in
possession or control of any third parry acting on the Bank's behalf. Upon failure by the Depositor to
cure any overdraft amounts, or to reimburse tite Bank promptly after the request for payment, the Bank
may immediately and without fiirther notice dispose of Securities to the extent necessary to obtain
reimbursement. The Bank shall have all of the rights and remedies of a secured creditor under the
Uniform Commercial Code as in effect in State of Texas from time to time with respect to the Securities.
(d) The Bank is hereby .authorized to charge the Depositor's deposit account number
0199'81257 for alt fees and charges incurred or assessed hereunder.
(Analysis)
SI~CTION 10
IN~1~53'14Y~AI'I' ILlG3I'ON5II3ILITY
Unless otherwise agreed in writing by the Depositor and the Bank, the Bank is under no duty to
(i) advise the Depositor relative to the investment, purchase, retention, sale, or other disposition of any
Securities held hereunder; (ii) supervise the Depositor's investments, purchases or sales; (iii) invest, or
see to the investment of, any cash proceeds or other cash deposited hereunder and held by the Bank; or
(iv) determine whether any investment or sale made for lire account of Depositor is made in conformity
with Depasitor's requirements or understandings. The Bank's duties hereunder are strictly ministerial in
natctre and are Iimited to those duties expressly set forth in this Agreement. Nothing in this Agreement
shall be construed to impose fiduciary responsibilities on the Bank.
S)?CTION 11
LIIv1ITATION OF LIABILITY
The Bank undertakes to perform such duties and only such duties as are specifically set forth in this
Agreement, it being expressly understood that there are no implied duties heretmder. In addition to other
provisions of this Agreement, the Depositor agrees that the Bank (a} will be responsible only for the exercise
of reasonable commercial standards of the banking business; (b) will not be liable for any loss or damage to
the Securities when such loss or damage is due to any cause other than failure to exercise reasanable
commercial standards, and in any event will not be liable for any decline in the market value of the
Securities; (c) will not he considered an insurer against risk of loss, damage, destruction or decline in market
value of the Securities; and (d) will not have liability to the Depositor with respect to the services rendered by
the Bank pursuant to this Agreement until such time as the Securities are actually delivered to the Bank, it
being understood and agreed that the Depositor bears the risk of loss with respect to shipment and delivery of
the Securities to Bank. IN NO EVENT SHALL TIIE BANK BE LIABLE, DIRECTLY OR INDIRECTLY, FOIL ANY (I)
DAIVIAGES OR EXPENSES ARISING OUT OT' TIC SERVCCES PROVIDED HEREUNDER OTI3ER TITAN DAMAGES
WIiICFI RESULT FROM BANI{'S FAILURE TO ACT IN GOOD FAITFI OR IN ACCORDANCE wiTfi THE
REASONABLE COMMERCIAL STANDARDS OP' THE BANICING BUSINESS OR (II) SPECIAL OR CONSEQUENTIAL
DAMAGES, EVEN IF THE MANIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Tn addition to any and a1I rights of reimbursement, indemnification, subrogation, or any other
rights pursuant hereto or under law or equity, the Depositor hereby agrees, to the extent permitted by
Texas law, to indemnify and hold harmless the Bank and its officers, directors, and agents (the
"indemnified parties") from and against any and all claims, damages, losses, liabilities, reasonable
costs, or reasonable expenses whatsoever (including attorneys' fees and court costs) which they may
incur (or which may be claimed against them by any person or entity whatsoever) by reason of or in
connection with (a) any untrue statement or alleged untrue statement of any material fact contained or
incorporated by reference in the infornation supplied by the Depositor to the Bank or its nominee in
connection with the performance of their duties under this Agreement or the related documents, or the
omission or alleged omission to state in such information a material fact necessary to make such
statements, in the light of circumstances under which They are or were made, not misleading; or (b) the
. ~ 6
SANANTONIO 29807Cv5 52600-03994
Bank Depository Agreement.doc A-6
execution and delivery of this Agreement. Tf any proceeding shall he brought or threatened against any
indemnified party by reason of or in connection with the events described in clause (a) or (b), such
indemnified party s12a11 promptly notify the Depositor in writing and the Depositor shall assume the
defense thereof, including die employment of counsel satisfactory to such indemnified parry and the
payment of alI costs of litigation. Notwithstanding the preceding sentence, such indemnified party shall
have the right to employ its own counsel and to determine its own defense of such action in any such
case, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless
(i) the employment of such counsel shall have been authorized in writing by the Depositor or (ii) the
Depositor, after due notice of the action, shall not leave employed counsel to have charge of such
defense, in either of which events the reasonable fees and expenses of counsel for such indemnified party
shall be borne by the Depositor. The Depositor shad not be liable for any settlement of any such action
effected without its consent. Nothing under this section is intended to limit the Depositor's payment
obligations contained elsewhere in this Agreement. This section shall survive the termination of this
- Agreement.
SEC7['10N 1B
1(iANY~ 1'OW1;R OT' AT'I'OItNI;'Y
In addition to other rights granted to the Bank pursuant to the terms of this Agreement, the Bank
is authorized a~}d empowered in the name of and on behalf of the Depositor to execute any certificates of
ownership or other instruments which are or may hereafter be required by any regulations of the United
States or any state or political subdivision thereof, so that tl~e Bank may fulfill its obligations hereunder
as required in connection with any Securities.
SECTION 13
AMENDMENTS
)?xcepE as otherwise provided hereby, flee parties may make amendments to this Agreement from
time to time, provided that any such amendment shall be reduced to writing; provided, however, the
Bank may, at any time, in its sole discretion amend any of the provisions of this Agreement upon thirty
(30) days' prior written notice to the Depositor.
SECTION 14
SUCCESSORS AND ASSIGNS
This Agreement shalt be binding upon and shall inure to the benefit of the successors and assigns
of the respective parties hereto.
SECTION 15
COMPLETENESS OIL AGREEMENT
This Agreement, along wilt a copy of the fee schedule attached hereto asExhibit A, constitutes
the full and complete agreement between the Bank and the Depositor, and no other understanding or
agreement, whether written or oral shall bind either of the parties hereto. T12e headings of Sections of
this Agreement are for convenience only.and have no effect on a party's responsibilities or liabilities.
SECTION 16
GOVERNING I,A'W
This Agreement shall be governed by the applicable laws of the State of Texas.
SANANTONIO 298076v5 82600-0399h
Bank Depository Agreement.doc A-7
S)CCTYON 37
'Il~Gii1VIINATTON
This Agreement may be terminated by either the Depositor or the Bank upon at least ten (10}
days prior written notice to die other. The Depositor shall have a period of thirty (30) days from the date
of the last and final accounting provided by the Bank to make any objection or claim, and failure to do so
within die thirty (30) day period shall be deemed by the parties hereto to constihrte accord and
satisfaction. As soon as practicable following termination of this Agreement, the Bank shall deliver .all
Securities to dte Depositor in accordance with die Depositor's written instnrctions.
srCTION is
N07CICLS
Any notice to be given or to be served upon any party hereto in connection with this Agreement
must be in writing, and shall be given by certified or registered mail, facsimile transmission ("fax"} or
express courier and shall be deemed to have been given and received twenty-four (24) hours after a
certified or registered letter or express courier package containing such notice, properly addressed, with
postage prepaid, is deposited in the United States mail. Such notices shall be given to the parties hereto
at the following addresses:
If to die Bauk:
The Frost National Bank
P.O. Box 1600
San Antolrio, Texas 78296
Attention: Custody Services Department
Facsimile No.: (210) 220 - 5986
If to the Depositor:
Schertz Banlc Trust (Customer Account)
P.O. Box 300
Schertz, Texas 78154
Attention: Melvin F. Golla
Facsimile No.: 210-945-7424
Any notices served by fax shall be deemed to have been given and received only when written
confirmation of dIe receipt of such fax has been received by the sender. Any parry hereto may, at any
tune by giving fifteen (15) days' written notice to tree other party hereto, designate any oilier address in
substitution of the foregoing address to which such notice shall be given.
S>CCTION 39
1VIISC;VLLANEOUS
(a) This Agreement may be executed in any number of counterparts; each such counterpart
hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but
orte agreement.
(b) 'Whenever the context hereof shall so require the singular shall include the plural, the
male gender shall include the female gender and the neuter, and vice versa.
8
SANANTONIO 298076v5 82600-03994
Bank Depository Agreement.doc A-g
(c) 1n case any one or more of the provisions contained in this Agreement shall for any
reason he held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or
uttenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision ]tad never Ueen contained herein.
[(d) The Addendum to Safekeeping Agreement attaclted hereto is incorporated herein
and made a part hereof For all purposes.]
IN WITNESS WHEREOF, the parties thereto executed this Agreement as of the day and year
first shove-written.
BAND: DEPOSITOR:
TIIl;1'<IL03T NATIONAI, BANT£ Scher. tz Bantc & Trust
(Gusto Account)
I >
C
Name: Olga Aguilar Name:Melvin T. Golla
Title: Assistant Vice President Title: President
9
SANANTONIO 298076v5 82600-03994
Bank Depository Agreement.doc A-9
EXHIBIT B
Authorized Representatives
For the term of this Agreement, the City and the Bank designate the individuals listed
below as authorized to represent and act for the City and the Bank, respectively, in any and all
matters including collateral assignment and substitution, and, upon further written authorization
by the City with respect to Bank officials, execution of agreements and- transfers of funds. Any
changes in these representatives by either party will be made in writing to the other party.
CITY OF SCHERTZ SCHERTZ BANK & TRUST
Don E. Taylor, City Manager .Melvin F. Golla, President
John E. Bierschwale, Assistant City Manager Wendy Griffin, Cashier
David Harris, Assistant City Manager
Juan Santoya, Finance Director
Robert Galindo, Financial Analyst
Bank Depository Agreement.doc B-1
EXHIBIT C
RFP Response
See attached SB&T Response
Bank Depository Agreement.doc C-1
EXECUTED IN DUPLICATE ORIGINALS effective this ls` day of February, 2010.
CITY OF SCHERTZ, TEXAS SCHERTZ SANK & TRUST
Don E. Taylor, City Mana Melvin F. Golla, President
Schertz Bank & Trust
ATTEST:
Wend Griffin, C s ier
Schertz Bank & Trust
Bank Depository Agreement.doc S-1