|
codes, passwords and /or authentication keys upon receipt by the City. The Escrow Bank shall
<br />not be liable for any losses, costs or expenses arising directly or indirectly from the Escrow
<br />Bank's reliance upon and compliance with such Instructions notwithstanding such directions
<br />conflict or are inconsistent with a subsequent written instruction. The City agrees: (i) to assume
<br />all risks arising out of the use of Electronic Means to submit Instructions to the Escrow Bank,
<br />including without limitation the risk of the Escrow Bank acting on unauthorized Instructions,
<br />and the risk of interception and misuse by third parties; (ii) that it is fully informed of the
<br />protections and risks associated with the various methods of transmitting Instructions to the
<br />Escrow Bank and that there may be more secure methods of transmitting Instructions than the
<br />method(s) selected by the City; (iii) that the security procedures (if any) to be followed in
<br />connection with its transmission of Instructions provide to it a commercially reasonable degree
<br />of protection in light of its particular needs and circumstances; and (iv) to notify the Escrow
<br />Bank immediately upon leaning of any compromise or unauthorized use of the security
<br />procedures.
<br />The City hereby assumes liability for, and hereby agrees (whether or not any of the
<br />transactions contemplated hereby are consummated), to the extent permitted by law, to
<br />indemnify, protect, save and hold harmless the Escrow Bank and its respective successors,
<br />assigns, agents, servants, employees, directors and officers from and against any and all
<br />liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and
<br />disbursements (including legal fees and disbursements) of whatsoever kind and nature which
<br />may be imposed on, incurred by, or asserted against, at any time, the Escrow Bank (whether or
<br />not also indemnified against by any other person under any other agreement or instrument)
<br />and in any way relating to or arising out of the execution and delivery of this Escrow Deposit
<br />and Trust Agreement, the establishment of the Escrow Fund, the retention of the moneys
<br />therein and any payment, transfer or other application of moneys by the Escrow Bank in
<br />accordance with the provisions of this Escrow Deposit and Trust Agreement, or as may arise
<br />by reason of any act, omission or error of the Escrow Bank made in good faith in the conduct
<br />of its duties; provided, however, that the City shall not be required to indemnify the Escrow
<br />Bank against its own negligence or willful misconduct. The indemnities contained in this
<br />Section 10 shall survive the termination of this Escrow Deposit and Trust Agreement or the
<br />resignation or removal of the Escrow Bank.
<br />The City acknowledges that to the extent regulations of the Comptroller of the Currency
<br />or other applicable regulatory entity grant the City the right to receive brokerage confirmations
<br />of security transactions as they occur, the City specifically waives receipt of such
<br />confirmations to the extent permitted by law. The Escrow Bank will furnish the City monthly
<br />cash transaction statements which include detail for all investment transactions made by the
<br />Escrow Bank hereunder.
<br />No provision of this Escrow Deposit and Trust Agreement shall require the Escrow
<br />Bank to expend or risk its own funds or otherwise incur any financial liability in the
<br />performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers.
<br />The Escrow Bank may execute any of the trusts or powers hereunder or perform any
<br />duties hereunder either directly or by or through agents, attorneys, custodians or nominees
<br />appointed with due care and shall not be responsible for any willful misconduct or negligence
<br />on the part of any agent, attorney, custodian or nominee so appointed.
<br />The City may remove the Escrow Bank initially appointed, and any successor thereto,
<br />and may appoint a successor or successors thereto, but any such successor shall be a bank or
<br />trust company doing business in the State of California, having a combined capital (exclusive
<br />of borrowed capital) and surplus of at least fifty million dollars ($50,000,000), and subject to
<br />supervision or examination by federal or state authority. If such bank or trust company
<br />-6-
<br />
|