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BCRUA_R-09-05-20-8B RESOLUTION NO. R-09- 5'Z0 WHEREAS, the Brushy Creek Regional Utility Authority (BCRUA) desires to enter into a Depository and Banking Services Contract with Bank of America, N.A. , Now Therefore BE IT RESOLVED BY THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY, That the Board President is hereby authorized and directed to execute on behalf of the BCRUA a Depository and Banking Services Contract with Bank of America, N.A. , a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The Board hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this day of May, 2009. MITCH F LER, Pre ident Brushy Cre eg. al Utility Authority ATTEST: Bo Secretary 00160857/jkg pop AUTHORIZATION AND AGREEMENT FOR TREASURY SERVICES I am an authorized representative of the organization specified below(the"Client").The Client has received Bank of America's Treasury Services Terms and Conditions Booklet(the"Booklet")in the form and with the content posted on the website of Bank of America and agrees to adhere to the Booklet and any applicable User Documentation from Bank of America("Bank").The Services covered by the Booklet and the banks providing Services are listed on the accompanying List of Banks and Services,which we may change from time to time.Capitalized terms used in this Authorization and Agreement form,not otherwise defined,have the meanings given to them in the Booklet. After I sign below on behalf of the Client,the Client may from time to time request the Bank to provide any of the Services described in the Booklet.The Client may begin to use any such Service once Bank has approved such use and has received all required and properly executed forms and the Client has successfully completed any testing or training requirements.The Booklet supersedes other agreements between the Client and the Bank,as described under the General Matters heading in the Booklet,with regard to the provision of Services. I warrant that the Client has taken all action required by its organizational or constituent documents to authorize me to execute and deliver on behalf of the Client this Authorization and Agreement form and any other documents the Bank may require with respect to a Service.I am authorized to enter into all transactions contemplated by the provision of Services to the Client.These may include,but are not limited to,giving the Bank instructions with regard to Electronic Funds Transfer Services and designating employees or agents to act in the name and on behalf of the Client. Guidelines for completion: If Client is a: Who must sign: corporation .......................any authorized officer limited liability company ............all members,or any authorized officer* partnership(general or limited) .......any general partner* limited liability partnership ..........the managing partner* sole proprietorship .................the sole proprietor governmental entity ................the Treasurer* * Includes any individual authorized under Client's charter or organizational or constituent documents.The legal name of any member, managing member,manager or general partner who is signing and who is not an individual must appear in the signature block.Note that in most cases the Client must also complete the Certification form which follows. Brushy Creek Regional Utility Authority- 20 May 2009 ORGANIZATION'S CLIENT LEGAL NAME Dater [Signat a of Authorized presentative) [Signature of Authorized Representative,if two are required by Client Mi Print Na uthorize Representative] [Print Name of Authorized Representative President [Print Title of Authorized Representative(include the legal name of Print Title of Authorized Representative (include the legal name of any member,managing member,manager or general partner who is any member,managing member,manager or general partner who is signing and who is not an individual)] signing and who is not an individual)] The following addresses may be used for giving notices in connection Address(es)for Bank Notices: with this Booklet except as you or we provide the other different Bank of America,N.A. addresses to be used in conjunction with your accounts or particular Documentation Management(CA4-706-04.07) Services. P.O.Box 27128 Concord,CA 94527-9904 Address for Client Notices: Fax No.:(925)675-7131 221 E. Main Street _ and,if filled in,the following: Round Rock, TX 78664 Telephone: 65_1 2 ) 21 R-54nn Fax:61^ 1 21$=7097 —_— Telephone:L__) Fax: AD-AG-0455B WEB AUTHORIZATION AND AGREEMENT CERTIFICATION I certify that each signature appearing on the previous page for Client is the true signature of a person authorized to execute the form on behalf of Client,and I further certify that I have full authority to execute this certification.The Bank is entitled to rely upon this certification until written notice of Its revocation is delivered to the Bank. Guidelines for completion:This Certification should not be sinned by the individual who signed the Authorization and AiueemenL If Client Is a: Who must sign: corporation .......................any authorized officer limited liability company ............any member or authorized officer limited liability partnership ..........any partner partnership(general or limited) .......any general partner sole proprietorship .................no signature required governmental entity ................the entity's counsel,or any other individual as permitted by the entity's organizational documents The legal name of any member,managing member,manager or general partner who is signing and who is not an individual must appear in the signature block. Note:If Client Is not a U.S.based entity,it is not required to complete this certification,but must provide authorizing certificates or mandates. 20 May 2009 Brushy Creek Regional Utility Authority ate ORGAN ZAPON'S CL IE T' LEGAL NAME) Q Aedl 15ignatut of CertifyingRepresentative] Ste hen L. Sheets Print Name of Certifying Representative Legal Counsel Print Title of Certifying Representative (include the legal name of any member,managing member,manager or general partner who is sign- ing and who is not an individuao) AO-AG-04558 WEB TREASURY SERVICES DELEGATION OF AUTHORITY FORM This form is optional and is to be used when you wish to delegate authority to sign various authorization fors to someone other than the person who signed the Authorization and Agreement form In the front of this Booklet. By signing below,you authorize the Incumbent of the specified position listed In Section A or each person listed in section B below,acting alone,to execute documents that we may request,and any amendments or renewals thereof,pertaining to the use of Services,including but not limited to designating one or more persons(which may Include himself or herself)authorized to initiate,amend,cancel,confirm orverify the authenticity of instructions to us for Services,whether given orally,electronically or by facsimile instructions,and to revoke any authorization granted to any such person,as he or she deems appropriate.The signer of this form has the same authority described above for each Service with us,unless otherwise specified.We are entitled to rely upon this delegation until written notice of Its revocation Is received by us. Guidelines for Completion: Fill out either section A orsectlon B,or both,depending on your needs. • To delegate authority to any person holding a specific title,fill out section A. • To delegate authority to specific individuals by name,rill out section B. For each name or title,indicate'All"in the'Service'column if the person or title has authority to sign documents for all Services which you receive from us.otherwise,indicate specific Services for which the person or title has authority.For each name or title,indicate the entity or entities for which the person or title has authority to sign documents. A.TO DELEGATE AUTHORITY TO ANY PERSON HOLDING SPECIFIC POSITIONS Title Service Entity General Manager 'lity Author City Manager, Cedar Park ALL BCRUA City Mana er Leander ALL IBCRUA City Manager, Round Rock ALL BCRUA B.TO DELEGATE AUTHORITY TO SPECIFIC INDIVIDUALS Name Service Entity Specimen Signature CLIENT AUTHORIZATION Client Authorization Instructions:The same person who signed the Authorization and Agreement for Treasury Services form must sign this Treasury Services Delegation of Authority form. 20 May 2009 Brushy Creek Regional Utility Authority_ Dated ORGAN1zATI0N'S CLIENTS LEGAL NAM Signature oVuthofized Rkepresentativel Print Name ot AuthorizedRepresentative President PrintTrt a inc u e the legal name of any member,managing member,manager or general partner who is signing and who Is not an individua0l AD-AG-0455B WEB COPIV DEPOSITORY AND BANKING SERVICES CONTRACT This DEPOSITORY AND BANKING SERVICES CONTRACT, hereinafter referred to as "Depository Contract," is made and entered into by and between the Brushy Creek Regional Utility Authority (BCRUA), a local government as defined by V.T.C.A., Government Code, - 791.003(4)(B), hereinafter referred to as "BCRUA/Depositor," and Bank of America, N.A., a national banking association, organized under the laws of the United States and authorized by law to do banking business in Texas and now conducting such business in said state, hereinafter referred to as "Bank." WHEREAS, BCRUA/Depositor desires to obtain banking services and a depository for its funds and to provide for those funds the highest level of safety, liquidity, and return while receiving suitable banking services at a reasonable charge; and WHEREAS, Bank is willing to provide such banking services and to act as a depository for BCRUA/Depositor's funds while providing full collateral satisfactory to BCRUA/Depositor; NOW, THEREFORE, in consideration of the mutual agreements and covenants contained herein, BCRUA/Depositor and Bank agree as follows: I BANKING AND DEPOSITORY SERVICES Bank agrees to receive and safely keep any and all public funds offered for deposit by BCRUA/Depositor and to reimburse and pay same to BCRUA/Depositor, by paying its designated officer or whoever may be lawfully entitled to receive same upon request. Bank agrees to perform banking and depository services of the types and for the charges as specified in Exhibit "A" "Bank of America Deposit Agreement and Disclosures;" Exhibit "B" "Tri-Party Collateral Management Agreement;" Exhibit "C" "Treasury Services Terms and Conditions;" Exhibit "D" "Bank of America Account Analysis Price Schedule;" and Exhibit "E" Bank of America Safekeeping Terms and Conditions," all of which are attached hereto and incorporated herein by reference. Should there be any conflict between the terms of this contract and any of the terms of the documents contained in any exhibit attached hereto, the terms of any administrative rules of Bank, or other agreement between BCRUA/Depositor and Bank, the terms of this contract shall be final, controlling, and binding. 00160727/jkg -0i- � - �� II TERM, RENEWAL, AND TERMINATION BCRUA/Depositor, through appropriate action of its governing body, hereby designates Bank as a depository for the period beginning June 1, 2009 and continuing through May 31, 2011, and this contract shall remain in full force and effect for such stated period of two years. However, this contract may be extended by mutual agreement of BCRUA/Depositor and Bank, to remain in full force and effect for a period not to exceed any period allowed by BCRUA/Depositor's Investment Policy. Such period shall be agreed to by the parties to this contract. Either BCRUA/Depositor or Bank shall have the right to terminate this contract prior to the expiration date by advance written notice to the other of its election to do so, and this contract shall be void from and after the expiration of ninety (90) days after the receipt of such notice, provided that all provisions of this agreement have been fulfilled. III DESIGNATION OF TRUSTEE BCRUA/Depositor and Bank, by execution of this contract, hereby designate the Bank of New York, hereinafter referred to as "Trustee", to hold in trust, according to the terms and conditions of this Depository Contract and the attached "Tri-Party Collateral Management Agreement,"the collateral and substitute collateral described under said agreements. IV DESIGNATED OFFICERS) During the term of this contract, BCRUA/Depositor will, through appropriate action of its governing body, designate the officer or officers who singly or jointly will be authorized to represent and act on behalf of BCRUA/Depositor in any and all matters of every kind arising under this contract and to (a) execute and deliver to Bank "Bank's Treasury Terms and Conditions" booklet agreements (including user documentation and set-up forms) covering electronic funds transfers and other treasury management services, (b) appoint and designate, from time to time, a person or persons who may request withdrawals, orders for payment or transfers on behalf of BCRUA/Depositor in accordance with the electronic fund or funds transfer agreement and addenda, and (c)make withdrawals or transfers by written instrument. 2 The General Manager shall be the designated officer to serve as the primary liaison between BCRUA/Depositor and Bank and, as the designated officer, may exercise the powers and duties as authorized by applicable law. V CONTROLLING DOCUMENT Bank's Deposit Agreement is incorporated herein for all purposes; however, to the extent that any provision therein conflicts with any provision herein, this Depository Contract will control. VI TIME DEPOSITS BCRUA/Depositor may arrange for time deposits, and Bank may accept and shall hold such deposits subject to payment in accordance with the terms of the deposit. Interest shall be calculated at the rate which Bank has bid for the particular denomination and time period of said deposit at competitive public bidding for said deposits. Time deposits will mature on or before the expiration of this contract. All time deposits that mature beyond the expiration of this contract will be at non-contractual interest rates negotiated at the time of purchase. VII COMPENSATION Bank will be compensated for any and all services rendered to BCRUA/Depositor under this contract. Bank agrees to offset monthly service fees against its customary earnings credit for balances in BCRUA/Depositor's non-interest bearing transaction accounts; provided, however, that if there is insufficient earnings credit against which such fees may be offset, BCRUA/Depositor will be charged for such services monthly. VIII COLLATERAL SECURITY All funds on deposit with Bank to the credit of BCRUAJDepositor shall be secured by collateral as provided for in the Public Funds Collateral Act of 1989 (Chapter 2257 of the Texas Government Code). The total market value of the collateral (which includes accrued interest or income to the extent it is not included in the market price) securing such deposits will be in an amount at least equal to the amount of such deposits plus the amount of any accrued interest thereon and less the amount that such deposits are insured by an agency or instrumentality of the 3 United States government. The market value with respect to any securities (collateral) as of any date and priced on such date will be obtained from a primary dealer. When additional collateral is required to cover incremental deposits, Bank must receive the request for collateral prior to 10:30 a.m. on the day the deposits are actually received. Twenty-four (24) hours' notice is necessary on incremental deposits in excess of$3 million. IX COLLATERAL TO TRUSTEE Bank has heretofore or will immediately hereafter deliver to Trustee collateral of the kind and character above mentioned of sufficient amount and market value to provide adequate collateral for the funds of BCRUA/Depositor deposited with Bank. Said collateral or substitute collateral, as hereinafter provided for, shall be kept and retained by Trustee in trust so long as the depository relationship between BCRUA/Depositor and Bank shall exist hereunder, and thereafter so long as deposits made by BCRUA/Depositor with Bank hereunder, or any portion thereof, shall have not been properly paid out by Bank to BCRUA/Depositor or on its order. X CURE OF FAILURE OR BREACH AND SURRENDER OF COLLATERAL FOR SALE Should Bank fail at any time to pay and satisfy, when due, any check, draft, or voucher lawfully drawn against any deposit and the interest on such deposits or in any manner breach its contract with BCRUA/Depositor, then BCRUA/Depositor shall give written notice of such failure or breach to Bank, and Bank shall have three (3) business days to cure such failure or breach. In the event Bank shall fail to cure such failure or breach within three (3) business days or should Bank be declared insolvent by a Federal bank regulatory agency, it shall be the duty of Trustee, upon demand of BCRUA/Depositor (supported by proper evidence of any of the above- listed circumstances), to surrender the above-described collateral to BCRUA/Depositor. BCRUA/Depositor may sell all or any part of such collateral and out of the proceeds thereof, pay BCRUA/Depositor all damages and losses sustained by it, together with all expenses of any and every kind incurred by it on account of such failure or insolvency, or sale, accounting to Bank for the remainder, if any, of said proceeds or collateral remaining unsold. XI NOTICE OF SALE OF COLLATERAL Any sale of such collateral, or any part thereof,made by BCRUA/Depositor hereunder may be either at public or private sale; provided, however, it shall give to both Trustee and Bank at 4 least two (2) hours' notice of the time and place where such sale shall take place, and such sale shall be to the highest bidder therefor for cash. BCRUA/Depositor and Bank shall have the right to bid at such sale. XII SUBSTITUTION OF SECURITIES If Bank shall desire to sell or otherwise dispose of any one or more of said securities so deposited with Trustee, it may substitute for any one or more of such securities other securities of the same market value and of the character authorized herein. Such right of substitution shall remain in full force and may be exercised by Bank as often as it may desire; provided, however, that the aggregate market value of all collateral pledged hereunder, shall be at least equal to the amount of collateral required hereunder. If at any time the aggregate market value of such collateral so deposited with Trustee be less than the total sum of BCRUA/Depositor's funds on deposit with said Bank, then Bank shall immediately deposit with Trustee such additional collateral as is necessary to cause the market value of such collateral to equal the total amount of required collateral. Bank shall be entitled to income on securities held by Trustee, and Trustee may dispose of such income as directed by Bank without approval of BCRUA/Depositor. XIII RECEIPTS REQUIRED Trustee shall promptly forward to BCRUA/Depositor copies of safekeeping or trust receipts covering all such collateral held for Bank, including substitute collateral as provided for herein. XIV REDELIVERY OF COLLATERAL If at any time the collateral in the hands of Trustee shall have a market value in excess of the sum of balances due BCRUA/Depositor by Bank, BCRUA/Depositor shall authorize the withdrawal of a specified amount of collateral, Trustee shall deliver this amount of collateral (and no more) to Bank, taking its receipt therefor, and Trustee shall have no further liability for collateral so redelivered to Bank. XV CLOSE-OUT When the relationship of BCRUA/Depositor and Bank shall have ceased to exist between BCRUA/Depositor and Bank, and when Bank shall have properly paid out all deposits of 5 BCRUA/Depositor, it shall be the duty of BCRUA/Depositor to give Trustee certificate to that effect; whereupon Trustee shall, with the approval of BCRUA/Depositor, redeliver to Bank all collateral then in its possession belonging to Bank, taking its receipt therefor. An order in writing to said Trustee by BCRUA/Depositor and a receipt for such collateral by Bank shall be a full and final release of Trustee of all duties and obligations undertaken by it by virtue of these presents. XVI INVESTMENT POLICY It is the intention of the parties hereto that BCRUA/Depositor shall retain the maximum flexibility to invest its funds prudently to earn the highest rate of return consistent with BCRUA/Depositor's Investment Policy as adopted by the Board, and consistent with other applicable laws. XVII NEW SERVICES BCRUA/Depositor may negotiate new services with Bank as deemed necessary by BCRUA/Depositor. The interest rate to be earned, as well as the other terms and conditions regarding the service will be mutually agreed upon by BCRUA/Depositor and Bank. Any such new service agreement will be executed in writing as an addendum to this contract. XVIII SEVERABILITY If any term or provision of this contract is held to be illegal or invalid, such illegality or invalidity shall not affect the remaining provisions of the contract, which remaining provisions shall remain in full force and effect as if this contract had been executed with the illegal or invalid portion thereof eliminated. It is hereby declared the intention of the parties that they would have executed the remaining portion of this contract without including any such term, provision, part, parts, or portions which may, for any reason, be hereafter declared illegal or invalid. XX INDEMNIFICATION Bank agrees that it will use due care and diligence in all of its activities and operations authorized under this contract. Bank shall be liable to BCRUA/Depositor only for actual damages incurred as a direct result of Bank's failure to exercise reasonable care under this 6 contract. In no event will Bank be liable for any indirect, consequential or punitive loss, damage, cost or expense of any nature (even if advised of the possibility of such loss, damage, cost or expense) including, without limitation, any economic loss or damage, expense and loss of business, profits or revenue, goodwill and anticipated savings, loss of or corruption to BCRUA/Depositor's data, loss of operation time or loss of contracts. Bank will not be responsible for the acts or omissions of BCRUA/Depositor or its officers, employees or agents (including but not limited to the amount, accuracy, timeliness or authorization of any instructions or information from BCRUA/Depositor) or the acts or omissions of any other person or entity including, but not limited to, any clearing house association or processor, any U.S. Federal Reserve Bank or any other country's central bank, any other financial institution or any supplier, and no such person or entity will be deemed to be Bank's agent. Bank will not be liable for and will be excused from any failure or delay in performing Bank's obligations under this contract if such failure or delay is caused by force majeure circumstances beyond control, including natural disasters such as earthquakes or floods, emergency conditions such as war, riot, fire, theft or labor dispute, legal constraint or governmental action or inaction, or BCRUA/Depositor's act, omission, negligence or fault. Bank will not be liable for any failure to act on Bank's part if Bank's representatives had a reasonable basis to believe and did believe that Bank's actions would have violated any law, rule or regulation. BCRUA/Depositor indemnifies and holds Bank harmless, and agrees to defend, from and against any and all liabilities, claims, costs, expenses and damages of any nature arising out of or relating to disputes or legal actions by parties other than Bank and BCRUA/Depositor concerning this contract. The obligations contained herein shall survive the termination of this contract. No indemnification herein shall apply to any costs or damages attributable to Bank's gross negligence or intentional misconduct. XX NON-WAIVER Failure of either party hereto to insist on the strict performance of any of the provisions herein or to exercise any rights or remedies accruing hereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by any appropriate remedy strict compliance with any other obligation hereunder or to exercise any right or remedy accruing as a result of any future default or failure of performance. XXI CONFIDENTIALITY All data relating to BCRUA/Depository's business provided to Bank by BCRUA/Depository will be treated confidentially and safeguarded by Bank, using the same care and discretion that it uses with data that Bank designates as confidential, and Bank shall safeguard all funds and investments of BCRUA/Depository while such funds or investments are in the possession of or under the control of Bank. XXII CAPTIONS The captions of this contract are for information purposes only and shall not in any way affect the substantive terms and conditions of this contract. XXIII RESERVATION Pursuant to Chapter 105 of the Texas Local Government Code, BCRUA/Depositor reserves the right to contract with other depositories for the deposit or investment of a portion of available public funds of BCRUA. XXIV NON-ASSIGNMENT This contract shall extend to and be binding upon the parties and their respective successors and assignees; provided, however, that the contract may not be assigned without the written consent of both parties. XXV CONFORMANCE TO LAWS This contract and all of the transactions contemplated herein shall be governed by and construed in accordance with the laws of the State of Texas, including all applicable constitutional provisions, statutes, charter provisions, ordinances, and resolutions. Bank agrees to fully comply with all applicable laws, including but not limited to the Texas Municipal 8 Depository Law, TEX, LOC. GOV'T CODE ANN. sec. 105.001 et seq., as amended, the Public Funds Investment Act, TEX. GOVT CODE ANN. sec. 2256.001 et seq., as amended, and the Public Funds Collateral Act, TEX. GOV'T CODE ANN. sec. 2257.001 et seq., as amended. XXVI VENUE Venue and jurisdiction of any suit or right or cause of action arising under or in connection with this contract shall be exclusively in Williamson County, Texas, and any court of competent jurisdiction shall interpret this contract in accordance with the laws of the State of Texas. XXVII RELATIONSHIP OF PARTIES Nothing contained in this contract shall be deemed or construed by the parties hereto or any other third party to create the relationship of principal and agent, partnership,joint venture, or of any other association whatsoever between the parties, it being expressly understood and agreed that no provision contained in this contract nor any act or acts of the parties hereto shall be deemed to create any relationship between the parties other than the relationship of BCRUA and Depository Bank as those terms are understood herein. Executed in multiple originals on this the Zeday of the month of , 2009, by the undersigned duly authorized officers of the parties hereto. FOR BCRUA FOR DEPOSITORY BANK By: By: Printed N Printed Name: Title: Title: Date Signed: Date Signed: FOR BCRUA,ATTEST: B d Secretary 9 Attachments: Exhibit "A": Bank of America Deposit Agreement and Disclosures Exhibit`B": Tri-Party Collateral Management Agreement Exhibit"C": Treasury Services Terms and Conditions Exhibit"D": Bank of America Account Analysis Price Schedule Exhibit "E": Bank of America Safekeeping Terms and Conditions 10 DATE: May 15, 2009 SUBJECT: BCRUA Board Meeting— May 20, 2009 ITEM: 8B. Consider a resolution authorizing the President to execute a contract with the Bank of America, N.A. for depository& banking services. PRESENTER: Cindy Demers, Assistant City Manager, City of Round Rock Justification/Background: This agreement sets forth the terms of the contract for banking and depository services with Bank of America.