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CUSTODIAL AGENCY AGREEMENT (2) I J CUSTODIAL AGENCY AGREEMENT WHEREAS, the City of Clearwater has engaged the services of the First National Bank of Denver, hereafter referred to as the "Investment Advisor," with the responsibility to manage a portion of the City of Clearwater Employees Pension Fund; and WHEREAS, the Trustees of the City of Clearwater Employees Pension Fund, hereafter referred to as the "Trustees," would like to appoint an Agent to perform certain services as enumerated below; and WHEREAS, the Exchange Bank and Trust Company of Florida, hereafter referred to as the "Agent," would like to provide such services to the Trustees; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Trustees and the Agent agree as follows: SECTION I: The Agent upon the written direction of the Investment Advisor shall: (a) Buy, sell, exchange, convey, transfer, or otherwise dispose of any assets in the Fund; (b) Vote upon any stocks, bonds, or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights, or other options and to make any payments incidental thereto; to consent to, or otherwise participate in, corporate reorganizations or other changes affecting corporate reorganizations or other changes affecting corporate securities and to delegate discretionary powers and pay any assessments or charges in connection therewith; and, to exercise any of the powers of an owner with respect to stocks, bonds, securities, or other property held in the Fund. (c) To purchase part interests in real property or in mortgages on real property, wherever such real property is situated, with the right to take title in its name individually, as Agent, or in the name of a nominee either alone or jointly with the holders of other part interests therein or their nominees. SECTION II The Agent in exercising the above directions may: (a) Cause the securities held by it to be registered in the name of a ; -. ,.f' , \.....' .. - 1 - .l. c"'>....J 00" '() /. I,)."~ v. (/{J) I I nominee or in the form of street certificates or in any other form, even though the same may fail to disclose the fact that the same is held in trust, and the terms upon which such property is held. (b) Accept and retain for such time as the Trustees may deem advisable any securities or other property received or acquired by the Investment Advisor hereunder, whether or not such securities or other property would normally be purchased as investments hereunder; SECTION III The Agent shall be under no duty to question any direction of the Investment Advisor, or to make any suggestions to the Investment Advisor with respect to the investment and reinvestment of any Investment Advisor Account. The Agent shall be fully protected in acting or omitting to act in accordance with, or in the absence of written directions from the Investment Advisor. The Agent shall be under no liability for any loss that may result by reason of any action taken or omitted by it in accordance with any direction of the Investment Advisor, or by reason of inaction in the absence of direction from the Investment Advisor. SECTION IV The Agent shall be empowered and authorized to use one or more short term investment vehicles, i.e., Variable Demand Notes to keep invested the idle cash balance in one thousand dollar increments until directed otherwise by the Investment Advisor. SECTION V The Agent shall: (a) Keep accurate and detailed accounts of all investments, receipts, disbursements, and other transactions hereunder. All accounts, books and records relating to such transactions with respect to the assets held in the Fund shall be open to inspection and audit at all reasonable times by any person designated by the Trustees administering such Fund. (b) Within sixty (60) days following the close of each Fiscal Year of the Fund, at such other times as the Trustee and Agent agree, and within thirty (30) days after the resignation of the Agent as provided in Section IX, the Agent shall file with the Trustee a written account setting forth all investments, receipts, disbursements and other transactions effected by it during such fiscal year or during the period from the close of the last - 2 - '. I 1 fiscal year to the date of such resignation. Upon the expiration of sixty (60) days from the date of filing such annual or other account, the Agent shall be forever released and discharged from all liability and accountability to anyone with respect to the propriety of its acts and transactions shown in such Fund except with respect to any such acts or transactions as to which the Trustee shall file with the Agent written objections within such sixty-day period. SECTION VI The Agent shall be entitled to rely upon the certification of the Trustee with respect to any instruction or direction of such Trustee and also to rely upon the certification of the Investment Advisor as to the officer allowed to sign on his behalf. The Agent shall be entitled to continue to rely upon either such certification until a subsequent certification is filed with the Agent. The Agent shall be entitled to act upon any instrument, certificate or paper believed by it to be geniune and to be signed or presented by the proper person or persons, and the Agent shall be under no duty to make any investigation or inquiry as to any statement contained in any such writing, but may accept the same as conclusive evidence of the truth and accuracy of the statements therein contained. SECTION VII Agent cannot assign this agreement without the prior consent of the Trustee. The Trustee will notify the Agent promptly should there by any change in the status of the Investment Advisor. SECTION VIII The Agent shall render, at least annually, and at other times as agreed upon by the Agent and the Trustee a report showing the performance of the Investment Advisor. The Trustee may ask the Agent to discuss such report as agreed upon between the Agent and the Trustee. SECTION IX As compensation for its services hereunder, the Bank, as Agent, shall receive fees in accordance with its schedule of fees as enumerated in Exhibit "A". All expenses of the Fund, including the Agent's compensation, all income or other taxes of any kind whatsoever which may be levied or - 3 - ~ I , assessed under existing or future laws upon or in respect to the Fund, shall be paid out of the assets of the Fund unless paid or provided for by the Trustee. The amount of the Agent's compensation, shall be a lien upon such Fund until paid. SECTION X The Agent may be removed by the Trustee at any time upon sixty (60) days written notice to the Agent. The Agent may resign at any time upon sixty (60) days written notice to the Trustee. Upon such removal or resignation of the Agent the Trustee shall appoint a successor Agent who upon acceptance of such appointment by the successor Agent, the Agent shall assign, transfer, and pay over to such successor Agent the assets then constituting the Fund. The Agent is authorized, however, to reserve such sum of money as it deems advisable, for payment of its fees and expenses in connection with the settlement of its account. Any balance of such reserve remaining after the payment of such fees and expenses shall be paid over to the successor Agent. SECTION XI In the event it becomes impossible for the Agent, Investment Advisor, or the Trustee to perform any acts required by this Agreement, then such Agent, such Investment Advisor, or the Trustee may perform such alternative act which most nearly carries out the intent and purposes of this Agreement. SECTION XII The Trustee or Agent may amend in whole or in part any provision of this agreement as mutually agreed. SECTION XIII This agreement shall be administered, construed and enforced according to the laws of the State of Florida. SECTION XIV The Agent shall not be liable for the making, retention, or sale of any investment or reinvestment made by it as herein provided, nor shall the Agent be liable for any loss to, or diminution of, the Fund, except due to its own negligence, willful misconduct, or lack of good faith. The Agent may consult with counsel, who may be counsel to the Trustee, and shall be fully protected in acting upon the advice of counsel. - 4 - I I SECTION XV Acceptance of Agreement The Agent hereby accepts the agreement and agrees to hold all of the property now or hereafter constituting the Fund hereunder subject to all of the terms and conditions of this Agreement. IN WITNESS WHEREOF, the Agent and the Trustees have executed this Agreement as of June 29, 1982, effective July 1, 1982. OF THE CITY OF CLEARWATER S ION FUND EXCHANGE BANK AND TRUST COMPANY OF FLORIDA WITNESSES: .~'~:?b. ~{lt'l'e. ;?:J2r-t;- By:i:~{/~~ Assistant Vice President and Corporate Trust Officer - 5 - ..lllIIIIIII _ ~ .r ~ I I SCHEDULE "A" Each transaction involving equities, bonds and commercial paper will incur a $25.00 fee. This account, in combination with the related custodial accounts with outside money managers, will be subject to a minimum fee of $500.00 per month. - 6 -