HomeMy WebLinkAboutC-7444-10 - Escrow Agreement (for Central Library Lecture Hall Building)1J
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T
r BNNY MELLON
V
ESCROW AGREEMENT
among
Newport Beach Public Library Foundation
and
City of Newport Beach
and
THE BANK OF NEW YORK MELLON, as Escrow Agent
dated as of January �j„ 2024
ESCROW ACCOUNT NUMBER(S)
TITLE OF ACCOUNT: Newport Beach Public Library Fdn Es
ESCROW AGREEMENT dated as of January, 2024 (the "Escrow Agreement'), by and among THE
BANK OF NEW YORK MELLON, a New York banking corporation (the "Escrow Agent'), Newport Beach Public
Library Foundation ( the "Depositor") and the City of Newport Beach ( "Par B"; the Depositor and Party B are
also individually herein referred to as an "Interested Panty" and collectively as the "Interested Parties").
PRELIMINARY STATEMENTS:
WHEREAS, the Interested Parties have entered into that certain Memorandum of Understanding Between
the City of Newport Beach and the Newport Beach Public Library Foundation related to Fundraising for the Lecture
Hall Project dated as of November 30, 2021, as amended by First Amendment thereto dated as of September 12,
2022, Second Amendment thereto dated as of November 15, 2022, and Third Amendment thereto dated as of
Januaryq , 2024 (the "IJnderlyiing Agreement') pursuant to which Depositor agrees to fundraise and pay for a
portion of the Lecture Hall subject to Party B obtaining the necessary permits, preparation of construction drawings,
award of construction contract and paying for the remaining cost of construction of the Lecture Hall;
WHEREAS, the Underlying Agreement contemplates that Depositor will cause to be deposited into escrow
a minimum of Seven -Million One -Hundred -Thousand -Dollars $7,100,000.00 (the `Escrow Amount");
WHEREAS, a copy of the Underlying Agreement has been delivered to the Escrow Agent;
WHEREAS, the Escrow Agent is willing to act as the Escrow Agent hereunder, and to hold the Escrow
Amount in non -interest -bearing account no. 789533 title: Newport Beach Public Library Fdn Es;
NOW, THEREFORE, in consideration of the foregoing and of the mutual agreements contained herein, and
intending to be legally bound hereby, the Interested Parties hereby appoint the Escrow Agent to act as, and the
Escrow Agent hereby agrees to act as, escrow agent hereunder and to hold and distribute Escrow Property (as
defined herein) in accordance with and subject to the following Instructions and Terms and Conditions, and the
parties hereby agree as follows:
I, INSTRUCTIONS:
1. Escrow Property. The Depositor shall deliver the Escrow Amount to the Escrow Agent [time] [by wire
transfer of immediately available funds to the Escrow Account]. The Escrow Amount, plus all interest, and other
distributions, payments and earnings thereon and proceeds thereof (collectively the "Distributions") received by The
Escrow Agent, less any property and/or funds distributed or paid in accordance with this Escrow Agreement, are
collectively referred to herein as "Escrow Property," and shall be held by the Escrow Agent in escrow and disbursed
in accordance with the terms and provisions of this Escrow Agreement.
2. Investment and Reinvestment of Escrow Property. During the term of this Escrow Agreement, the
Escrow Property shall not be invested and reinvested by the Escrow Agent.
3. Distribution of Escrow Property. The Escrow Agent is directed to hold and distribute the Escrow
Property to Party B in the following manner:
Upon Party B delivering written notice (substantially in the form of Exhibit A) to the Escrow Agent that Party B has
executed a construction agreement for construction of the Lecture Hall. The Escrow Agent shall be entitled to fully
rely on such written notice.
Any payments will be made by the Escrow Agent within three (3) Business Days (as defined in Section 6 in Article
11— Terms and Conditions) after the Escrow Agent verifies the payments instructions in accordance with the
procedure set forth on Schedule IL
4. Authorized Persons. Each of the Interested Parties shall, on the date of this Escrow Agreement,
deliver to the other parties a certificate in the form of Schedule I hereto as to the incumbency and specimen
signature of at least two (2) officers or other representatives of such party authorized to act for and give and receive
notices, requests and instructions on behalf of such party in connection with this Escrow Agreement (each such
officer or other representative, an "Authorized Person").
5. Email Instructions. Each of the Interested Parties hereby provides to the Escrow Agent and agrees
with and accepts the authorizations, limitations of liability, indemnities, security procedure and other provisions set
forth on Schedule H hereto in connection with the Escrow Agent's reliance upon and compliance with instructions
and directions sent by such parties via e-mail, secure electronic transmission containing applicable authorization
codes, passwords and/or authentication keys issued by the Escrow Agent (a "Secure Platform"), or another method
or system specified by the Escrow Agent as available for use in connection with its services hereunder (collectively,
"Electronic Means").
6. Addresses. Notices, instructions and other communications shall be sent to the Escrow Agent at The
Bank of New York Mellon, Corporate Trust Administration, 240 Greenwich Street 7E, New York, New York
10286, Attn.: Sandra E. Graham, Escrow Unit, Phone: 212-298-1303 (T); Facsimile No, 1, 866.946.1698
, and to the Interested Parties as follows:
If to Depositor:
Attn: Jerold D. Kappel
Newport Beach Public Library Foundation
1000 Avocado Avenue
Newport Beach, CA 92660
Email: jkappel@newportbeachca.gov
Phone: 949-717-3890
If to Party B:
Attn: City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
Email: gleung@newportbeachca.gov
Phone: 949-644-3001
7. Termination. This Escrow Agreement shall terminate upon the distribution or disbursement by the
Escrow Agent of all Escrow Property in accordance with the terms hereof.
8. Compensation. (a) In respect of the Escrow Agent's services hereunder, the Interested Parties shall be
jointly and severally obligated to pay the Escrow Agent the fees, expenses, charges and other amounts as set forth on
the attached Schedule III.
(b) The Interested Parties shall be jointly and severally responsible for and shall reimburse the Escrow
Agent upon demand for all expenses, disbursements and advances incurred or made by the Escrow Agent in
connection with this Escrow Agreement, including, without limitation, the costs, expenses and disbursements of
legal counsel for the Escrow Agent.
II. TERMS AND CONDITIONS:
1. Escrow Agent's Duties. The duties, responsibilities and obligations of the Escrow Agent shall be limited to those
expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. The Escrow
Agent shall not be subject to, nor required to comply with, nor required to inquire as to the performance of any
obligation under, any other agreement between or among the Interested Parties (including the Underlying
Agreement) or to which any Interested Party is a party, even though reference thereto may be made herein, or to
comply with any direction or instruction (other than those contained herein or delivered in accordance with this
Escrow Agreement) from any Interested Party or any entity acting on its behalf. The Escrow Agent shall not be
required to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder.
2. Agreement for Benefit of Parties. This Escrow Agreement is for the exclusive benefit of the parties hereto and
their respective successors hereunder, and shall not be deemed to give, either express or implied, any legal or
equitable right, remedy, or claim to any other entity or person whatsoever.
3. Escrow Agent's Reliance on Orders, Etc. If at any time the Escrow Agent is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way
affects Escrow Property (including, but not limited to, orders of attachment or garnishment or other forms of levies
or injunctions or stays relating to the transfer of Escrow Property), the Escrow Agent is authorized to comply
therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if the Escrow Agent
complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or
administrative process, the Escrow Agent shall not be liable to any of the parties hereto or to any other person or
entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or
otherwise determined to have been without legal force or effect.
4. The Escrow Agent.
(a) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its
actions or its performance or lack of performance of its duties hereunder in the absence of negligence or willful
misconduct on its part. In no event shall the Escrow Agent be liable (i) for acting in accordance with or relying
upon (and shall be fully protected in relying upon) any instruction, notice, demand, certificate or document from any
Interested Party, any entity acting on behalf of any Interested Party or any other person or entity which it reasonably
believes to be genuine, (ii) for any indirect, consequential, punitive or special damages, even if advised of the
possibility thereof, or (iii) for an amount in excess of the value of the Escrow Property.
(b) As security for the due and punctual performance of any and all of the Interested Parties' obligations to the
Escrow Agent hereunder, now or hereafter arising, the Interested Parties, individually and collectively, hereby
pledge, assign and grant to the Escrow Agent the right to deduct Escrow Agent's fees, expenses, charges and other
amounts as set forth on the attached Schedule III from Escrow Property.
(c) The Escrow Agent may consult with legal counsel at the expense of the Interested Parties as to any matter
relating to this Escrow Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in
accordance with any advice from such counsel.
(d) The Escrow Agent shall not be responsible or liable for any failure or delay in the performance of its obligations
under this Agreement to the extent caused, directly or indirectly, by natural disasters, fire, acts of God, strikes or
other labor disputes, work stoppages, acts of war or terrorism, general civil unrest, actual or threatened epidemics,
disease, act of any government, governmental authority or police or military authority, declared or threatened state
of emergency, legal constraint, the interruption, loss or malfunction of utilities or transportation, communications or
computer systems, or any other similar events beyond its reasonable control. The Escrow Agent will use
commercially reasonable efforts to minimize the effect of any such events.
6. Statements, The Escrow Agent shall provide to the Interested Parties statements (not less frequently than
monthly) reflecting activity in the Escrow Account for the preceding period. No statement need be provided for
periods in which no Escrow Account activity occurred. Each such statement shall be deemed to be correct and final
upon receipt thereof by the Interested Parties unless the Escrow Agent is notified in writing to the contrary within
thirty (30) Business Days of the date of such statement. A "Business Day" shall mean any day on which the
Escrow Agent is open for business.
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7. Limitation of Escrow Agent's Responsibility. The Escrow Agent shall not be responsible in any respect for the
form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any
description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute
or deliver any such document, security or endorsement.
8. Notices, Notices, instructions or other communications shall be in writing and shall be given to the address set
forth in the "Addresses" provision herein (or to such other address as may be substituted therefor by written
notification to the other parties). Notices to the Escrow Agent shall be deemed to be given when actually received
by the Escrow Agent's Escrow Unit. The Escrow Agent is authorized to comply with and rely upon any notices,
instructions or other communications believed by it to have been sent or given by an Interested Party or by a person
or persons authorized by an Interested Party, including persons identified on Authorized Persons schedules delivered
pursuant to Section 4 of the Instructions. Whenever under the terms hereof the time for giving a notice or
performing an act falls upon a Saturday, Sunday, or banking holiday, such time shall be extended to the next day on
which the Escrow Agent is open for business.
9. Indemnity, The Interested Parties, jointly and severally, shall be liable for and shall reimburse and indemnify the
Escrow Agent and hold the Escrow Agent and its affiliates, and the Escrow Agent's and such affiliates' respective
directors, officers, employees, agents, successors and assigns, harmless from and against any and all claims, losses,
Iiabilities, costs, disbursements, damages or expenses (including reasonable attorneys' fees and expenses and court
costs) (collectively, "Losses") arising from or in connection with or related to this Escrow Agreement or being the
Escrow Agent hereunder (including but not limited to Losses incurred by the Escrow Agent in connection with its
successful defense, in whole or in part, of any claim of gross negligence or willful misconduct on its part), provided,
however, that nothing contained herein shall require the Escrow Agent to be indemnified for Losses caused by its
negligence or willful misconduct.
10. Removal and Resignation of Escrow Agent: Successor Escrow Agent.
(a) The Interested Parties may remove the Escrow Agent at any time by giving to the Escrow Agent five (5)
calendar days' prior notice in writing signed by the Interested Parties. The Escrow Agent may resign at any time by
giving thirty (30) calendar days' prior written notice thereof.
(b) Within five (5) calendar days after giving the foregoing notice of removal to the Escrow Agent or receiving the
foregoing notice of resignation from the Escrow Agent, the Interested Parties shall jointly agree on and appoint a
successor Escrow Agent. If a successor Escrow Agent has not accepted such appointment by the end of such five
(5) day period, the Escrow Agent may, in its sole discretion, deliver the Escrow Property to Depositor at the address
provided herein.
11. Escrow Agent's Obligations in the Event of Ambiguities. Conflicting Claims, Etc.
(a) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication
received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any
action other than retain possession of the Escrow Property, unless and until the Escrow Agent receives written
instructions, signed by the Interested Parties, which eliminates such ambiguity or uncertainty.
(b) In the event of any dispute between or conflicting claims by or among the Interested Parties and/or any other
person or entity with respect to any Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to
refuse to comply with any and all claims, demands or instructions with respect to such Escrow Property so long as
such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to any
Interested Party for failure or refasal to comply with such conflicting claims, demands or instructions. The Escrow
Agent shall be entitled to refuse to act until it receives written notice from the Interested Parties that the dispute is
resolved.
12. Governing Law, Jurisdiction, Waiver of Right to Trial by Jury. This Escrow Agreement shall be interpreted,
construed, enforced and administered in accordance with the internal substantive laws (and not the choice of law
rides) of the State of California. Each Interested Party hereby submits to the personal jurisdiction of and each agrees
that all proceedings relating hereto shall be brought in courts located within the State of California, County of
Orange. Each Interested Party hereby waives the right to trial by jury and to assert counterclaims in any such
proceedings. To the extent that in any jurisdiction any Interested Party may be entitled to claim, for itself or its
assets, immunity from suit, execution, attachment (whether before or after judgment) or other legal process, each
such party hereby irrevocably agrees not to claim, and hereby waives, such immunity. Each Interested Party waives
personal service of process and consents to service of process by certified or registered mail, return receipt
requested, directed to it at the address last specified for notices hereunder, and such service shall be deemed
completed ten (10) calendar days after the same is so mailed.
13. Amendments, Etc. Except as otherwise permitted herein, this Escrow Agreement may be modified only by a
written amendment signed by all the parties hereto, and no waiver of any provision hereof shall be effective unless
expressed in a writing signed by the party to be charged.
14. Remedies Cumulative. The rights and remedies conferred upon the parties hereto shall be cumulative, and the
exercise or waiver of any such right or remedy shall not preclude or inhibit the exercise of any additional rights or
remedies. The waiver of any right or remedy hereunder shall not preclude the subsequent exercise of such right or
remedy.
15. Representations and Warranties. (a) Each of the Interested Parties represents and warrants (a) that this Escrow
Agreement has been duly authorized, executed and delivered on its behalf and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other debtor relief laws and that certain equitable remedies
may not be available regardless of whether enforcement is sought in equity or at law, and (b) that the execution,
delivery and performance of this Escrow Agreement by it do not and will not violate any applicable law or
regulation.
(b) Each of the Interested Parties covenants and represents that neither it nor any of its affiliates,
subsidiaries, directors or officers are the target or subject of any sanctions enforced by the US Government,
(including, the Office of Foreign Assets Control of the US Department of the Treasury ("OFAC")), the United
Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively
"Sanctions").
(c) Each of the Interested Parties covenants and represents that neither it nor any of its affiliates,
subsidiaries, directors or officers will use any payments made pursuant to this Escrow Agreement, (i) to fund or
facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject
or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the
target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
16. Illegality, Etc. The invalidity, illegality or unenforceability of any provision of this Escrow Agreement shall in
no way affect the validity, legality or enforceability of any other provision; and if any provision is held to be
unenforceable as a matter of law, the other provisions shall not be affected thereby and shall remain in full force and
effect.
17, Entire Agreement. This Escrow Agreement shall constitute the entire agreement of the parties with respect to
the subject matter and supersedes all prior oral or written agreements in regard thereto.
18. Survival of Certain Provisions. Section 8 of the Instructions and Sections 8-9,12 and 21-22 of the Terms and
Conditions of this Escrow Agreement shall survive termination of this Escrow Agreement and/or the resignation or
removal of the Escrow Agent.
19. Headinus. The headings contained in this Escrow Agreement are for convenience of reference only and shall
have no effect on the interpretation or operation hereof.
20. Counterparts. This Escrow Agreement may be executed by each of the parties hereto in any number of
counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all
such counterparts shall together constitute one and the same agreement.
21. Certain Tax Matters. Except as provided in paragraph 4(b) of the Terms and Conditions above, the Escrow
Agent does not have any interest in the Escrowed Property but is serving as escrow holder only and having only
possession thereof. The Interested Parties shall jointly and severally be obligated to and shall pay or reimburse the
Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrowed Property incurred in
connection herewith and shall jointly and severally indemnify and hold harmless the Escrow Agent for any amounts
that it is obligated to pay in the way of such taxes. Any payments of income from this Escrow Account shall be
subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide
the Escrow Agent with appropriate W-9 forms for tax I.D., number certifications, or W-S forms for non-resident
alien certifications, and will inform the Escrow Agent as to the proper allocation of income in respect of the Escrow
Property for annual and periodic tax and other reporting purposes. It is understood that the Escrow Agent shall be
responsible for income reporting only with respect to income earned on investment of funds which are a part of the
Escrowed Properly and is not responsible for any other reporting.
22. Patriot Act Compliance, Etc. In order to comply with laws, rules, regulations and executive orders in effect
from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and
money laundering and the Customer Identification Program ("CIP") requirements under the USA PATRIOT Act
and its implementing regulations, pursuant to which the Escrow Agent must obtain, verify and record information
that allows the Escrow Agent to identify customers ("Applicable Law"), the Escrow Agent is required to obtain,
verify and record certain information relating to individuals and entities which maintain a business relationship with
the Escrow Agent. Accordingly, each Interested Party agrees to provide to the Escrow Agent upon its request from
time to time such identifying information and documentation as may be available for such party in order to enable
the Escrow Agent to comply with Applicable Law, including, but not limited to, information as to name, physical
address, tax identification number and other information that will help the Escrow Agent to identify and verify such
Interested Party such as organizational documents, certificates of good standing, licenses to do business or other
pertinent identifying information. Each Interested Party understands and agrees that the Escrow Agent cannot open
the Escrow Account unless and until the Escrow Agent verifies the identities of the Interested Parties in accordance
with its CIP.
24. Information Sharine. The Bank of New York Mellon Corporation is a global financial organization that operates
in and provides services and products to clients through its affiliates and subsidiaries located in multiple jurisdictions
(the "BNY Mellon Group"). The BNY Mellon Group may (i) centralize in one or more affiliates and subsidiaries
certain activities (the "Centralized Functions"), including audit, accounting, administration, risk management, legal,
compliance, sales, product communication, relationship management, and the compilation and analysis of information
and data regarding the Interested Parties (which, for purposes of this provision, includes the name and business contact
information for the Interested Parties employees and representatives) and the accounts established pursuant to this
Escrow Agreement ("Interested Parties Information") and (ii) use third party service providers to store, maintain and
process the Interested Parties Information ("Outsourced Functions"). Notwithstanding anything to the contrary
contained elsewhere in this Escrow Agreement and solely in connection with the Centralized Functions and/or
Outsourced Functions, the Interested Parties consent to the disclosure of, and authorize BNY Mellon to disclose, the
Interested Parties Information to (i) other members of the BNY Mellon Group (and their respective officers, directors
and employees) and to (ii) third -party service providers (but solely in connection with Outsourced Functions) who are
required to maintain the confidentiality of the Interested Parties Information. In addition, the BNY Mellon Group
may aggregate the Interested Parties Information with other data collected and/or calculated by the BNY Mellon
Group, and the BNY Mellon Group will own all such aggregated data, provided that the BNY Mellon Group shall not
distribute the aggregated data in a format that identifies the Interested Parties Information with the Interested Parties
specifically. The Interested Parties represent that the Interested Parties are authorized to consent to the foregoing and
that the disclosure of the Interested Parties Information in connection with the Centralized Functions and/or
Outsourced Functions does not violate any relevant data protection legislation. The Interested Parties also consent to
the disclosure of the Interested Parties Information to governmental and regulatory authorities in jurisdictions where
the BNY Mellon Group operates and otherwise as required by law.
25. Successors and Assigns of Escrow Agent. Any corporation or other company into which the Escrow Agent may
be merged or converted or with which it may be consolidated, or any corporation or other company resulting from
any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any corporation or other
company succeeding to the business of the Escrow Agent shall be the successor of the Escrow Agent hereunder
without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties
hereto, except where an instrument of transfer or assignment is required by law to effect such succession, anything
herein to the contrary notwithstanding.
IN WITNESS WI-IEREOF, each of the parties has caused this Escrow Agreement to be executed by a duly
authorized officer as of the day and year first written above.
Newport Beach Public Library Foundation, as Depositor
By
Nat
le: L' GAD
City of Newport Beach, as Party B p
By:mL ,�.�
Iii e: (yrrace �-e—
Title: C (t 1 MC1 v��ute/
APPROVED AS TO FORM:
CITY ATCORNFY'S OFFICE
Date: I I it I
By:
Aaro rp, Uty Attorney wu
THE BANK OF NEW YORK MELLON, as Escrow Agent
Digitally signed by Glenn G.
McKeever
Date: 2024.01.16 08:28:58
By:-05'00'
Name: Glenn G. McKeever
Title: Vice President
i
Attest wciPO
Leilani 1. Brown, MMC City Clerk
Date: �I C, - P
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Schedule I
Authorized Officers of Depositor
Name Signature Phone Number
t 4-y,y\, rU�%
Authorized Officers of Party B
Name Signature Phone Number
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Schedule II
ELECTRONIC METHODS AUTHORIZATION, LIMITATION OF LIABILITY AND INDEMNITY
Interested Party Authorization, Limitation of Liability and Indemnity. Each Interested Party hereby
authorizes the Escrow Agent and its affiliates (the "Bank") to rely upon and comply with instructions and directions
sent by it via Electronic Means by persons believed by the Bank to be authorized to give instructions and directions
on behalf of the Interested Party. Except as set forth below with respect to funds transfers, the Bank shall have no
duty or obligation to verify or confirm that the person who sent such instructions or directions is, in fact, a person
authorized to give instructions or directions on behalf of the Interested Party (other than to verify that the signature
on a facsimile is the signature of a person authorized to give instructions and directions on behalf of the Interested
Party); and the Bank shall have no liability for any losses, liabilities, costs or expenses incurred or sustained by the
relevant Interested Party as a result of such reliance upon or compliance with such instructions or directions. Each
Interested Party agrees to assume all risks arising out of the use of Electronic Means to submit instructions and
directions to the Bank, including without limitation the risk of the Bank acting on unauthorized instructions, and the
risk of interception and misuse by third parties.
If an Interested Party elects to give the Escrow Agent instructions and directions using Electronic Means
and the Escrow Agent in its discretion elects to act upon such instructions or directions, the Escrow Agent's
understanding of such instructions and directions shall be deemed controlling. Each of the Interest Parties
understand and agree that the Escrow Agent cannot determine the identity of the actual sender of such instructions
and directions and that the Escrow Agent shall conclusively presume that directions that purport to have been sent
by an Authorized Person listed on the incumbency certificate provided to the Escrow Agent have been sent by such
Authorized Person. Each of the Interested Parties shall be responsible for ensuring that only Authorized Persons
transmit such instructions and directions to the Escrow Agent and that each of the Interested Parties and all
Authorized Persons are solely responsible to safeguard the use and confidentiality of applicable user and
authorization codes, passwords and/or authentication keys upon receipt by the Interested Parties. The Escrow Agent
shall not be liable for any losses, costs or expenses arising directly or indirectly from the Escrow Agent's reliance
upon and compliance with such instructions and directions notwithstanding such directions conflict or are
inconsistent with a subsequent written instruction.
Each of the Interested Parties agrees: (i) that it is fully informed of the protections and risks associated with
the various methods of transmitting instructions and directions to the Escrow Agent and that there may be more
secure methods of transmitting instructions and directions than the method(s) selected by the Interested Parties; (ii)
that the security procedures (if any) to be followed in connection with its transmission of instructions and directions
provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and
(iii) to notify the Escrow Agent immediately upon learning of any compromise or unauthorized use of the security
procedures,
Funds Transfer Security Procedures. With respect to any "funds transfer," as defined in Article 4-A of
the Uniform Commercial Code, the following security procedure will apply unless an Interested Party utilizes a
Secure Platform to send instructions and directions to the Escrow Agent or an alternative authentication method has
been selected by the relevant Interested Party: An Interested Parry's payment instruction is to include the name and
(in the case of a facsimile) signature of the person initiating the funds transfer request. If the name is listed as an
Authorized Person on a certificate in the form of Schedule I hereto delivered pursuant to the Agreement, the Bank
will confirm the instructions by telephone call to any person listed as an Authorized Person, who may be the same
person who initiated the instruction. When calling back, the Bank will request from the relevant Interested Parry's
staff member his or her name. If the name is listed in the Escrow Agent's records as an Authorized Person, the
Bank will confirm the instructions with respect to amount, names and numbers of accounts to be charged or credited
and other relevant reference information. Where the Agreement contemplates joint payment instructions from the
interested parties, the Escrow Agent shall call back both the Depositor and Party B. Each Interested Party
acknowledges that the Bank has offered such Interested Party other security procedures that are more secure and are
commercially reasonable for such Interested Party, and that such Interested Party has nonetheless chosen the
procedures described in this paragraph. Each Interested Party agrees to be bound by any payment order issued in its
name, whether or not authorized, that is accepted by the Bank in accordance with the above procedures. When
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instructed to credit or pay a party by both name and a unique numeric or alpha -numeric identifier (e.g. ABA number
or account number), the Bank, and any other bank participating in the funds transfer, may rely solely on the unique
identifier, even if it identifies a party different than the party named. This applies to beneficiaries as well as any
intermediary bank. Each Interested Party agrees to be bound by the rules of any funds transfer network used in
connection with any payment order accepted by the Bank hereunder. The Escrow Agent shall not be obliged to
make any payment or otherwise to act on any instruction notified to it under this Escrow Agreement if it is unable to
validate the authenticity of the request by telephoning an Authorized Person who has not executed the relevant
request or instruction of the relevant Interested Party. Payment or otherwise to act on any instruction by Authorized
Person of the relevant Interested Party will be made by the Escrow Agent within three (3) Business Days (as defined
in Section 6) after Escrow Agent's verification of instructions as set forth above.
Authorization. This authorization shall remain in full force and effect until the earlier of termination of
this Escrow Agreement or the slate it is canceled, revoked or amended by written notice received by the Escrow
Agent; and replaces and supersedes any previous authorization from an Interested Party to the Bank relating to the
giving of instructions by Electronic Means in relation to this Escrow Agreement, and is in addition to all other
authorizations. Notwithstanding any revocation, cancellation or amendment of tivs authorization, any action taken
by the Bank pursuant to this authorization prior to the Bank's actual receipt and acknowledgement of a notice of
revocation, cancellation or amendment shall not be affected by such notice.
Indemnity. Each Interested Party agrees to indemnify and hold harmless the Bank against any and all
claims, losses, damages liabilities, judgments, costs and expenses (including reasonable attorneys' fees)
(collectively, "Losses") incurred or sustained by the Bank as a result of or in connection with the Bank's reliance
upon and compliance with instructions or directions given by such Interested Party by Electronic Means, provided,
however, that such Losses have not arisen from the negligence or willful misconduct of the Bank, it being
understood that the failure of the Bank to verify or confirm that the person giving the instructions or directions, is, in
fact, an Authorized Person does not constitute gross negligence or willful misconduct.
Representation. Each Interested Party hereby represents and warrants to the Bank that this authorization
is properly given and has been duly approved by a resolution of its Board of Directors.
12
Schedule III
(See Attached Fee Schedule)
13
Newport Beach Public library Foundation
City of Newport Beach
Escrow Agreements
Fee Schedule
December 19, 2023
The Bank of New York Mellon
Fee Schedule for City of Newport Beach
Fee Schedule
Subject to the Terms and Disclosures - General below, upon appointment of The Bank of New York Mellon ("BNYM" or "us" or
"affiliates" or "subsidiaries") in the roles as outlined within this Fee Schedule (this "Fee Schedule"), Escrow Parties ("you"}
shall be responsible for the payment of the fees, expenses and charges as set forth in this Fee Schedule.
General Fees
The Transaction Acceptance Fee is payable at the time of the execution of the governing documents (the "Transaction
Documents") in connection with the closing of the transaction which Is the subject of this Fee Schedule (the "Transaction"), and
compensates BNYM for the following: review of all supporting documents, initial establishment of the required accounts and Know
Your Customer checks,
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4
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This annual fee is payable at closing and on each anniversary thereafter.
Activity Fees
These fees are payable
With respect to investments In money market mutual funds for which BNY Mellon provides shareholder services BNYM (or its
affiliates) may also receive and retain additional fees from the mutual funds (or their affiliates) for shareholder services as set forth
in the Authorization and Direction to BNY Mellon to invest Cash Balances in Money Market Mutual Funds.
BNY Mellon will charge a $25 transaction fee for each purchase, sale, or redemption of securities other than the aforementioned
Money Market Mutual Funds,
Other Fees
External Counsel Fees
Fees quoted in this Fee Schedule do not include our external legal counsel fees, expenses and disbursements. If external legal
counsel. is retained by BNYM, a bill for the fees, expenses and disbursements of such external legal counsel will be sent to you.
You will be billed for the actual amount of the fees, expenses and disbursements charged by external legal counsel for its services
plus any applicable taxes, and such amount will be payable upon the closing of the Transaction. In the event that the Transaction
Is terminated prior to closing, you will remain responsible for the payment of external counsel fees, expenses and disbursements
incurred up to and including the termination date.
Out -of -Pocket Expenses
Fees quoted in this Fee Schedule are solely for the provision of the services listed in this Fee Schedule, and any out-of-pocket
expenses are payable in addition to the fees quoted in this Fee Schedule. Out-of-pocket expenses may include, but are not limited
to, courier, copying and statutory filing charges, any costs incurred in the publication of any notices or the holding and attending of
any Investor meetings, expense and Increased costs of providing the services arising as a result of or incidental to a change in law
or regulation, continuations, termination fees, FDIC or other government charges and expenses of BNYM's representative(s) and
external counsel for attending meetings, Reimbursement will be required for any out-of-pocket expenses and will be charged to
you at the actual cost to BNYM plus any applicable taxes.
P a g e 2 o f 4
PRIVATE AND CONFIDENTIAL.
The Information contained within this Fee Schedule Is tho proprietary informatlon of The Bank of New York Mellon and is confidential. This document, either
In whole or in part, must not be reproduced or disclosed to others or used for purposes other than that for which it has been supplied without the prior written
permission of The Bank of Now York Mellon. Client shall not use BNY Mellon's name ortrademarks without its prior written permission.
The Bank of New York Mellon
Fee Schedule for City of Newport Beach
Advance Fees
BNYM requires that you agree to the fees quoted in this Fee Schedule prior to the commencement of any work or the provision of
any services by BNYM in relation to the Transaction. In the event that BNYM provides any services to you prior to your agreement to
the fees quoted herein, the commencement of such work or the provision of such services shall not be deemed to constitute a waiver
of the fees listed in this Fee Schedule, BNYM reserves the right to cease providing services until such time as you agree to the fees
quoted herein. BNYM reserves the right to request that any and all fees due and payable pursuant to this Fee Schedule and related
in any way to the Transaction are paid In advance (either in whole or in part) prior to the provision of any services.
Miscellaneous Services
Additional fees will be charged for performing any services not expressly listed in this Fee Schedule ("Extraordinary Services"). Any
additional fees will be as determined by BNYM with prior written notice to you and will correspond to the Extraordinary Services
provided. Such Extraordinary Services include, but are not limited to, any amendments or proposed amendments to the Transaction
Documents (whether such amendments are agreed or not), program updates, extensions, waivers, any technology builds,
modifications and the preparation of special or interim reports which BNYM must submit to security holders or other third parties.
BNYM may charge an investment maintenance fee with respect to investments under the governing documents, calculated
at an annual rate up to basis points on average total monthly account balances. Additional fees will also be charged by BNYM
for any additional roles that BNYM may be requested to perform or any extension to the roles and assumptions listed in this Fee
Schedule. Please refer to your Relationship Manager for details. No additional fees should be charged to the company without prior
written notice being delivered to you.
Default Administration (if applicable)
If an event of default occurs under the Transaction Documents, the services of each employee of BNYM administering such default
will be charged at the prevailing hourly rate for default administration services as set out from time to time with prior written notice to
you. In addition, all of BNYM's costs and expenses including but not limited to any legal costs, travel costs and applicable taxes shall
be charged to you in accordance with the Transaction Documents.
Negative interest Rates — Charges
With respect to any funds Invested by BNYM In connection with the Transaction, If: (1) any recognized overnight benchmark rate or
any official overnight interest rate set by a central bank or other monetary authority is negative or zero; or (ii) any market counterparty
or other institution applies a negative interest rate or any related charge to any account or balance of BNYM or any account or balance
opened for You by BNYM, BNYM may apply a charge to any of Your accounts or balances, BNYM will give You prompt written notice
of the application of any such charges. You acknowledge and agree that the application of such a charge by BNYM may cause the
effective interest rate applicable to Your account or balance to be negative, notwithstanding that one or more of the rates set by third
parties specified in clauses (1) and (ii) above may be positive.
Terms and Disclosures
General
BNYM's final acceptance of its appointment pursuant to the Transaction Documents is subject to the full review and approval of all
related documentation, financials and standard Know Your Customer procedures. In the event that this Transaction does not proceed
with BNYM in the roles contemplated by this Fee Schedule and the Transaction Documents, you will be responsible for payment of
any external counsel fees and expenses and Out-of-pocket expenses which BNYM may have incurred up to and including the
termination date.
Please note the fees quoted in this Fee Schedule are based upon the information available at the present time. Further quotes may
be provided once the structure of the deal has been finalized. Annual Fees cover a period of one year and any portion thereof and
are not subject to pro -ration.
Acceptance/Revocation of Offer
You may agree to the fees quoted herein by (1) executing this Fee Schedule and returning it to us, (ii) closing the Transaction, or (III)
instructing us or continuing to instruct us after receipt of this Fee Schedule. Upon the earlier to occur of (1), (h) and (iii), the fees
quoted herein shall be deemed accepted by you. If you agree to the fees quoted herein, the terms of this Fee Schedule shall
supersede any prior fees quoted with respect to the Transaction. BNYM may revoke the terms of this Fee Schedule if the Transaction
does not close within three months from the date of this Fee Schedule. Should the Transaction fail to close for any reason, a
termination fee equal to BNYM's Acceptance Fee, any external counsel fees, expenses and disbursements and all out-of-pocket
expenses will apply.
Confidential Information '
All Information provided to you by BNYM must remain confidential and may not be intentionally disclosed, reproduced, copied,
published, or displayed in any form to any third party without BNYM's prior written approval.
Page 3 of 4
PRIVATE AND CONFIDENTIAL.
The Information contained within this Fee schedule Is the proprietary Information or The Bank of New York Mellon and is confidential. This document, either
In whole or in part, must not be reproduced or disclosed to others or used for purposes other than that for which it has been supplied without the prior written
parmission of The Bank of New York Mellon. Client shall not use BNY Mellon's name or trademarks without its prior written permission.
The Bank of New York Mellon
Fee Schedule for City of Newport Beach
OFAC Sanctions
Client covenants and represents that neither it nor any of its subsidiaries, directors or officers are the target or subject of any sanctions
enforced by the US Government, (including, without limitation, the Office of Foreign Assets Control of the US Department of the
Treasury ("OFAC") or the US Department of State), the United Nations Security Council, the European Union, Her Majesty's Treasury,
or other relevant sanctions authority (collectively "Sanctions").
Client covenants and represents that neither it nor any of its subsidiaries, directors or officers will use any repayments/reimbursements
made pursuant the Transaction Documents, (i) to fund or facilitate any activities of or business with any person who, at the time of
such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country
or territory that is the target or subject of Sanctions, or (III) In any other manner that will result in a violation of Sanctions by any person.
Miscellaneous
You shall be responsible for filing any applicable information returns with the U.S. Department of Treasury, Internal Revenue Service
in connection with payments made by BNYM to vendors who have not performed services for BNYM's benefit under the various bond
or note issuances or other undertakings contemplated by this Fee Schedule.
The Bank of New York Mellon Corporation is a global financial organization that operates in and provides services and products to
clients through Its affiliates and subsidiaries located in multiple jurisdictions (the "BNY Mellon Group"). The BNY Mellon Group may
(i) centralize in one or more affiliates and subsidiaries certain activities (the "Centralized Functions"), including audit, accounting,
administration, risk management, legal, compliance, sales, product communication, relationship management, and the compilation
and analysis of information and data regarding You (which, for purposes of this provision, includes the name and business contact
information for Your employees and representatives) and the accounts established pursuant to the Transaction Documents ("Your
Information") and (ii) use third party service providers to store, maintain and process Your Information ("Outsourced Functions").
Notwithstanding anything to the contrary contained elsewhere in this Fee Schedule or the Transaction Documents and solely in
connection with the Centralized Functions and/or Outsourced Functions, You consent to the disclosure of, and authorize BNY Mellon
to disclose, Your Information to (1) other members of the BNY Mellon Group (and their respective officers, directors and employees)
and to (ii) third -party service providers (but solely in connection with Outsourced Functions) who are required to maintain the
confidentiality of Your Information. In addition, the BNY Mellon Group may aggregate Your Information with other data collected
and/or calculated by the BNY Mellon Group, and the BNY Mellon Group will own all such aggregated data, provided that the BNY
Mellon Group shall not distribute the aggregated data in a format that identifies Your Information with You specifically. You represent
that You are authorized to consent to the foregoing and that the disclosure of Your Information in connection with the Centralized
Functions and/or Outsourced Functions does not violate any relevant data protection legislation. You also consent to the disclosure
of Your Information to governmental and regulatory authorities in jurisdictions where the BNY Mellon Group operates and otherwise
as required by law.
Customer Notice Required By the USA Patriot Act
To help the U.S. government fight the funding of terrorism and money laundering activities, US Federal law requires all financial
institutions to obtain, verify and record information that identifies each person (whether an individual or organization) for which a
relationship is established. When you establish a relationship with BNYM, we will ask you to provide certain information (and
documents) that will help us to identify you. We will ask for your organization's name, physical address, tax identification or other
government registration number and other information that will help us identify you. We may also ask for a Certificate of Incorporation
or similar document or other pertinent identifying documentation for your type of organization.
Client hereby accepts and agrees to the fees and the terms and conditions set forth in this Fee Schedule.
Client Name:
By:
Name:
Title:
Date:
rint name in full)
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Dater
By:
Aaro . Harp, j y Attorney
1/tz/2`I wC-
Page 4 of 4
PRIVATE AND CONFIDENTIAL
The Information contained within this Fee Schedule is the proprietary Information of The Bank of New York Mellon and is confidential. This document, either
in whole or In part, must not be reproduced or disclosed to others or used for purposes other than that for which it has been supplied without the prior written
permission of The Bank of New York Mellon. Client shall not use BNY Mellon's name or trademarks without its prior written permission.
1 *141 MITI II_1
Written Notice
In reference to the Escrow Agreement dated as of , 202 (the
"Escrow Agreement") (terms defined in the Escrow Agreement have the same
meanings when used herein), by and among Newport Beach Public Library Foundation
(the "Depositor") and the City of Newport Beach ("Party B"), and The Bank of New York
Mellon, as escrow agent ( the "Escrow Agent"), the City of Newport Beach hereby
certifies that the City has satisfied the Release of Funds Conditions in accordance with
Section 2.4 of the Underlying Agreement and instructs you to pay the City from the
Escrow Property an amount equal to Dollars
($ ) by wire transfer of immediately available funds in accordance with
the wiring instructions below.
Escrow Account name: [ ]
Escrow account number: [ ]
Wiring Instructions [ ]:
[to be inserted]
City of Newport Beach, as Party B
By:
Name:
Title:
Dated:
14