HomeMy WebLinkAboutCity of Tamarac Resolution R-2024-019Temp. Reso. #14080
February 14, 2024
Page 1 of 4
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R- 2024- Q 11
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, AWARDING AND APPROVING
AN AGREEMENT BETWEEN THE CITY OF TAMARAC AND
TD BANK, N.A. AS THE CITY'S DEPOSITORY AND
PROVIDER OF BANKING AND TREASURY MANAGEMENT
SERVICES TO THE CITY OF TAMARAC EFFECTIVE UPON
AWARD AND EXECUTION OF THE AGREEMENT
THROUGH JANUARY 31, 2029 WITH THE OPTION TO
RENEW THE AGREEMENT FOR UP TO ONE (1)
ADDITIONAL FIVE (5) YEAR TERM AND EXPENDITURE
OF APPROPRIATED FUNDS BY THE CITY MANAGER OR
APPROPRIATE CITY OFFICIALS; PROVIDING FOR
CONFLICTS; PROVIDING FOR SCRIVENER ERRORS,
PROVIDING FOR SEVERABILITY; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, Florida Statutes provide that municipalities shall have the
governmental, corporate, and proprietary powers to enable them to conduct municipal
government, perform municipal functions, and render municipal service, and exercise any
power for municipal purposes, except when expressly prohibited by law; and
WHEREAS, Article IV, Section 4.07 of the City Charter of the City of Tamarac
empowers the City to adopt, amend, or repeal such ordinances and resolutions as may
be required for the proper governing of the City; and
WHEREAS, The City Charter, Section 7.08(a) stipulates that the City Commission
of the City of Tamarac shall designate the City's depository; and
WHEREAS, in addition to naming a City depository, it is necessary to contract with
a financial institution to provide the City with various Banking and Treasury Management
Services, including depository services, custodial services and account maintenance
Temp. Reso. #14080
February 14, 2024
Page 2 of 4
services; and
WHEREAS, the City of Tamarac formally advertised and issued RFP 23-28R
"Banking Services for the City of Tamarac", (Exhibit 1); and
WHEREAS, an Evaluation Committee was appointed by the City Manager
consisting of the Director of Financial Services, The Assistant Director of Financial
Services/Controller, Chief of Staff, Community Services Manager and Senior Accountant
and facilitated by the Purchasing and Contracts Manager which evaluated, and rated
each firms proposal and responses; and
WHEREAS, the proposals received were from the following institutions:
Amerant Bank
Bank United
JP Morgan Chase
Synovus
TD Bank
Truist Bank
Wells Fargo Bank N.A.
WHEREAS, it is the recommendation of the Director of Financial Services, and the
Purchasing and Contracts Manager that RFP 23-28R for Banking Services be awarded
to TD Bank N.A. for a five (5) year term with one (1) additional five-year renewal option
to be approved by the City Manager.
WHEREAS, the City Commission of the City of Tamarac, Florida, deems the
Agreement to be in the best interest of the business owners, residents, and visitors of the
City of Tamarac and to approve the award and approval of the Agreement between the
City and TD Bank, N.A., a copy of the Agreement between the City and TD Bank, N.A.is
Temp. Reso. #14080
February 14, 2024
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attached to this Resolution as Exhibit "2";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, THAT:
Section 1. The foregoing whereas clauses are ratified and confirmed as being
true and correct, are the legislative and administrative findings of the City Commission
and made a specific part of this Resolution; all exhibits referenced and attached hereto
are incorporated herein and made a specific part of this Resolution.
Section 2. That RFP 23-28R is hereby awarded to TD Bank, N.A for Banking
and Depositary Services and the appropriate City Officials are hereby authorized to enter
into an agreement with TD Bank attached hereto as "Exhibit 2" for a period of five years
and one renewal option.
Section 3. All resolutions or parts of resolutions in conflict herewith are hereby
repealed to the extent of such conflict.
Section 4. Any scrivener or typographical errors that do not affect intent may be
corrected with notice to and authorization of the City Attorney and City Manager without
further process.
Section 5. If any clause, section, other part, or application of this Resolution is
held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
Section 6. This Resolution shall become effective immediately upon its passage
Temp. Reso. #14080
February 14, 2024
Page 4 of 4
and adoption.
PASSED, ADOPTED AND APPROVED this 14th day of February 2024
ATTEST:
KIMBERLY D LON, CMC
CITY CLERK
MICH LLE J. GOMEZ
MAYOR
RECORD OF COMMISSION VOTE:
MAYOR GOMEZ
DIST 1 COMM. BOLTON
DIST 2: VM. WRIGHT
DIST 3: COMM. VILLALOBOS 11-1
DIST 4: COMM. DANIEL `'Ef;s
APPROVED AS TO FORM AND LEGAL SUFFICIENCY FOR THE USE AND RELIANCE
OF THIS CITY OF TAMARAC ONLY.
HANS OTTINOT
CITY ATTORNEY
EXHIBIT 1
REQUEST FOR PROPOSAL
The City For Your LH4
s s , 8 s
BANKING SERVICES FOR THE CITY OF TAMARA#
Publish Date:
06/18/2023
All Questions Due:
07/13/2023 by 12:00 PM
Proposal Closing Date & Time:
07/25/2023 at 3:00 PM
Where to Deliver Bid:
Online At:
httgs://tamarac. bidsandtenders. net
Where to Deliver Proposal Responses
Online at:
htti)s://www.tamarac.org/bids
City of Tamarac
Purchasing Division
7525 NW 88th Avenue, Room 108
Tamarac, FL 33321
(954) 597-3570
TAMARACPurchasing and Contracts Division
The City For Your Life
Date Issued: June 18, 2023
REQUEST FOR PROPOSAL
23-28R - BANKING SERVICES FOR THE CITY OF TAMARAC
Due Date: July 25, 2023 (a) 3:00 P.M. EDT
ALL QUALIFIED FIRMS:
The City is soliciting proposals to obtain the services of a qualified financial institution to provide Banking Services
for the City of Tamarac. Proposers shall submit responses electronically via
https://tamarac.bidsandtenders.net/Module/Tenders/en, on or before the date and time referenced above.
The City's solicitation management system will not accept electronic responses after 3:00 p.m. with no exceptions.
Any uncertainty regarding the time a submittal is received will be resolved against the submitting vendor. Proposer
shall be required to register with bidsandtendersTm at www.tamarac.org/bids in order to obtain access to the bid
documents, and to submit their electronic response. Additionally, all written inquiries shall be submitted through
bidsandtendersTm and all written addenda shall be communicated through bidsandtendersTm as well. For inquiries,
contact the Purchasing & Contracts Division Office at (954) 597-3567.
City reserves the right to reject any or all Responses, to waive any informalities or irregularities in any Responses
received, to re -advertise for RFP's, to award in whole or in part to one or more Respondents or take any other
such actions that may be deemed to be in the best interests of the City.
Best Regards,
Keith K. Glatz, NIGP-CPP, CPPO
Purchasing & Contracts Manager
Advertise in Sun Sentinel: Sunday, June 18, 2023
TAMARAC
City of Tamarac
The City For Your Life Purchasing and Contracts Division
Table of
Contents
REQUEST FOR PROPOSALS ....................5
20. OTHER GOVERNMENTAL
RFP # 23-28R..............................................5
ENTITIES...............................................15
BANKING SERVICES FOR THE CITY OF
21. UNBALANCED PROPOSAL
TAMARAC........... .......... ..............................
5
PRICING................................................15
I. INTRODUCTION ............................5
22. INFORMATION REQUESTS
AFTER DUE DATE.................................15
II. INFORMATION ..........................5
23. BUDGETARY CONSTRAINTS ....16
III. SCHEDULE OF EVENTS ...........
5
24. PROTESTS..................................16
IV. INSTRUCTIONS TO
PROPOSERS.......................................6
25. CONTINGENT FEES PROHIBITED
16
1. AUTHORITY......................................6
26. PROHIBITION AGAINST
2. DEFINED TERMS .............................6
LOBBYING.............................................16
3. SPECIAL CONDITIONS ....................7
27. EVALUATION OF PROPOSALS..
16
4. EXAMINATION OF CONTRACT
28. WEIGHTED CRITERIA / BEST
DOCUMENTS AND SITE .........................7
VALUE SCORING..................................17
5. OMISSION OF DETAILS /
29. ACCEPTABLITY OF PROPOSALS
VARIANCES AND EXCEPTIONS.............8
19
6. INTERPRETATIONS AND ADDENDA
30. RIGHT TO REJECT PROPOSALS
8
19
7. COSTS AND COMPENSATION ........9
31. AWARD RESERVATIONS ...........
19
8. PRICES, PAYMENTS, DISCOUNTS &
32. PREFERENCE FOR TAMARAC
ELECTRONIC PAYMENTS ......................9
LOCAL, CBE AND VETERAN OWNED
9. NON -COLLUSIVE AFFIDAVIT ........10
FIRMS....................................................19
10. PUBLIC ENTITY CRIMES ............
10
33. CONSIDERATION OF
11. CONFLICT OF INTEREST ...........
10
CONVICTION HISTORY EMPLOYMENT
POLICIES - 1 Bonus Point......................21
12. INSURANCE & PERFORMANCE
BONDS...................................................10
34. PROHIBITION AGAINST
CONSIDERING SOCIAL, POLITICAL OR
13. DOCUMENT SUBMITTAL
IDEOLOGICAL INTERESTS IN
REQUIREMENTS...................................10
GOVERNMENT CONTRACTING - F.S.
14. SUBMISSION OF PROPOSAL
&
287.05701..............................................22
QUALIFICATIONS..................................11
V. STANDARD TERMS AND
15. BACKGROUND INVESTIGATION14
CONDITIONS.....................................23
16. MODIFICATION AND
OUR VISION AND MISSION .....................23
WITHDRAWAL OF RESPONSES ..........14
1. PERFORMANCE .............................23
17. REJECTION OF PROPOSALS
.... 14
2. TERMINATION................................24
18. QUALIFICATIONS OF
3. ASSIGNMENT.................................24
PROPOSERS.........................................14
4. NON-DISCRIMINATION & EQUAL
19. FORM AGREEMENT DOCUMENT
OPPORTUNITY EMPLOYMENT ............
24
15
5. TAXES.............................................25
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TAMARAC
City of Tamarac
The City For Your Life Purchasing and Contracts Division
6.
OMISSION OF DETAILS.................25
O. LOCK BOX SERVICES ................
34
7.
INSURANCE REQUIREMENTS ......
25
P. DESIGNATED ACCOUNT
8.
INDEMNIFICATION .........................26
EXECUTIVE...........................................34
9.
INDEPENDENT CONTRACTOR
..... 26
Q. ACCESS TO BANK RECORDS ...
34
10.
VENUE........................................27
R. AUTOMATIC FUNDS TRANSFER
(AFT) / AUTOMATIC CLEARING HOUSE
11.
SCRUTINIZED COMPANIES .......
27
(ACH DEBIT) ..........................................
34
12.
RECORDS/AUDITS .....................27
S. OTHER BANKING SERVICES AND
13.
BUDGETARY CONSTRAINTS
....28
CONDITIONS.........................................35
14.
E-VERIFY COMPLIANCE ............28
T. AUTOMATION REQUIREMENTS ...36
15.
CUSTODIAN OF RECORDS .......29
U. MISCELLANEOUS ITEMS .........
37
VI.
STATEMENT OF WORK ..........
30
1............ Please outline any Banking Incentive
A.
SCOPE OF PROPOSAL..................30
Programs for City employees such as: .......
37
B.
BACKGROUND...............................30
VII. PROPOSAL SELECTION &
EVALUATION OF PROPOSALS .........
38
C.
INTENT AND DURATION ............30
1. ACCEPTABILITY OF PROPOSALS
38
D.
CONTRACT OBJECTIVES ..........30
2 EVALUATION METHOD AND
E.
ACCOUNT MAINTENANCE ............31
CRITERIA...............................................38
F.
AVAILABILITY OF FUNDS ..............32
3. MAXIMUM TECHNICAL & COST
G.
POSITIVE PAY ............................33
POINTS (Up to 100 Points + 6 Bonus
Points)....................................................39
H.
DAILY BALANCE REPORT
NOTIFICATION......................................33
4. ALTERNATIVE BEST VALUE
SCORING...............................................40
I.
PROACTIVE NOTIFICATION ..........
33
5. BEST & FINAL OFFER....................40
J.
DIRECT DEPOSIT ...........................33
6. DISCUSSIONS & PRESENTATIONS40
K.
WIRE TRANSFERS .........................33
L.
STATEMENT AND ADVICE
7. AWARD OF AGREEMENT..............40
FREQUENCY
.........................................33
8. RIGHT TO REJECT PROPOSALS..41
M.
ACCOUNT RECONCILIATION
....34
SAMPLE AGREEMENT ............................42
N.
COIN SORTING ...........................34
CORPORATE ACKNOWLEDGEMENT ..... 53
TAMARAC
City of Tamarac The City For Your Life purchasing and Contracts Division
REQUEST FOR PROPOSALS
RFP # 23-28R
BANKING SERVICES FOR THE CITY OF TAMARAC
Definition: A Request for Proposal (RFP) is a method of procurement permitting discussions with
responsible offerors and revisions to proposals prior to award of a contract. Proposals will be opened
in private. Award will be based on the criteria set forth herein.
I. INTRODUCTION
The City is soliciting proposals to obtain the services of a qualified financial institution to provide ongoing
Banking Services for the City.
II. INFORMATION
For information pertaining to this Request for Proposals (RFP), contact Keith Glatz, Purchasing &
Contracts Manager, at (954) 597-3567 keith.glatz(a)-tamarac.org. The Project Manager will be the City
Controller, Agnew Jean-Pierre at (954) 597-3571. Such contact shall be for technical clarification
purposes only, and shall be routed through the Purchasing & Contracts Manager. Material changes, if
any, to the scope of services or proposal procedures will be transmitted only by written addendum. It is
required that all questions be submitted through the online system "submit a question" link at
https://tamarac. bidsandtenders. net
III. SCHEDULE OF EVENTS
The schedule of events related to this Request for Proposals shall be as follows:
RFP Document issued
Deadline for Written Questions
Deadline for Receipt of Proposals
Evaluation of Proposals
Presentations by Short-listed Proposers
Final Ranking of Firms
Anticipated Award by City Commission
June 18, 2023
July 13, 2023 by 12:00 PM
July 25, 2023 @ 3:00 PM
Within 2-3 weeks (publicly noticed)
August 10, 2023
August 11, 2023
September 13, 2023
All dates are tentative. City reserves the right to change scheduled dates.
Remainder of Page Intentionally Blank
TAMARAC
of Tamarac The City For Your Life Purchasing and Contracts Division
IV. INSTRUCTIONS TO PROPOSERS
1. AUTHORITY
It is the intent of the City to award the proposal to the responsive proposer providing a response
which is most advantageous to the City. This proposal is issued pursuant to, and governed by the
laws of the State of Florida, Article VII "Financial Procedures", Section 7.11, "Requirements for
Public Bidding, of the City of Tamarac Charter-, and Chapter 6 "Finance and Taxation", Article V, the
Tamarac Procurement Code.
2. DEFINED TERMS
Terms used in these instructions to Offerors are defined as follows:
2.1 "Addenda" — Written or graphic instruments issued prior to the opening of Solicitations which
clarify, correct, or change the solicitation requirements or the contract document.
2.2 "Agreement" — The written agreement between the City and the Contractor covering the Work
to be performed including other Contract Documents that are attached to the Agreement and
made a part thereof.
2.3 "bidsandtendersTM" -- The City of Tamarac's on-line solicitation management partner and the
e-procurement system used by the City. The terms "on-line e-procurement system and
"bidsandtendersTM" may be used interchangeably herein.
2.4 "Contract Administrator" — The Department's Director, or some other employee expressly
designated as Contract Administrator in writing by the Director, who is the representative of the
Board concerning the Contract Documents.
2.5 "Contract Documents" — The contract documents consist of this Agreement, conditions of the
contract (General, Supplementary and other Conditions), drawings, specifications of this
Solicitation, all addenda issued prior to, all modifications issued after execution of this Agreement,
Notice of Award, Notice to Proceed, Certificate(s) of Insurance, Bonds and any additional
modifications and supplements, Change Orders and Work directive changes issued on or after
the effective date of the Contract. These contract documents form the Agreement, and all are as
fully a part of the Agreement if attached to this Agreement or repeated therein.
2.6 "City" - the City of Tamarac, a municipal corporation of the State of Florida.
2.7 "Contractor / Firm" - the individual(s) or firm(s) to whom the award is made and who executes
the Contract Documents.
2.8 "On-line e-procurement system" or "e-procurement system" — The City of Tamarac's
solicitation management partner "bidsandtendersTM".
2.9 "Offeror" - one who submits a Response in response to a solicitation, as distinct from a Sub -
Offeror, who submits a Response to the Offeror. The terms "Offeror" and "Proposer" are used
interchangeably and have the same meaning.
2.10 "Proposer'— one who submits a Proposal in response to a solicitation. The terms "Offeror" and
"Proposer" are used interchangeably and have the same meaning.
2.11 "Proposal Documents" - the Request for Letters of Interest, Instructions to Offerors, Offeror's
Qualifications Statement, Non -Collusive Affidavit, Certified Resolution, Vendor Drug -Free
Workplace, Offeror's Response, Proposal Security and Specifications, if any, and the proposed
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TAMARAC
City of Tamarac The City For Your Life Purchasing and Contracts Division
Contract Documents (including all Addenda issued prior to opening of Responses).
2.12 "Request for Proposal" (RFP)" (The words "Proposal", "Bid" and "Response" are used
interchangeably) - A Request for Proposal (RFP) is a method of procurement permitting
discussions with responsible Proposers and revisions to proposals prior to award of a contract.
Proposals will be opened in private. Award will be based on the criteria set forth herein.
2.13 "Respondent/Offeror/Proposer" - one who submits a Proposal / Response in response to a
solicitation, as distinct from a Sub -Respondent, who submits a Response to the Offeror.
2.14 "Response Documents/Response" - the Request for Proposal Instructions to Offerors,
Respondent's Qualifications Statement, Non -Collusive Affidavit, Certified Resolution, Vendor
Drug -Free Workplace, Respondent's Proposal, Proposal Security and Specifications, if any, and
the proposed Contract Documents (including all Addenda issued prior to opening of Responses).
2.15 "Scope of Work" / "Statement of Work" — Those portions of the Contract Documents
consisting of written details regarding the desired services performed and/or outcomes to be
achieved through the performance and implementation of services under the agreement as
applied to the work required thereto.
2.16 "Specifications" — Those portions of the Contract Documents consisting of written technical
descriptions of materials, equipment, standards and workmanship as applied to the work and
certain administrative details applicable thereto.
2.17 "Submittal" — a Proposal, Bid or any other form of response by a bidder or proposer submitted
in response to a solicitation issued by the City.
2.18 "Successful Offeror" - the qualified, responsible and responsive Offeror to whom City (on the
basis of City's evaluation as hereinafter provided) makes an award.
2.19 "Term Contract" -- A requirements agreement by which a specific good or service may be
obtained from a vendor at a specific price for a specific timeframe.
2.20 "Work" — The entire completed scope of work or the various separately identifiable parts thereof
required to be provided under the Contract Documents. Work is the result of performing services,
specifically, including but not limited to furnishing labor, documentation, equipment and materials
used or incorporated in the construction of the entire Contract Documents. The words "Project"
and "Work" are used interchangeably.
2.21 "Written Amendment" — A written amendment of the Contract Documents, signed by the CITY
and the Contractor on or after the Effective Date of the Agreement and normally dealing with non-
technical aspects rather than strictly work related aspects of the Contract Documents.
3. SPECIAL CONDITIONS
Where there appears to be variances or conflicts between the General Terms and Conditions and
the Special Conditions and/or Scope of Work outlined in this proposal, the Special Conditions and/or
the Scope of Work shall prevail.
4. EXAMINATION OF CONTRACT DOCUMENTS AND SITE
4.1 Before submitting a Proposal, each Offeror must visit the site (if applicable to the project) to
become familiar with the facilities and equipment that may in any manner affect cost or
TAMARAC
of Tamarac The City For Your Life Purchasing and Contracts Division
performance of the work; must consider federal, state and local laws, ordinances, rules and
regulations that may in any manner affect cost or performance of the work, must carefully
compare the Offeror's observations made during site visits or in review of applicable laws with
the Proposal Documents; and must promptly notify the Purchasing and Contracts Manager of
all conflicts, errors and discrepancies, if any, in the Proposal Documents.
4.2 The Offeror, by and through the submission of a Proposal, agrees that Offeror shall be held
responsible for having examined the facilities and equipment (if applicable); is familiar with the
nature and extent of the work and any local conditions that may affect the work, and is familiar
with the equipment, materials, parts and labor required to successfully perform the work.
5. OMISSION OF DETAILS / VARIANCES AND EXCEPTIONS
5.1 The apparent silence of the requirements as to any detail, or the apparent omission of a
detailed description concerning any point, shall be regarded as meaning that only the best
commercial practice is to prevail, and that only material and workmanship of the finest quality
is to be used. All interpretations of the specifications shall be made on the basis of this
statement. Omission of any essential details from these specifications will not relieve the
Proposer of supplying such services or product(s) as specified.
5.2 For the purpose of evaluation, the Offeror must indicate any variance or exceptions to the
stated requirements, no matter how slight. Deviations should be explained in detail. Absence
of variations and/or corrections will be interpreted to mean that the Offeror meets all the
requirements in every respect.
5.3 In the event Offeror discovers any apparent error or discrepancy, immediately call it to the
attention of the City's Purchasing & Contracts Division staff for interpretation or decision, and
such decision shall be final. Offeror shall advise the City in writing prior to the deadline for
written questions included herein, of any conditions which may adversely affect the work.
5.4 No exceptions will be considered on behalf of the Offeror, after the proposal closing, for any
error or negligence in determining the site conditions; and, the Offeror shall become
responsible for any changes to the work required as a consequence of such pre-existing
conditions.
6. INTERPRETATIONS AND ADDENDA
6.1 If the Offeror is in doubt as to the meaning of any of the Proposal Documents, believes that
the General Conditions, Special Conditions and/or Technical Specifications/Scope of Work
errors, contradictions or obvious omissions, or has any questions concerning the information
contained in the RFP documents, the Offeror shall submit a written request to the Purchasing
and Contracts Division for interpretation or clarification through the City's e-procurement
system, and should be received by the Purchasing and Contracts Division Office at least seven
(7) calendar days prior to the Proposal opening date, or prior to the deadline specified in the
"Schedule of Events" provided herein, whichever is the earlier date.
6.2 Questions shall be submitted through the City's online e-procurement system by the due date
listed above. All questions shall be answered in the form of an Addendum. Interpretations or
clarifications in response to such questions will be issued in the form of a written addendum
with such notice transmitted to all parties recorded by the Purchasing and Contracts Division
as having received the Proposal Documents through the City's online e-Procurement system.
000 M AC
City of Tamarac The City For Your Life Purchasing and Contracts Division
The issuance of a written online addendum shall be the only official method whereby such an
interpretation or clarification will be made.
6.3 Written addenda shall serve as the sole means of clarification. The City shall not be
responsible for oral interpretations given by any City employee or its representative.
**** SPECIAL NOTE -- Addendums will only be issued electronically through the City's e-
procurement system. Vendors will be notified of the availability of new solicitations and
addendums via e-mail (per the vendor's selected commodity choice).
6.4 No negotiations, decisions or actions shall be initiated or executed by the Proposer as a result
of any discussions with any City employee. Only those communications that are issued in
writing from the Purchasing & Contracts Division may be considered as a duly authorized
expression. Also, only communications from Proposers that are either submitted online
through the City's e-procurement system or in writing will be recognized by the City as duly
authorized expressions on behalf of the Proposer.
7. COSTS AND COMPENSATION
7.1 Costs and compensation shall be shown in both unit prices and extensions whenever
applicable and expressed in U.S. Dollars. In the event of discrepancies existing between unit
prices and extensions or totals, the unit prices shall govern.
7.2 All costs and compensation shall remain firm and fixed for acceptance for 90 calendar days
after the day of the Proposal opening.
7.3 The price proposal shall include all franchise fees, royalties, license fees, etc., as well as all
costs for transportation or delivery as applicable within the scope of the solicitation.
8. PRICES, PAYMENTS, DISCOUNTS & ELECTRONIC PAYMENTS
8.1 Firm Pricing_ Prices shall be fixed and firm to the extent required under Special Conditions.
In the absence of a reference in the Special Conditions, prices shall be fixed and firm for a
period of ninety (90) calendar days, or ninety (120) calendar days when the contract must be
approved by another agency. Payment will be made only after receipt and acceptance of
materials/services. Cash discounts may be offered for prompt payment; however, such
discounts shall not be considered in determining the lowest net cost for bid evaluation.
8.2 Prompt Payment Discounts: Where applicable, offeror is encouraged to provide prompt
payment. If no payment discount is offered, the discount shall assume net 30 days. Payment
is deemed made on the date of the mailing of the check. All payments shall be governed by
the Local Government Prompt Payment Act, F.S. Chapter 218.
********IMPORTANT NOTE**********
8.3 Payments by Electronic Funds Transfer: ALL payments by the City will be made by
Direct Deposit (ACH) via electronic funds transfer. No paper checks will be issued after
that date. Vendors must register for direct deposit with the City prior to receiving any
payments by providing a "City of Tamarac Consent for Direct Deposit" form (ACH Form)
to the City's Financial Services Accounting Division. The form may be accessed on the
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TAMARAC
The City For Your Life
City of Tamarac Purchasing and Contracts Division
City of Tamarac web -site at http://www.tamarac.org/index.aspx?NID=622. Please
contact the Purchasing & Contracts Division at the number shown on this solicitation
document herein as the first point of contact for more information.
9. NON -COLLUSIVE AFFIDAVIT
Each Offeror shall complete the Non -Collusive Affidavit form and shall submit the form with their
Proposal. City considers the failure of the Offeror to submit this document may be cause for rejection
of the Proposal.
10. PUBLIC ENTITY CRIMES
In accordance with Florida Statutes §287.133 (2)(a): A person or affiliate who has been placed on
the convicted vendor list following a conviction for public entity crime may not submit a bid on a
contract to provide any goods or services to a public entity, may not submit a bid on a contract with
a public entity for the construction or repair of a public building or public work, may not submit bids
on leases of real property to public entity, may not be awarded or perform work as a Contractor,
supplier, subcontractor, or Contractor under a contract with any public entity, and may not transact
business with any public entity in excess of the threshold amount provided in Florida Statutes
§287.017 for Category Two, for a period of 36 months from the date of being placed on the convicted
vendor list.
11. CONFLICT OF INTEREST
The award of any contract hereunder is subject to the provisions of Chapter 112, Florida Statutes.
Offerors must disclose with their Proposal the name of any officer, director, partner, proprietor,
associate or agent who is also an officer or employee of City or any of its agencies. Further, all
Offerors must disclose the name of any officer or employee of City who owns, directly or indirectly,
an interest of five percent (5%) or more in the Offeror's firm or any of its branches or affiliate
companies. Furthermore, bidder shall not enter into any employment relationship with any individual
or firm that creates a potential conflict of interest or may present an opportunity for the inappropriate
sharing of inside information or proprietary information related to this bid.
12. INSURANCE & PERFORMANCE BONDS
Upon award of a contract, the Successful Offeror, as required within the scope of the solicitation,
may be required to submit performance bonds and/or payment bonds. Offeror shall provide
certificates of insurance in the manner, form and amount(s) specified. (NOTE: BONDS ARE NOT
REQUIRED FOR THIS PROJECT, HOWEVER INSURANCE WILL BE REQUIRED AS STATED
HEREIN.)
13. DOCUMENT SUBMITTAL REQUIREMENTS
Failure to include a technical proposal, cost proposal, bid surety (if required below), or any other
required document that, by its omission, may prejudice the rights of other respondents, may result in
immediate rejection of your proposal; however, in the event that other forms or documents which, by
their nature do not impact price or the Offeror's cost of doing business or which do not prejudice the
rights of other proposers are not included for some reason, those forms or documents must be provided
within three (3) business days of the City's request to be considered responsive. Specific Documents
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City of Tamarac The City For Your Life Purchasin.q and Contracts Division
to be acknowledged, certified or uploaded with the proposal shall be those documents specified in
Section 14. "SUBMISSION OF PROPOSALS" of these "Instructions to Offerors for Requests for
Proposals (RFP)". (Please see Section 14.10 "IMPORTANT SPECIAL NOTICE" of these "Instructions
to Offerors for Requests for Proposals (RFP))"
14. SUBMISSION OF PROPOSAL & QUALIFICATIONS
The Proposer is directed to deliver sealed proposals online
at his://tamarac.bidsandtenders.net/Module/Tenders/en.
14.1 All proposals shall be submitted in the English language, and pricing expressed in U.S.
Dollars.
14.2 Proposers shall electronically acknowledge the receipt of all addenda.
14.3 Proposals by corporations must be executed in the corporation's legal name by the President
or other corporate officer, accompanied by evidence of authority to sign. Evidence of authority
shall be provided on the enclosed Certified Resolution form, or by the company's own
Corporate Resolution.
14.4 Proposals by partnerships must be executed in the partnership name and signed by a partner,
whose title must appear in the document.
14.5 Proposals shall be electronically submitted to the Purchasing and Contracts Division
on or before the time indicated in the Request for Proposals via the bidsandtenders'
on-line solicitation system including ALL pricing as required. Proposals will be held
on the bidsandtenders'm server as an encrypted document, with no access by the City
of Tamarac until immediately following the proposal closing date and time, at which
time all responses shall be securely released to the City.
14.6 In accordance with Florida Statutes, Chapter §119.07(1)(a) and except as may be provided
by other applicable state and federal law, the Request for Proposals and the responses
thereto are in the public domain. However, Proposers are requested to specifically identify in
the submitted Proposal any financial information considered confidential and/or proprietary
which may be considered exempt under Florida Statute §119.07(t).
14.7 All Proposals received from Offerors in response to the Request for Proposals will become
the property of City. In the event of Contract award, all documentation produced as part of
the Contract shall become the exclusive property of City.
14.8 The Proposer preparing a submittal in response to this RFP shall bear all expenses
associated with its preparation. The Proposer shall prepare a submittal with the
understanding that no claim for reimbursement shall be submitted to the City for the expense
of proposal preparation and/or presentation.
14.9 Electronic Media Submission: The City may require that machine readable information and
data, including computer assisted drafting designs (AutoCAD files) be provided by the
proposing firm as a part of its submittal. The proposing firm shall not be liable for claims or
losses arising out of, or connected with, modification by the City, or anyone authorized by the
City, decline of accuracy or readability of data due to storage or obsolescence of equipment
or software, any use by the City or anyone authorized by the City, of such data for additions
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to projects except as authorized in writing by the proposing firm. Such files should be
submitted on-line through the bidsandtendersTI online solicitation system.
14.10 IMPORTANT SPECIAL NOTICE: Proposers will be using an electronic platform for
uploading RFP responses. Proposers are advised that sufficient time must be
allocated to register for your on-line account and to ensure that your firm has sufficient
time to upload all of the data required. The system is designed to only transmit
complete responses, and the City will only accept complete responses to this RFP. It
is strongly suggested that Proposers begin the entry process at least 24 hours prior
to the RFP due date and time to allow sufficient time for entry and to avoid any
technical issues. In the event that firms experience technical difficulties with the
platform, please contact Bids & Tenders Support at 1-800-594-4798 or
support(cDbidsandtenders.ca.
14.11 Digital Forms to Be Completed and Submitted with Proposal
The following fillable digital forms have been created and must be submitted / acknowledged /
agreed to with each proposal response via electronic response at
https://tamarac.bidsandtenders.net/Module/Tenders/en.
1. Proposer's Price Proposal and Reimbursable Expense Proposal
2. Certification
3. Proposer's Qualification Statement
4. Firm's Primary Ownership information
5. Local, Small Business / Minority / Tamarac Local & Veteran Information
6. References
7. Vendor Drug -Free Workplace
8. Scrutinized Companies Certification — Boycotting Israel or Scrutinized Company list
9. E-Verify Compliance Certification
10. Conviction History Policy Inquiry Form
14.12 Forms & Documentation That Must Be Uploaded to The Document Upload Section
The Proposer shall electronically upload the following documentation along with their
proposal response via electronic upload at:
https://tamarac.bidsandtenders.net/Module/Tenders/en. Failure to provide the following
forms may result in your proposal being deemed non -responsive.
1. Completed Non -Collusive Affidavit and Acknowledgment — Form is available for
download in the on-line procurement system for this solicitation. (Document Upload 1)
2. Completed Certified Resolution - Form is available for download in the on-line
procurement system for this solicitation. (Document Upload 2)
3. U.S. Internal Revenue Form W9 (Document Upload 3)
4. Proof of Insurance including Professional Liability Insurance minimum $1,000,000.
(Document Upload 4)
5. Narrative Response Document— (Document Upload 5)
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of Tamarac The City For Your Life , Ii,, w hasino and Contracts Division
The Offeror shall provide the following information as a part of its narrative response
submittal:
a. Cover Letter and/or Executive Summary which summarizes the Proposer's response.
b. Company Profile - Provide the company's legal name, headquarters address, local office
address, state of incorporation and key company contact names with their telephone
numbers and email address.
i. State whether your company is national, regional or local.
ii. State the office location that will be serving the City. Include the contact person's name,
address, telephone number and email address.
iii. Provide a brief company history and describe the company's organization, philosophy
and management structure.
iv. Confirm that your firm has been in business for a minimum of three (3) years under the
same name, providing similar services to other entities as outlined in the Scope of Work.
c. Staff Qualifications - Provide resumes, with a minimum of 3 years of history, describing
the qualifications and relevant experience of the proposed Project Manager and all key
personnel who will be assigned to this project, with emphasis on designing and implementing
job classification and compensation systems for public entities and to the extent to which
team members have participated in projects similar in scope. Note: Tamarac expects those
listed to be those who will actually perform the work. No substitutions will be permitted
without the express written approval of the City. The following additional information
regarding your proposed project staff shall also be included:
i. Provide an organizational chart of the proposed project team.
ii. Identify the dedicated representative who will be responsible for this project.
d. Company Experience — Proposer shall provide the following information related to the
experience of the company:
i. List a minimum of three (3) clients that are similar in size and scope to the City of
Tamarac, and preferably located in the Tri-County (Dade, Broward or Palm Beach) area.
ii. Indicate the company's primary client base - private sector, public sector, or non-profit.
Provide actual numbers and percentages for each sector of your client base.
e. Any other information requested to be addressed in the STATEMENT OF Work included
herein.
6. information you feel would be relevant to the evaluation of your firm's proposal (to be
provided by Respondent). (Document Upload 6)
7. Proof that firm has a Conviction History Employment Policy as detailed in Instructions
Section IV.33 herein. (Document Upload 7)
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16. BACKGROUND INVESTIGATION
As a part of the Response evaluation process, the City reserves the right to conduct a background
investigation including a criminal record check of Responding firm's officers and/or employees, by
the Broward County Sheriff's Office. Responding firm's submission of a Response constitutes
acknowledgement of and consent to such investigation. City shall be the sole judge in determining
Responding firm's qualifications.
16. MODIFICATION AND WITHDRAWAL OF RESPONSES
16.1 Proposals may be modified or withdrawn electronically and re -submitted through the
City's e-procurement system, bidsandtendersTI prior to the proposal due date.
Withdrawal of a Proposal will not prejudice the rights of an Offeror to submit Proposals
for future opportunities.
16.2 If, within twenty-four (24) hours after Proposals are opened, any Offeror files a duly
signed, written notice with the Purchasing and Contracts Division, and within five (5)
calendar days thereafter demonstrates to the reasonable satisfaction of City, by clear
and convincing evidence, that there was a material and substantial mistake in the
preparation of its Response, or that the mistake is clearly evident on the face of the
Response, but the intended correct Response is not similarly evident, Offeror may
withdraw its Response and any bid security will be returned. Thereafter, the Offeror may
be disqualified from further bidding on the subject Contract.
17. REJECTION OF PROPOSALS
17.1 To the extent permitted by applicable state and federal laws and regulations, City
reserves the right to reject any and all Proposals, to waive any and all informalities not
involving price, time or changes in the work with the Successful Offeror, and to disregard
all nonconforming, non -responsive, unbalanced or conditional Proposals. Proposals will
be considered irregular and may be rejected if they show serious omissions, alterations
in form, additions not called for, conditions or unauthorized alterations, or irregularities
of any kind.
17.2 City reserves the right to reject the Proposal of any Offeror if City believes that it would
not be in its best interest of to make an award to that Offeror, whether because the
Proposal is not responsive, the Offeror is unqualified, of doubtful financial ability, or fails
to meet any other pertinent criteria established by City within the scope of the solicitation.
18. QUALIFICATIONS OF PROPOSERS
18.1 Proposals will be considered from firms normally engaged in providing the service
requested. The proposing Firm must demonstrate adequate experience, organization,
facilities, equipment and personnel to ensure prompt and efficient service to the City of
Tamarac. The City of Tamarac will determine whether the evidence of ability to perform
is satisfactory and reserves the right to reject proposals where evidence submitted, or
investigation and evaluation, indicates inability of a firm to perform.
18.2 Each Offeror shall complete the Offeror's Qualifications Statement and submit the form
with the Proposal. Failure to submit the Offeror's Qualifications Statement and the
documents required thereunder may constitute grounds for rejection of the Proposal.
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18.3 As a part of the evaluation process, the City may conduct a background investigation
including a criminal record check of Proposer's officers and/or employees, by the
Broward County Sheriff's Office. Proposer's submission of a proposal constitutes
acknowledgement of and consent to such investigation. City shall be the sole judge in
determining Proposer's qualifications.
18.4 No proposal shall be accepted from, nor will any contract be awarded to, any person who
is in arrears to City for any debt or contract, who is a defaulter, as surety or otherwise,
of any obligation to City, or who is deemed irresponsible for unreliable by City. City will
be the sole judge of said determination.
18.5 The City reserves the right, before recommending any award, to inspect the facilities,
equipment and organization or to take any other action necessary to determine ability to
perform in accordance with the specifications, terms and conditions.
18.6 Employees of the Proposer shall at all times be under its sole direction and not an
employee or agent of the City. The Proposer shall supply competent and physically
capable employees. The City may require the Proposer to remove an employee it deems
careless, incompetent, insubordinate or otherwise objectionable. Proposer shall be
responsible to the City for the acts and omissions of all employees working under its
directions.
19. FORM AGREEMENT DOCUMENT
The City may attach as a part of this solicitation, a Form Agreement document. Proposers shall
be responsible for complying with all of the terms and conditions of the Form Agreement
document if included herein, except where variant or conflicting language may be included in
any Special Conditions or Special provisions contained herein. Proposers shall note any
deviation or variance with the Form Agreement document at the time of proposal submission.
20. OTHER GOVERNMENTAL ENTITIES
If a Proposer is awarded a contract as a result of this RFP, Proposer will, if Proposer has
sufficient capacity or quantities available, provide to other governmental agencies, so
requesting, the products or services awarded in accordance with the terms and conditions of the
Invitation for Bid and resulting contract. Prices shall be F.O.B. Destination to the requesting
agency.
21. UNBALANCED PROPOSAL PRICING
When a unit price proposed has variable or estimated quantities, and the proposal shows
evidence of unbalanced proposal pricing, such proposal may be rejected.
22. INFORMATION REQUESTS AFTER DUE DATE
Pursuant to Florida Statute Chapter 119, Section 071 (1), sealed bids or proposals received by
an agency pursuant to invitations to bid or requests for proposals are exempt from the provisions
of subsection (1) and s. 24(a), Art. I of the State Constitution until such time as the agency
provides notice of a decision or intended decision pursuant to F.S. §119.071(1) (b) (2), or within
30 days after bid/proposal opening, whichever is earlier.
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City of Tamarac The City For Your Life Purchasing and Contracts Division
23. BUDGETARY CONSTRAINTS
In the event the City is required to reduce contract costs due to budgetary constraints, all
services specified in this document may be subject to a permanent or temporary reduction in
budget. In such an event, the total cost for the affected service shall be reduced as
required. The Contractor shall also be provided with a minimum 30-day notice prior to any such
reduction in budget.
24. PROTESTS
Any actual or prospective bidder, offeror, or Contractor who is aggrieved in connection with the
solicitation or award of a contract may protest to the purchasing and contracts manager. The
protest shall be submitted in writing within five (5) business days after such aggrieved person
knows or should have known of the facts giving rise thereto and shall be submitted with the
procedures outlined in section 6-154 "Appeals and remedies" of the Tamarac procurement code,
available at the following link:
https://www.municode.com/library/fl/tamarac/codes/code of ordinances?nodeld=PTIICO CH
6FITA ARTVTAPRCO.
25. CONTINGENT FEES PROHIBITED
The proposing firm must warrant that it has not employed or retained a company or person,
other than a bona fide employee, Contractor or subcontractor, working in its employ, to solicit or
secure a contract with the City, and that it has not paid or agreed to pay any person, company,
corporation, individual or firm other than a bona fide employee, Contractor or sub -Contractor,
working in its employ, any fee, commission, percentage, gift or other consideration contingent
upon or resulting from the award or making of a contract with the City.
26. PROHIBITION AGAINST LOBBYING
During the solicitation of any bid or proposal, any firm and its agents, officers or employees who
intend to submit, or who have submitted, bids or proposals shall not lobby, either individually or
collectively, any City Commission members, candidates for City Commission or any employee
of the City. Contact should only be made through regularly scheduled Commission meetings, or
meetings scheduled through the Purchasing and Contracts Division for purposes of obtaining
additional or clarifying information. Any action, including meals, invitations, gifts or gratuities by
a submitting firm, its officers, agents, or employees shall be within the purview of this prohibition
and shall result in the immediate disqualification of that firm from further consideration.
During a formal solicitation process, contact with personnel of the City of Tamarac other than
the Purchasing and Contracts Manager or designated representative regarding any such
solicitation may be grounds for elimination from the selection process. (Reference: Tamarac
Procurement Code Section 6-156.)
27. EVALUATION OF PROPOSALS
27.1 Evaluation Method & Criteria: An Evaluation and Selection Committee will be
appointed by the City Manager for each Request for Proposal (RFP) and will be
responsible for selecting the most qualified firm and then negotiating a contract. The
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Proposers with the highest -ranked submittals may be asked to make a detailed
presentation of their product/service to the Evaluation and Selection Committee.
27.2 All Proposers are advised that in the event of receipt of an adequate number of Proposals
which in the opinion of the Evaluation Committee require no clarification and/or
supplementary information, such Proposals may be evaluated without discussion.
Hence, proposals should be initially submitted on the most complete and favorable terms
which Proposers are capable of offering to the City.
27.3 Proposal Scoring: The Evaluation and Selection Committee will be responsible for
evaluating and assigning scores to each proposer's response based on the specific
evaluation criteria established for the proposal. Based on the number of proposals
received, the Evaluation Committee may assign an initial score with the intent of short -
listing proposers who may be asked to provide an oral presentation to the Committee.
27.4 After presentations, if required, firms will be assigned a final score, with the highest -
ranked firm moving forward to the negotiation phase. Upon completion of oral
presentations, the Evaluation Committee reserves the right to make the decision for the
final recommendation for award utilizing one of the following scoring methods:
• Use the original criteria -based weighted scoring requiring the Committee to re -score
each proposal using the original weighted criteria;
• Addition of an additional scoring component to comparatively score the quality of the
proposer's oral presentation; or
• A singular comparative "Best Value Scoring" of each finalist whereby the highest
ranked firm would be ranked as "#1", or 111 place, the second highest firm would be
ranked as "#2", or 2nd place, and so on for each of the finalist firms. The firm ranked
as #1 would then be recommended to receive the contract award. Note: This method
will be the City's default methodology for final scoring.
Please refer to Section VIII "PROPOSAL SELECTION AND EVALUATION OF PROPOSALS"
for the specific methodology to be utilized for scoring responses to this proposal.
27.5 Upon successful negotiation, a recommendation for award will be considered by the City
Manager. No work on this project shall proceed without written authorization from the
City of Tamarac.
27.6 The City reserves the right to enter into contract negotiations with the selected Proposer.
If the City and the selected Proposer cannot negotiate a successful contract, the City
may terminate such negotiations and begin negotiations with the next highest selected
Proposer. No Proposer shall have any rights against the City arising from such
negotiations.
28. WEIGHTED CRITERIA / BEST VALUE SCORING
The City's evaluation criteria may include, but shall not be limited to, the criteria shown below.
The City may also use a Best Value Scoring as an alternative scoring method. The actual criteria
will be provided in the Proposal document. The potential weighted criteria may include the
following examples:
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of Tamarac The City For Your Life Purchasing and Contracts Division
28.1 Compliance with Request for Proposals [Mandatory]. This refers to the adherence
to all conditions and requirements of the Request for Proposals.
28.2 Quality of Response, Technical Approach, and Work Plan. Clearly demonstrated
understanding of the scope, objectives and work to be performed. Completeness
and reasonableness of the Offeror's plan/proposal for accomplishing the goals,
objectives and tasks. Level of knowledge and creativity and demonstrated by the
Offeror's proposed methodologies for meeting the requirements of this proposal.
Ability to respond to City's needs as set forth in the Proposal.
28.3 Qualifications and Experience of the Firm/Project Staff. Offeror's capability
in all respects to perform fully the contract requirements, and the tenacity,
perseverance, experience, integrity, and reliability which will assure good faith
performance, as well as satisfactory reference verification. The criteria includes:
a) The experience of the firm and its record on engagements of a similar nature,
including the ability to serve in a similar capacity for other units of government or
organizations; b) Personnel to be assigned to the project, and their education,
capabilities, qualifications and experience with similar projects; Reference
information gathered from other entities regarding the past experience of the firm;
and d) other areas addressed in the Scope of Work herein.
28.4 Schedule. This refers to the proposed detailed project schedule and the Offeror's ability
to meet the City's overall performance schedule.
28.5 Costs (Price). This refers to the proposed contract fee and reimbursement expense
budget. (Please note that price is only one factor for consideration of award). The Offeror
shall propose a not -to -exceed amount for complete execution of this project as detailed
in the Specifications or Statement of Work herein. If proposing costs which may include
alternate programs or services not covered in the base bid pricing, the Offeror, when
offering such alternative services must provide a detailed explanation of additional
optional services to be offered.
28.6 Alternative Best Value Scoring. As an alternative to using a weighted criteria, the City
may utilize a Best Value Scoring process. The Best Value Scoring will require the
Evaluation Committee to assign a composite score rank, based on the Committee's
determination of the relative overall value of the Proposer's response. Composite scores
will rank responses from 1 (111 place), 2 (2Id place), and so on, for the total number of
responses under consideration.
28.7 When specific weighted criteria are included in the City's proposal document, the
weighted criteria shall be used for the initial evaluation of proposals for either short -
listing, or as the final evaluation method if the number of responses received does not
warrant a short -listing cycle. The City may then use a best value ranking for the final
ranking of firms after the completion of the evaluation process and/or any oral
presentations provided by the short-listed firms. When there is an absence of weighted
criteria, the Evaluation Committee will utilize a best value ranking process.
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28.8 Best and Final Offer. The City reserves the right to request Best and Final Offers from
any or all Proposers when the City determines that information received during the
evaluation process warrants additional clarification.
28.9 Please refer to Section VII "PROPOSAL SELECTION AND EVALUATION OF
PROPOSALS" of this document for the specific criteria and criteria weights to be
utilized for scoring responses for this proposal.
29. ACCEPTABLITY OF PROPOSALS
The Offer shall be evaluated solely in accordance with the criteria set forth herein. The proposals
shall be categorized as follows:
• Acceptable;
• Potentially Acceptable — Proposal is reasonably susceptible of being made acceptable;
or
• Unacceptable -- Scoring is below an aggregate score which may be specified in the
proposal document, or in the absence of a specific aggregate score, a score lower than
70% of the potential possible points available.
30. RIGHT TO REJECT PROPOSALS
To the extent permitted by applicable state and federal laws and regulations, City reserves the
right to reject any and all Proposals, to waive any and all informalities not involving price, time
or changes in the work, and to disregard all nonconforming, non -responsive, unbalanced or
conditional Proposals. Proposals will be considered irregular and may be rejected if they show
serious omissions, alterations in form, additions not called for, conditions, unauthorized
alterations, or irregularities of any kind. City reserves the right to reject any Proposal if City
believes that it would not be in its best interest to make an award to a particular Proposer, either
because the Proposal is not responsive, the Proposer is unqualified, of doubtful financial ability,
or fails to meet any other pertinent criteria established by City within the scope of this solicitation.
31. AWARD RESERVATIONS
Award shall be made by the City to the responsible offeror whose proposal is determined to be
the most advantageous to the City, taking into consideration price and the evaluation criteria set
forth herein below. The City of Tamarac reserves the right to accept the Proposal as a whole,
or for any component thereof if it appears to be in the best interest of the City.
32. PREFERENCE FOR TAMARAC LOCAL, CBE AND VETERAN OWNED FIRMS
The City of Tamarac is responsive to our Local Tamarac Vendors (LTV), to the Broward County
businesses small businesses who have been certified as a County Business Entity (CBE) and
to our Veteran -Owned Small Business Community (VOSB). In accordance with Chapter 6-
146.1., "Local Business Preference" of the Tamarac Procurement Code, authorizes a
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preference program for firms who are part of the Local Tamarac Vendor (LTV), Certified Broward
County businesses small businesses (CBE) and to our Veteran Community (VOSB). As such,
we offer the following incentives on our Request for Proposal (RFP) solicitations in the following
preference order:
32.1 Preference Process -- Competitive Sealed Proposals (Requests for Proposals): For
evaluation purposes, local Tamarac vendors, Broward County CBE and Veteran -Owned
Small Business vendors shall receive bonus points above and beyond the evaluation
criteria maximum score, unless specifically exempted by the City Manager or the City
Commission. Additionally, for purposes of evaluation of a Request for Proposal, a vendor
located outside the City of Tamarac limits is equivalent to a Tamarac vendor, and
accorded the same preference if its proposal includes the utilization of subcontracts of
at least ten percent (10%) of the scope of work provided for in the proposal for an
identifiable and verifiable local Tamarac vendor.
32.2 Any firm claiming a preference as a Local Tamarac Vendor, or as a Broward County
Certified Small Business Vendor -- County Business Entity (CBE), must provide sufficient
written proof to support that vendor's claim for granting of the preference as defined in
Section 6-146.1 of the Tamarac Procurement Code. Failure to provide such proof will
result in that vendor not being given further consideration for the preference being
claimed. Recipients may receive credit for either being a Local Tamarac Vendor, a
Broward County Small Business Vendor, or a Veteran -owned Small Business, whichever
has the higher point value. NOTE: Proposers may be considered for only one (1) of the
allowable preference categories. No proposer may accumulate bonus points for multiple
categories. (Example 1: A Local Tamarac vendor who is also a Broward County CBE
will only be eligible to receive 5 bonus points. Example 2: A Broward County CBE who
is also a Veteran -owned business will only be eligible to receive 2.5 total bonus points.)
32.3 Additional information regarding the City's Local Preference Ordinance, including
all exceptions to the program, may be accessed by searching at the following link:
https://Iibrary.municode.com/fi/tmarac/ordinances/code of ordinances?nodeld=95880
7.
What is a Local Tamarac Vendor? (LTV) - 5 Bonus Points
Definition: "Local Tamarac Vendor" (LTV) A business entity which has maintained a permanent
place of business with full-time employees within the city limits for a minimum of one year prior
to the date of issuance of a bid or proposal solicitation. The permanent place of business may
not be a post office box. The business location must actually distribute goods or services from
that location. In addition, the business must have a current business tax receipt from the City of
Tamarac. A vendor located outside of the City of Tamarac city limits is considered equivalent to
a Tamarac vendor and accorded the same preference if its proposal includes the utilization of
subcontracts of at least ten (10) percent of the scope of work provided for in the proposal for
identifiable and verifiable local Tamarac Vendor(s) as defined herein.
Prime Contractors who qualify as a Local Tamarac Vendors (LTV) will be eligible for
consideration for the LTV preference which will qualify the firm to receive 5 additional bonus
points to be added to the score for each evaluator.
What is a County Business Entity (CBE) in Broward County? - 2.5 Bonus Points
A Broward County Business Entity is a firm that is certified by the Broward County Office of
Economic and Small Business Development (OESBD) who can provide proof of that certification
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of Tamarac The City For Your Life Purchasino and Contracts Divisroo
to the City as part of any solicitation response. In accordance with Chapter 6-146.1., "Local
Business Preference" of the Tamarac Procurement Code, authorizes a preference program for
Local Tamarac Vendors (2.5 points). Firms interested in becoming a Broward County Business
Entity (CBE) must be registered and validated by the Broward County Office of Economic and
Small Business (OESBD) Development. Interested vendors may obtain more information at:
http://www. broward.org/EconDev/Pages/localcertificationprograms.aspx.
Only Contractors who are approved by the Broward County Office of Economic and Small
Business Development (OESBD) and are included on the Broward County Certified Vendor
Directory will be eligible for consideration for the CBE preference which will qualify the firm to
receive 2.5 additional bonus points to be added to the score for each evaluator.
What is a Veteran -Owned Small Business (VOSB)? - 2.5 Bonus Points
A Veteran -Owned Small Business" (VOSB): as specified in U.S. 38 CFR § 74.1, as amended,
is a business that is not less than fifty-one (51) percent owned by one or more veterans, or in
the case of any publicly owned business, not less than fifty-one (51) percent of the stock of
which is owned by one or more veterans; the management and daily business operations of
which are controlled by one or more veterans and qualifies as "small" for federal business size
standard purposes.
Prime contractors who qualify as a Veteran -Owned Small Business (VOSB) will be eligible for
consideration for the LTV preference which will qualify the firm to receive 2.5 additional bonus
points to be added to the score for each evaluator.
The order of precedence for preferences is: 1) Local Tamarac Vendor (LTV); 2) Broward County
CBE; and 3) Veteran -Owned Small Business (VOSB).
33. CONSIDERATION OF CONVICTION HISTORY EMPLOYMENT POLICIES - 1 Bonus
Point
The policy of the City of Tamarac is that it will not include any question on any application for
employment, inquire either orally or in writing, receive information about an applicant's criminal
history background check, or otherwise obtain information about an applicant's criminal history until
after the City initially determines that the applicant is otherwise qualified for a position. Once the
City has initially determined that an applicant is otherwise qualified, the City may inquire into or
obtain information about a criminal record.
The City encourages vendors that do business with the City to adopt and employ conviction history
policies, practices, and standards that are consistent with the policies found in the first paragraph
of this section herein. The City reserves the right to review all vendors' conviction history policies
for consistency with City standards. The vendors' conviction history standards may be part of
the criteria to be evaluated by the City when determining whether to award a City contract to a
vendor, and vendors utilizing similar practices as those enumerated in the first paragraph of this
section herein.
Vendors who are able to validate that their conviction history procedures conform to the same
process as shown in this section herein above, will receive one (1) additional Bonus Point which
will be added to their Evaluation Committee score for each Evaluator when the City is soliciting
Requests for Proposal, Requests for Qualifications or Requests for Letters of Interest, unless
prohibited by the requirements of Florida or U.S. statutes or codes. Further, the City reserves the
right to evaluate a Contractor's execution of the conviction history standards as a part of the
performance criteria of said City contracts.
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Vendors are requested to provide information relating to their policies regarding criminal information
history and will be asked to provide information as a part of vendor's electronic response. Vendors
with criminal history information procedures may be requested to validate their procedures by
providing copies of their written policy and/or copies of their employment applications as part of
their electronic submittal response.
34. PROHIBITION AGAINST CONSIDERING SOCIAL, POLITICAL OR IDEOLOGICAL
INTERESTS IN GOVERNMENT CONTRACTING — F.S. 287.05701
Bidders are hereby notified of the provisions of section 287.05701, Florida Statutes, as
amended, that the City will not request documentation of or consider a Bidder's social, political,
or ideological interests when determining if the Bidder is a responsible Bidder. Bidders are
further notified that the City's governing body may not give preference to a Bidder based on the
Bidder's social, political, or ideological interests.
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of Tamarac The City For Your Life Purchasina and Contracts Division
V. STANDARD TERMS AND CONDITIONS
These Standard terms and conditions apply to all offers made to the City of Tamarac by all prospective
Responding firms including but not limited to Invitations for Bid, Requests for Quotation and Requests
for Proposal or Requests for Qualifications or Requests for Letters of Interest. As such the words
"quotation", "bid", "proposal", "submittal', "response" or "solicitation" may be used interchangeably in
reference to all offers submitted by prospective Responding firms. Any and all special conditions which
may be provided in this RFP, and Statement of Work or any sample agreement document that may be
in variance or conflict with these General Terms and Conditions shall have precedence over these
General Terms and Conditions. If no changes or deletions to General Conditions are made in the
Statement of Work, then the General Terms and Conditions shall prevail in their entirety.
OUR VISION AND MISSION
Our Vision: The City of Tamarac, our community of choice -- leading the nation in quality of life through
safe neighborhoods, a vibrant economy, exceptional customer service and recognized excellence.
Our Mission: We Are "Committed to Excellence. . . Always" It is our job to foster and create an
environment that
• Responds to the Customer
• Creates and Innovates
• Works as a Team
• Achieves Results, and
• Makes a Difference
In the fulfillment of our vision and mission, as stewards of the public trust, we value vision, integrity,
efficiency and quality service.
Our vendors are truly partners in meeting these commitments to the community, and in support of that
vision and mission, we are committed to ensuring that qualified, competitive vendors who share our
commitment to quality, efficiency, teamwork and customer service are employed to provide goods and
services to the City. Our vendors are expected to deliver high quality products and efficient service that
is provided on time and as ordered; in a manner that improves the overall value of the services that the
City provides to its residents. In addition, we expect our vendors to work with the City as a team and
exhibit the highest level of integrity when dealing with any office or department of the City.
Diligence in the execution of the requirements of this Solicitation will ultimately contribute to the overall
quality of services provided to the entire community. The City is searching for a firm who will exemplify
these ideals in the execution of their work, and the successful firm will be measured against the
performance standards outlined in this quotation invitation.
ACCESSIBILITY
The information contained in this document is available in an accessible format at:
https://tamarac.bidsandtenders.net/Module/Tenders/en.
1. PERFORMANCE
Failure on the part of the Quoting firm to comply with the conditions, terms, specifications and
requirements of the proposal shall be just cause for cancellation of the bid award. The City may, by
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The City For Your Life
City of Tamarac Purchasing and Contracts Division
written notice to the Responding firm, terminate the contract for failure to perform. The date of
termination shall be stated in the notice. The City shall be the sole judge of nonperformance.
2. TERMINATION
a. DEFAULT: In addition to all other remedies available to the City, this Agreement shall be
subject to cancellation by the City for cause, should the Contractor neglect or fail to perform or
observe any of the terms, provisions, conditions, or requirements herein contained, if such neglect
or failure shall continue for a period of thirty (30) days after receipt by Contractor of written notice
of such neglect or failure.
b. TERMINATION FOR CONVENIENCE OF CITY: Notwithstanding any additional requirements
for performance based contracting contained in the special conditions herein, the final Agreement
may be terminated by the City for convenience, upon seven (7) days of written notice by the City to
the Contractor for such termination in which event the Contractor shall be paid its compensation for
services performed to termination date, including services reasonably related to termination. If the
Contractor abandons this Agreement or causes it to be terminated, Contractor shall indemnify the
city against loss pertaining to this termination.
c. FUNDING OUT: This agreement shall remain in full force and effect only if the expenditures
provided for in the Agreement have been appropriated by the City Commission of the City of
Tamarac in the annual budget for each fiscal year of this Agreement and is subject to termination
based on lack of funding.
3. ASSIGNMENT
The Responding firm shall not transfer or assign the performance required by this RFP without the
prior written consent of the City. Any award issued pursuant to this RFP and monies that may
become due hereunder are not assignable except with prior written approval of the City. No such
approval will be construed as making the City a part of or to such assignment, or subjecting the City
to liability of any kind to any assignee. No subcontract or assignment shall, under any
circumstances, relieve the Contractor of its liability and obligation under this contract, and despite
any such assignment, the City shall deal through the Contractor only. However, if the company is
sold during the life of the contract, the buying agent must provide the City with a letter signed by an
officer of the new ownerwho can legally bind the company, stating that they will continue to perform
the requirements of the contract in compliance with all the terms, conditions, and specifications so
stated in the contract.
4. NON-DISCRIMINATION & EQUAL OPPORTUNITY EMPLOYMENT
During the performance of the Contract, the successful Contractor and its subcontractors shall not
discriminate against any employee or applicant for employment because of race, color, sex
including pregnancy, religion, age, national origin, marital status, political affiliation, familial status,
sexual orientation, gender identity and expression, or disability if qualified. The Contractor will take
affirmative action to ensure that employees and those of its subcontractors are treated during
employment, without regard to their race, color, sex including pregnancy, religion, age, national
origin, marital status, political affiliation, familial status, sexual orientation, gender identity, genetic
information or expression, or disability if qualified. Such actions must include, but not be limited to,
the following: employment, promotion; demotion or transfer; recruitment or recruitment advertising,
layoff or termination; rates of pay or other forms of compensation, and selection for training,
including apprenticeship. The Contractor and its subcontractors shall agree to post in conspicuous
places, available to its employees and applicants for employment, notices to be provided by the
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of Tamarac Purchasing and Contracts Division
contracting officer setting forth the provisions of this nondiscrimination clause. The Contractor
further agrees that he/she will ensure that all subcontractors, if any, will be made aware of and will
comply with this nondiscrimination clause.
5. TAXES
The City of Tamarac is exempt from all Federal, State, and Local taxes. An exemption certificate
will be provided where applicable upon request.
6. OMISSION OF DETAILS
Omission of any essential details from the terms or specifications contained herein will not relieve
the Responding firm of supplying such product(s) as specified.
7. INSURANCE REQUIREMENTS
Except for contract requirements where goods are drop -shipped to the City, responding firm agrees
to, in the performance of work and services under this Agreement, comply with all federal, state,
and local laws and regulations now in effect, or hereinafter enacted during the term of this
agreement that are applicable to Contractor, its employees, agents, or subcontractors, if any, with
respect to the work and services described herein.
Responding firm shall obtain at Responding firm's expense all necessary insurance in such form
and amount as required by the City's Risk & Safety Officer before beginning work under this
Agreement. Responding firm shall maintain such insurance in full force and effect during the life of
this Agreement. Responding firm shall provide to the City's Risk & Safety Officer certificates of all
insurance required under this section prior to beginning any work under this Agreement.
Responding firm shall indemnify and save the City harmless from any damage resulting to it for
failure of either Responding firm or any subcontractor to obtain or maintain such insurance.
The following are required types and minimum limits of insurance coverage, which the Proposer
agrees to maintain during the term of this contract:
• General Liability- $1 M/$2M
• Automobile — $1 M/$1 M
• Workers Comp — Statutory
• Professional Liability - $1 M
Professional Services under this Agreement requires that the Offeror must provide the City with
evidence of Professional Liability insurance with, at a minimum, a limit of $1,000,000 per occurrence
and in the aggregate. "Claims -Made" forms are acceptable only for Professional Liability.
The City reserves the right to require higher limits depending upon the scope of work under
this Agreement that may be outlined below.
Neither Responding firm nor any subcontractor shall commence work under this contract until they
have obtained all insurance required under this section and have supplied the City with evidence of
such coverage in the form of an insurance certificate and endorsement. The Responding firm will
ensure that all subcontractors will comply with the above guidelines and will maintain the necessary
coverage throughout the term of this Agreement.
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All insurance carriers shall berated at least A-VII per A.M. Best's Key Rating Guide and be licensed
to do business in Florida. Policies shall be "Occurrence" form. Each carrier will give the City sixty
(60) days' notice prior to cancellation.
The Responding firm's liability insurance policies shall be endorsed to add the City of Tamarac as
"additional insured". The Responding Firm's Worker's Compensation carrier will provide a Waiver
of Subrogation to the City. The Responding firm shall be responsible for the payment of all
deductibles and self -insured retentions.
The City may require that the Responding firm purchase a bond to cover the full amount of the
deductible or self -insured retention. If the Responding firm is to provide professional services under
this Agreement, the Responding firm must provide the City with evidence of Professional Liability
insurance with, at a minimum, a limit of $1,000,000 per occurrence and in the aggregate. "Claims -
Made" forms are acceptable for Professional Liability insurance. A sample Insurance certificate
validating that the responding firm has the required insurance coverage that will meets the
requirements outlined herein must be uploaded with Responding firm's bid.
8. INDEMNIFICATION
The Responding firm shall indemnify and hold harmless the City of Tamarac, its elected and
appointed officials and employees from any and all claims, suits, actions, damages, liability, and
expenses (including attorneys' fees) in connection with loss of life, bodily or personal injury, or
property damage, including loss of use thereof, directly or indirectly caused by, resulting from,
arising out of or occurring in connection with the operations of the Responding firm or its
Subcontractors, agents, officers, employees or independent contractors, excepting only such loss
of life, bodily or personal injury, or property damage solely attributable to the gross negligence or
willful misconduct of the City of Tamarac or its elected or appointed officials and employees. City
reserves the right to select its own legal counsel to conduct any defense in any such proceeding
and all costs and fees associated therewith shall be the responsibility of Contractor under the
indemnification agreement.
Nothing contained herein is intended nor shall it be construed to waive City's rights and immunities
under the common law or Florida Statute 768.28 as amended from time to time.
9. INDEPENDENT CONTRACTOR
An Agreement resulting from this solicitation does not create an employee/employer relationship
between the Parties. It is the intent of the Parties that the successful Contractor is an independent
contractor under this Agreement and not the City's employee for any purposes, including but not
limited to, the application of the Fair Labor Standards Act minimum wage and overtime payments,
Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act,
the provisions of the Internal Revenue Code, the State Worker's Compensation Act, and the State
Unemployment Insurance law. The Contractor shall retain sole and absolute discretion in the
judgment of the manner and means of carrying out Contractor's activities and responsibilities
hereunder provided, further that administrative procedures applicable to services rendered under
any potential Agreement shall be those of Contractor, which policies of Contractor shall not conflict
with City, State, or United States policies, rules or regulations relating to the use of Contractor's
funds provided for herein. The Contractor agrees that it is a separate and independent enterprise
from the City, that it had full opportunity to find other business, that it has made its own investment
in its business, and that it will utilize a high level of skill necessary to perform the work. Any potential
Agreement shall not be construed as creating any joint employment relationship between the
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Contractor and the City, and the City will not be liable for any obligation incurred by Contractor,
including but not limited to unpaid minimum wages and/or overtime premiums.
10. VENUE
Any Agreement resulting from this solicitation shall be governed by the laws of the State of Florida
as now and hereafter in force. The venue for actions arising out of this agreement is fixed in
Broward County, Florida.
11. SCRUTINIZED COMPANIES
By execution of this RFP, respondent certifies that respondent is not participating in a boycott of
Israel. Respondent further certifies that Respondent is not on the Scrutinized Companies that
Boycott Israel list, not on the Scrutinized Companies with Activities in Sudan List, and not on the
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has respondent
been engaged in business operations in Syria. Subject to limited exceptions provided in state law,
the City will not contract for the provision of goods or services with any scrutinized company referred
to above.
Submitting a false certification shall be deemed a material breach of contract. The City shall provide
notice, in writing, to Contractor of the City's determination concerning the false certification.
Contractor shall have five (5) days from receipt of notice to refute the false certification allegation.
If such false certification is discovered during the active contract term, Contractor shall have ninety
(90) days following receipt of the notice to respond in writing and demonstrate that the determination
of false certification was made in error. If Contractor does not demonstrate that the City's
determination of false certification was made in error then the City shall have the right to terminate
the contract and seek civil remedies pursuant to Section 287.135, Florida Statutes, as amended
from time to time.
12. RECORDS/AUDITS
12.1 The City of Tamarac is a public agency subject to Chapter 119, Florida Statutes. The
Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor
shall:
a. Keep and maintain public records required by the City to perform the service;
b. Upon request from the City's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected
or copied within a reasonable time at a cost that does not exceed the cost
provided in this chapter or as otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized
by law for the duration of the contract term and following completion of the
contract if the contractor does not transfer the records to the City.
d. Upon completion of the contract, transfer, at no cost to the City, all public records
in possession of the Contractor, or keep and maintain public records required by
the City to perform the service. If the Contractor transfers all public records to
the City upon completion of the contract, the Contractor shall destroy any
duplicate public records that are exempt or confidential and exempt from public
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records disclosure requirements. If the Contractor keeps and maintains public
records upon completion of the contract, the Contractor shall meet all applicable
requirements for retaining public records. All records stored electronically must
be provided to the City, upon request from the City's custodian of public records
in a format that is compatible with the information technology systems of the City.
12.2 During the term of the contract, the Contractor shall maintain all books, reports
and records in accordance with generally accepted accounting practices and
standards for records directly related to this contract. The form of all records and
reports shall be subject to the approval of the City's Auditor. The Contractor
agrees to make available to the City's Auditor, during normal business hours and
in Broward, Dade or Palm Beach Counties, all books of account, reports and
records relating to this contract.
13. BUDGETARY CONSTRAINTS
In the event the City is required to reduce contract costs due to budgetary constraints, all services
specified in this document may be subject to a permanent or temporary reduction in budget. In
such an event, the total cost for the affected service shall be reduced as required.
14. E-VERIFY COMPLIANCE
As a condition precedent to entering into this Agreement, and in compliance with Section 448.095,
Fla. Stat., Contractor and its subcontractors shall, register with and use the E-Verify system to verify
work authorization status of all employees hired after January 1, 2021. Contractor shall require
each of its subcontractors to provide Contractor with an affidavit stating that the subcontractor does
not employ, contract with, or subcontract with an unauthorized alien. Contractor shall maintain a
copy of the subcontractor's affidavit as part of and pursuant to the records retention requirements
of this Agreement. City, Contractor, or any subcontractor/subContractor who has a good faith belief
that a person or entity with which it is contracting has knowingly violated Section 448.09(1), Fla.
Stat. or the provisions of this section shall terminate the contract with the person or entity. City,
upon good faith belief that a subcontractor knowingly violated the provisions of this section; but
Contractor otherwise complied, shall promptly notify Contractor and Contractor shall immediately
terminate the contract with the subcontractor.
An agreement or contract terminated under the provisions of this section is not a breach of contract
and may not be considered such. Any agreement or contract termination under the provisions of
this section may be challenged pursuant to Section 448.095(2)(d), Fla. Stat. Contractor
acknowledges that upon termination of this Agreement by the City for a violation of this section by
Contractor, Contractor may not be awarded a public contract for at least one (1) year. Contractor
further acknowledges that Contractor is liable for any additional costs incurred by the City as a result
of termination of any contract for a violation of this section. Contractor or subcontractor shall insert
in any subcontracts the clauses set forth in this section; requiring the subcontractors to include
these clauses in any lower tier subcontracts. Contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in this section.
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The City For Your Life
of Tamarac Purchasina and Contracts Division
15. CUSTODIAN OF RECORDS
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS
AT:
CITY CLERK
7525 NW 88TH AVENUE
ROOM 101
TAMARAC, FL 33321
(954) 597-3505
CITYCLERK(a-)-TAMARAC.ORG
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TAMARAC
The City For Your Life
of Tamarac
VI. STATEMENT OF WORK
BANKING SERVICES
and Contracts Division
Definition: A Request for Proposal (RFP) is a method of procurement permitting discussions with
responsible Proposers and revisions to proposals prior to award of a contract. Proposals will be opened
in private. Award will be based on the criteria set forth herein.
A. SCOPE OF PROPOSAL
The purpose of this Request for Proposals is to obtain the services of a qualified firm to provide
Banking Services on behalf of the City of Tamarac Financial Services Department, in conformity
with the requirements contained herein.
B. BACKGROUND
The City of Tamarac is a metropolitan municipality serving more than 71,500 residents and
encompassing an area of 12 square miles.
C. INTENT AND DURATION
It is the intent of the City of Tamarac to select one Bank to provide full banking services for all
City funds, except for its employee's pension funds, which are organized and administered
separately. The objectives are to obtain the best banking services while minimizing the cost
to the City.
The contract for banking services shall commence within One Hundred and twenty (120)
days of selection of the depository Bank and shall terminate five (5) years after the date of
commencement. The City reserves the right to renew the contract for one (1) additional Five
(5) year term pending a mutual agreement between the City and the contractor, and a review
by the City of vendor's contract performance for the previous year.
In the event services are scheduled to end because of the expiration of this Agreement, the
Contractor shall continue the service upon the request of the Purchasing and Contracts
Manager on a month -to -month basis until such time as a new Agreement is awarded and in
place, or upon mutual agreement of the parties. The contractor shall be compensated for the
services at the most recently approved rates in effect when this extension clause is invoked
by the City.
Prices, terms and conditions shall remain firm throughout this contract period unless modified
or canceled in accordance with the provisions of this Proposal.
D. CONTRACT OBJECTIVES
The Proposal shall address at a minimum the following objectives:
1. Actual daily operational banking needs of the City of Tamarac.
2. Provide maximum service to the City of Tamarac while minimizing costs to the City.
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E. ACCOUNT MAINTENANCE
Purchaswu and Contracts Division
The City of Tamarac desires to maximize its cash availability through the use of concentration
and zero -balance accounts. This account structure will be comprised of a Concentration
Account and six (6) zero -balance accounts (Accounts Payable, Payroll, EMS Billing, Credit
Card Payments, Utility Lockbox and Utility Billing).
All disbursements will flow through the zero -balance accounts. All balances will be maintained
in the Concentration Account. The Accounts Payable, Payroll, EMS, Credit Cards and Utility
accounts will be reimbursed at the close of the business day, or at the opening of the business
day following the day the checks are presented for payment, depending on the Bank's policy.
The zero -balance accounts will always have a zero ledger balance at the beginning of each
business day. Deposits through the selected armored car service will be deposited to the
Concentration account and all deposit tickets will reflect the account number for the
Concentration account
The zero -balance accounts will be established as controlled disbursement accounts and to
isolate credit card, utility ACHs and EMS transactions. Deposits to the zero balance accounts
will be electronic or through lockbox services.
The City of Tamarac reserves the right to open additional accounts (zero -balance or other
type of checking) during the contract period at the price proposed in this Proposal, provided
the awarded Bank is furnished written notification at least twenty (20) calendar days before
implementation date.
1. Concentration Account (Master Account)
The Bank will establish a Master Account and transfer all collected balances in the City's
accounts at the close of each business day. The master account should be an account
specifically designed for deposits of public funds. The account should be interest bearing.
All wire transfers and ACH debits and credits (except for certain payroll transactions) will
be made to and from this account.
2. Accounts Payable Account (Zero Balance Account)
This account will be used solely to process disbursements for accounts payable. There
will not be any direct deposits into this account, except for the Bank transfer to cover
checks presented for payment.
3. Payroll Account (Zero Balance Account)
This account will be used solely to process payroll disbursements to City Employees.
There will not be any direct deposits into this account, except for the Bank transfer to cover
checks presented for payment. This account will also handle the direct deposit
transactions of the City employees.
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The City For Your Life
of Tamarac Purchasina and Contracts Division
4. EMS Billino Account (Zero Balance Account
This account will be used solely to process EMS lockbox deposits and other related
transactions.
5. Credit/Debit Card Account (Zero Balance Accoun
This account is to be used solely to account for ACH debit and credits related to credit or
debit card transactions.
6. Utility Lockbox Account (Zero Balance Accou
This account will be used solely to process Utility lockbox deposits and other related
transactions.
7. Utility Account (Zero Balance Account)
This account will be used solely to process Utility ACH deposits and other related
transactions.
8. Other Accounts
Other accounts may be established over the contract term by the City of Tamarac. These
accounts will operate the same as the zero -balance accounts indicated above or will be
an addition account established for a specific purpose.
The zero -balance accounts will operate on the following basis:
Transfers between accounts will be charged to the City only as transfers and not as items
deposited and checks paid. All transfers will take place automatically without initiation by
the City.
At the end of the business day, the zero -balance accounts will be debited for all checks
presented during the day. At the close of the business day, the total amount debited will
be transferred from the Concentration Account and credited to each zero -balance account.
F. AVAILABILITY OF FUNDS
Awarded Bank agrees to credit the City's Concentration Account for Incoming Wire Transfers
the same day, regardless of time of receipt during the day.
The majority of deposits will be made through an armored car service. All deposits picked up
by the armored car company will be given same day ledger credit regardless of the actual time
the deposits are taken to the Bank by the armored car company.
All checks will be based on the awarded Bank's "availability schedule". Proposing banks are
required to attach a copy of their current "availability schedule" to the Proposal. Awarded Bank
agrees to notify the Director of Financial Services, in writing, of any changes to the schedule.
The City reserves the right to periodically audit the awarded Bank's compliance with the
existing "availability schedule".
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G. POSITIVE PAY
and Contracts Division
The awarded Bank is required to provide Positive Pay services or other services designed to
prevent to protect and prevent the occurrence of fraudulent transactions on the City Accounts.
H. DAILY BALANCE REPORT NOTIFICATION
The awarded Bank will be required to provide the daily balance notification to City of Tamarac.
This notification will be required by 8:00 am, via a computer terminal. This notification will be
to the attention of the Financial Services Department and will consist of the following minimum
information:
3. Ledger Balance
4. Available (or collected balance)
5. Float for 1, 2 and 3 day
6. Summary of debit and credit postings
The available balance shall include the proceeds returned to the Bank from any bank -initiated
repurchase agreement from the previous business day. It shall also include the proceeds of
all wire transfers received the previous business day, regardless of time of receipt.
I. PROACTIVE NOTIFICATION
The awarded Bank will be required to provide the daily balance proactive notification to City of
Tamarac. This notification will be required by 8:00 am, via a computer terminal. This notification
will be to the attention of the Assistant Financial Services Director/Controller and will consist of
the following information:
1. Positive Pay decision
2. Returned items — Checks deposits or ACH
3. Wire transfers — Incoming or outgoing (this notification should also occur real-time.)
J. DIRECT DEPOSIT
The bank shall provide direct deposit of payroll (approximately 400 employees) with file
transmission by direct computer link.
K. WIRE TRANSFERS
The City receives various wire transfers throughout the month. The City will also disburse
funds via repetitive wire transfers upon on-line requests of an authorized person, or non -
repetitive wire transfers upon on-line request of an authorized person and confirmation by a
second authorized person.
The City desires to enter into a Wire Transfer agreement with the awarded Bank for all
incoming and outgoing wire transfers. The Bank is requested to provide a copy of its Wire
Transfer agreement with its Proposal. Said agreement must take into consideration the
provisions of UCC Article 4A.
L. STATEMENT AND ADVICE FREQUENCY
Monthly bank statements will be for the full calendar month and will be delivered to the City's
Financial Services Department within five (5) business days after the end of the month.
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The City For Your Life
of Tamarac
Purchasing and Contracts Division
A Monthly Account Analysis Statement Report for a particular month will be completed and
delivered to the City's Financial Services Department within ten (10) business days after the
end of the month. This analysis will contain unit cost, monthly units, average daily balance,
float and any and all charges for activities related to services performed for the City. The
payment of fees (preferable settled and paid monthly) to the Bank can be by hard dollar
payment, deducted via account analysis from interest or using a compensating balance with
the bank.
M. ACCOUNT RECONCILIATION
The awarded Bank shall provide reconciliation service for all accounts specified in the RFP.
Reconciliation services include at least the following requirements:
Checks paid to the Bank each month via modem, diskette or alternative medium suitable to the
City's operating requirements.
Return of all canceled checks or check images, sorted by check number, on a monthly basis.
Return of all other items, such as debit and credit memos, and deposit tickets in date order on
a monthly basis.
Daily Deposit
The information described in item a) above will be available to the City within five (5) business
days after the end of the month. Other services will be provided within ten (10) business days
after the end of the month.
N. COIN SORTING
The City anticipates that it will have approximately $1,000.00 per month in loose coins to be
sorted and counted. The mix of the coinage will vary from month to month.
O. LOCK BOX SERVICES
The City currently utilizes lock box services; please include pricing for this service.
P. DESIGNATED ACCOUNT EXECUTIVE
The City requests that the proposing banks provide the names of a designated account
executive, as well as an alternate. The designated account executives must have the authority
to make timely decisions in the normal course of business.
Resumes must be provided for all key account executives designated to service this account.
Q. ACCESS TO BANK RECORDS
The City, or its authorized representatives, shall have access to the books and records
maintained by the Bank with respect to such City bank accounts at all reasonable times,
including the inspection or copying of such books and records and all memoranda, checks,
correspondence or documents pertaining thereto. Such books and records shall be preserved
by the Bank as required by applicable regulatory bodies.
R. AUTOMATIC FUNDS TRANSFER (AFT) / AUTOMATIC CLEARING HOUSE (ACH
DEBIT)
The City offers its utility customers the option of paying utility bills via Automatic Funds
Transfer (AFT)/Automatic Clearing House (ACH debit). The City currently has approximately
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TAMARAC
The City For Your Life
City of Tamarac Purchasing and Contract's Division
18,000 utility customers; approximately 20% of these customers use Automatic Funds
Transfer to pay utility bills.
Please provide a complete description of any AFT/ACH program you may have. Include
details of the City's data transfer requirements and a listing of all fees (if any).
S. OTHER BANKING SERVICES AND CONDITIONS
All returned checks due to insufficient funds will be automatically re -deposited a second
time. Please include your charge (if any) for this item. If a check is returned a second
time, the Bank will return the check to the City. NSF checks will be debited to the
Concentration Account.
The depository Bank will provide all necessary banking supplies. These shall include,
but not be limited to, deposit bags, coin wrappers, deposit slips (original and two copies)
and deposit stamps. The Bank will also be responsible for paying the cost of blank check
stock for all the disbursement accounts. Said check stock shall be ordered by the City
from the vendor of its choice but shall be paid for by the depository Bank. The cost of
said checks may be added to the Bank's cost of servicing the City's accounts. The Bank
will also provide an adequate supply of night deposit box keys and lockable night deposit
bags.
At no time will any charges be applied against any of the accounts established through
this RFP. All charges will be paid through the account analysis. Should the City desire
to add services not contemplated in this RFP, those charges will be covered by inclusion
in the analyzed services or by direct invoice, as directed by City. Unless agreed to by
the City of Tamarac, this RFP will contain all the costs associated with providing banking
services, as requested, to the City of Tamarac. Additional costs not previously approved
or authorized by City will not be paid.
4. All debit and credit memos required to adjust errors caused by the Bank will not be
charged to the City. A copy of the particular deposit slip must accompany all deposit
errors. All bank errors must be corrected within three (3) business days of notification by
the City.
5. The City will deposit funds equal to or exceeding the gross amount of checks issued
and/or wire transfers out. However, if an overdraft occurs due to a clerical error or
oversight, all checks presented for payment shall be honored. The Bank will notify the
Director of Financial Services immediately so that corrective action can be taken.
6. All Stop Payment Orders will be transmitted either through a PC connection to the Bank
or via phone with written follow-up. Upon receipt of the order, the Bank will examine their
records and inform the City as to whether the specified check has or has not been
cashed. If the Bank determines that the specified check has been paid, the Bank will
forward to the City a copy of said check. If the Bank determines that the specified check
has not been paid, the Bank will immediately issue its internal stop payment order and
confirm the execution of said order to the City. Cancellations of Stop Payment Orders (if
any) will be processed as above.
7. Coins and currency are occasionally requested by various departments within the City.
Please provide a standard fee (if any) for providing this service as required.
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8. The State of Florida, the US Government, Broward County, Franchisees and other
entities send approximately thirty (30) Automated Clearing House (ACH) transactions
per month to the City.
9. The Bank will offer the City the ability to lock all bank accounts from ACH debits from
outside sources, with the exception of the Internal Revenue Service, the Florida
Department of Revenue, the Merchant Provider (Credit/Debit account) and specifically
authorized agencies. The City will provide this exception to the Bank in writing.
10. The City anticipates a need for a "Positive Pay/Full Reconciliation" service. Please
provide a complete description of any positive payment programs your Bank may have.
Include details and a listing of all fees (if any).
11. The City anticipates a need for an "imaging" service for all cancelled checks. Please
provide details and a listing of all fees (if any).
12. The City may have need of an Automated Teller Machine (ATM). Include details and a
listing of fees (if any).
13. Propose any new financial services, plans or practices deemed to be in the best interest
of the City if not otherwise addressed in this Proposal.
14. Indicate the dollar amount of credit you would be able to extend to the City on a short-
term basis through promissory note or line of credit if the City decides to avail itself of
such service from your institution. The loan funds may be provided either directly by your
institution or by your institution as the lead bank with other participating banks.
15. Describe the type of financial services you can provide to the City for leasing machinery
or equipment. Include any limitations your Bank may have.
16. The Bank may be asked to accept utility payments at all local branches. Please provide
information on the Banks ability to process such payments.
17. The City reserves the right to establish additional accounts in other banks, or provide for
additional services from other banks, if the City so deems necessary. If the City elects
to exercise this right, the contract covered by this Proposal shall remain in effect as
regards all terms, agreements and conditions without penalty or diminution of ongoing
banking services as contained therein and previously provided by the successful bank
in this proposal.
T. AUTOMATION REQUIREMENTS
Please provide a specification on the equipment required by the City to access your on-line
services. This specification should include at least the following information:
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1. Windows Format
2. Minimum memory
3. Minimum hard disk requirements
4. Minimum Windows 2000 version
5. Communication specification
6. Mouse requirement (if any)
7. Operational environment
The specification should include any additional information necessary to enable City to
communicate electronically with the awarded Bank.
Please provide a schedule of hours of operation for electronic services. List exceptions (if any) to
the general schedule.
U. MISCELLANEOUS ITEMS
1. Please outline any Banking Incentive Programs for City employees such as:
i. Free or reduced cost checking accounts
ii. Reduced rate loans
iii. Other free or reduced cost services provided to Bank customer's employees.
2. On occasion, the City receives Canadian checks. Some are payable in US currency and
some are payable in Canadian currency. Please state your policy on handling these and
other foreign checks.
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Purchasing and Contracts Division
VII. PROPOSAL SELECTION & EVALUATION OF PROPOSALS
The City Manager will appoint an Evaluation and Selection Committee to review Proposals. The
City reserves the right to select the Proposer who represents the best value, and to accept or reject
any proposal submitted in response to this solicitation. The City's Evaluation and Selection
Committee will act in what they consider to be the best interest of the City and its residents. Price
shall not be the sole determining factor for selection, as indicated below.
1. ACCEPTABILITY OF PROPOSALS
The Offer shall be evaluated solely in accordance with the criteria set forth herein. The proposals
shall be categorized as follows:
i. Acceptable;
ii. Potentially Acceptable, that is reasonably susceptible of being made acceptable; or
iii. Unacceptable -- Scoring is below an aggregate score which may be specified in the proposal
document, or in the absence of a specific aggregate score, a score lower than 70% of the
potential possible points available.
2. EVALUATION METHOD AND CRITERIA
The City Manager shall appoint an evaluation/selection committee that will be responsible for
selecting the most qualified firm and then negotiating a contract. The City may request that
Proposers with the highest -ranked submittals make a detailed presentation of their product/service
to the Evaluation and Selection Committee.
The City reserves the right to enter into contract negotiations with the selected Proposer. If the City
and the selected Proposer cannot negotiate a successful contract, City may terminate such
negotiations and begin negotiations with the next highest -ranked Proposer. No Proposer shall have
any rights against the City arising from such negotiations.
Proposals shall be evaluated in accordance with the weighted criteria listed below:
Compliance with Request for Proposals [Mandatory]. This refers to the adherence
to all conditions and requirements of the Request for Proposals.
Quality of Response, Technical Approach, and Work Plan. Clearly demonstrated
understanding of the scope, objectives and work to be performed. Completeness and
reasonableness of the Offeror's plan/proposal for accomplishing the goals, objectives
and tasks. Level of knowledge and creativity and demonstrated by the Offeror's
proposed methodologies for meeting the requirements of this proposal. Ability to
respond to City's needs as set forth in the Proposal.
Qualifications and Experience of the Firm/Project Staff. Offeror's capability in all
respects to perform fully the contract requirements, and the tenacity, perseverance,
experience, integrity, and reliability which will assure good faith performance, as well as
satisfactory reference verification. The criteria includes: a) The experience of the firm
and its record on engagements of a similar nature, including the ability to serve in a
similar capacity for other units of government or organizations; b) Personnel to be
assigned to the project, and their education, capabilities, qualifications and experience
with similar projects; Reference information gathered from other entities regarding the
past experience of the firm; and d) other areas addressed in the Scope of Work herein.
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• Schedule. This refers to the proposed detailed project schedule and the Offeror's ability
to meet the City's transition schedule to begin providing all required services.
• Costs (Price) This refers to the proposed contract fee and reimbursement expense
budget. (Please note that price is only one factor for consideration of award).
a. The Offeror shall propose a not -to -exceed amount for complete execution of this project
based on unit pricing as detailed in the Cost Exhibit shown in Exhibit A.
b. If proposing costs which may include alternate programs or services not covered in the
base bid pricing, the Offeror, when offering such alternative services must provide a
detailed explanation of additional optional services to be offered.
• Local / CBE / Veteran Preference Consideration (Bonus Points) 5 points
The City of Tamarac is responsive to our vendor community and to local Tamarac and
small Broward County businesses. In accordance with Chapter 6-146.1., "Local
Business Preference" of the Tamarac Procurement Code authorizes a preference
program for Local Tamarac Vendors (5 points) as well as a preference for firms certified
by the Broward County Office of Economic and Small Business Development (OESBD)
as a Small Business Vendor (2.5 points), and Veteran -owned Business Vendors (2.5
points). Recipients may receive credit for either being a Local Tamarac Vendor or a
Broward County Small Business Vendor, or a Veteran -owned Vendor, whichever has
the highest point value.
• Consideration of Conviction History Policy (Bonus Point) 1 point
3. MAXIMUM TECHNICAL & COST POINTS (Up to 100 Points + 6 Bonus Points)
1. Compliance with Request for Proposal (Mandatory; N/A
2. Quality of Response, Technical Approach & Work 35 points
Plan
3. Qualifications of the Firm/Project Staff, including 35 points
References
4. Schedule
5. Costs (Price)
15 points
15 points
TOTAL TECHNICAL & COST POINTS 100 Points
6. Bonus Points: Local/ CBE/Veteran Owned Vendor Preference 5 Points
7. Bonus Points: Consideration of Conviction History Policy 1 Point
TOTAL POSSIBLE TECHNICAL, COST & BONUS POINTS 106 Points
The City reserves the right to ask questions for clarification to any and all Proposers as
part of its evaluation. The Proposer shall be prepared to advise the Committee on the
manner in which the contractual obligations will be accomplished. The City also highly
recommends the Proposer have the appropriate management level staff represent the
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firm during the presentation phase, if applicable. The designated Project Manager
should be available.
4. ALTERNATIVE BEST VALUE SCORING
As an alternative to using a weighted criteria, the City may utilize a Best Value Scoring
process. The Best Value Scoring will require the Evaluation Committee to assign a
composite score rank, based on the Committee's determination of the relative overall
value of the Proposer's response. Composite scores will rank responses from 1 (1st
place), 2 (2nd place), and so on, for the total number of responses under consideration.
Specific Scoring Mechanism for this RFP: The weighted criteria shall be used for the
initial evaluation of proposals for either short -listing, or as the final evaluation method if
the number of responses received does not warrant a short -listing cycle. The City may
then use the best value ranking for the final ranking of firms after the completion of the
evaluation process and/or any oral presentations provided by the short-listed firms.
5. BEST & FINAL OFFER
The City reserves the right to request Best and Final Offers from any or all Proposers
when the City determines that information received during the evaluation process
warrants additional clarification.
6. DISCUSSIONS & PRESENTATIONS
Short-listed Proposers may be requested to make presentations to the Committee. The
City may require additional information after evaluating the submittals, and Proposers
agree to furnish such information upon the City's request.
All Proposers are advised that in the event of receipt of an adequate number of
Proposals which in the opinion of the Evaluation Committee require no clarification
and/or supplementary information, such Proposals may be evaluated without
discussion. Hence, proposals should be initially submitted complete with favorable terms
and show the Proposers most advantageous solution offered the City.
After presentations, if so requested, firms will be assigned a final score, with the highest -
ranked firm moving forward to the negotiation phase. Upon successful negotiation, a
recommendation for an award will be considered by the City Commission. No work on
this project shall proceed without written authorization from the City of Tamarac.
The City reserves the right to enter into contract negotiations with the selected Proposer.
If the City and the selected Proposer cannot negotiate a successful contract, City may
terminate such negotiations and begin negotiations with the next highest -ranked
Proposer. No Proposer shall have any rights against the City arising from such
negotiations.
7. AWARD OF AGREEMENT
Award shall be made by the City to the responsible offeror whose proposal is determined
to be the most advantageous to the City, taking into consideration price and the
evaluation criteria set forth above. The City of Tamarac reserves the right to accept the
Proposal as a whole or for any component thereof if it appears to be in the best interest
of the City.
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8. RIGHT TO REJECT PROPOSALS
To the extent permitted by applicable state, federal laws, and regulations, City reserves the
right to reject any and all Proposals, to waive any and all informalities not involving price,
time or changes in the work, and to disregard all nonconforming, non -responsive,
unbalanced or conditional Proposals. Proposals will be considered irregular and may be
rejected if they show serious omissions, alterations in form, additions not called for,
conditions, unauthorized alterations, or irregularities of any kind.
City reserves the right to reject any Proposal if City believes that it would not be in its best
interest to make an award to a particular Proposer, either because the Proposal is not
responsive, the Proposer is unqualified, of doubtful financial ability, or fails to meet any
other pertinent criteria established by City within the scope of this solicitation.
CONTACT WITH PERSONNEL OF THE CITY OF TAMARAC OTHER THAN THE
PURCHASING AND CONTRACTS MANAGER OR DESIGNATED REPRESENTATIVE
DURING THE SOLICITATION, EVALUATION AND AWARD PROCESS REGARDING THEIR
REQUEST FOR PROPOSALS MAY BE GROUNDS FOR ELIMINATION FROM THE
SELECTION PROCESS.
Remainder of Page Intentionally Blank
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TAMARAC
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of Tamarac Purchasing and Contracts Division
SAMPLE AGREEMENT
BETWEEN THE CITY OF TAMARAC
AND
THIS AGREEMENT is made and entered into this day of 1 2023 by and
between the City of Tamarac, a municipal corporation with principal offices located at 7525 N.W. 88th
Ave., Tamarac, FL 33321 (the "CITY") and , a corporation with principal offices located
at (the "Contractor") for the purpose of providing Banking and Treasury Management
Services to the City of Tamarac. The parties hereby agree to the following terms and
conditions.
The Contract Documents
The contract documents consist of this Agreement, Invitation for Request for Proposal (RFP)
Document No. 23-28R, "BANKING SERVICES FOR THE CITY OF TAMARAC", including all
conditions therein, (General Terms and Conditions, Statement of Work and/or any Special
Provisions), all addenda, the Contractor's proposal included herein, and all modifications issued
after execution of this Agreement. These contract documents form the Agreement, and all are
as fully a part of the Agreement as if attached to this Agreement or repeated therein. In the
event that there is a conflict between RFP # 23-28R, "BANKING SERVICES FOR THE CITY
OF TAMARAC" as issued by the City, and the Contractor's Proposal, Invitation for RFP 23-28R
as issued by the City shall take precedence over the Contractor's Proposal. Furthermore, in the
event of a conflict between this document and any other contract documents, this Agreement
shall prevail.
2. The Work
2.1. The Contractor shall perform all work for the City required by the contract documents
as set forth below:
2.1.1 Contractor shall furnish all materials and labor necessary to provide Banking &
Treasury Services on behalf of the City of Tamarac
2.1.2 Contractor shall supervise the work force to ensure that all workers conduct
themselves and perform their work in a safe and professional manner. Contractor
shall comply with all OSHA safety rules and regulations in the operation of equipment
and in the performance of the work. Contractor shall at all times have a competent
field supervisor on the job site to enforce these policies and procedures at the
Contractor's expense.
2.1.3 Contractor shall comply with all performance requirements, hold all licenses or
certifications, and provide employees with the appropriate experience as outlined in
Section VI "Statement of Work" of the RFP 23-28R as issued by the City.
2.1.4 Contractor shall comply with any and all Federal, State, and local laws and regulations
now in effect, or hereinafter enacted during the term of this Agreement, which are
applicable to the Contractor, its employees, agents or subcontractors, if any, with
respect to the work and services described herein.
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3. Insurance
and Contracts Division
3.1 Contractor shall obtain at Contractor's expense all necessary insurance in such form
and amount as specified in the original bid document or as required by the City's Risk and
Safety Manager before beginning work under this Agreement including, but not limited to,
Workers' Compensation, Commercial General Liability, and all other insurance as required
by the City. Contractor shall maintain such insurance in full force and effect during the life of
this Agreement. Contractor shall provide to the City's Risk and Safety Manager certificates
of all insurances required under this section prior to beginning any work under this
Agreement. The Contractor will ensure that all subcontractors comply with the above
guidelines and will retain all necessary insurance in force throughout the term of this
agreement. The following minimal insurance coverage shall be provided:
a. Worker's Compensation Insurance: The Contractor shall procure and maintain for
the life of this Agreement, Workers' Compensation Insurance covering all
employees with limits meeting all applicable state and federal laws. This coverage
shall include Employer's Liability with limits meeting all applicable state and federal
laws. Contractor shall require all sub -Contractors to also carry Workers
Compensation and Employer's Liability with limits meeting all applicable state and
federal laws. Insurer shall provide 15 days notice of cancellation.
b. Comprehensive General Liability: The Contractor shall procure and maintain, for the
life of this Agreement, Comprehensive General Liability Insurance. This coverage
shall be on an "Occurrence" basis. Coverage shall include Premises and
Operations; Products and Completed Operations and Contractual Liability. This
policy shall provide coverage for death, personal injury or property damage that
could arise directly or indirectly from the performance of this Agreement.
The minimum limits of coverage shall be $1,000,000 per Occurrence, Combined
Single Limit for Bodily Injury Liability and Property Damage Liability.
The City must be named as a certificate holder and an additional insured for General
Liability coverage unless Owners and Contractors' Protective Coverage is also
provided or required. Insurer shall provide 15 days notice of cancellation.
Business Automobile Liability: The Contractor shall procure and maintain, for the
life of the Agreement, Business Automobile Liability Insurance.
This coverage shall be an "Any Auto" type policy. Insurer shall provide 15 days
notice of cancellation.
The Minimum Limits of Coverage shall be $1,000,000 per occurrence, Combined
Single Limit for Bodily Injury Liability and Property Damage Liability.
d. Contractor shall not commence work under this Agreement until all insurance
required as stated herein has been obtained and such insurance has been approved
by the City.
e. Contractor shall indemnify and hold the City harmless for any damages resulting
from failure of the Contractor to take out and maintain such insurance-
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Contractor's Liability Insurance policies shall be endorsed to add the City as an
additional insured. Contractor shall be responsible for payment of all deductibles
and self-insurance retentions on Contractor's Liability Insurance policies.
Term of Agreement
4.1 The Agreement for banking services shall commence within One Hundred and twenty
(120) days of selection of the depository Bank and shall terminate five (5) years after the date
of commencement. The City reserves the right to renew the Agreement for one (1) additional
Five (5) year term pending a mutual agreement between the City and the contractor, and a
review by the City of vendor's contract performance for the previous year. The Agreement may
be terminated by the contractor upon six (6) months prior written notice to the City in the event
of substantial failure by the city to perform in accordance to the terms of the Agreement through
no fault of the contractor. It may also be terminated by the City with or without cause forthwith
upon giving oral or written notice to the Contractor.
4.2 In the event services are scheduled to end because of the expiration of this
Agreement, the Contractor shall continue the service upon the request of the Purchasing and
Contracts Manager on a month -to -month basis until such time as a new Agreement is awarded
and in place, or upon mutual agreement of the parties. The contractor shall be compensated for
the service at the rate in effect when this extension clause is invoked by the City.
5. Consideration
C.1
In consideration of the Contractor's Services provided to the City, the City agrees to pay
the Contractor in accordance with the mutually agreed upon rate schedule provided in
Contractor's Proposal document.
Payments
6.1 Payments which may be required under this Agreement will be made monthly for work
that has been completed, inspected and properly invoiced. Invoices must bear the project name,
bid number and purchase order number. City has up to thirty (30) days to review, approve and
pay all invoices after receipt.
6.2 All payments under this Agreement shall be governed by the Local Government Prompt
Payment Act, F.S., Part VII, Chapter 218. The Contractor must provide proof of completion of
each milestone included in the project schedule.
7. Equitable Adjustment Provision / Escalation
The City of Tamarac may, in its sole discretion, make an equitable adjustment in the Contract
Terms and conditions and/or pricing. If pricing or availability of supply is affected by extreme or
unforeseen volatility in the marketplace that satisfy all the following criteria: 1) the volatility is
due to causes wholly beyond the Contractor's control; 2) the volatility affects the marketplace or
industry, not just the particular Contractor's source of supply, 3) the effect on pricing or
availability of supply is substantial; and 4) the volatility so affects the Contractor that continued
performance of the Contract would result in substantial loss.
Any adjustment would require irrefutable evidence and written approval by the Purchasing and
Contracts Manager, the City Manager or the Mayor and City Commission depending on the
contract threshold and original signature authority established for the individual Agreement. The
City may elect to provide a one-time increase, an increase for a predetermined period which
may be reflected as a change in the unit price or as a surcharge in addition to the unit price, or
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an increase for the remainder of the contract. In the event of any market decreases the
Contractor shall in good faith provide the City with reduced pricing. All requests for an Equitable
Adjustments must be addressed in writing to the attention of the Purchasing and Contracts
Manager, and include appropriate documentation including but not limited to, data from
established government or industry indices, market trend data, notification from suppliers or
manufacturers or other information as agreed upon between the City and the Successful Bidder.
All other provisions of the original agreement remain in effect as written.
8. Indemnification
8.1 The Contractor shall indemnify and hold harmless the City, its elected and appointed
officials, employees, and agents from any and all claims, suits, actions, damages, liability, and
expenses (including attorneys' fees) in connection with loss of life, bodily or personal injury, or
property damage, including loss of use thereof, directly or indirectly caused by, resulting from,
arising out of or occurring in connection with the operations of the Contractor or its officers,
employees, agents, subcontractors, or independent Contractors, excepting only such loss of life,
bodily or personal injury, or property damage solely attributable to the gross negligence or willful
misconduct of the City or its elected or appointed officials and employees. The above provisions
shall survive the termination of this Agreement and shall be limited to pertain to any occurrence
or event which arose during the term of this Agreement, even though the claim may be made
after the termination hereof.
8.2 City reserves the right to select its own legal counsel to conduct any defense in any
such proceeding and all costs and fees associated therewith shall be the responsibility of
Contractor under the indemnification agreement.
8.3 The City and Contractor recognize that various provisions of this Agreement, including but
not limited to this Section, provide for indemnification by the Contractor and requires a specific
consideration be given there for. The Parties therefore agree that the sum of Ten Dollars and
00/100 ($10.00), receipt of which is hereby acknowledged, is the specific consideration for such
indemnities, and the providing of such indemnities is deemed to be part of the specifications with
respect to the services to be provided by Contractor. Furthermore, the City and Contractor
understand and agree that the covenants and representations relating to this indemnification
provision shall serve the term of this Agreement and continue in full force and effect as to the City's
and the Contractor's responsibility to indemnify.
8.4 Nothing contained herein is intended nor shall be construed to waive City's rights and
immunities under the common law or Florida Statutes 768.28, as amended from time to time.
8.5 Nothing contained herein is intended nor shall be construed to waive City's rights and
immunities under the common law or Florida Statutes 768.28, as amended from time to time.
9. Remedies
9.1 Damages: The City reserves the right to recover any ascertainable actual damages
incurred as a result of the failure of the Contractor to perform in accordance with the
requirements of this Agreement, or for losses sustained by the City resultant from the
Contractor's failure to perform in accordance with the requirements of this Agreement.
9.2 Correction of Work: If, in the judgment of the City, work provided by the Contractor does
not conform to the requirements of this Agreement, or if the work exhibits poor workmanship, the
City reserves the right to require that the Contractor correct all deficiencies in the work to bring the
work into conformance without additional cost to the City, and / or replace any personnel who fail
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to perform in accordance with the requirements of this Agreement. The City shall be the sole judge
of non-conformance and the quality of workmanship.
10. Change Orders or Agreement Amendments
Without invalidating the contract, without any monetary compensation, and without notice to any
surety, the City reserves and shall have the right to make increases, decreases or other changes
to the work as may be considered necessary or desirable to complete the proposed engagement
in a satisfactory manner. The Contractor shall not start work pursuant to a change order or
agreement amendment until such document setting forth the adjustments is approved by the City;
and executed by the City and Contractor. Once the change order or agreement amendment is so
approved, the Contractor shall promptly proceed with the work.
The Contract Price constitutes the total compensation (subject to authorized adjustments, if
applicable) payable to the Contractor for performing the work. All duties, responsibilities and
obligations assigned to or undertaken by the Contractor shall be at Contractor's expense without
change in the Contract Price or Time except as approved in writing by the City.
The Contract Price and/or Time may only be changed by a change order or agreement amendment.
A fully executed change order / agreement amendment for any additional duties must exist before
such extra duties are initiated. Any claim for an increase or decrease in the Contract Price shall be
based on written notice delivered by the party making the claim to the other parry promptly (but in
no event later than 15 days) after the occurrence of the event giving rise to the claim and stating
the general nature of the claim. The amount of the claim with supporting data shall be delivered
(unless the City allows an additional period of time to ascertain more accurate data in support of
the claim) and shall be accompanied by claimant's written statement that the amount claimed
covers all known amounts to which the claimant is entitled as a result of the occurrence of said
event. No claim for an adjustment in the Contract Price will be valid if not submitted in accordance
with this Paragraph.
In the event satisfactory adjustment cannot be reached by the City and the Contractor for any item
requiring a change in the contract, and a change order or agreement amendment has not been
issued, the City reserves the right at its sole option to terminate the contract as it applies to these
items in question and make such arrangements as the City deems necessary to complete the work.
The cost of any work covered by a change order or agreement amendment for an increase or
decrease in the contract price shall be determined by mutual acceptance of a Guaranteed
Maximum Price by the City and Contractor. If notice of any change in the contract or contract time
is required to be given to a surety by the provisions of the bond, the giving of such notice shall be
the Contractor's responsibility, and the amount of each applicable bond shall be adjusted
accordingly. The Contractor shall furnish proof of such adjustment to the City. Failure of the
Contractor to obtain such approval from the Surety may be a basis for termination of this Contract
by the City.
11. Non -Discrimination & Equal Opportunity Employment
During the performance of the Contract, the Contractor and its subcontractors shall not
discriminate against any employee or applicant for employment because of race, color, sex
including pregnancy, religion, age, national origin, marital status, political affiliation, familial
status, sexual orientation, gender identity and expression, or disability if qualified. The
Contractor will take affirmative action to ensure that employees and those of its subcontractors
are treated during employment, without regard to their race, color, sex including pregnancy,
religion, age, national origin, marital status, political affiliation, familial status, sexual orientation,
gender identity or expression, or disability if qualified. Such actions must include, but not be
limited to, the following: employment, Yromotion, demotion or transfer, recruitment or
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recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The Contractor and its subcontractors shall
agree to post in conspicuous places, available to its employees and applicants for employment,
notices to be provided by the contracting officer setting forth the provisions of this
nondiscrimination clause. The Contractor further agrees that it will ensure that all
subcontractors, if any, will be made aware of and will comply with this nondiscrimination clause.
12. Independent Contractor
This Agreement does not create an employee/employer relationship between the Parties. It is
the intent of the Parties that the Contractor is an independent contractor under this Agreement
and not the City's employee for any purposes, including but not limited to, the application of the
Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance
Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of
the Internal Revenue Code, the State Worker's Compensation Act, and the State Unemployment
Insurance law. The Contractor shall retain sole and absolute discretion in the judgment of the
manner and means of carrying out Contractor's activities and responsibilities hereunder
provided, further that administrative procedures applicable to services rendered under this
Agreement shall be those of Contractor, which policies of Contractor shall not conflict with City,
State, or United States policies, rules or regulations relating to the use of Contractor's funds
provided for herein. The Contractor agrees that it is a separate and independent enterprise from
the City, that it had full opportunity to find other business, that it has made its own investment in
its business, and that it will utilize a high level of skill necessary to perform the work. This
Agreement shall not be construed as creating any joint employment relationship between the
Contractor and the City and the City will not be liable for any obligation incurred by Contractor,
including but not limited to unpaid minimum wages and/or overtime premiums.
13. Assignment and Subcontracting
Contractor shall not transfer or assign the performance required by this Agreement without the
prior consent of the City. This Agreement, or any portion thereof, shall not be subcontracted
without the prior written consent of the city.
14. Notice
Whenever either party desires or is required under this Agreement to give notice to any other
party, it must be given by written notice either delivered in person, sent by U.S. Certified Mail,
U.S. Express Mail, air or ground courier services, or by messenger service, as follows:
CITY
City Manager
City of Tamarac
7525 N.W. 88th Avenue
Tamarac, FL 33321
With a copy to City Attorney at the following address:
Ottinot Law, P.A.
5944 Coral Ridge Drive, PM #201
Coral Springs, FL 33076
Attn: Hans Ottinot
CONTRACTOR
TAMARAC
The City For Your Life
City of Tamarac
15. Termination
and Contracts Division
15.1 Termination for Convenience: This Agreement may be terminated by the City for
convenience, upon seven (7) days of written notice by the City to the subject to section 15.4
below. Contractor shall have the right to terminate this Agreement for any reason or no reason
upon twelve (12) months' notice to City.
15.2 Default by Contractor: In addition to all other remedies available to the City, this
Agreement shall be subject to cancellation by the City for cause, should the Contractor neglect
or fail to perform or observe any of the terms, provisions, conditions, or requirements herein
contained, if such neglect or failure shall continue for a period of thirty (30) days after receipt by
Contractor of written notice of such neglect or failure.
16. Agreement Subject to Funding
This agreement shall remain in full force and effect only as long as the expenditures provided
for in the Agreement have been appropriated by the City Commission of the City of Tamarac in
the annual budget for each fiscal year of this Agreement and is subject to termination based on
lack of funding.
17. Venue
This Agreement shall be governed by the laws of the State of Florida as now and hereafter in
force. The venue for actions arising out of this agreement is fixed in Broward County, Florida.
18. Severability; Waiver of Provisions
Any provision in this Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction. The non -enforcement of any provision by either party shall
not constitute a waiver of that provision nor shall it affect the enforceability of that provision or
of the remainder of this Agreement.
19. Merger; Amendment
This Agreement and the attached Exhibit A constitute the entire Agreement between the
Contractor and the City, and negotiations and oral understandings between the parties are
merged herein. This Agreement can be supplemented and/or amended only by a written
document executed by both the Contractor and the City.
20. No Construction Against Drafting Party
Each party to this Agreement expressly recognizes that this Agreement results from the
negotiation process in which each party was represented by counsel and contributed to the
drafting of this Agreement. Given this fact, no legal or other presumptions against the party
drafting this Agreement concerning its construction, interpretation or otherwise accrue to the
benefit of any party to the Agreement, and each party expressly waives the right to assert such
a presumption in any proceedings or disputes connected with, arising out of, or involving this
Agreement.
21. Uncontrollable Circumstances
Neither the City nor Contractor shall be considered to be in default of this Agreement if delays
in or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the
exercise of reasonable diligence, the non -performing party could not avoid. The term
"Uncontrollable Forces" shall mean any went which results in the prevention or delay of
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Purchasina and Contracts Division
performance by a party of its obligations under this Agreement and which is beyond the
reasonable control of the nonperforming party. It includes, but is not limited to fire, flood,
earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions.
Neither party shall, however, be excused from performance if nonperformance is due to forces,
which are preventable, removable, or remediable, and which the nonperforming party could
have, with the exercise of reasonable diligence, prevented, removed, or remedied with
reasonable dispatch. The nonperforming party shall, within a reasonable time of being prevented
or delayed from performance by an uncontrollable force, give written notice to the other party
describing the circumstances and uncontrollable forces preventing continued performance of
the obligations of this Agreement.
In the event that any City facility is closed due to uncontrollable forces as indicated in Section
21 of this Agreement, the Contractor shall not bill the City for the cost of hourly employees who
are not working, unless such employees have been tasked to complete maintenance at the
facility in an effort to restore the facility to operational status.
22. Scrutinized Companies - 287.135 AND 215.473
By execution of this Agreement, Contractor certifies that Contractor is not participating in a
boycott of Israel. Contractor further certifies that Contractor is not on the Scrutinized Companies
that Boycott Israel list, not on the Scrutinized Companies with Activities in Sudan List, and not
on the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has
Contractor been engaged in business operations in Syria. Subject to limited exceptions provided
in state law, the City will not contract for the provision of goods or services with any scrutinized
company referred to above.
Submitting a false certification shall be deemed a material breach of contract. The City shall
provide notice, in writing, to Contractor of the City's determination concerning the false
certification. Contractor shall have five (5) days from receipt of notice to refute the false
certification allegation. If such false certification is discovered during the active contract term,
Contractor shall have ninety (90) days following receipt of the notice to respond in writing and
demonstrate that the determination of false certification was made in error. If Contractor does
not demonstrate that the City's determination of false certification was made in error then the
City shall have the right to terminate the contract and seek civil remedies pursuant to Section
287.135, Florida Statutes, as amended from time to time.
23. Public Records
23.1 The City of Tamarac is a public agency subject to Chapter 119, Florida Statutes. The
Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall:
23.1.1 Keep and maintain public records required by the City in order to perform the
service;
23.1.2 Upon request from the City's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in this
chapter or as otherwise provided by law.
23.1.3 Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the
49
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of Tamarac Purchasing and Contracts Division
duration of the contract term and following completion of the contract if the contractor
does not transfer the records to the City.
23.1.4 Upon completion of the contract, transfer, at no cost to the City, all public records
in possession of the Contractor, or keep and maintain public records required by the City
to perform the service. If the Contractor transfers all public records to the City upon
completion of the contract, the Contractor shall destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure requirements. If
the Contractor keeps and maintains public records upon completion of the contract, the
Contractor shall meet all applicable requirements for retaining public records. All records
stored electronically must be provided to the City, upon request from the City's custodian
of public records in a format that is compatible with the information technology systems
of the City.
23.2 During the term of the contract, the Contractor shall maintain all of its books, reports and
records in accordance with generally accepted accounting practices and standards for records
directly related to this contract. The form of all records and reports shall be subject to the approval
of the City's Auditor. The Contractor agrees to make available to the City's Auditor, during normal
business hours and in Broward, Dade or Palm Beach Counties, all books of account, reports and
records relating to this contract.
24. E-Verify
As a condition precedent to entering into this Agreement, and in compliance with Section 448.095,
Fla. Stat., Contractor and its subcontractors shall, register with and use the E-Verify system to verify
work authorization status of all employees hired after January 1, 2021. Contractor shall require
each of its subcontractors to provide Contractor with an affidavit stating that the subcontractor does
not employ, contract with, or subcontract with an unauthorized alien. Contractor shall maintain a
copy of the subcontractor's affidavit as part of and pursuant to the records retention requirements
of this Agreement. City, Contractor, or any subcontractor/subconsultant who has a good faith belief
that a person or entity with which it is contracting has knowingly violated Section 448.09(1), Fla.
Stat. or the provisions of this section shall terminate the contract with the person or entity. City,
upon good faith belief that a subcontractor knowingly violated the provisions of this section; but
Contractor otherwise complied, shall promptly notify Contractor and Contractor shall immediately
terminate the contract with the subcontractor.
An agreement or contract terminated under the provisions of this section is not a breach of contract
and may not be considered such. Any agreement or contract termination under the provisions of
this section may be challenged pursuant to Section 448.095(2)(d), Fla. Stat. Contractor
acknowledges that upon termination of this Agreement by the City for a violation of this section by
Contractor, Contractor may not be awarded a public contract for at least one (1) year. Contractor
further acknowledges that Contractor is liable for any additional costs incurred by the City as a
result of termination of any contract for a violation of this section. Contractor or subcontractor shall
insert in any subcontracts the clauses set forth in this section, requiring the subcontractors to
include these clauses in any lower tier subcontracts. Contractor shall be responsible for compliance
by any subcontractor or lower tier subcontractor with the clauses set forth in this section.
25. Custodian of Records
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT:
TAMARAC
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City of Tamarac Purchasing and Contracts Division
CITY CLERK
7525 NW 88TH AVENUE
ROOM 101
TAMARAC, FL 33321
(954) 597-3505
CITYCLERKOTAMARAC.ORG
Remainder of Page Intentionally Blank
TAMARAC
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of Tamarac
and Contracts Division
IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates
under each signature. CITY OF TAMARAC, through its Mayor and signing
by and through its duly authorized to execute same.
ATTEST:
Kimberly Dillon, CMC. City Clerk
Date
ATTEST:
Signature of Corporate Secretary
Type/Print Name of Corporate Secy.
(CORPORATE SEAL)
CITY OF TAMARAC
Michelle J. Gomez, Mayor
Date
Levent Sucuoglu, City Manager
Date
Approved as to form and legal sufficiency:
Hans Ottinot, City Attorney
Date
CONTRACTOR
Signature of Authorized Representative
Date
TAMARAC
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of Tamarac Purrhasina and Contracts Division
CORPORATE ACKNOWLEDGEMENT
STATE OF
SS
COUNTY OF
I HEREBY CERTIFY that on this day, before me, an Officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, personally appeared
of
a Corporation, to me known to be the person(s) described in and
who executed the foregoing instrument and acknowledged before me that he/she executed the
same.
WITNESS my hand and official seal this day of , 20
Signature of Notary Public
State of Florida at Large
Print, Type or Stamp
Name of Notary Public
❑ Personally known to
me or
❑ Produced
Identification
Type of I.D. Produced
❑ DID take an
oath, or
❑ DID NOT take
an oath.
TAMARAC
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City of Tamarac Purchasing and Contracts Division
EXHIBIT A REVISED 7-6-2023
SCHEDULE OF VOLUME AND PRICES
NOTE: THIS FORM IS PROVIDED FOR INFORMATIONAL PURPOSES. ALL PRICING MUST BE ENTERED
ELECTRONICALLY VIA THE CITY'S ELECTRONIC PROCUREMENT SYSTEM AT www.tamarac.orq/bids.
BIDS NOT ENTERED ELECTRONICALLY WILL NOT BE CONSIDERED BY THE CITY.
City of Tamarac
ESTIMATED ANNUAL VOLUME
Service provided (6-digit AFP Service Code
& Description)
TOTAL ALL ACCOUNTS
Volume Unit Cost
[A] General Account & ACH Services
010000
- Account Maintenance
100 -
010410 - AA Paper Statements
12 -
150320
- Returned Checks Final Pres
84 -
250000
- ACH Maintenance Direct
36 -
250102
- ACH Originated Items
59,596 -
250141
- Same Day ACH Origination Surcharge
4 -
250201
- ACH Received Credits
5,304 -
250200
- ACH Received Debits
708 -
250400
- ACH Returns Per Item
240 -
250312
- ACH Unauthorized Return - Surcharge
8 -
250705
- ACH File Transmission
156 -
251052
- ACH Debit Block
48 -
251057
- ACH Filter
340 -
251050
- ACH Positive Pay Accounts
48 -
251070
- ACH Notice Of Change
1,048 -
250619
- Bank Assisted Noc Correct Surcharge
1,040 -
General
Account & ACH Services Total
-
[B] Depository Services
010020 - ZBA-Parent Acct Maint
010021 -Zero Balance Sub Acct Maint
010111 - ZBA Credit Transfer
010110 - ZBA Debit Transfer
010101 - Deposits Processed
100200 - Checks Deposited
100415 - RDI-Image Email Notifications
100015 - Branch Cash Processing
150100 - Checks Paid
Depository Services Total
Annual Cost
12 - -
72 - 1,584 - 1,584 - -
2,956 - -
43,164 - -
84 - 249,948 - 2,972 - -
[C] Account Reconcilement
150320 - Check Block Positive Pay 72 -
150124 - Payee POS Pay Monthly Maintenance 24 -
200011 - ARP -Full Recon W/POS Pay Maint 24 -
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2001ZZ - ARP Paid Items
20020D - ARP -Issue File Transmission
200610 - ARP-Pd/Dep Item Output File
Account Reconcilement Total
[D] CD ROM Services
151350 - CD ROM-Img Maint
151350 - CD ROM -Per Add Acct
151351 CD ROM -Image Per Item
CD ROM Services Total
[E] Information Reporting Services
011000
- ETRS-Base Pkg Maint - Gold
400272
- ETRS-Transaction Record
011002 -
ETRS-Online Accounts
012014 -
ETRS-Extended Image Search
010821 -
ETRS-Online Security
150410 -
ETRS-Stop Payments
350000 -
ETRS-Wire Transfer Module
350100 - ETRS-Wire Out Domestic
20020B
- ETRS-Issue / Cancel Transactions
350551 -
ETRS-Cust. Maint Wire Templates
Account
Reconcilement Total
[F] Lockbox Services
050000 - Lbx-700-Monthly Maint Caller Box
050100 - Lbx-700-Remittance - Per Item
050600 - Lbx-700-Destruction Of Remit Docs
05011 L - Lbx-700-Packaging
05011 M - Lbx-700-Wholesale Correspondence
050126 - Lbx-700-Data Entry - Invoice
050002 - Lbx-700-Box Rental
05013E - Lbx-700-Cash Transactions
050144 - Lbx-700-Image Capture (Non -Check)
050428 - Lbx-700- Wholesale Web Per Item
10022Z - Lbx - 700 - Check Clearing Fee
050010 - Lbx-701-Monthly Maint Caller Box
050200 - Lbx-701-Item Processing
050301 - Lbx-701-Batch Preparation
050412 - Lbx-701-Packaging
050530 - Lbx-701-Unprocessable Item
10022Z - Lbx-701 - Check Clearing Fee
050401 - Lbx-701- Transmisson Per Item
050401 - Lbx-704-Transmissions
050406 - Lbx-704-Web Access Maintenance
050423 - Lbx-704-CD ROM Monthly
Lockbox Services Total
55
and Contracts Divrsion
2,972
68
24
12 -
24 - -
2,972 - -
12 - 15,596 - -
108 - -
12 - -
84 - -
108 - -
12 - -
76 - -
160 - -
756 - -
24 - -
3,260 - -
9,016 - -
12 - -
1,648 - -
52,408 - -
20 - -
8 - -
10,252 - -
12,660 - -
640 - -
12 - -
28,552 - -
780 - -
12 - -
48 - 28,552 - -
28,552 - -
12 - -
24 - -
12 - -
TAMARAC
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of Tamarac
[G] Wire & Other Funds Trnsf Svcs
350300 - Wire IN -Domestic
350402 - EFT- Wire Notification Email
Wire & Other Funds Trnsf Svcs Total
and Contracts Division
16 - -
92 - -
Total Estimated Annual Fees $
Note: Bidder may add additional Optional Services. The City's electronic bid form has been designed
for bidders to add optional services which bidder may wish to offer to the City. This is not a mandatory
requirement, and any services offered will not be added to the bidder's aggregate Total Estimated
Annual Fees. When entering Optional Services, please provide a short description of the service on the
form, the unit of measure (e.g. "ea"), and the unit price for the optional service.
TAMARAC
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City of Tamarac Purchasing and Contracts Division
AGREEMENT
BETWEEN THE CITY OF TAMARAC
AND
TD BANK, N.A.
THIS AGREEMENT is made and entered into thisiay ofB�u� 20271by and
between the City of Tamarac, a municipal corporation with principal offices located at 7525 N.W. 88th
Ave., Tamarac, FL 33321 (the "CITY") and TD Bank, N.A. , a national banking association with a
regional office located at 5900 N. Andrews Avenue, Fort Lauderdale, FL 33309 (the "Bank" or
"Contractor") for the purpose of providing Banking and Treasury Management Services to the
City of Tamarac. The parties hereby agree to the following terms and conditions.
1. The Contract Documents
The contract documents consist of this Agreement, Invitation for Request for Proposal (RFP)
Document No. 23-28R, "BANKING SERVICES FOR THE CITY OF TAMARAC", including all
conditions therein, (General Terms and Conditions, Statement of Work and/or any Special
Provisions), all addenda, the Cash Management Master Agreement ("CMMA"), including all
appendices thereto, the Contractor's proposal included herein, and all modifications issued after
execution of this Agreement. These contract documents form the Agreement, and all are as fully
a part of the Agreement as if attached to this Agreement or repeated therein. In the event that
there is a conflict between RFP # 23-28R, "BANKING SERVICES FOR THE CITY OF
TAMARAC" as issued by the City, and the CMMA, the CMMA shall take precedence over the
Invitation for RFP 23-28R as issued by the City. Furthermore, in the event of a conflict between
this document and any other contract documents, this Agreement shall prevail.
2. The Work
2.1. The Contractor shall perform all work for the City required by the contract documents as set
forth below:
2.1.1 Contractor shall furnish all materials and labor necessary to provide Banking &
Treasury Services on behalf of the City of Tamarac
2.1.2 Contractor shall comply with all performance requirements, hold all licenses or
certifications, and provide employees with the appropriate experience as outlined in
Section VI "Statement of Work" of the RFP 23-28R as issued by the City.
2.1.3 Contractor shall comply with any and all Federal, State, and local laws and regulations
now in effect, or hereinafter enacted during the term of this Agreement, which are
applicable to the Contractor, its employees, agents or subcontractors, if any, with
respect to the work and services described herein.
3. Insurance
3.1 Contractor shall obtain at Contractor's expense all necessary insurance in such form and
amount as specified in the original bid document or as required by the City's Risk and
Internal
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=t1E E)t i.7rrt.tr<7c Purchasing and Contracts Division
Safety Manager before beginning work under this Agreement including, but not limited to,
Workers' Compensation, Commercial General Liability, and all other reasonable and
customary insurance as required by the City. Contractor shall maintain such insurance in
full force and effect during the life of this Agreement. Contractor shall provide to the City's
Risk and Safety Manager certificates of all insurances required under this section prior to
beginning any work under this Agreement. The Contractor will ensure that all subcontractors
comply with the above guidelines and will retain all necessary insurance in force throughout
the term of this agreement. The following minimal insurance coverage shall be provided:
a. Worker's Compensation Insurance: The Contractor shall procure and maintain for
the life of this Agreement, Workers' Compensation Insurance covering all employees
with limits meeting all applicable state and federal laws. This coverage shall include
Employer's Liability with limits meeting all applicable state and federal laws.
Contractor shall require all sub -Contractors to also carry Workers Compensation and
Employer's Liability with limits meeting all applicable state and federal laws. Insurer
shall provide 90 days notice of cancellation.
b. Comprehensive General Liability: The Contractor shall procure and maintain, for the
life of this Agreement, Comprehensive General Liability Insurance. This coverage
shall be on an "Occurrence" basis. Coverage shall include Premises and Operations;
Products and Completed Operations and Contractual Liability. This policy shall
provide coverage for death, personal injury or property damage that could arise
directly or indirectly from the performance of this Agreement.
The minimum limits of coverage shall be $1,000,000 per Occurrence, Combined Single
Limit for Bodily Injury Liability and Property Damage Liability.
The City must be named as a certificate holder and an additional insured for
General Liability coverage unless Owners and Contractors' Protective Coverage is
also provided or required. Insurer shall provide 90 days notice of cancellation.
Contractor shall not commence work under this Agreement until all insurance
required as stated herein has been obtained and such insurance has been approved
by the City.
The City will be considered an Additional Insured under the Contractor's Liability
Insurance Policy. Contractor shall be responsible for payment of all deductibles and
self-insurance retentions on Contractor's Liability Insurance policies.
4. Term of Agreement
4.1 The Agreement for banking services shall commence within One Hundred and twenty (120)
days of execution of this Agreement and shall terminate five (5) years after the date of
commencement. The City reserves the right to renew the Agreement for one (1) additional Five
(5) year term pending a mutual agreement between the City and the Contractor, and a review
by the City of Contractor's contract performance for the previous year. The Agreement may be
terminated by the Contractor upon sixty (60) days prior written notice to the City in the event of
substantial failure by the city to perform in accordance to the terms of the Agreement through
Internal
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no fault of the contractor. It may also be terminated by the City with or without cause forthwith
upon giving oral or written notice to the Contractor.
4.2 In the event services are scheduled to end because of the expiration of this
Agreement, the Contractor shall continue the service upon the request of the Purchasing and
Contracts Manager on a month -to -month basis until such time as a new Agreement is awarded
and in place, or upon mutual agreement of the parties. The contractor shall be compensated for
the service at the rate in effect when this extension clause is invoked by the City.
5. Contract Pricing
Contract pricing and applicable fees shall be as provided in Attachment A herein.
6. Payments
Any and all payments under this Agreement shall be governed by the Local Government Prompt
Payment Act, F.S., Part VII, Chapter 218.
7. Indemnification
7.1 The Contractor shall indemnify and hold harmless the City, its elected and appointed
officials, employees, and agents from any and all claims, suits, actions, damages, liability, and
expenses (including attorneys' fees) in connection with loss of life, bodily or personal injury, or
property damage, including loss of use thereof, directly or indirectly caused by, resulting from,
arising out of or occurring in connection with the operations of the Contractor or its officers,
employees, agents, subcontractors, or independent Contractors, excepting only such loss of life,
bodily or personal injury, or property damage solely attributable to the gross negligence or willful
misconduct of the City or its elected or appointed officials and employees. The above provisions
shall survive the termination of this Agreement and shall be limited to pertain to any occurrence
or event which arose during the term of this Agreement, even though the claim may be made
after the termination hereof.
7.2 City reserves the right to select its own legal counsel to conduct any defense in any such
proceeding and all costs and fees associated therewith shall be the responsibility of Contractor
under the indemnification agreement.
7.3 Nothing contained herein is intended nor shall be construed to waive City's rights and
immunities under the common law or Florida Statutes 768.28, as amended from time to time.
7.4 Except as otherwise expressly prohibited or limited by law, Customer shall indemnify and
hold Bank harmless from any and all liabilities, losses, damages, and costs, (including, without
limitation, the reasonable fees and disbursements of counsel in connection with any judicial
proceedings,) which may be incurred by Bank due to any claim or action by any person, entity
or other third -party against Bank to the extent such claim or action relates to or arises out of:
(i) any claim of any person that (a) Bank is responsible for any act or omission of Customer
or (b) a Customer payment order contravenes or compromises the rights, title or interest
of any third party, or contravenes any law, rule, regulation, ordinance, court order or other
mandate or prohibition with the force or effect of law;
Internal
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(ii) any failure by Customer to observe and perform properly all of its obligations hereunder
or any wrongful act of Customer or any of its Affiliates;
(iii) any breach by Customer of any of its warranties, representations or agreements;
(iv) any action taken by Bank in reasonable reliance upon information provided to Bank by
Customer or any Affiliate or subsidiary of Customer;
(v) any legal action that Bank responds to or initiates, including any interpleader action Bank
commences, involving Customer or Customer's Account(s), including without limitation,
any state or federal legal process, writ of attachment, execution, garnishment, tax levy,
or subpoena;
(vi) as further provided in the CMMA and any appendices thereto; and
(vii) Notwithstanding the foregoing, Contractor shall have no right to be indemnified as
otherwise limited or prohibited by applicable law, including, without limitation, Section
768.28 of the Florida Statutes as applicable and as the same may be amended from time
to time.
8. Non -Discrimination & Equal Opportunity Employment
During the performance of the Contract, the Contractor and its subcontractors shall not
discriminate against any employee or applicant for employment because of race, color, sex
including pregnancy, religion, age, national origin, marital status, political affiliation, familial
status, sexual orientation, gender identity and expression, or disability if qualified. The
Contractor will take affirmative action to ensure that employees and those of its subcontractors
are treated during employment, without regard to their race, color, sex including pregnancy,
religion, age, national origin, marital status, political affiliation, familial status, sexual orientation,
gender identity or expression, or disability if qualified. Such actions must include, but not be
limited to, the following: employment, promotion; demotion or transfer; recruitment or
recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The Contractor and its subcontractors shall
agree to post in conspicuous places, available to its employees and applicants for employment,
notices to be provided by the contracting officer setting forth the provisions of this
nondiscrimination clause. The Contractor further agrees that it will ensure that all
subcontractors, if any, will be made aware of and will comply with this nondiscrimination clause.
Independent Contractor
This Agreement does not create an employee/employer relationship between the Parties. It is
the intent of the Parties that the Contractor is an independent contractor under this Agreement
and not the City's employee for any purposes, including but not limited to, the application of the
Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance
Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of
the Internal Revenue Code, the State Worker's Compensation Act, and the State Unemployment
Insurance law. The Contractor shall retain sole and absolute discretion in the judgment of the
manner and means of carrying out Contractor's activities and responsibilities hereunder
provided, further that administrative procedures applicable to services rendered under this
Agreement shall be those of Contractor, which policies of Contractor shall not conflict with City,
State, or United States policies, rules or regulations relating to the use of Contractor's funds
provided for herein. The Contractor agrees that it is a separate and independent enterprise from
Internal
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C ty of Tamarac Purchasina and Contracts Division
the City, that it had full opportunity to find other business, that it has made its own investment in
its business, and that it will utilize a high level of skill necessary to perform the work. This
Agreement shall not be construed as creating any joint employment relationship between the
Contractor and the City and the City will not be liable for any obligation incurred by Contractor,
including but not limited to unpaid minimum wages and/or overtime premiums.
Notwithstanding the foregoing, for purposes of clarity and the avoidance of doubt, the term
11subcontractor(s)" shall be expressly limited to independent contractors, vendors or services
providers engaged through contractual arrangements whereby an organization or person is
specifically engaged by Contractor to assist Contractor in performing some, or all, of the contract
between Contractor and the City. For purposes of further clarification, an independent
contractor, vendor or service provider that supplies the same or similar goods and/or services
to Contractor and others generally that Contractor will then use to deliver products and services
to its customers generally shall not be deemed an "independent contractor" arrangement.
Additionally, for any service provider relationships for which the Contractor must otherwise
obtain the City's consent, such consent shall not be unreasonably withheld.
10. Assignment
Contractor may assign any of its rights or delegate any of its responsibilities in whole or in part
without notice to or consent from the City. The City may not assign, delegate or otherwise
transfer its rights or responsibilities under this Agreement without Contractors prior written
consent, which consent Contractor may grant or withhold in its sole discretion.
11. Notice
All notices that are required or permitted to be given by the City (including all documents
incorporated herein by reference) shall be sent by first class mail, postage prepaid, and
addressed to Contractor at the address provided to the City in writing for that purpose. All such
notices shall be effective upon receipt.
City authorizes Contractor to, and City agrees that Contractor may, send any notice or
communication that Contractor is required or permitted to give to City under this Agreement,
including but not limited to notice of any change to the Services, this Agreement or any
Appendix, to City's business mailing address or City's business email address as it appears on
Contractors records, or electronically by posting the notice on Contractors website, on an
Account statement or via facsimile, and that any such notice or communication will be effective
and deemed delivered when provided to City in such a manner. Notwithstanding the foregoing,
for any material changes made to the rights and obligations of either party subject to this
Agreement, the Contractor agrees to provide written notice to City's address as follows for such
changes.
CITY
City Manager
City of Tamarac
7525 N.W. 88th Avenue Tamarac,
FL 33321
With a copy to City Attorney at the same address:
Internal
TAMARAC
The City For Your Life
Purchasing and Contracts Division
CONTRACTOR
TD Bank, N.A.
5900 N. Andrews Avenue, 211 Floor
Fort Lauderdale, FL 33309
Attn: Pamela Ramkalawan
Vice President, Government Banking Officer
Pamela. Ramkalawan(ld)td.com
Customer agrees to notify the Contractor promptly about any change in City's business address
or City's business email address and acknowledges and agrees that no such change will be
effective until Contractor has had a reasonable opportunity to act upon such notice. City agrees
that Contractor may consider any such notice or communication as being given to all Account
owners when such notice or communication is given to any one Account owner
12. Termination
12.1 Termination for Convenience: This Agreement may be terminated by either party for
convenience, upon thirty (30) days of written notice to the other party.
12.2 Default by Contractor: In addition to all other remedies available to the City, this Agreement
shall be subject to cancellation by the City for cause, should the Contractor neglect or fail to
perform or observe any of the terms, provisions, conditions, or requirements herein contained,
if such neglect or failure shall continue for a period of thirty (30) days after receipt by Contractor
of written notice of such neglect or failure.
12.3 Contractor Termination: may also terminate without advance notice if City or Contractor
closes any Account established in connection with the banking services that are necessary for
the ongoing use of the banking services or necessary for Contractor to charge Service Fees,
including, but not limited to, (i) closure of the Primary Account, (ii) if Contractor determines that
City has failed to maintain a financial condition deemed reasonably satisfactory to Contractor to
minimize any credit or other risks to Contractor in providing Services to City, including the
commencement of a voluntary or involuntary proceeding under the United States Bankruptcy
Code or other statute or regulation relating to bankruptcy or relief of debtors, (iii) in the event of
a material breach, default in the performance or observance of any term, or material breach of
any representation or warranty by City, (iv) in the event of default by City in the payment of any
sum owed by City to Contractor hereunder or under any note or other agreement, as may be
defined therein, (v) if there has been a seizure, attachment, or garnishment of City's Accounts,
assets or properties, (vi) if Contractor believes immediate action is necessary for the security of
Contractor's or City's funds or (vii) if Contractor reasonably believes that the continued provision
of Services in accordance with the terms of this Agreement or any Appendix would violate
federal, state or local laws or regulations, or would subject Contractor to unacceptable risk of
loss.
13. Agreement Subject to Funding
This agreement shall remain in full force and effect only as long as the expenditures provided
for in the Agreement have been appropriated by the City Commission of the City of Tamarac in
the annual budget for each fiscal year of this Agreement and is subject to termination based on
lack of funding.
Internal
TAMARAC
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City of Tamarac
14. Venue
Purchasing and Contracts Division
This Agreement shall be governed by the laws of the State of Florida as now and hereafter in
force. The venue for actions arising out of this agreement is fixed in Broward County, Florida.
15. Severability; Waiver of Provisions
Any provision in this Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction. The non -enforcement of any provision by either party shall
not constitute a waiver of that provision nor shall it affect the enforceability of that provision or
of the remainder of this Agreement.
16. Merger; Amendment
This Agreement, the CMMA and the attached Exhibit A constitute the entire Agreement between
the Contractor and the City, and negotiations and oral understandings between the parties are
merged herein. This Agreement can be supplemented and/or amended only by a written
document executed by both the Contractor and the City.
17. No Construction Against Drafting Party
Each party to this Agreement expressly recognizes that this Agreement results from the
negotiation process in which each party was represented by counsel and contributed to the
drafting of this Agreement. Given this fact, no legal or other presumptions against the party
drafting this Agreement concerning its construction, interpretation or otherwise accrue to the
benefit of any party to the Agreement, and each party expressly waives the right to assert such
a presumption in any proceedings or disputes connected with, arising out of, or involving this
Agreement.
18. Uncontrollable Circumstances
Neither the City nor Contractor shall be considered to be in default of this Agreement if delays
in or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the
exercise of reasonable diligence, the non -performing party could not avoid. The term
"Uncontrollable Forces" shall mean any event which results in the prevention or delay of
performance by a party of its obligations under this Agreement and which is beyond the
reasonable control of the nonperforming party. It includes, but is not limited to fire, flood,
earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions.
Neither party shall, however, be excused from performance if nonperformance is due to forces,
which are preventable, removable, or remediable, and which the nonperforming party could
have, with the exercise of reasonable diligence, prevented, removed, or remedied with
reasonable dispatch. The nonperforming party shall, within a reasonable time of being prevented
or delayed from performance by an uncontrollable force, give written notice to the other party
describing the circumstances and uncontrollable forces preventing continued performance of
the obligations of this Agreement.
19. Scrutinized Companies - 287.135 AND 215.473
By execution of this Agreement, Contractor certifies that Contractor is not participating in a
boycott of Israel. Contractor further certifies that Contractor is not on the Scrutinized Companies
Internal
TAMARAC
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City of Tamarac Purchasing and Contracts Division
that Boycott Israel list, not on the Scrutinized Companies with Activities in Sudan List, and not
on the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has
Contractor been engaged in business operations in Syria. Subject to limited exceptions provided
in state law, the City will not contract for the provision of goods or services with any scrutinized
company referred to above.
Submitting a false certification shall be deemed a material breach of contract. The City shall
provide notice, in writing, to Contractor of the City's determination concerning the false
certification. Contractor shall have five (5) days from receipt of notice to refute the false
certification allegation. If such false certification is discovered during the active contract term,
Contractor shall have ninety (90) days following receipt of the notice to respond in writing and
demonstrate that the determination of false certification was made in error. If Contractor does
not demonstrate that the City's determination of false certification was made in error then the
City shall have the right to terminate the contract and seek civil remedies pursuant to Section
287.135, Florida Statutes, as amended from time to time.
20. Public Records
20.1 The City of Tamarac is a public agency subject to Chapter 119, Florida Statutes. The
Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall:
20.1.1 Keep and maintain public records required by the City in order to perform the
service;
20.1.2 Upon request from the City's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in this
chapter or as otherwise provided by law.
20.1.3 Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the
duration of the contract term and following completion of the contract if the contractor
does not transfer the records to the City.
20.1.4 Upon completion of the contract, transfer, at no cost to the City, all public records
in possession of the Contractor, or keep and maintain public records required by the City
to perform the service. If the Contractor transfers all public records to the City upon
completion of the contract, the Contractor shall destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure requirements. If
the Contractor keeps and maintains public records upon completion of the contract, the
Contractor shall meet all applicable requirements for retaining public records. All records
stored electronically must be provided to the City, upon request from the City's custodian
of public records in a format that is compatible with the information technology systems
of the City.
20.2 During the term of the contract, the Contractor shall maintain all of its books, reports and
records in accordance with generally accepted accounting practices and standards for records
directly related to this contract. The Contractor agrees to make available to the City's Auditor,
during normal business hours and in Broward, Dade or Palm Beach Counties, all books of
account, reports and records relating to this contract. Notwithstanding the foregoing, review and
Internal
TAMARAC
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City of Tamarac Purchasing and Contracts Division
audit of bank records may be made available subject to bank policy and to various confidentiality,
privacy, security, and other banking laws and regulations that may otherwise restrict or prohibit
access to Contractors financial and banking records by third parties.
21. E-Verify
As a condition precedent to entering into this Agreement, and in compliance with Section
448.095, Fla. Stat., Contractor and its subcontractors shall, register with and use the E-Verify
system to verify work authorization status of all employees hired after January 1, 2021.
Contractor shall require each of its subcontractors to provide Contractor with an affidavit stating
that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien.
Contractor shall maintain a copy of the subcontractor's affidavit as part of and pursuant to the
records retention requirements of this Agreement. City, Contractor, or any
subcontractor/subconsultant who has a good faith belief that a person or entity with which it is
contracting has knowingly violated Section 448.09(1), Fla. Stat. or the provisions of this section
shall terminate the contract with the person or entity. City, upon good faith belief that a
subcontractor knowingly violated the provisions of this section; but Contractor otherwise
complied, shall promptly notify Contractor and Contractor shall immediately terminate the
contract with the subcontractor.
An agreement or contract terminated under the provisions of this section is not a breach of
contract and may not be considered such. Any agreement or contract termination under the
provisions of this section may be challenged pursuant to Section 448.095(2)(d), Fla. Stat.
Contractor acknowledges that upon termination of this Agreement by the City for a violation of
this section by Contractor, Contractor may not be awarded a public contract for at least one (1)
year. Contractor further acknowledges that Contractor is liable for any additional costs incurred
by the City as a result of termination of any contract for a violation of this section. Contractor or
subcontractor shall insert in any subcontracts the clauses set forth in this section; requiring the
subcontractors to include these clauses in any lower tier subcontracts. Contractor shall be
responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set
forth in this section.
22. Custodian of Records
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT:
CITY CLERK
7525 NW 88T" AVENUE
ROOM 101
TAMARAC, FL 33321
(954) 597-3505
CITYCLERK@)TAMARAC.ORG
Internal
TAB MBA LR,AC
The City For Your life
City of Tamarac
Purchasing and Contracts Division
IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates
under each signature. CITY OF TAMARAC, through its Mayor and TD BANK, N.A., signing by and
through its Vice President duly authorized to execute same.
ATTEST:
41mberly Dillon,)CMC. City Clerk
� C"
OIL-1,�.
Date �``�'•
W ESTABLISHED : 2
"o
1963 '
0.•.
SEAL
•'."
CQu',�,.
11111111101"
ATTEST:
Signature of Corporate Secretary
CITY OF,TAMARAC
/(
/&W4 /
Michelle J. Gomez, Mayor
2l I C*
Date
Approvea to nd legal sufficiency:
H!p!�lttinbt, City Attorney '
Date
TD Bank, NA
Company Name
?" wwr&-A0L100A
Signature of Vice President
Pamela Ramkalawan
Vice President
Type/Print Name of Corporate Secy. Date
(CORPORATE SEAL)
Internal
TAMARAC
The City For Your Life
City of Tamarac P rchasina and Contracts Division
CORPORATE ACKNOWLEDGEMENT
STATE OF
:SS
COUNTY OF �J�n�✓Q�
I HEREBY CERTIFY that on this day, before me, an Officer duly authorized in the State aforesaid
and in the County aforesaid to take acknowledgments, personally appeared Pamela Ramkalawan,
Vice President of TD Bank, N.A., a Florida Foreign Corporation, to me known to be the person(s)
described in and who executed the foregoing instrument and acknowledged before me that he/she
executed the same.
WITNESS my hand and official seal this day of e .2 — 20-Z3
ignature o o ary Public
State of FI rida at Large
<.
t
ary PubNc - State
Not Tt�NYAENGLD3)74
COmAiissim
t NNMY Comm. Expires M
Print, Type or Stamp
Name of Notary Public
Personally known to
me or
❑ Produced
Identification
Type of I.D. Produced
❑ DID take an
oath, or
❑ DID NOT take
an oath.
Internal
TAMARAC
.0
The City For Your Life
City of Tamarac Purchasino and Contracts Division
ATTACHMENT A -- SCHEDULE OF VOLUME AND PRICES
Service provided (6-digit AFP Service Code
& Description)
Unit Cost
[A] General Account & ACH Services
010000 -Account Maintenance
$7.50
010410 - AA Paper Statements
$0.00
150320 - Returned Checks Final Pres
$5.10
250000 - ACH Maintenance Direct
$15.60
250102 - ACH Originated Items
$ 0.51
250141 - Same Day ACH Origination Surcharge
$0.75
250201 - ACH Received Credits
$.06
250200 - ACH Received Debits
$.06
250400 - ACH Returns Per Item
$0.00
250312 - ACH Unauthorized Return - Surcharge
$1.95
250705 - ACH File Transmission
$5.00
251052 - ACH Debit Block
$6.30
251057 - ACH Filter
$2.10
251050 - ACH Positive Pay Accounts
$8.10
'251070 - ACH Notice Of Change
$0.00
250619 - Bank Assisted Noc Correct Surcharge
$0.00
[B] Depository Services
010020 - ZBA-Parent Acct Maint
$12.90
010021 -Zero Balance Sub Acct Maint
$8.10
010111 - ZBA Credit Transfer
$0.00
010110 - ZBA Debit Transfer
$0.00
010101 -Deposits Processed
$0.00
100200 - Checks Deposited
$.02
100415 - RDI-Image Email Notifications
$.75
100015 - Branch Cash Processing
$.0005
150100 - Checks Paid
$.078
[C] Account Reconcilement
150320 - Check Block Positive Pay
$7.50
150124 - Payee POS Pay Monthly Maintenance
$6.00
200011 - ARP -Full Recon W/POS Pay Maint
$30.00
2001 ZZ - ARP Paid Items
$.027
20020D - ARP -Issue File Transmission
$6.00
200610 - ARP-Pd/Dep Item Output File
$10.50
[D] CD ROM Services
151350 - CD ROM-Img Maint
$15.00
151350 - CD ROM -Per Add Acct
$0.00
151351 CD ROM -Image Per Item
$.035
[E] Information Reporting Services
011000 - ETRS-Base Pkg Maint - Gold
$39.00
400272 - ETRS-Transaction Record
$0.00
12
Internal
TAMARAC
The City For Your Life
City of Tamarac Purchasino and Contracts Division
011002 - ETRS-Online Accounts
$6.00
012014 - ETRS-Extended Image Search
$5.10
010821 - ETRS-Online Security
$0.00
150410 - ETRS-Stop Payments
$8.40
350000 - ETRS-Wire Transfer Module
$0.00
350100 - ETRS-Wire Out Domestic
$4.125
20020B - ETRS-Issue / Cancel Transactions
$.15
350551 - ETRS-Cust. Maint Wire Templates
$.27
[F] Lockbox Services
050000 - Lbx-700-Monthly Maint Caller Box
$60.00
050100 - Lbx-700-Remittance - Per Item
$.15
050600 - Lbx-700-Destruction Of Remit Docs
$.006
05011L - Lbx-700-Packaging
$.24.00
05011 M - Lbx-700-Wholesale Correspondence
$.126
050126 - Lbx-700-Data Entry - Invoice
$.027
050002 - Lbx-700-Box Rental
$39.00
05013B - Lbx-700-Cash Transactions
$4.50
050144 - Lbx-700-Image Capture (Non -Check)
$.0255
050428 - Lbx-700- Wholesale Web Per Item
$.0060
10022Z - Lbx - 700 - Check Clearing Fee
$0.00
050010 - Lbx-701-Monthly Maint Caller Box
$60.00
050200 - Lbx-701-Item Processing
$.09
050301 - Lbx-701-Batch Preparation
$.42
050412 - Lbx-701-Packaging
$24.00
050530 - Lbx-701-Unprocessable Item
$.135
10022Z - Lbx-701 - Check Clearing Fee
$0.00
050401 - Lbx-701- Transmissons Per Item
$0.00
050401 - Lbx-704-Transmissions
$54.00
050406 - Lbx-704-Web Access Maintenance
$36.00
050423 - Lbx-704-CD ROM Monthly
$45.00
[G] Wire & Other Funds Trnsf Svcs
350300 - Wire IN -Domestic $4.20
350402 - EFT- Wire Notification Email $.75
Internal
Bank
CASH MANAGEMENT MASTER AGREEMENT
Customer: CITY OF TAMARAC
TD Bank, N.A. ("Bank") provides a broad range of non -consumer cash management products and services to its customers. The
customer identified above (`Customer") wishes to use, and Bank is willing to provide to Customer, those services that have been
checked below:
1.
TD eTreasury Services (Appendix I)...........................................................................
2.
TD ACH Origination Services (Appendix II)..............................................................
3.
TD Wire Transfer Services (Appendix II1)..................................................................
4.
TD Sweep Services (Appendix IV)..............................................................................
❑
5.
TD Positive Pay Services (Appendix V)......................................................................
6.
TD Controlled Disbursement Services (Appendix VI) .................................................
7.
TD Lockbox Services (Appendix VII).........................................................................
8.
TD Digital Express Services (Appendix VIII).............................................................
❑
9.
TD Account Reconcilement Services - Full (Appendix IX) .........................................
10.
TD Account Reconcilement Services — Partial (Appendix X).....................................
❑
11.
TD Deposit Reconcilement Services (Appendix XI) ...................................................
12.
TD Check Imaging Services (Appendix XII)...............................................................
❑
13.
TD Zero Balance Account Services (Appendix XIII)..................................................
❑
14.
TD Currency Services (Appendix XIV).......................................................................
❑
15.
TD EscrowDirect Services (Appendix XV).................................................................
❑
16.
TD Information Reporting File Transmission Services (Appendix XVI) ....................
17.
TD Data Exchange Services (Appendix XVII)............................................................
❑
18.
TD ACH Third Party Sender Services (Appendix XVIII)............................................
❑
19.
TD Image Cash Letter Services (Appendix XIX)........................................................
❑
20.
TD Healthcare Remittance Management Services (Appendix XX) .............................
❑
21.
TD Data Transmission Services (Appendix XXI)........................................................
22.
TD ACH Positive Pay Services (Appendix XXII).......................................................
❑
23.
TD Currency Services for Smartsafe (Appendix XXIII)..............................................
❑
r oj57 101n
24. TD Electronic Bill Payment Presentment & Payment Services (Appendix XXIV) .... ❑
25. TD Integrated Payables Processing Services (Appendix XXV).................................. ❑
26. TD Electronic Lockbox (Bill Payment Aggregation) Services (Appendix XXVI) ..... ❑
27. TD Paymode-X Services (Appendix XXVII)............................................................. ❑
28. TD Integrated Receivables Services (Appendix XXVIII)........................................... ❑
The "Cash Management Service(s)" or "Service(s)" shall hereafter mean the cash management service(s) identified above and
provided by Bank (and/or Bank's third -party service providers) to Customer pursuant to this Agreement, the Appendices, including
Amended Appendices, as defined below, exhibits, Setup Form(s), and any service guides or manuals made available to Customer
by Bank.
Agreement
This Cash Management Master Agreement is by and between Bank and Customer. This Cash Management Master Agreement
shall be and is hereby incorporated by reference into and forms part of the "Contract" between the parties, the terms of which
include: (1) the Request for Proposal (the "RFP"); (2) The City of Tamarac Banking Services Agreement (the "BSA") (3) the
Bank's Proposal (the "Proposal"); and (4) this Agreement (the "CMMA"). The Parties agree that any ambiguity, conflict or
inconsistency in the foregoing documents that together constitute the Contract shall be resolved in the following order: (1) the BSA;
(2) the CMMA; (3) the Proposal and (4) the RFP.
Bank agrees to provide to Customer and Customer agrees to use certain Cash Management Services (as defined above) offered and
approved by Bank for Customer's use. Bank and Customer agree that the Cash Management Services will be governed by the
general terms and conditions and the Contract, including the rules and procedures applicable to each of the Services (collectively,
the "Rules"). The Rules are contained in the Appendices to this Agreement, and are hereby incorporated in and made a part of this
Agreement.
The following terms and conditions are applicable to all Cash Management Services provided to Customer hereunder.
1. Definitions. Capitalized terms used in this
Agreement and in any Appendix, unless otherwise defined
herein or therein, shall have the meanings set forth below:
"Access Devices" means collectively all security,
identification and authentication mechanisms, including,
without limitation, security codes or tokens, PINS, electronic
identities or signatures, encryption keys and/or individual
passwords associated with or necessary for Customer's
access to and use of any Cash Management Services.
"Account" means an Account, as such term is
defined in the Account Agreement, used in connection with
any Cash Management Services.
"Account Agreement" means the Business
Deposit Account Agreement issued by Bank and governing
Customer's deposit relationship with Bank, as the same may
be amended from time to time.
"Affiliate(s) " means, with respect to any party,
any company controlled by, under the control of, or under
common control with such party.
"Amended Appendix" means an amendment to an
Appendix that supplements or revises, but does not revoke
in its entirety, a prior Appendix for a particular Service.
"Appendix" means a description of the rules and
procedures applicable to a particular Service to be provided
by Bank to Customer. Each such Appendix, including any
Amended Appendix, is incorporated herein by reference and
made a part hereof, and all references herein to Agreement
shall be deemed to include all Appendices unless otherwise
expressly provided. If there is any conflict between the
provisions of this Agreement and any Appendix or Amended
Appendix, the Appendix or Amended Appendix shall
govern, but only to the extent reasonably necessary to
resolve such conflict.
"Authorized Representative" means a person
designated by Customer as an individual authorized to act on
behalf of Customer with respect to certain matters and/or
authorized to access and use the Services, as evidenced by
certified copies of resolutions from Customer's board of
directors or other governing body, if any, or other certificate
or evidence of authority satisfactory to Bank, including,
without limitation, any Customer enrollment or Setup
Form(s) completed by Customer.
"Bank Internet System" means Bank's Internet -
based electronic information delivery and transaction
initiation system, as may be offered by Bank from time to
time, including but not limited to Bank's eTreasury Services.
2 of 57 1018
"Bank Internet System Appendix" means the
agreement issued by Bank that governs Customer's use of
the Bank Internet System.
"Business Day" has the meaning given to it in the
Account Agreement.
"Calendar Day" has the meaning given to it in the
Account Agreement.
"Primary Account" means the Account
designated by Customer to which any direct Service fees due
Bank may be charged in accordance with this Agreement.
Unless otherwise agreed upon in writing by Bank, the
address for Customer associated with the Primary Account
shall be the address to which all notices and other
communications concerning the Services may be sent by
Bank.
"Substitute Check" has the meaning given to it in
Section 3(16) of the Check Clearing for the 21 ' Century Act
("Check 21"), P.L. 108-100, 12 U.S.C. § 5002(16).
2. The Services.
2.1 Bank shall provide to Customer, subject
to this Agreement and the applicable Appendix, all Cash
Management Services that Customer may request and that
Bank may approve from time to time. Bank shall not be
required to provide any Services specified in an Appendix
unless Customer also provides all information reasonably
required by Bank to provide to Customer the Service(s)
specified therein.
2.2 Customer, through its Authorized
Representative, may use the Services solely in accordance
with the terms and conditions of this Agreement and the
related Appendices.
2.3 With the exception of scheduled off-
peak downtime periods, Bank shall make all reasonable
efforts to make the Services available to Customer each
Business Day.
2.4 Access to on-line or Internet -based
Services may be denied for various reasons, including if
invalid Access Devices are used or if the user exceeds the
number of invalid attempts allowed by Bank.
2.5 Customer is authorized to use the
Services only for the purposes and in the manner
contemplated by this Agreement.
2.6 Customer agrees to cooperate with
Bank, as Bank may reasonably request, in conjunction with
the performance of the Services.
2.7 Customer agrees to comply with the
Rules, as they may be amended from time to time by Bank.
2.8 A number of Bank's Services are
subject to processing cut-off times on a Business Day.
Customer can obtain information on Bank's current cut-off
time(s) for Service(s) by reviewing the relevant Service's
Setup Form(s), as applicable, or by calling Treasury
Management Services Support at 1-866-475-7262, or by
contacting Customer's Treasury Management Services
Representative. Instructions received after a cut-off time or
on a day other than a Business Day will generally be deemed
received as of the next Business Day.
2.9 Except for the Service Fees (as further
defined in Section 4.2 of this Agreement) and scope of
included Services applicable to the Term of the Contract as
further described in Section 14 of this Agreement, Bank may
make changes to this Agreement and any Appendix at any
time by providing notice to Customer in accordance with the
terms of this Agreement or as may be required by applicable
law. Notwithstanding anything to the contrary herein, any
Appendix that provides for an alternative form and method
for making changes to such Appendix and for providing
notice of the same shall govern for that Service. Further,
notwithstanding anything to the contrary the Contract, if
Bank believes immediate action is necessary for the security
of Bank or Customer funds, Bank may immediately initiate
changes to any security procedures associated with the
Services and provide prompt subsequent notice thereof to
Customer.
2.10 In connection with this Agreement and
the Services, Customer agrees that it shall present, and Bank
shall have a duty to process, only Substitute Checks that are
created by financial institutions; provided , however, that this
limitation shall not apply to Substitute Checks created with
data from Customer pursuant to any Appendix for Services
involving the creation of electronic check images using
check conversion technology.
3. Covenants, Representations and Warranties.
3.1 Customer represents and warrants that
the individual(s) executing this Agreement and any other
agreements or documents associated with the Services
has/have been authorized by all necessary Customer action
to do so, to issue such instructions as may be necessary to
carry out the purposes and intent of this Agreement and to
enable Customer to receive each selected Service. Each
Authorized Representative whom Customer permits to
access and use the Services is duly authorized by all
necessary action on the part of Customer to (i) access the
Account(s) and use the Services; (ii) access any information
related to any Account(s) to which the Authorized
Representative has access; and (iii) engage in any transaction
relating to any Account(s) to which the Authorized
Representative has access.
3.2 Bank may unconditionally rely on the
validity and accuracy of any communication or transaction
made, or purported to be made, by an Authorized
Representative and in accordance with the terms of this
Agreement.
3.3 Customer shall take all reasonable
measures and exercise all reasonable precautions to prevent
3 of 57 1018
the unauthorized disclosure or use of all Access Devices
associated with or necessary for Customer's use of the
Services.
3.4 Customer is not a "consumer" as such
term is defined in the regulations promulgated pursuant to
the Gramm -Leach -Bliley Act, 15 U.S.C. § 6801 et seq., nor
a legal representative of a "consumer."
3.5 Customer shall use the Services only for
its own lawful business purposes. Customer shall not use the
Services for or on behalf of any third party, except as may
otherwise be approved by Bank in its sole and exclusive
discretion, and as further described in Section 33. Customer
shall take all reasonable measures and exercise reasonable
precautions to ensure that Customer's officers, employees
and Authorized Representatives do not use the Services for
personal, family or household purposes, or for any other
purpose not contemplated by this Agreement.
3.6 Customer agrees not to use or attempt to
use the Services (a) to engage in any illegal purpose or
activity or to violate any applicable law, rule or regulation,
(b) to breach any contract or agreement by which Customer
is bound, or (c) to engage in any Internet or online gambling
transaction, whether or not gambling is legal in any
applicable jurisdiction, or (d) to engage in any transaction or
activity that is not specifically authorized and permitted by
this Agreement. Customer acknowledges and agrees that
Bank has no obligation to monitor Customer's use of the
Services for transactions and activity that is impermissible
or prohibited under the terms of this Agreement; provided,
however, that Bank reserves the right to decline to execute
any transaction or activity that Bank believes violates the
terms of this Agreement.
3.7 Customer and Bank shall comply with
(i) all applicable federal, state and local laws, regulations,
rules and orders; (ii) the Account Agreement; (iii) all
applicable National Automated Clearing House Association
("NACHA") rules, regulations, and policies; (iv) the
Uniform Commercial Code; (v) Office of Foreign Asset
Control ("OFAC") requirements; and (vi) all applicable
laws, regulations and orders administered by the U.S.
Department of the Treasury's Financial Crimes Enforcement
Network ("FinCEN") (collectively (i) through (vi),
"Compliance Laws").
4. Account Agreement; Service Fees.
4.1 Bank and Customer agree that any
Account established by Customer in connection with
Services offered by Bank shall be governed by the Account
Agreement, including one or more fee schedules issued by
Bank for the Account. If there is any conflict between the
terms and provisions of this Agreement and the Account
Agreement, the terms and provisions of this Agreement shall
govern, but only to the extent reasonably necessary to
resolve such conflict.
4.2 During the Term of the Agreement, as
described in Section 14, Customer agrees to compensate
Bank for all Accounts and Services that Bank provides
pursuant to this Agreement, any Appendices, and in
accordance with the Proposal (the "Service Fees"). Any fees
and charges associated with Accounts or Services that are
not specified in the Contract shall be governed by Bank's
standard schedule of fees and charges applicable to Accounts
or Services generally.By signing below, Customer
acknowledges receipt of the Account Agreement and
acceptance of the Service Fees, and agrees to be bound by
their terms.
4.3 Customer authorizes Bank to charge the
Primary Account for all applicable charges and fees to the
extent that such charges and fees are not offset by earnings
credits or other allowances for Customer's Account(s). If
the balance of available funds in the Primary Account is not
sufficient to cover such fees, Bank may charge such fees to
any other deposit Account maintained on Bank's records in
Customer's name. Customer also agrees to pay all sales, use
or other taxes (other than taxes based upon Bank's net
income) that may be applicable to the Services provided by
Bank hereunder.
4.4 During the Term of this Agreement, as
described in Section 14, Bank may not amend Service Fee(s)
associated with those Services provided by Bank in
accordance with the Contract, unless by mutual written
agreement of the parties. Bank acknowledges and agrees
that the fees reflected in the Proposal, shall control and be in
effect for the Term of this Agreement. Notwithstanding the
foregoing, Bank may charge or amend Service Fee(s)
associated with new or additional Services that Customer
may request that are not included Services under the
Contract.
5. Customer Information. Customer agrees to
provide to Bank, before Bank begins providing any Services
to Customer, any and all information required to comply
with applicable law and Bank's policies and procedures
relating to customer identification and authority. Such
information may include, without limitation, official
certificates of customer existence, copies of Customer
formation agreements, business resolutions or equivalent
documents, in a form acceptable to Bank authorizing
Customer to enter into this Agreement and to receive
Services from Bank pursuant hereto, and designating certain
individuals as Customer's Authorized Representatives.
6. Software.
6.1 Bank may supply Customer with certain
software owned by or licensed to Bank to be used by
Customer in connection with the Services ("Software").
Customer agrees that all such Software is and shall remain
the sole property of Bank and/or the vendor of such
Software. Customer agrees to comply with all of the terms
and conditions of all license and other agreements which are
provided to Customer by Bank and/or the Software vendor
and/or which govern Customer's use of Software associated
with the Services. Unless otherwise agreed in writing
between Bank and Customer, Customer shall be responsible
for the payment of all costs of installation of any Software
provided to Customer in connection with the Services, as
4 of 57 1018
well as for selection, installation, maintenance and repair of
all hardware required on Customer's premises for the
successful operation of the Software.
6.2 Except as otherwise expressly
prohibited or limited by applicable law, Customer shall
indemnify, defend and hold harmless Bank, its successors
and assigns, from and against any loss, damage or other
claim or liability attributable to Customer's unauthorized
distribution or disclosure of any Software provided with the
Services or any other breach by Customer of any Software
license. The provisions of this paragraph shall survive
termination of this Agreement.
6.3 Any breach or threatened breach of this
Section will cause immediate irreparable injury to Bank, and
Customer agrees that injunctive relief, including preliminary
injunctive relief and specific performance, should be
awarded as appropriate to remedy such breach, without
limiting Bank's right to other remedies available in the case
of such a breach. Bank may apply to a court for preliminary
injunctive relief, permanent injunctive relief and specific
performance, but such application shall not abrogate Bank's
right to proceed with an action in a court of competent
jurisdiction in order to resolve the underlying dispute.
7. Computer Requirements. For certain Cash
Management Services, Customer will need to provide, at
Customer's own expense, a computer or similar Internet -
enabled device, software and Internet or other connections
and equipment as needed to access the Services
(collectively, the "Computer"). Customer's Internet or other
web browser software must support a minimum 128-bit SSL
encryption or other security measures as Bank may specify
from time to time. Customer's browser must be one that is
certified and supported by Bank for optimal performance.
Customer is responsible for the installation, maintenance
and operation of the Computer and all related charges,
including without limitation all Internet service provider,
telephone and other similar charges incurred in connecting
to the Services. Customer is responsible for installing and
maintaining appropriate virus protection software on
Customer's Computer. Bank recommends that Customer
routinely scan the Computer using reliable virus protection
products, and to remove any viruses found using such
products. Bank is not responsible for any errors or failures
caused by any malfunction of the Computer. Bank is not
responsible for any Computer virus or related problems that
may be associated with access to or use of the Services, any
Software, the Computer or other Internet access, including
but not limited to any virus, Trojan horse, worm, keystroke
logger, rootkit, spyware, dishonest adware, crimeware or
other malicious or unwanted software or related problems
that may be associated with access to or use of the Services,
any Software or the Computer. Bank also is not responsible
for any losses or delays in transmission of information
Customer provides to Bank or otherwise arising out of or
incurred in connection with the use of any Internet or other
service provider providing Customer's connection to the
Internet or any browser software. From time to time, Bank
may require that Customer upgrade or install software to the
Computer to ensure the proper operation of the Services.
Customer agrees to promptly load any such upgrades or
additional installations upon Bank's notice to Customer.
8. Bank Third Parties.
8.1 Customer acknowledges that certain
third parties, agents or independent service providers
(hereinafter "Third Parties") may, from time to time, provide
services ("Third Party Services") to Bank in connection with
Bank's provision of the Services to Customer and that
accordingly, Bank's ability to provide the Services
hereunder may be contingent upon the continuing
availability of certain services from such Third Parties.
Third Party Services may involve the processing and/or
transmission of Customer's data, instructions (oral or
written) and funds. In addition, Customer agrees that Bank
may disclose Customer's financial information to such Third
Parties (i) where it is necessary to provide the Services
requested; (ii) in order to comply with laws, government
agency rules or orders, court orders, subpoenas or other legal
process or in order to give information to any government
agency or official having legal authority to request such
information; or (iii) when Customer gives its written
permission.
8.2 Bank will be responsible for the acts and
omissions of its Third Parties in the same manner as if Bank
had performed that portion of the Services itself, and no
claim may be brought by Customer against such Third
Parties. Notwithstanding the foregoing, any claims against
Bank (with respect to the acts or omissions of its Third
Parties) or its Third Parties shall be subject to the limitations
of liability set forth herein to the same extent as if Bank had
performed that portion of the Services itself. However, Bank
will not be deemed to be the agent of, or responsible for, the
acts or omissions of any person (other than its Third Parties),
and no such person shall be deemed Bank's agent.
9. Customer Communications; Security
Procedures.
9.1 In providing the Services, Bank shall be
entitled to rely upon the accuracy of all information and
authorizations received from Customer or an Authorized
Representative and, where applicable, the authenticity of any
signatures purporting to be of Customer or an Authorized
Representative. Customer agrees promptly to notify Bank
of any changes to any information or authorizations provided
to Bank in connection with the Services, and further agrees
to promptly execute any new or additional documentation
Bank reasonably deems necessary from time to time in order
to continue to provide the Services to Customer.
9.2 Customer agrees that it shall be solely
responsible for ensuring its compliance with any
commercially reasonable security procedures established by
Bank in connection with the Services, as such may be
amended from time to time, and that Bank shall have no
liability for any losses sustained by Customer as a result of a
breach of security procedures if Bank has complied with the
security procedures.
5 of 57 1018
9.3 Bank shall be entitled to rely on any
written list of Authorized Representatives provided to Bank
by Customer until revoked or modified by Customer in
writing. Customer agrees that Bank may refuse to comply
with requests from any individual until Bank receives
documentation reasonably satisfactory to it confirming the
individual's authority. Bank shall be entitled to rely on any
notice or other writing believed by it in good faith to be
genuine and correct and to have been signed by an
Authorized Representative. Bank may also accept verbal
instructions from persons identifying themselves as an
Authorized Representative, and Bank's only obligation to
verify the identity of such person as an Authorized
Representative shall be to call back such person at a
telephone number(s) previously provided to Bank by
Customer as part of the Account or Services' Setup Form(s).
Bank may, but shall have no obligation to, call back an
Authorized Representative other than the Authorized
Representative from whom Bank purportedly received an
instruction. Bank may, but shall have no obligation to,
request additional confirmation, written or verbal, of an
instruction received from an Authorized Representative via
telephone at any time or for any reason whatsoever prior to
executing the instruction. Bank may also in its discretion
require the use of security codes for Authorized
Representatives and/or for receiving instructions or items
from Customer. Customer understands and agrees, and
Customer shall advise each Authorized Representative that,
Bank may, at Bank's option, record telephone conversations
regarding instructions received from an Authorized
Representative.
9.4 Any security procedures maintained by
Bank are not intended to detect errors in the content of an
instruction received from Customer or Customer's
Authorized Representative. Any errors in an instruction
from Customer or Customer's Authorized Representative
shall be Customer's sole responsibility. Customer agrees
that all security procedures described in this Agreement and
applicable Appendix are commercially reasonable and that
Bank may charge Customer's Account for any instruction
that Bank executed in good faith and in conformity with the
security procedures, whether or not the transfer is in fact
authorized.
9.5 Customer agrees to adopt and
implement its own commercially reasonable internal
policies, procedures and systems to provide security to
information being transmitted and to receive, store, transmit
and destroy data or information in a secure manner to
prevent loss, theft or unauthorized access to data or
information ("Data Breaches"). Customer also agrees that it
will promptly investigate any suspected Data Breaches and
monitor its systems regularly for unauthorized intrusions.
Customer will provide timely and accurate notification to
Bank of any Data Breaches when known or reasonably
suspected by Customer and will take all reasonable
measures, which may include, without limitation, retaining
and/or utilizing competent forensic experts, to determine the
scope of and data or transactions affected by any Data
Breaches, and promptly providing all such information to
Bank, subject to any limitation imposed on Customer by law
enforcement or applicable law.
9.6 BANK'S SECURITY PROCEDURES
ARE STRICTLY CONFIDENTIAL AND SHOULD BE
DISCLOSED ONLY TO THOSE INDIVIDUALS WHO
ARE REQUIRED TO KNOW THEM OR AS
OTHERWISE PROVIDED BY LAW. IF A SECURITY
PROCEDURE INVOLVES THE USE OF ACCESS
DEVICES, THE CUSTOMER SHALL BE RESPONSIBLE
TO SAFEGUARD THESE ACCESS DEVICES AND
MAKE THEM AVAILABLE ONLY TO DESIGNATED
INDIVIDUALS. CUSTOMER HAS THE SOLE
RESPONSIBILITY TO INSTRUCT THOSE
INDIVIDUALS THAT THEY MUST NOT DISCLOSE OR
OTHERWISE MAKE AVAILABLE TO
UNAUTHORIZED PERSONS THE SECURITY
PROCEDURE OR ACCESS DEVICES. CUSTOMER
HAS THE SOLE RESPONSIBILITY TO ESTABLISH
AND MAINTAIN ITS OWN PROCEDURES TO ASSURE
THE CONFIDENTIALITY OF ANY PROTECTED
ACCESS TO THE SECURITY PROCEDURE.
10. Fraud Detection / Deterrence; Positive Pay.
Bank offers certain products and services such as Positive
Pay (with or without payee validation), ACH Positive Pay,
and Account blocks and filters that are designed to detect
and/or deter check, automated clearing house ("ACH") or
other payment system fraud. While no product or service
will be completely effective, Bank believes that the products
and services it offers will reduce the likelihood that certain
types of fraudulent items or transactions will be paid against
Customer's Account. Failure to use such products or
services could substantially increase the likelihood of fraud.
Customer agrees that if, after being informed by Bank or
after Bank otherwise makes information about such
products or services available to Customer consistent
with Section 27 of this Agreement, Customer declines or
fails to implement and use any of these products or
services, or fails to follow these and other Bank -identified
or recommended precautions reasonable for Customer's
particular circumstances, Customer will be precluded
from asserting any claims against Bank for paying any
unauthorized, altered, counterfeit or other fraudulent
item that such product, service, or precaution was
designed to detect or deter, and Bank will not be required
to re -credit Customer's Account or otherwise have any
liability for paying such items, except to the extent that
Bank has failed to exercise the required standard of care
under the Uniform Commercial Code.
11. Duty to Inspect. Customer is responsible for
monitoring all Services provided by Bank, including each
individual transaction processed by Bank, and notifying
Bank of any errors or other problems within ten (10)
Calendar Days (or such longer period as may be required by
applicable law) after Bank has made available to Customer
any report, statement or other material containing or
reflecting the error, including an Account analysis statement
or on-line Account access. Except to the extent otherwise
required by law, failure to notify Bank of an error or problem
within such time will relieve Bank of any and all liability for
6 of 57 1018
interest upon correction of the error or problem (and for any
loss from any subsequent transaction involving the same
error or problem). In the event Customer fails to report such
error or problem within thirty (30) Calendar Days after Bank
made available such report, statement or on-line Account
access, the transaction shall be deemed to have been properly
authorized and executed, and Bank shall have no liability
with respect to any error or problem. Customer agrees that
its sole remedy in the event of an error in implementing any
selection with the Services shall be to have Bank correct the
error within a reasonable period of time after discovering or
receiving notice of the error from Customer.
12. Overdrafts; Set-off. Bank may, but shall not be
obligated to, complete any transaction in connection with
providing the Services if there are insufficient available
funds in Customer's Account(s) to complete the transaction.
In the event any actions by Customer result in an overdraft
in any of Customer's Accounts, including but not limited to
Customer's failure to maintain sufficient balances in any of
Customer's Accounts, Customer shall be responsible for
repaying the overdraft immediately, without notice or
demand. Bank has the right, in addition to all other rights
and remedies available to it, to set off the unpaid balance of
any amount owed it in connection with the Services against
any debt owing to Customer by Bank, including, without
limitation, any obligation under a repurchase agreement or
any funds held at any time by Bank, whether collected or in
the process of collection, or in any other Account maintained
by Customer at, or evidenced by any certificate of deposit
issued by, Bank. Except as otherwise expressly prohibited
or limited by law, if any of Customer's Accounts become
overdrawn, under -funded or for any reason contain a
negative balance, then Bank shall have the right of set-off
against all of Customer's Accounts and other property or
deposit Accounts maintained at Bank, and Bank shall have
the right to enforce its interests in collateral held by it to
secure debts of Customer to Bank arising from notes or other
indebtedness now or hereafter owing or existing under this
Agreement, whether or not matured or liquidated.
13. Transaction Limits.
13.1 In the event that providing the Services
to Customer results in unacceptable credit exposure or other
risk to Bank, or will cause Bank to violate any law,
regulation, rule or order to which it is subject, Bank may, in
Bank's sole and exclusive discretion, without prior notice,
limit Customer's transaction volume or dollar amount and
refuse to execute transactions that exceed any such limit, or
Bank may terminate any Service then being provided to
Customer. Bank will provide notice of such limits to
Customer in accordance with the terms of this Agreement.
13.2 Customer shall, upon request by Bank
from time to time, provide Bank with such financial
information and statements and such other documentation as
Bank reasonably determines to be necessary or appropriate
showing Customer's financial condition, assets, liabilities,
stockholder's equity, current income and surplus, and such
other information regarding the financial condition of
Customer as Bank may reasonably request to enable Bank to
evaluate its exposure or risk. Any limits established by Bank
hereunder shall be made in Bank's sole discretion and shall
be communicated promptly to Customer.
14. Term and Termination.
14.1 This Agreement shall be effective when
(i) signed by an Authorized Representative of Customer and
accepted by Bank, and (ii) Customer delivers to Bank all
documents and information, including any Setup Form(s)
and electronic data, reasonably required by Bank prior to
commencing to provide the Services or otherwise in
accordance with the Contract, and shall terminate five (5)
years (the "Initial Term"). The parties may renew this
Agreement by mutual written agreement for one (1)
additional five (5) year term (the "Renewal Term"). Bank
will determine the adequacy of such documentation and
information in its sole discretion and may refuse to provide
the Services to Customer until adequate documentation and
information are provided.
14.2 This Agreement shall continue in effect
as described in Section 14.1 unless and until terminated by
either party with thirty (30) Calendar Days' prior written
notice to the other. Either party may terminate an Appendix
in accordance with the provisions of this Section without
terminating either this Agreement or any other Appendix.
Upon termination of this Agreement or any Appendix,
Customer shall, at its expense, return to Bank, in the same
condition as when delivered to Customer, normal wear and
tear excepted, all property belonging to Bank and all
proprietary material delivered to Customer in connection
with the terminated Service(s).
14.3 If an Appendix is terminated in
accordance with this Agreement, Customer must contact
Treasury Management Services Support for instructions
regarding the cancellation of all future dated payments and
transfers. Bank may continue to make payments and
transfers and to perform other Services that Customer has
previously authorized or may subsequently authorize;
however, Bank is not under any obligation to do so. Bank
will not be liable if it chooses to make any payment or
transfer or to perform any other Services that Customer has
previously authorized or subsequently authorizes after an
Appendix had terminated.
14.4 Notwithstanding the foregoing, Bank
may, without prior notice, terminate this Agreement and/or
terminate or suspend any Service(s) provided to Customer
pursuant hereto (i) if Customer or Bank closes any Account
established in connection with the Service(s) that is
necessary for the ongoing use of the Service(s) or necessary
for Bank to charge Service Fees, including, but not limited
to, closure of the Primary Account, (ii) if Bank determines
that Customer has failed to maintain a financial condition
deemed reasonably satisfactory to Bank to minimize any
credit or other risks to Bank in providing Services to
Customer, including the commencement of a voluntary or
involuntary proceeding under the United States Bankruptcy
Code or other statute or regulation relating to bankruptcy or
relief of debtors, (iii) in the event of a material breach,
7 of 57 1018
default in the performance or observance of any term, or
material breach of any representation or warranty by
Customer, (iv) in the event of default by Customer in the
payment of any sum owed by Customer to Bank hereunder
or under any note or other agreement, as may be defined
therein, (v) if there has been a seizure, attachment, or
garnishment of Customer's Accounts, assets or properties,
(vi) if Bank believes immediate action is necessary for the
security of Bank or Customer funds or (vii) if Bank
reasonably believes that the continued provision of Services
in accordance with the terms of this Agreement or any
Appendix would violate federal, state or local laws or
regulations, or would subject Bank to unacceptable risk of
loss. In the event of any termination hereunder, all fees due
Bank under this Agreement as of the time of termination
shall become immediately due and payable.
Notwithstanding any termination, this Agreement shall
remain in full force and effect with respect to all transactions
initiated prior to such termination.
15. Limitation of Liability; Disclaimer of
Warranties.
15.1 Bank shall be liable for such damages as
may be required or provided under Article 4A or the Fedwire
Regulations, as applicable, for funds transfer transactions
which are subject to Article 4A of the UCC. Customer
acknowledges that Bank's fees and charges for the Services
are very small in relation to the amounts of transfers initiated
through the Services and, as a result, Bank's willingness to
provide the Services is based on the limitations and
allocations of liability contained in this Agreement. Unless
expressly prohibited or otherwise restricted by applicable
law, the liability of Bank in connection with the Services will
be limited to actual damages sustained by Customer and, for
any Services not subject to Article 4A of the UCC, only to
the extent such damages are a direct result of Bank's gross
negligence, willful misconduct, or bad faith. In no event
shall Bank be liable for any consequential, special,
incidental, indirect, punitive or similar loss or damage that
Customer may suffer or incur in connection with the
Services, including, without limitation, attorneys' fees, lost
earnings or profits and loss or damage from subsequent
wrongful dishonor resulting from Bank's acts, regardless of
whether the likelihood of such loss or damage was known by
Bank and regardless of the basis, theory or nature of the
action on which a claim is asserted. Unless expressly
prohibited by or otherwise restricted by applicable law, and
without limiting the foregoing, Bank's aggregate liability to
Customer for all losses, damages, and expenses incurred in
connection with any single claim for any Service not subject
to Article 4A of the UCC shall not exceed an amount equal
to the monthly billing paid by, charged to or otherwise
assessed against Customer for Services over the three (3)
month -period immediately preceding the date on which the
damage or injury giving rise to such claim is alleged to have
occurred or such fewer number of preceding months as this
Agreement has been in effect. This Agreement is only
between Bank and Customer, and Bank shall have no
liability hereunder to any third party.
15.2 Except as otherwise expressly provided
in Section 8 of this Agreement, Bank shall not be liable for
any loss, damage or injury caused by any act or omission of
any third party; for any charges imposed by any third party;
or for any loss, damage or injury caused by any failure of the
hardware or software utilized by a third party to provide
Services to Customer.
15.3 Bank shall not be liable or responsible
for damages incurred as a result of data supplied by
Customer that is inaccurate, incomplete, not current, or lost
in transmission. It is understood that Bank assumes no
liability or responsibility for the inaccuracy, incompleteness
or incorrectness of data as a result of such data having been
supplied to Customer through data transmission.
15.4 Bank is not liable for failing to act
sooner than required by any Appendix or applicable law.
Bank also has no liability for failing to take action if Bank
had discretion not to act.
15.5 Bank shall not be responsible for
Customer's acts or omissions (including, without limitation, the
amount, accuracy, timeliness of transmittal or due
authorization of any entry, funds transfer order, or other
instruction received from Customer) or the acts or omissions of
any other person, including, without limitation, any Automated
Clearing House processor, any Federal Reserve Bank, any
financial institution or bank, any transmission or
communication facility, any receiver or receiving depository
financial institution, including, without limitation, the return of
an entry or rejection of a funds transfer order by such receiver
or receiving depository financial institutions, and no such
person shall be deemed Bank's agent. Bank shall be excused
from failing to transmit or delay in transmitting an entry or
funds transfer order if such transmittal would result in Bank's
having exceeded any limitation upon its intra-day net funds
position established pursuant to Federal Reserve guidelines or
otherwise violating any provision of any risk control program
of the Federal Reserve or any rule or regulation of any other
U.S. governmental regulatory authority. In no event shall
Bank be liable for any damages resulting from Bank's action
or inaction which is consistent with regulations issued by the
Board of Governors of the Federal Reserve System,
operating circulars issued by a Federal Reserve Bank or
general banking customs and usage. To the extent required
by applicable laws, Bank will compensate Customer for loss
of interest on funds as a direct result of Bank's failure to
comply with such laws in executing electronic transfers of
funds, if such failure was within Bank's control. Bank shall
not be liable for Customer's attorney's fees in connection
with any such claim.
15.6 EXCEPT AS OTHERWISE SET
FORTH IN THIS AGREEMENT, CUSTOMER
EXPRESSLY AGREES THAT USE OF THE SERVICES
IS AT CUSTOMER'S SOLE RISK, AND THE SERVICE
IS PROVIDED "AS IS," AND BANK AND ITS SERVICE
PROVIDERS AND AGENTS DO NOT MAKE, AND
EXPRESSLY DISCLAIM ANY, WARRANTIES, EITHER
EXPRESSED OR IMPLIED, WITH RESPECT TO THE
SERVICES, INCLUDING WITHOUT LIMITATION ANY
8 of 57 1018
IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR
NON -INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS, OR THAT THE SERVICES WILL
BE UNINTERRUPTED OR ERROR FREE, WITHOUT
BREACHES OF SECURITY OR WITHOUT DELAYS.
IN THOSE STATES THAT DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY, THE
LIABILITY OF BANK AND ITS SERVICE PROVIDERS
AND AGENTS IS LIMITED TO THE FULLEST
POSSIBLE EXTENT PERMITTED BY LAW.
15.7 The provisions of this Section 15 shall
survive termination of this Agreement.
16. Indemnification.
16.1 Except as otherwise expressly
prohibited or limited by law, Customer shall indemnify and
hold Bank harmless from any and all liabilities, losses,
damages, costs, and expenses of any kind (including,
without limitation, the reasonable fees and disbursements of
counsel in connection with any investigative, administrative
or judicial proceedings, whether or not Bank shall be
designated a party thereto) which may be incurred by Bank
due to any claim or action by any person, entity or other
third -party against Bank to the extent such claim or action
relates to or arises out of:
(i) any claim of any person that
(a) Bank is responsible for any act or omission of Customer
or (b) a Customer payment order contravenes or
compromises the rights, title or interest of any third party, or
contravenes any law, rule, regulation, ordinance, court order
or other mandate or prohibition with the force or effect of
law;
(ii) any failure by Customer to
observe and perform properly all of its obligations hereunder
or any wrongful act of Customer or any of its Affiliates;
(iii) any breach by Customer of
any of its warranties, representations or agreements;
(iv) any action taken by Bank in
reasonable reliance upon information provided to Bank by
Customer or any Affiliate or subsidiary of Customer; and
(v) any legal action that Bank
responds to or initiates, including any interpleader action
Bank commences, involving Customer or Customer's
Account(s), including without limitation, any state or federal
legal process, writ of attachment, execution, garnishment,
tax levy or subpoena.
16.2 Notwithstanding the foregoing, Bank
shall have no right to be indemnified as otherwise limited or
prohibited by applicable law, including without limitation,
Section 768.28 of the Florida Statutes as applicable and as
the same may be amended from time to time.
16.3 The provisions of this Section 16 shall
survive termination of this Agreement.
17. RESERVED.
18. Force Majeure. Neither party shall bear
responsibility for non-performance of this Agreement to the
extent that such non-performance is caused by an event
beyond that parry's control, including, but not necessarily
limited to, fire, casualty, breakdown in equipment or failure
of telecommunications or data processing services, lockout,
strike, unavoidable accident, act of God, riot, war or the
enactment, issuance or operation of any adverse
governmental law, ruling, regulation, order or decree, or an
emergency that prevents Bank or Customer from operating
normally.
19. Documentation. The parties acknowledge and
agree that all documents evidencing, relating to or arising
from the parties' relationship may be scanned or otherwise
imaged and electronically stored and the originals (including
manually signed originals) destroyed. The parties agree to
treat such imaged documents as original documents and
further agree that such reproductions and copies may be used
and introduced as evidence at any legal proceedings
including, without limitation, trials and arbitrations, relating
to or arising under this Agreement.
20. Entire Agreement. Bank and Customer
acknowledge and agree that the Contract and any
amendments hereto, all other documents incorporated by
reference therein, constitute the complete and exclusive
statement of the agreement between them with respect to the
Services, and supersede any prior oral or written
understandings, representations, and agreements between
the parties relating to the Services.
21. Amendments. Except for the Service Fees (as
further defined in Section 4.2 of this Agreement) and scope
of included Services applicable to the Term of the Contract,
Bank may, at any time, amend this Agreement, the Services
or Appendices in its sole discretion and from time to time.
Except as expressly provided otherwise in this Agreement,
any such changes generally will be effective as provided in
the notice to Customer as described below. Customer will
be deemed to accept any such changes if Customer accesses
or uses any of the Services after the date on which the change
becomes effective. Customer will remain obligated under
this Agreement and any Appendices, including without
limitation, being obligated to pay all amounts owing
thereunder, even if Bank amends this Agreement or any
Appendices. Notwithstanding anything to the contrary in
this Agreement, in any Appendix or the Contract, if Bank
believes immediate action is necessary for the security of
Bank or Customer funds, Bank may immediately initiate
changes to any security procedures and provide prompt
subsequent notice thereof to Customer. As set forth in
Section 14.2, Customer may terminate this Agreement or
any Appendix upon its receipt of any notice of change that
is not acceptable to Customer.
9 oj57 1018
22. Severability. If any provision of this Agreement
shall be determined by a court of competent jurisdiction to
be unenforceable as written, that provision shall be
interpreted so as to achieve, to the extent permitted by
applicable law, the purposes intended by the original
provision, and the remaining provisions of this Agreement
shall continue intact. In the event that any statute, regulation
or government policy to which Bank is subject and that
governs or affects the transactions contemplated by this
Agreement, would invalidate or modify any portion of this
Agreement, then this Agreement or any part thereof shall be
deemed amended to the extent necessary to comply with
such statute, regulation or policy, and Bank shall incur no
liability to Customer as a result of Bank's compliance with
such statute, regulation or policy.
23. Assignment and Delegation. Bank may assign
any of its rights or delegate any of its responsibilities in
whole or in part without notice to or consent from Customer.
Customer may not assign, delegate or otherwise transfer its
rights or responsibilities under this Agreement without
Bank's prior written consent, which consent Bank may grant
or withhold in its sole discretion.
24. Successors. This Agreement shall be binding
upon and inure to the benefit of the parties and their
successors and permitted assigns.
25. Non -Waiver. No deviation from any of the terms
and conditions set forth or incorporated in this Agreement
shall constitute a waiver of any right or duty of either party,
and the failure of either party to exercise any of its rights
hereunder on any occasion shall not be deemed to be a
waiver of such rights on any future occasion.
26. Governing Law. Any claim, controversy or
dispute arising under or related to this Agreement shall be
governed by and interpreted in accordance with federal law
and, to the extent not preempted or inconsistent therewith,
by the laws of the State of New Jersey.
27. Notices.
27.1 Except as otherwise expressly provided
in this Agreement, all notices that are required or permitted
to be given by Customer (including all documents
incorporated herein by reference) shall be sent by first class
mail, postage prepaid, and addressed to Bank at the address
provided to Customer in writing for that purpose. All such
notices shall be effective upon receipt.
27.2 Customer authorizes Bank to, and
Customer agrees that Bank may, send any notice or
communication that Bank is required or permitted to give to
Customer under this Agreement, including but not limited to
notice of any change to the Services, this Agreement or any
Appendix, to Customer's business mailing address or
Customer's business e-mail address as it appears on Bank's
records, or electronically by posting the notice on Bank's
website, on an Account statement or via facsimile, and that
any such notice or communication will be effective and
deemed delivered when provided to Customer in such a
manner. Notwithstanding the foregoing, for any material
changes made to the rights and obligations of either party
subject to this Agreement, the Bank agrees to provide written
notice to the Customer's business mailing address for such
changes. Customer agrees to notify Bank promptly about
any change in Customer's business mailing or Customer's
business e-mail address and acknowledges and agrees that
no such change will be effective until Bank has had a
reasonable opportunity to act upon such notice. Customer
agrees that Bank may consider any such notice or
communication as being given to all Account owners when
such notice or communication is given to any one Account
owner.
28. Jury Trial Waiver. BANK AND CUSTOMER
EACH AGREE THAT NEITHER BANK NOR
CUSTOMER SHALL (I) SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY
OTHER ACTION BASED UPON, OR ARISING OUT OF,
THIS AGREEMENT OR ANY ACCOUNT OR THE
DEALINGS OF THE RELATIONSHIP BETWEEN BANK
AND CUSTOMER, OR (II) SEEK TO CONSOLIDATE
ANY SUCH ACTION WITH ANOTHER IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THE PROVISIONS OF THIS SECTION
SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER
BANK NOR CUSTOMER HAS AGREED WITH OR
REPRESENTED TO THE OTHER THAT THE
PROVISIONS OF THIS SECTION WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES. BANK AND
CUSTOMER EACH ACKNOWLEDGE THAT THIS
WAIVER HAS BEEN KNOWINGLY AND
VOLUNTARILY MADE. The provisions of this Section 28
shall survive termination of this Agreement.
29. Beneficiaries. This Agreement is for the benefit
only of the undersigned parties hereto and is not intended to
and shall not be construed as granting any rights to or
otherwise benefiting any other person.
30. Recording of Communications. Customer and
Bank agree that all telephone conversations or data
transmissions between them or their agents made in
connection with this Agreement and related to the Services
may be recorded and retained by either party by use of any
reasonable means, except as otherwise expressly prohibited
or limited by applicable law.
31. Facsimile Signature. The parties acknowledge
and agree that this Agreement and any Appendix or
Amended Appendices may be executed and delivered by
facsimile, and that a facsimile signature shall be treated as
and have the same force and effect as an original signature.
Notwithstanding the foregoing, Bank may, in its sole and
exclusive discretion, also require Customer to deliver this
Agreement and any Appendix or Amended Appendices with
an original signature for its records.
32. Relationship. Customer and Bank are not, and
Customer and Bank's licensors are not, partners, joint
/o of s7 1018
venturers or agents of each other as a result of this
Agreement.
33. Third -Party Service Provider Activities.
33.1 Customer As a Third -Party Service
Provider. Subject to Bank's prior approval and in its sole
and exclusive discretion, Customer may be permitted to use
one or more of the Services provided hereunder on behalf of
and in conjunction with Accounts that belong to Customer's
clients, who may or may not otherwise be customers of
Bank, as well as on Customer's own behalf (hereinafter,
when acting in such capacity, referred to as "Customer As
Service Provider"). Customer shall execute any such other
agreement(s) or documents as deemed necessary or
appropriate by Bank prior to the initiation or continuation by
Customer of any Services in such capacity. Customer agrees
that Bank retains the right to reject any request by Customer
to engage in Customer As Service Provider activities as well
as any transactions initiated by Customer in such capacity,
in Bank's sole discretion. In the event Bank approves
Customer's use of the Services in the capacity of Customer
As Service Provider, then the following shall also apply:
(a) Customer represents and warrants to Bank that
each Customer client has given Customer authority to access
and conduct transactions with respect to its Accounts
through use of any of the Services to the same extent as if
Customer owned them, including in the capacity of a "third
party service provider;"
(b) each reference to "Customer" in the
Agreement will be deemed to be a collective reference to
Customer and each Customer client whose Accounts are
included in Bank's implementation of Customer's set-up for
the Services;
(c) all of the provisions set forth in the Agreement
will apply to Customer client's Account(s) as if Customer
owned them;
(d) each person who is authorized to act on
Customer's behalf with respect to a Service is also
authorized to act on Customer's behalf to the same extent
with respect to the Accounts of each Customer client whose
Accounts are included in Bank's implementation of
Customer's set-up for that Service; and
(e) Customer shall be liable for all monetary,
confidentiality and other obligations to Bank under this
Agreement as they relate to Customer's use of the Services
for itself as well as each such Customer client. Bank may
require written confirmation from each Customer client that
it has authorized Customer to include its Accounts in Bank's
implementation of Customer's set-up for the Services, and
Customer agrees to notify Bank immediately if that authority
is revoked or changed.
33.2 Customer Engaging a Third -Party
Service Provider. Subject to Bank's prior approval and in
its sole and exclusive discretion, Customer may appoint a
third -party service provider to act as Customer's agent to use
one or more of the Services (hereinafter such third -party to
be referred to as "Customer's Third -Party Service
Provider"). In such event, all transactions received by Bank
from Customer's Third -Party Service Provider are hereby
authorized by Customer. All acts and omissions of
Customer's Third -Party Service Provider shall be the acts,
omissions and responsibility of Customer and shall be
governed by the provisions of this Agreement. Customer
agrees, jointly and severally with Customer's Third -Party
Service Provider, to indemnify and hold Bank harmless from
any and all liabilities, losses, damages, costs and expenses of
any kind (including, without limitation, the reasonable fees
and disbursements of counsel in connection with any
investigative, administrative or judicial proceedings,
whether or not Bank shall be designated a party thereto)
which may be incurred by Bank relating to or arising out of
the acts or omissions of Customer's Third -Party Service
Provider on behalf of Customer. Customer and Customer's
Third -Party Service Provider shall execute any such other
agreement(s) or documents as deemed necessary or
appropriate by Bank prior to the initiation or any
continuation by Customer's Third -Party Service Provider of
any Services on Customer's behalf. Notice of any
termination of Customer's Third -Party Service Provider's
authority to use one or more of the Services on Customer's
behalf shall be given to Bank in writing. The effective date
of such termination shall be ten (10) Business Days after
Bank receives written notice of such termination. Customer
agrees that Bank retains the right to reject any transactions
initiated by Customer's Third -Party Service Provider in its
sole discretion.
34. Section Headings. The section headings used in
this Agreement are only meant to organize this Agreement,
and do not in any way limit or define Customer's or Bank's
rights or obligations.
35. Confidentiality. In further consideration of the
terms of this Agreement, Customer expressly covenants and
agrees that, effective as of its execution of this Agreement,
Customer will not disclose, nor authorize its agents or
attorneys to disclose, directly or indirectly, orally or in
writing, spontaneously or in response to inquiries from any
entity or person, the terms of this Agreement, and any other
document or agreement to which reference is made herein,
except pursuant to any order, summons or other legal process
issued by any state or federal court, or any state, federal,
municipal or other governmental agency, or as reasonably
necessary to tax advisors, attorneys, accountants, and other
professionals, or as necessary to fulfill any contractual
undertakings hereunder. Customer expressly recognizes that
any unauthorized disclosure of information specified herein,
or any threatened disclosure, would cause irreparable injury
to Bank which may not be adequately compensated by
damages. Accordingly, in the event of a breach or threatened
breach of the provisions of Section 35 of this Agreement by
Customer, Bank shall be entitled to an injunction restraining
and prohibiting Customer from doing so or continuing to do
so. Nothing herein shall be construed as prohibiting Bank
from pursuing any other remedies available for such breach
or threatened breach, including the recovery of damages.
The restrictions set forth in this Section 35 shall not apply to
11 of57 1018
information which (i) was, is or becomes public knowledge
not in violation of this Section 35; (ii) is acquired by
Customers from a third party lawfully possessing such
information; or (iii) is disclosed in testimony, pleadings or
papers filed by Bank in any judicial proceeding. Customer
understands and agrees that this Section 35 is a material
provision of this Agreement, that Bank would not have
entered into this Agreement without such confidentiality
obligations, and that any breach of this Section 35 shall be a
material breach of this Agreement.
IN WITNESS WHEREOF, Customer and Bank have duly caused this Agreement, including all applicable Appendices, to be
executedbyan Authorized Representative.
Date: ;X f
City of Tamarac
?Sa5 w %"\ AN&
T rr PTC �-
(Address)
4By: 4
Signature of Aut orized Renre�
Print Name: ��LeV 9V,%Jr S'uGµ- ® 6) C.w
Title: .yl -rb M01VPr('7QL
Governmental
TD Bank, N.A.
M-N
(Signature of Authorized Representative)
Print Name: �p,mQ W.00-r1
Title:y t c L � r? S'
iz of57
1018
EXHIBIT TO CASH MANAGEMENT MASTER AGREEMENT:
GOVERNMENTAL ENTITY SERVICES
This Exhibit is incorporated by reference into the parties' Cash Management Master Agreement (the "Agreement") and applies to
all Cash Management Services made available by Bank to Customer, as a governmental entity or unit. All capitalized terms used
herein without definition shall have the meanings given to them in the Agreement. Bank and Customer agree that, notwithstanding
anything to the contrary contained in the Agreement, the following terns and provisions shall apply to the Agreement:
TERMS AND CONDITIONS
1. Section 26, "Governing Law," of the Agreement
is hereby deleted in its entirety and replaced with the
following:
26. Governing Law. Any claim,
controversy or dispute arising under or related to
this Agreement shall be governed by and
interpreted in accordance with the laws of the
jurisdiction pursuant to which Customer was
incorporated or otherwise organized, except where
applicable federal law is controlling. In the event
of a conflict between the provisions of this
Agreement and any applicable law or regulation,
this Agreement shall be deemed modified to the
extent necessary to comply with such law or
regulation.
2. The following new Section 35 is hereby added
immediately after Section 34:
35. Additional Representations and
Warranties. For purposes of this Section,
"Governmental Unit" means: (A) any town, city,
county or similar local governmental unit, including
without limitation any school district or school
administrative unit of any nature, water district,
sewer district, sanitary district, housing authority,
hospital district, municipal electric district or other
political subdivision, agency, bureau, department or
other instrumentality thereof, or similar quasi -
governmental corporation or entity defined by
applicable law, and (B) any state government or any
agency, department, bureau, office or other
instrumentality thereof.
(a) If Customer is a Governmental Unit of the type
included in (A) above, Customer and the individual
signing below represent, warrant and agree: (i) that
this Agreement has been duly executed by the
Treasurer, Finance Director, or other officer
authorized by law with signatory authority to enter
into banking services agreements; (ii) that this
Agreement has been duly authorized and approved
by the governing body of Customer in accordance
with applicable law, and, at Bank's request, as
evidenced by the certification of the Secretary or
other legal authority of the governing body and
provided with this Agreement; (iii) that only
persons authorized to disburse Customer funds
from any Account will be enrolled as Authorized
Users having access to wire transfer, ACH or
Account transfer functions; (iv) that if this
Agreement remains in effect for more than one
budget year, upon request of Bank, Customer will
ratify and provide evidence of the renewal of this
Agreement in subsequent years; and (v) that this
Agreement is the valid and binding obligation of
Customer, enforceable against Customer in
accordance with its terms.
(b) If Customer is a Governmental Unit of the type
included in (B) above, Customer and the individual
signing below represent, warrant and agree: (i) that
this Agreement has been duly executed by a
financial or other officer authorized by law with
signatory authority to enter into banking services
agreements on behalf of Customer; (ii) that this
Agreement has been duly authorized by a senior or
similar officer of Customer; (iii) that Customer has
complied with all state laws and regulations,
including any regulations or policies adopted by
Customer with respect to electronic commerce in
entering into and performing this Agreement and
any related ACH or wire transfer service agreement;
(iv) that only persons authorized to disburse
Customer funds from any Account will be enrolled
as Authorized Users having access to wire transfer,
ACH or Account transfer functions; and (v) that this
Agreement is the valid and binding obligation of
Customer, enforceable against Customer in
accordance with its terms.
(c) For a Customer of the type included in either (A) or
(B) above, Customer and the individual signing
below further represent, warrant and agree: (i) that
upon Bank's request, Customer shall provide
evidence of those persons authorized to disburse
Customer funds as described in (a)(iii) and (b)(iv)
HC# 4818-2426-3481 v. l 13 oj57
0521
above; (ii) that upon Bank's request, Customer will
certify its compliance with (a) or (b), as applicable,
on an annual or other periodic basis; and (iii) that
Customer will provide notice to Bank if any person
authorized to disburse Customer funds as described
in (a)(iii) and (b)(iv) is no longer so authorized or
his/her position of such authority is terminated for
any reason.
3. Effectiveness. Customer agrees to all the terms
and conditions of this Exhibit. The liability of Bank under
this Exhibit shall in all cases be subject to the provisions of
the Cash Management Master Agreement, including,
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
available from Bank. This Exhibit shall remain in full force
and effect until such time as a different or amended Exhibit
is accepted in writing by Bank or the Cash Management
Master Agreement is terminated.
Remainder of page intentionally left blank.
HC# 4818-2426-3481 v.1 14 q/57
0521
APPENDIX I
TD eTREASURY SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and governs Customer's use of
the Bank Internet System (the "Services" or "eTreasury"). All capitalized terms used herein without definition shall have the
meanings given to them in the parties' Cash Management Master Agreement. Except as otherwise expressly provided in this
Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this
Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict.
TERMS AND CONDITIONS
Definitions.
"Account(s) " means, with respect to eTreasury, a
checking, regular statement savings, money market deposit,
certificate of deposit, investment or commercial loan or line
of credit account(s) Customer maintains with Bank for
business or non -consumer purposes that is designated by
Customer for use with the Services, as described below.
"Account Agreement" means, in addition to the
meaning contained in the parties' Cash Management Master
Agreement, any and all agreements between Customer and
Bank which govern Customer Accounts (as defined above)
and which were provided to Customer when Customer
opened its Account(s), or any other documents governing
Customer's Account(s), each as may be amended from time
to time.
"Administrator" or "Account Administrator"
means Customer's employee(s) or other person(s) that
Customer (or any Administrator designated by Customer)
designates on the Services' Setup Form(s) (or by on-line
changes to such designations as described below) as being
its Authorized Representative, or as authorized to act on
Customer's behalf, with respect to the Services.
"Authorized User" means any person Customer's
Administrator designates as being authorized to access or
use any of the Services on Customer's behalf.
"Login ID" means the electronic identification, in
letters and numerals, assigned to Customer by Bank or to any
additional Authorized Users designated by Customer's
Account Administrator.
"Payment" means a transfer of funds to or from
Customer's Account(s).
2. Services.
2.1 This Appendix describes the terms and
conditions under which Bank will provide Customer with
access to and use of any of the electronic information
delivery and transaction initiation services that Bank makes
available using the Bank Internet System.
2.2 By accessing the Services with the
Access Devices (as defined in the Cash Management Master
Agreement), Customer may perform any or all of the
Services described in this Appendix and selected for use in
the Services' Setup Form(s) and that Bank has approved for
Customer's use. Bank reserves the right to reject Customer's
Services' Setup Form(s), schedules and other required
documents and to refuse Customer access to or use of the
Services for any reason and in Bank's sole discretion. Bank
may, in its sole and exclusive discretion, introduce new
features of the Services from time to time but is not required
to notify Customer of the availability of any such new
features.
2.3 By subscribing to the Services,
Customer will have access to the Services' basic features,
which include but may not be limited to, in Bank's sole and
exclusive discretion, the following:
2.3.1 Previous -Day Balance
Reporting. Previous -Day Balance Reporting allows
Customer to review the balances and transaction history in
Customer's checking, savings, money market deposit and
loan Account(s) for such period of time as described in the
Services' Setup Form(s). Customer may also view images
of deposit tickets, deposit items, paid checks and return
deposited items. This information may be viewed upon
implementation of the Services. The scope of the time
periods for which transactional history and check images
may be viewed (including pre -implementation periods) may
vary and depend upon various factors, such as when
Account(s) were opened and when the Services were first
implemented and set-up.
2.3.2 Real -Time Balance
Reporting. Real -Time Balance Reporting allows Customer
to review current Account balance(s) and transaction activity
in real-time.
2.3.3 Book Transfers. Book
Transfers allows Customer to make intra-Bank fund
transfers between Customer's checking, savings and loan
Accounts.
15 of 57 0522
2.3.3.1 General. Book
Transfers may be made as one-time or recurring, same -day
or in the future. Book Transfers may also be initiated from
(i) one -Account -to -one -Account, (ii) one -Account -to -many -
Accounts, or (iii) many -Accounts -to -one -Account.
Recurring Book Transfers may utilize one of several
repeating frequency options (weekly, monthly, etc.), as set
forth in the Services. Book Transfer templates may be
created and saved for frequently executed transfers. Pending
Book Transfers and templates may be edited or deleted
(cancelled) through the Services by Authorized Users at any
time prior to the Business Day on which the associated
transfer is scheduled to occur. Book Transfer amounts and
the order in which such transfers occur are limited to the
available balance in the Account(s) on the effective date of
the transfer. For same -day transactions, Customer will need
to have a sufficient available balance in the Account from
which funds are to be transferred to cover the amount of the
Book Transfer. For future or recurring Book Transfers,
Customer will need to have sufficient available funds on the
day the transaction is to occur. The number of Book
Transfers from interest bearing checking and savings
Accounts are subject to the terms of the Account Agreement
and federal regulations. Book Transfers that Customer
transmits by Bank's cut-off time as set forth on the Services'
designated website or the Services' Setup Form(s) on a
Business Day will be posted to the Account as of that
Business Day; however, a request (whether a same -day
funds transfer or a future -dated transfer) may not result in an
immediate transfer of funds or immediate availability
because of the time required to process the transaction.
Customer is solely responsible for the review of the previous
day's transaction report and the status of the Book Transfer
request within the Services to ensure that the transaction was
processed. Only Book Transfers initiated through the
Services will be displayed on the Services' "Transfer"
reports tab. All transfers are subject to the Account
Agreement.
2.3.3.2 Future -Dated
Book Transfer. In conjunction with Book Transfers, a
request to transfer funds between Customer's Accounts may
be initiated and approved for a future date. The future
transfer date may be scheduled for such date in advance as
may be permitted from time to time by Bank and as set forth
within the Bank Internet System. Future -dated transfers may
be scheduled as a one-time request or a recurring request in
a pre -determined amount, based on the instructions entered
by Customer with the request. Future -dated Book Transfers
will be initiated on the Business Day requested by Customer,
not on the date Customer entered the transaction using the
Services.
2.3.4 Stop Payment. Stop
payments of checks drawn on Customer's Account(s) are
subject to the terms and conditions of the Account
Agreement. Notwithstanding anything in the Account
Agreement to the contrary, Customer may use the Services
to initiate stop payment orders for an individual check or a
range of checks. Bank shall have no responsibility for losses
resulting from any delay in Bank's receipt of stop payment
orders transmitted by means of the Bank Internet System or
for Customer not taking additional actions when a response
message from the Bank Internet System indicates a response
other than a successful confirmation. Customer must
provide Bank with the EXACT CHECK NUMBER OR
RANGE OF CHECK NUMBERS. When known,
Customer should also provide the EXACT AMOUNT OF
THE CHECK. If the check number is incorrect in any way
or the amount of the check is inaccurate by one cent or more
in the stop payment order, payment will not be stopped and
Bank will not be responsible for resulting losses. All other
information must be reasonably accurate. Requests are
generally effective when successfully entered and submitted
by Customer via the Services. Notwithstanding the
foregoing, Customer understands that if the stop payment
request comes too late for Bank to have a reasonable time to
act on it prior to paying, settling for, posting or becoming
accountable for the check described in the request, then
Customer's stop payment request shall be of no effect. Stop
payments requested using the Bank Internet System are
effective for three hundred sixty-five (365) Calendar Days
unless renewed before the end of the 365-day period.
Customer is solely responsible for confirming the status of a
stop payment order. Except as otherwise provided by
Compliance Laws or the terms of the Cash Management
Master Agreement, Customer shall not have the right to stop
payment on or recall any electronic fund transfers or similar
payment order or transfer request given hereunder after it has
been transmitted to Bank. Only stop payment orders
initiated or recalled through the Bank Internet System will
be displayed on the Bank Internet System's Stop Payments"
screen. Stop payment orders that are not initiated through
the Bank Internet System may also be cancelled through the
Bank Internet System.
2.3.5 E-Learning. E-Learning is
a self -paced, interactive educational tool available via the
Services that Customer may use to learn more about the
various features or modules related to the Services, as well
as how to use them.
2.3.6 Customizable Dashboard.
Using this feature, Customer can configure and save
Account balance views, as well as command one -click
access to detailed information, balance and payment reports,
and high -use transaction initiation features. It is Customer's
responsibility to view the "Dashboard" for Bank notices
when designating another section of the Bank Internet
System as the desired landing page.
2.3.7 FedWire 1031 Drawdown
Request Origination. When made available by Bank,
Customer may originate an outgoing service message to a
specified third -party financial institution ("Receiving
Financial Institution") to request a transfer of funds from an
account at the Receiving Financial Institution to Customer's
Account at Bank via FedWire (a method of electronic funds
or wire transfer operated by the Federal Reserve System for
participating financial institution members). Customer is
responsible for completing all required information, which
may include, but is not limited to, the following: the routing
number of the Receiving Financial Institution, the account
number at the Receiving Financial Institution and the
amount of the requested wire drawdown. Bank shall have no
16 of 57 0522
responsibility for losses resulting from any action or failure
to act by Receiving Financial Institution.
2.4 In addition to the Services as described
in this Appendix and/or in the Services' Setup Form(s),
additional features, modules or other Cash Management
Services related to eTreasury may be offered from time to
time by Bank, in its sole and exclusive discretion, including
but not limited to the following:
2.4.1 Wire Transfers. Wire
transfers are subject to the terms and conditions of the TD
Wire Transfer Services Appendix. Once approved by Bank
for use by Customer, this Service allows Customer to
transfer funds electronically using the Fedwire or similar
funds transfer system, typically from Customer's Account(s)
to other account(s) with Bank or to account(s) at other banks.
Domestic or foreign wire transfers entered through the
Services will be processed as set forth in the TD Wire
Transfer Services Appendix.
2.4.2 ACH Originations. ACH
originations are subject to the terms and conditions of the TD
Automated Clearing House (ACH) Origination Appendix,
the TD Third -Party Sender Services Appendix or the TD
ACH Third Party Service Provider Agreement, as
applicable. Once approved by Bank for use by Customer,
this Service allows Customer to initiate and approve ACH
transactions that Customer desires Bank to enter into the
ACH network on Customer's behalf. ACH transactions
entered through the Services will be processed and settled)
as set forth in the TD Automated Clearing House (ACH)
Origination Appendix, the TD Third -Party Sender Services
Appendix or the TD ACH Third Party Service Provider
Agreement, as applicable.
2.4.3 File Transfers. File transfers
is a method for Customer and Bank to send and receive
reports and files (including, but not limited to, ACH,
Reconciliation, Lockbox, and BAI files) to each other
through the Internet and are subject to the terms and
conditions of applicable Appendices. Such reports and files
may also be auto -generated and auto -delivered.
3. Hours of Access. Customer generally may access
the Services 24 hours a day, seven (7) days a week.
Customer may not be able to access some or all of the
Services from time to time, however, during any special or
other scheduled maintenance periods, or during
emergencies, interruptions or delays due to causes beyond
Bank's control.
4. Account Designation.
4.1 Customer may designate any
of Customer's Accounts maintained with Bank for business
or non -consumer purposes for use with the Services.
Generally, the taxpayer identification number for each
Account must be the same, and each Account is subject to
the other conditions set forth in this Appendix, except as
Bank, in its sole discretion, may otherwise permit. Bank
reserves the right to deny any Account designation for use
with the Services in its sole discretion.
4.2 Customer may at any time add
or delete any Account that Customer has designated for use
with any of the Services, or change the Services associated
with any Account, by notifying Bank in writing.
5. Administrator(s) and Authorized Users.
5.1 Customer shall designate
Administrator(s) with Bank as set forth in the Services'
Setup Form(s). Customer is solely responsible for
designating its Administrator(s).
5.2 The Administrator(s) may designate
other Administrators and/or Authorized Users. Customer
accepts as its sole responsibility the Administrator's
designation of other Administrators and Authorized Users.
Customer understands that the Administrator(s) will control,
and Customer authorizes the Administrator(s) to control,
access by other Administrators and Authorized Users of the
Services through the issuance of Access Devices. The
Administrator(s) may add, change or terminate Customer's
Authorized User(s) from time to time and in his/her sole
discretion. Bank does not control access by any of
Customer's Authorized Users to any of the Services. If
Customer designates more than one (1) Administrator, Bank
recommends that Customer manage its use of the Services
and its Administrators by requiring dual control to set up
new Authorized Users. Bank also recommends that
Customer review and assign limits for Authorized Users that
create and/or approve wire transfers and ACH transactions,
as established on the Services' Setup Form(s). In the event
that Bank, in its sole and exclusive discretion, assists
Customer in any way with the establishment, addition or
general set-up of Authorized Users, Customer understands
and agrees that the Administrator(s) shall remain responsible
for verifying the accuracy thereof and shall otherwise control
access by any of Customer's Authorized Users to any of the
Services.
5.3 Customer will require each
Administrator and each Authorized User to comply with all
provisions of this Appendix and all other applicable
agreements. Customer acknowledges and agrees that it is
fully responsible for the failure of any Administrator or any
Authorized User to so comply. Customer is responsible for
any Payment, transfer and other use of the Services and
charges incurred by any Administrator and any Authorized
User, even if such Administrator or Authorized User exceeds
his/her authorization. Bank recommends that Customer
require its Administrator(s) to review all entitlement reports
available through the Services with respect to Customer's
Authorized User(s).
5.4 Customer acknowledges and agrees that
an Authorized User is not permitted to authorize other
persons/entities to use its Access Devices. Notwithstanding
the foregoing, if an Authorized User does authorize other
persons/entities to use the Authorized User's Access
Devices in any manner, such authorization will be
considered by Bank as unlimited in amount and manner, and
Customer is responsible for any transactions made by such
persons/entities, until Customer's Administrator has
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deactivated the subject Authorized User's Access Devices.
Bank will not be liable for and will not reimburse Customer
for any losses that may occur as a result of this authorized
use of an Authorized User's Access Devices.
5.5 Whenever any Authorized User leaves
Customer's employ or Customer otherwise revokes the
authority of any Authorized User to access or use the
Services, the Administrator(s) are solely responsible for de-
activating such Authorized User's Access Devices.
Customer shall notify Bank in writing whenever a sole
Customer Administrator leaves Customer's employ or
Customer otherwise revokes a sole Administrator's
authority to access or use the Services.
6. Access Devices; Security Procedures.
6.1 Upon successful enrollment, Customer
can access the Services from Bank's designated website by
using Customer's Computer or, as may be permitted by Bank
from time to time in its sole discretion and in accordance
with Bank's terms and conditions for such access, using
mobile or other Internet -enabled system(s) or device(s),
along with the Services' security procedures as described
from time to time. A company ID assigned to Customer by
Bank, a unique Login ID and an individual password will be
used for log -in by Customer's Administrator(s) and
Authorized User(s). The Administrator(s) and Authorized
User(s) must change his or her individual password from
time to time for security purposes, as prompted by the Bank
Internet System or more frequently (subject to the additional
security procedures described below).
6.2 Customer acknowledges that the
Administrator(s) will, and Customer authorizes the
Administrator(s) to, select other Administrators and
Authorized Users by issuing to any person a unique Login
ID and password (subject to the additional security
procedures described below). Customer further
acknowledges that the Administrator(s) may, and Customer
authorizes the Administrator(s) to, change or de -activate the
unique Login ID and/or password from time to time and in
his or her sole discretion (subject to the additional security
procedures described below).
6.3 Customer acknowledges that, in
addition to the above individual passwords, access to the
Services includes, as part of the Access Devices, additional
security procedures, including as described below:
6.3.1 Additional security
procedures include a risk -based authentication security
procedure for Customer, including Customer's
Administrator and Authorized Users. This additional
security procedure involves an additional credential for each
user that is in addition to Login IDs and individual password
security (hereinafter "Enhanced Authentication Security,"
and/or "Enhanced Log -in Security"). With Enhanced
Authentication Security, additional information regarding
each Authorized User's Computer and method of website
access will be collected and validated automatically with the
set-up process. An electronic access identity will be created
for each Authorized User by combining a number of key
identification points, such as IP address, Internet service
provider, PC and browser settings, time of day and
geographic location. These access identities are used by
Bank to authenticate Authorized Users. Further
authentication may occur automatically due to the detection
of unusual source occurrences in relation to that access
identity.
6.3.2 An additional security
procedure incorporates use of a physical security device or
token ("Token") for, by way of example only, initial log -in
and/or certain transactional or administrative functionality.
A Token may be issued to any Authorized User(s), for
example, for use in initiating and/or approving ACH
transactions and wire transfers, to log in to the Services, as
well as with certain administrative functionality, and/or for
the creation of ACH and wire templates. Physical security of
each Token is Customer's sole responsibility. With the
Token, each Authorized User will receive a PIN number that
the Authorized User must keep in a secure place. When an
Authorized User (or Administrator) leaves Customer's
employ, his or her Login ID must be deleted by Customer
(or by Bank upon Customer's request) and, if a Token had
been issued to such Authorized User (or Administrator),
Bank must be promptly notified so that Bank may deactivate
such Authorized User's (or Administrator's) Token. Any
additional Authorized User requiring a Token must be
authorized, in writing by Customer to Bank, for Token
creation or re-creation and deployment. If applicable, fees
may be assessed for additional Tokens.
6.4 Customer further acknowledges and
agrees that all wire transfers and ACH transactions initiated
through the Services require "dual control" or separation of
duties. With this additional security feature, one Authorized
User will create, edit, cancel, delete and restore ACH batches
or wire transfer orders under his/her unique Login ID,
password and Token; a second different Authorized User
with his/her own unique Login ID, password and Token will
be required to approve, release or delete ACH batches or
wire transfer orders.
6.5 Customer accepts as its sole
responsibility the selection, use, protection and maintenance
of confidentiality of, and access to, the Access Devices.
Customer agrees to take reasonable precautions to safeguard
the Access Devices and keep them confidential. Customer
agrees not to reveal the Access Devices to any unauthorized
person. Customer further agrees to notify Treasury
Management Services Support immediately at 1-866-475-
7262 if Customer believes that the confidentiality of the
Access Devices has been compromised in any manner.
6.6 The Access Devices identify and
authenticate Customer (including the Administrator and
Authorized Users) to Bank when Customer accesses or uses
the Services. Customer authorizes Bank to rely on the
Access Devices to identify Customer when Customer
accesses or uses any of the Services, and as signature
authorization for any Payment, transfer or other use of the
Services. Customer acknowledges and agrees that Bank is
authorized to act on any and all communications or
instructions received using the Access Devices, where such
communications were provided to Bank in accordance with
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the security procedures and other terms as set forth in the
Cash Management Master Agreement, regardless of whether
the communications or instructions are authorized. Bank
owns the Access Devices, and Customer may not transfer
them to any other person or entity.
6.7 Customer acknowledges and agrees that
the Access Devices and other security procedures applicable
to Customer's use of the Services and set forth in this
Appendix, as well as such security best practices as
described by Bank from time to time and made available on
the Bank Internet System, are a commercially reasonable
method for the purpose of verifying whether any Payment,
transfer or other use of the Services was initiated by
Customer. Customer also agrees that any election Customer
may make to change or waive any optional security
procedures recommended by Bank is at Customer's risk and
that any loss resulting in whole or in part from such change
or waiver will be Customer's responsibility. Customer
further acknowledges and agrees that the Access Devices are
not intended, and that it is commercially reasonable that the
Access Devices are not intended, to detect any errors relating
to or arising out of a Payment, transfer or any other use of
the Services.
6.8 If Customer has reason to believe that
any Access Devices have been lost, stolen or used (or may
be used) or that a Payment or other use of the Services has
been or may be made with any Access Devices without
Customer's permission, Customer must contact its
Administrator and Bank. In no event will Bank be liable for
any unauthorized transaction(s) that occurs with any Access
Devices, where such communications or instructions were
provided to Bank in accordance with the security procedures
and other terms as set forth in the Cash Management Master
Agreement.
6.9 Bank may, from time to time, propose
additional or enhanced security procedures to Customer.
Customer understands and agrees that if it declines to use any
such additional or enhanced procedures, it will be liable for any
losses that would have been prevented by such procedures.
Notwithstanding anything else contained in this Appendix, if
Bank believes immediate action is required for the security of
Bank or Customer funds, Bank may initiate additional security
procedures immediately and provide prompt subsequent notice
thereof to Customer.
7. Debiting Customer's Account(s). Customer
authorizes Bank to charge and automatically deduct the
amount of any Payment from Customer's Account(s) (or any
other Account that Customer maintains with Bank, if
necessary), in accordance with the Cash Management
Master Agreement and the Account Agreement.
8. Electronic Statements.
8.1 As an eTreasury user, and subject to
Bank's approval and applicable set-up and enrollment
requirements, Customer may elect to stop or resume the
mailing of paper statements for eligible Accounts by
requesting this feature from Bank.
8.2 Only Accounts accessible via the
Services may be enrolled for electronic statement delivery.
Eligible Accounts are displayed on the "Statements" page of
the Services. If Customer currently receives a consolidated
periodic statement that includes multiple Accounts and
Customer selects electronic statement delivery, all Accounts
shown on the consolidated statement will be automatically
enrolled for electronic statement delivery. For joint
Accounts, only one Account owner need enroll for electronic
statement delivery; provided, that each Account owner must
separately enroll if that Account owner wishes to receive and
have access to its Account statements electronically.
8.3 Customer's electronic statement will
generally be available within 24 hours after the statement
cut-off date. The statement cut-off date for Customer's
electronic statement is the same as Customer's paper
statement. Once made available as described herein, the
information contained in Customer's electronic statement
shall be deemed to have been delivered to Customer
personally, whether actually received or not. Customer may
view, print and download current statements and such period
of statement history as set forth on the Bank Internet System.
To view or print an electronic statement, Customer must
have an appropriate version of Adobe Acrobat software
installed on Customer's Computer sufficient to support
access to a PDF file.
8.4 At Customer's request, Bank will send
Customer a paper copy of Customer's electronic statement
previously delivered through the Services at any time.
Bank's standard fee then in effect and charged for paper
delivery of copies of Account statements will apply. A
request for a paper copy does not cause a termination of the
electronic statement feature. A paper copy can be obtained
until the copy is no longer required to be maintained by Bank
as a record for the designated Account under applicable law
or regulation.
8.5 Customer may revoke consent for the
electronic statement feature for Customer's Accounts at any
time by contacting Customer's Relationship Manager.
Electronic posting of Customer's electronic statement on the
Services' site and transmission of related email notices will
continue until: (i) termination of the electronic statement
feature; (ii) termination of Customer's designated Accounts
with Bank; or (iii) termination of this Appendix, the Cash
Management Master Agreement or Customer's use of the
Services.
8.6 Bank may discontinue the electronic
statements feature at any time in Bank's discretion and
resume mailing paper statements to Customer. Bank may
also add, modify or delete any feature of the electronic
statements feature in Bank's discretion. Bank will provide
Customer with notice of any change or termination in the
electronic statement feature in accordance with the terms of
the parties' Cash Management Master Agreement.
9. Alerts.
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9.1 The Services allow Customer to
voluntarily choose alert messages regarding Customer's
Account(s), including but not limited to messages to alert
Customer about high or low Account balance thresholds,
debit or credit transactions cleared, and payment status for
ACH and wire transactions. Bank may add new alerts from
time to time, or cancel existing alerts. If Customer has opted
to receive an alert that is being canceled, Bank will notify
Customer in accordance with the terms of the parties' Cash
Management Master Agreement. Each alert has different
options available, and Customer will be asked to select from
among these options upon activation of Customer's alerts
service.
9.2 Voluntary Alerts.
9.2.1 Electronic alerts will be sent
to the email address Customer has provided as Customer's
primary email address for the Services or via the Services'
secure messaging feature. If Customer's email address
changes, Customer is responsible for informing Bank of the
change. Customer can also choose to have alerts sent to a
secondary email address. Changes to Customer's primary
and secondary email addresses will apply to all of
Customer's alerts.
9.2.2 Customer understands and
agrees that Customer's alerts may be delayed or prevented
by a variety of factors. Bank will use commercially
reasonable efforts to provide alerts in a timely manner with
accurate information. Bank neither guarantees the delivery
nor the accuracy of the contents of any alert. Customer also
agrees that Bank shall not be liable for any delays, failure to
deliver, or misdirected delivery of any alert; for any errors in
the content of an alert; or for any actions taken or not taken
by Customer or any third party in reliance on an alert.
Customer agrees that Bank is not responsible for any costs
or fees incurred as a result of alerts sent to email addresses
or phone numbers connected with mobile or similar devices.
9.2.3 Alerts are not encrypted and
will never include Customer's Access Devices or full
Account number(s). However, alerts may include
Customer's name and some information about Customer's
Accounts, depending upon which alert(s) Customer selects.
Anyone with access to Customer's email address will be able
to view the contents of these alerts.
9.2.4 Customer may, at its option,
customize the subject line of Customer's alerts for easier
identification by Customer. Customer acknowledges and
agrees that Customer should not include full Account
number(s) or other sensitive Customer or Account
information in any customized subject line.
10. Use of Financial Management (FM) Software.
Use of the Services may be supplemented by use of certain
FM software. Compatibility and functionality of the FM
software with the Services may vary depending upon the FM
software Customer is using, and Bank makes no
representations or guarantees regarding use of the Services
with Customer's FM software. Customer is responsible for
obtaining and maintaining the FM software. Customer's use
of the FM software is governed by the software license
agreement(s) included with each software application.
Customer must agree to the terms and conditions of the
software license agreement(s) during the installation of the
FM software on Customer's Computer. Customer is
responsible for the correct set-up and installation of the FM
software, as well as maintenance, updates and upgrades to
the FM software and/or Customer's Computer. Bank will
provide Customer with reasonable assistance, when
requested, to enable Customer's use of the Services with FM
software. Bank is not responsible for any problems related
to the FM software itself, Customer's Computer or
Customer's ability to connect using the FM software as
described in this Appendix. Customer should verify all
Account data obtained and any transactions that may be
executed on Customer's Accounts using FM software, as
applicable. Bank's records of transactions, instructions and
communications regarding Customer's Accounts and use of
the Services supersede any records stored or created on
Customer's Computer through the use of FM software.
Customer is responsible for any and all obligations to any
software vendor arising from Customer's use of that
vendor's FM software. Customer acknowledges and agrees
that the FM software versions supported by Bank for
purposes of use with the Services shall be in accordance with
the sunset policy of the FM software provider.
11. Additional Security Terms. In addition to the
other terms of this Appendix and of the parties' Cash
Management Master Agreement, Customer agrees not to
disclose any proprietary information regarding the Services
to any third party (except to Customer's Administrator(s)
and Authorized User(s)). Customer acknowledges that there
can be no guarantee of secure transmissions over the Internet
and agrees to comply with any operating and commercially
reasonable security procedures Bank may establish from
time to time with respect to the Services. Customer will be
denied access to the Services if Customer fails to comply
with any of these procedures. Customer is responsible for
reviewing the transaction reports Bank provides on-line and
in Customer's monthly statements to detect unauthorized or
suspicious transactions. In addition to any other provision
hereof regarding authorization of transactions using the
Services or in the parties' Cash Management Master
Agreement, all transactions will be deemed to be authorized
by Customer and to be correctly executed thirty (30)
Calendar Days after Bank first provides Customer with a
statement or online transaction report showing that
transaction, unless Customer has provided written notice
that the transaction was unauthorized or erroneously
executed within that period. In order to minimize risk of loss,
Customer agrees to cause its Administrator or designated
Authorized User(s) to review the transaction audit log
available with the Services to detect unauthorized or
erroneous transactions not less frequently than once every
five (5) Calendar Days.
12. Terminating this Appendix; Liability.
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12.1 This Appendix may be terminated in
accordance with the terms and conditions of the Cash
Management Master Agreement.
12.2 The provisions of this Appendix relating
to Customer's and Bank's liability and the disclaimer of
warranties set forth in the Cash Management Master
Agreement and incorporated herein by reference shall
survive the termination of this Appendix.
13. Changes to the Services and this Appendix.
Bank may change the Services and this Appendix (including
any amendments hereto) in accordance with the terms and
conditions of the Cash Management Master Agreement.
14. Notices. Notices required by this Appendix shall
be provided in accordance with the terms and conditions of
the Cash Management Master Agreement.
15. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank under
this Appendix shall in all cases be subject to the provisions
of the Cash Management Master Agreement, including,
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
available from Bank. This Appendix replaces and supersedes
all prior agreements on file with respect to the Services and
shall remain in full force and effect until termination or such
time as a different or amended Appendix is accepted in
writing by Bank or the Cash Management Master Agreement
is terminated.
Remainder of page intentionally left blank.
21 oj57 0522
APPENDIX II
TD ACH ORIGINATION SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and the parties' Bank Internet
System Agreement, as applicable. This Appendix applies to all automated clearing house ("ACH") Services made available to
Customer, in Customer's capacity as an Originator, by Bank, as an Originating Depository Financial Institution ("ODFI"). All
capitalized terms used herein without definition shall have the meanings given to them in either the Cash Management Master
Agreement or the NACHA Rules (as defined below), as applicable. Except as otherwise expressly provided in this Appendix, to
the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and
any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict.
TERMS AND CONDITIONS
1. Services. The ACH network is a funds transfer
system which provides for the interbank clearing of
electronic credit and debit Entries for participating financial
institutions. The ACH system is governed by the National
Automated Clearing House Association's ("NACHA")
Operating Rules and Operating Guidelines (collectively the
"NACHA Rules").
2. Customer Obligations.
2.1 Customer will comply and shall cause
its employees, officers, directors, agents and its Authorized
Representative(s) and Administrator(s) to comply with (i)
the NACHA Rules as amended from time to time and (ii) any
specifications, advisories, interim policies, or instructions
related to ACH transactions issued, from time to time, by
Bank, NACHA or any federal or state regulatory authorities.
The duties of Customer set forth in this Appendix in no way
limit the requirement that Customer comply with the
NACHA Rules. Customer specifically adopts and makes to
Bank all representations and warranties of an Originator
under the NACHA Rules, including that Customer will not
initiate Entries in violation of the laws of the United States.
Customer has access to a copy of the NACHA Rules and
acknowledges receipt of a copy. (The NACHA Rules may be
obtained at NACHA's website at www.NACHA.org or by
contacting NACHA directly at 703-561-1100.) Customer
agrees to subscribe to receive revisions to the NACHA Rules
directly from NACHA.
2.2 Customer will maintain a checking
Account ("Settlement Account") at Bank with available
balances as of the Effective Entry Date sufficient to offset any
Entries submitted and against which any rejected or returned
Entries may be credited or debited. Bank reserves the right, in
its sole and exclusive discretion and at any time, to require
ACH pre -funding of credit Entries requested by Customer, in
accordance with the terms and conditions of any agreement
between Bank and Customer relating to pre -funding of such
Entries, including as otherwise set forth in this Appendix. Bank
also reserves the right, in its sole and exclusive discretion and
at any time, to delayed settlement of debit Entries requested by
Customer, in accordance with the terms and conditions of any
agreement between Bank and Customer relating thereto.
2.3 Customer agrees from time to time,
upon Bank's request and in accordance with this Appendix
and the parties' Cash Management Master Agreement, to
promptly provide Bank with information pertaining to
Customer's financial condition as Bank may request,
including without limitation, the name(s) of other financial
institutions that Customer is using to originate Entries.
2.4 Nothing in this Appendix or any course of
dealing between Customer and Bank (i) constitutes a
commitment or obligation of Bank to lend money to Customer,
(ii) obligates Bank to extend any credit to Customer, to make a
loan to Customer or otherwise to advance funds to Customer to
pay for any payment order contrary to Bank's published
availability schedules and the settlement timing as reflected
herein, and in such other documents and materials as may be
provided to Customer by Bank with regard to the Services from
time to time, (iii) constitutes a modification of this Appendix,
the NACHA Rules, or the Security Procedures, or (iv)
otherwise constitutes an agreement between Bank and
Customer regardless of whatever practices and procedures
Bank and Customer may use.
2.5 Customer is responsible for all tariffs,
duties or taxes (excluding U.S. federal, state and local taxation
of the income of Bank) that may be imposed by any
government or governmental agency in connection with any
payment order executed pursuant to this Appendix, including
without limitation any international tariffs, duties or taxes
related to international ACH Entries as further described in
Section 6 below.
2.6 Customer shall be liable for all fines
including without limitation any international fines related to
international ACH Entries as further described in Section 6
below, that may be incurred by Bank that are attributable to
Customer's failure to comply with (i) the NACHA Rules, or (ii)
the laws, regulations and orders administered by the U.S.,
including without limitation, the U.S. Department of the
Treasury's Office of Foreign Assets Control ("OFAC") and
the U.S. Department of the Treasury's Financial Crimes
Enforcement Network ("FinCEN").
CAP /D 88442 0722
3. Risk Exposure Limits.
3.1 Bank will establish for Customer, in
Bank's sole and exclusive discretion, a transactional "Credit
Exposure Limit" and a "Debit Exposure Limit" ("Exposure
Limit(s)"). Each Exposure Limit will be established as an
aggregate limit over multiple Settlement Dates with other
not -yet -settled transactions issued by Customer through any
ACH application with Bank. The Exposure Limits are
based on Customer's financial condition and anticipated or
historical level(s) of Entry instructions with Bank. Bank
will notify Customer of Customer's Exposure Limits prior
to implementation of the Services.
3.2 Customer shall promptly notify Bank if
Customer anticipates a significant increase or decrease in the
dollar amount of any of its ACH transactions. Bank may,
from time to time, in its sole discretion, change the amount
of Customer's Exposure Limits. Bank may, on an annual or
more frequent basis, in Bank's sole discretion, review
Customer's Exposure Limits and make any adjustments to
Customer's Exposure Limits that Bank may deem
appropriate.
3.3 Bank monitors all Exposure Limits for
every customer that originates ACH transactions. Bank may
suspend or reject processing of any Entry instructions if such
Entry exceeds Customer's Exposure Limit(s). Bank may,
in its sole and exclusive discretion, but shall have no
obligation, to elect to process occasional Entry instructions
that would exceed Customer's Exposure Limit(s). If
Customer's Entry instructions exceed its Exposure Limit(s),
Bank may elect to process such instructions subject to there
being sufficient available funds in the Settlement Account,
or in any other Customer Account(s) authorized by Bank for
ACH transaction purposes, for the total amount of all credit
Entries submitted to Bank for processing. In such event,
Bank may elect to reduce available funds in the Settlement
Account, as well as place a hold on available funds in any
other Customer Account(s) authorized by Bank for ACH
transaction purposes to the extent necessary to cover the total
amount of the ACH credit Entries, on the Business Day that
Bank begins processing Customer's ACH file. Customer's
Settlement Account will be debited on the effective
Settlement Date of the file, simultaneously with removal of
the hold on funds in the other Customer Account(s).
Alternatively, if Customer's Entry instructions exceed
Customer's Exposure Limit(s), Bank may elect to process
such instructions and release a file against insufficient
collected funds, subject to Customer promptly depositing
collected funds in the Settlement Account in the form of a
cash deposit, wire transfer, intra-bank fund transfer or loan
advance to cover Customer's funding obligation.
4. File Transmission Methods; Addenda.
4.1 Customer may elect, in accordance with
the Services' Setup Form(s), to transmit a NACHA-formatted
file to Bank via the following methods, or via such other
methods as Bank may permit from time to time in its sole and
exclusive discretion:
4.1.1 Bank Internet System
Transmission. Customer may transmit a NACHA-
formatted file to Bank via the service described in the Bank
Internet System Appendix. Customer agrees to the terms of
the Bank Internet System Appendix and its related security
procedures when initiating Entries as described therein.
4.1.2 Direct Electronic
Transmission. Customer may transmit a NACHA-formatted
file directly to Bank, as described in or as otherwise permitted
by Bank's Appendix for Data Transmission Services.
Connectivity between Bank and Customer must be established
and successfully tested prior to live transactions.
4.2 Electronic Data Interchange ("EDI").
EDI consists of the electronic movement of data between
Customer and Bank in a structured, computer -retrievable
data format that permits information to be transferred
between a computer program at Customer's location and a
computer program at Bank's location without re -keying.
Customer and Bank may transmit between each other an
ACH file that contains ACH Addenda which conform to the
NACHA Rules via EDI, and as described in or as otherwise
permitted by Bank's Appendix for Data Transmission
Services. Bank will process and forward Addenda
information along with financial transactions through the
ACH network. Bank will, upon Customer's request, forward
Addenda information to Customer within two (2) Business
Days of Bank's receipt of such information.
5. Transmittal of Entries by Customer.
5.1 Customer will send file(s) of credit and
debit Entries to Bank (i) with computer readable
information; (ii) with an ACH file and format consistent with
current NACHA file and Bank specifications; and (iii) on the
medium as agreed by the parties and in accordance with the
security procedures associated with that transmission
medium. Customer agrees to initiate Entries described
herein in accordance with the requirements of, and in
compliance with its responsibilities, representations and
warranties as an Originator under, the NACHA Rules.
5.2 With respect to any credit and debit
Entries initiated and transmitted by Customer that involve
consumers, Customer will comply with, each as may be
amended from time to time: (i) all authorization, disclosure
and other requirements of the NACHA Rules and (ii) all
applicable federal and state laws and regulations, including,
without limitation, any applicable requirements of
Regulation E of the Consumer Financial Protection Bureau
(or any successor entity who administers Regulation E)
(hereinafter "Regulation E") and the Federal Electronic
Funds Transfer Act.
5.3 Customer acknowledges the right of a
consumer Receiver of an unauthorized debit Entry, as
applicable and as described in the NACHA Rules, to obtain a
refund of the funds debited from Receiver's account by such
Receiver sending a written notice to Receiver's Receiving
CAP /D 88442 0722
Depository Financial Institution ("RDFI") in accordance
with the NACHA Rules (i.e., a Written Statement of
Unauthorized Debit), and where such notification is received
in time and in a manner that reasonably allows the RDFI to
meet the deadline for transmitting a Return Entry as
provided in the NACHA Rules. Customer also acknowledges
the right of a corporate Receiver of a debit Entry, as
applicable and as described in the NACHA Rules, to obtain a
refund of the funds debited from such Receiver's account by
such Receiver sending a notice to Receiver's RDFI within
two (2) Business Days following the Settlement Date of the
original Entry. Customer indemnifies Bank against any such
claim for a refund by any Receiver.
5.4 In accordance with this Appendix,
Customer may use the Services to initiate and transmit credit
and debit Entries with certain Standard Entry Class ("SEC")
Codes. Authorized SEC Codes include PPD, PPD+, CCD,
CCD+ and CTX. All other SEC Codes may be used with
proper designation on the Services' Setup Form(s) and in
accordance with additional instructions from and
requirements by Bank, as applicable. Bank may also suspend
or terminate Customer's use of one or more SEC Codes at
any time in Bank's sole and exclusive discretion.
5.5 Bank may suspend Customer's use of
one or more inactive ACH set-ups after 12 months of
inactivity and subsequently terminate Customer's use of the
inactive ACH set-up on one or more channels of delivery,
after 16 months of inactivity. Non-use of ACH Origination
for 16 months, mal result in the termination and removal of
the ACH Service.
6. International ACH Transactions ("IAT
Entries").
6.1 An IA'T' Entry is a debit or credit Entry
that is part of a payment transaction involving a Financial
Agency located outside of the territorial borders of the
United States, which is processed through the domestic ACH
network, pursuant to the NACHA Rules, including the rules
pertaining to International ACH Transactions. IAT Entries
also include those that are funded directly by an incoming
international wire or similar funding source. The NACHA
Rules establish SEC Code "IAT" for all International ACH
Transactions. Customer agrees to be bound by the NACHA
Rules and all other statutes and regulations pertaining to IAT
Entries, including all applicable OFAC and FinCEN rules
and regulations associated with IAT Entries. Customer
acknowledges that IAT Entries require additional mandatory
information, according to special formatting requirements,
in the computer record for such Entries within an ACH batch
file. Customer expressly agrees to identify and properly
initiate all IAT Entries. Bank will facilitate IAT Entries to
Receivers located in foreign countries approved by Bank and
facilitated by the ACH or the Gateway Operator (hereinafter
in this Section, collectively, "ACH Operator"). Bank will
process each IAT Entry in accordance with (a) the laws and
payment system rules and requirements of the receiving
foreign country ("Foreign Country Rules"), (b) any
agreement governing IAT Entries between Bank and the
ACH Operator through which Bank processes the IAT
Entry, the terms of which Bank communicates to Customer
prior to Customer's use of the Services or from to time
thereafter, and (c) the NACHA Rules.
6.2 Customer acknowledges and agrees that
IAT Entries may be subject to laws, regulations and
restrictions of U.S. and foreign governments relating to
foreign exchange transactions. Before initiating an IAT
Entry, Customer agrees to understand and accept the Foreign
Country Rules. An IAT Entry must be authorized by the
Receiver. The form and content of the Receiver's
authorization, including whether such authorization is oral,
electronic or written, is governed by Foreign Country Rules.
Customer assumes the risk of rejection of its Entries
according to Foreign Country Rules, Bank and the ACH
Operator. Customer expressly acknowledges and agrees that
Outbound IAT Entries, once transmitted, are irrevocable and
are subject to the Foreign Country Rules; furthermore, the
time frames for return of an Entry are determined by the
Foreign Country Rules and may exceed the sixty (60) day
return window for consumer Entries defined by the U.S.
ACH system and the NACHA Rules, as well as the return
window for non -consumer Entries. Customer also agrees
that IAT Entries may not be dishonored, reversed or settled
upon a specific date, and that pre -notifications are not
permitted with respect to IAT Entries involving certain
foreign countries. To the extent not otherwise prohibited by
law, in connection with IAT Entries, (1) Customer assumes
the risk of all fluctuations in foreign exchange rates or
availability, and (2) Customer assumes the risk of loss for
creating any and all erroneous IAT Entries. Customer
acknowledges and agrees that the processing, settlement
and/or availability of such Entries may be delayed or
suspended in the event that Bank determines that enhanced
scrutiny or verification of such Entries is necessary under the
NACHA Rules and/or applicable U.S. law. The ACH
Operator through which Bank processes the IAT Entry, in its
sole discretion, may also refuse to handle IAT Entries.
Customer acknowledges that Bank shall have no liability for
such delay or refusal.
6.3 In addition to the provisions of Section 22
of this Appendix, Customer makes the following additional
representations and warranties with respect to any IAT Entry
submitted by Customer or on Customer's behalf:
6.3.1 Customer is in compliance with U.S.
law, including, but not limited to, Customer's obligations
under programs administered by OFAC and FinCEN; and
6.3.2 The origination of an Outbound IAT
Entry is in compliance with the Foreign Country Rules,
including any requirements regarding authorization with
respect to an IAT Entry.
6.4 Bank will not be liable for (a) any failure
or delay by the ACH Operator, any intermediary financial
institution, or the financial institution designated to receive
the IAT Entry in the receiving country in processing or
failing to process any IAT Entry that is transmitted to the
receiving country, or (b) the acts or omissions by a third
party, including without limitation, the delay or failure of
any third party to process, credit or debit any IAT Entry.
Bank is also not responsible for the transmission or
CAP in 88442 0722
settlement of IAT Entries on foreign holidays or other days
on which foreign countries may not process Entries.
6.5 With respect to credit IAT Entries that
Customer wishes to originate in the currency of a designated
foreign government or intergovernmental organization
("Foreign Currency"), Bank will originate the IAT Entries in
U.S. dollars ("USD") only. Once the Entry is transmitted by
Bank to the ACH Operator, the ACH Operator will convert
the amount to be transferred from USD to the Foreign
Currency. If the financial institution designated to receive
the funds does not pay the Receiver specified in the Entry,
or if the Entry is subsequently determined to be erroneous,
the ACH Operator will convert the amount to be returned
from the Foreign Currency to USD. Bank will not be liable
for any difference in the amount of the original Entry after it
has been converted from the Foreign Currency to USD.
Further, if Customer designates the currency to arrive at the
receiving financial institution in Foreign Currency, and the
designated Receiver account at the receiving financial
institution is a USD account, Customer acknowledges that
the receiving financial institution may: (1) elect to convert
the currency back to USD and post the transfer to the
Receiver's account accordingly, or (2) return the Entry, in
which case the amount transferred is converted from Foreign
Currency back to USD to post back to Customer's account.
Customer assumes all foreign exchange risk associated with
any of the foregoing.
7. Security Procedures.
7.1 Customer and Bank shall comply with
the security procedures set forth or incorporated by reference
in this Appendix, the Cash Management Master Agreement,
the Bank Internet System Appendix, Data Transmission
Services Appendix and/or associated documents provided by
Bank, including without limitation the Services' Setup Form(s)
(collectively the "Security Procedures"), with respect to
Entries transmitted by Customer to Bank. Customer
acknowledges and agrees the Security Procedures are a
commercially reasonable method for the purpose of
verifying the authenticity of Entries (or any request for
cancellation or amendment thereof). Customer further
acknowledges that the purpose of the Security Procedures is
not to detect an error in the transmission or content of an
Entry. No security procedures have been agreed upon
between Bank and Customer for the detection of any such
error.
7.2 Customer is strictly responsible for
establishing, implementing, maintaining and (as appropriate)
updating its own security procedures (a) to safeguard against
unauthorized transmissions, and (b) relating to the initiation,
processing and storage of Entries. As required by the NACHA
Rules with respect to the protection of ACH information (non-
public information, including financial information of
Receivers and Customer's customers, used to create, or
contained within, an ACH Entry and any related addenda
record), Customer shall ensure that its security policies,
procedures and systems:
• Protect the confidentiality and integrity of the
protected information,
Protect against anticipated threats or hazards to the
security or integrity of protected information until its
destruction, and
Protect against unauthorized use of protected
information that could result in substantial harm to
the Receiver/customer.
Abide by all rules pertaining to commercially
reasonable data security as prescribed within the
NACHA Rules
Customer warrants to Bank that no individual will be allowed
to initiate transfers in the absence of proper supervision and
safeguards, and Customer agrees to take reasonable steps to
maintain the confidentiality of the Security Procedures and
any passwords, codes, security devices and related instructions
Bank provides in connection with the Security Procedures. If
Customer believes or suspects that any such information or
instructions have been known or accessed by an unauthorized
person, Customer agrees to notify Bank immediately by
calling 1-866-475-7262, followed by written confirmation to
TD Bank, N.A., Attn: Treasury Management Services Support,
6000 Atrium Way, Mt. Laurel, New Jersey, 08054. The
occurrence of unauthorized access will not affect any transfers
Bank makes in good faith prior to, and within a reasonable time
period after, its receipt of such notification.
7.3 Bank may, from time to time, propose
additional or enhanced security procedures to Customer.
Customer understands and agrees that if it declines to use any
such enhanced procedures, it will be liable for any losses that
would have been prevented by such procedures.
Notwithstanding anything else contained in this Appendix, if
Bank believes immediate action is required for the security of
Bank or Customer funds, Bank may initiate additional security
procedures immediately and provide prompt subsequent notice
thereof to Customer.
8. Compliance with Security Procedures.
8.1 If an Entry (or a request for cancellation
or amendment of an Entry) received by Bank purports to
have been transmitted or authorized by Customer, it will be
deemed effective as Customer's Entry (or request), and
Customer shall be obligated to pay Bank the amount of such
Entry (or request) even though the Entry (or request) was not
authorized by Customer, provided Bank acted in compliance
with the Security Procedures.
8.2 If an Entry (or a request for cancellation
or amendment of an Entry) received by Bank was
transmitted or authorized by Customer, Customer shall be
obligated to pay the amount of the Entry as provided herein,
whether or not Bank complied with the Security Procedures
and whether or not that Entry was erroneous in any respect
or that error would have been detected if Bank had complied
with the Security Procedures.
9. Recording and Use of Communications.
Customer and Bank agree that all telephone conversations or
data transmissions between them or their agents made in
connection with this Appendix may be electronically
recorded and retained by either party by use of any
reasonable means.
CAP /D 88442 0722
10. Processing, Transmittal and Settlement of
Entries by Bank.
10.1 Bank will process, transmit and settle for
credit and debit Entries initiated by Customer as provided in
the NACHA Rules as in effect from time to time, and pursuant
to this Appendix. Exclusive of "Same Day ACH Entries,"
which are described in Section 23 below, Bank will transmit
such Entries as an ODFI to the ACH Operator by the deadline
of the ACH Operator, provided such Entries are received by
Bank prior to 8:00 p.m. Eastern Time ("ET') and the ACH
Operator is open for business on such Business Day. Entries
received after 8:00 p.m. ET will be deemed received the
following Business Day. If the Effective Entry Date falls on a
non -Business Day, final settlement will occur on the next
Business Day. Customer may submit a NACHA-formatted file
up to the time limit in advance of the Effective Entry Date as
the Services permit, or as may otherwise be permitted by Bank
under the terms of this Appendix. Customer will hold Bank
harmless from all charges and liabilities that may be incurred
as a result of the delivery of late Entries.
10.2 If the file of Entries is received other
than in specified NACHA and Bank format, Customer will
be required to provide Bank with a corrected file. If a
corrected file of Entries is received later than 8:00 p.m. ET
on the delivery date with an intended Effective Entry Date
of next -Business Day, Customer will hold Bank harmless
from all charges and liabilities that may be incurred as a
result of the processing of late Entries.
10.3 For purposes of this Appendix, Entries
shall be deemed received by Bank, in the case of electronic
file transmission, when the transmission is completed as set
forth in Bank's Appendix for Data Transmission Services
and/or the Services' Setup Form(s).
10.4 If any of the requirements of this Section
10 (or of Section 23 with respect to Same Day ACH Entries)
are not met, Bank shall use reasonable efforts to transmit
such Entries to the ACH Operator by the next deposit
deadline on which the ACH Operator is open for business.
Any stale dated Effective Entry Date, may result in "Same
Day ACH Entries".
11. On -Us Entries. Except as otherwise provided
herein, in the case of an Entry received for credit or debit to
an account maintained by Bank (an "On -Us Entry"), Bank
will credit or debit the Receiver's account in the amount of
such Entry on the Effective Entry Date, provided the
requirements set forth herein are otherwise met. If those
requirements are not met, by reason of stale or same -day
Effective Entry Dates on such Entries, Bank will credit or
debit the Receiver's account in the amount of such Entry on
the date the Entry was received by Bank, or if the Entry was
received on a non -Business Day, Bank will credit or debit
the Receiver's account in the amount of such Entry on the
next Banking Day following the date the Entry was received
by Bank. Bank will have the right to reject an On -Us Entry
as described in Section 12, Returned or Rejected Entries. In
the case of an On -Us Entry, Bank will have all rights of an
RDFI including, without limitation, the rights set forth in
NACHA Rules.
12. Returned or Rejected Entries.
12.1 In the event any Entry is returned or
rejected by the ACH Operator or any RDFI or Intermediary
Depository Financial Institution, it shall be the responsibility of
Customer to (i) remake and resubmit such Entry, (ii) with
respect to an ACH Debit Entry, enroll in Bank's Auto-
Redeposit service or (iii) otherwise resolve the returned Entry
in accordance with the NACHA Rules.
12.2 Bank shall remake such Entry in any case
where rejection by the ACH Operator was due to mishandling
of such Entry by Bank and sufficient data is available to Bank
to permit it to remake such Entry. In all other instances, Bank's
responsibility will be to receive rejected or returned Entries
from the ACH Operator, perform necessary processing, control
and settlement functions, and to forward such Entries to
Customer. Except for an Entry retransmitted by Customer in
accordance with the requirements of Section 5, Transmittal of
Entries by Customer, or the enrollment in Bank's Auto-
Redeposit service for ACH Debit Entries, Bank shall have no
obligation to retransmit a returned Entry to the ACH Operator
if Bank complied with the terms of this Appendix with respect
to the original Entry.
12.3 Bank may reject any Entry which does not
comply with the requirements of Section 5, Transmittal of
Entries by Customer, or Section 7, Security Procedures. Bank
may also reject any Entry which contains a future Settlement
Date that exceeds the limits set forth within the Services. Bank
may reject an On -Us Entry for any reason for which an Entry
may be returned under the NACHA Rules. Bank may reject
any Entry or file if Customer has failed to comply with its
Settlement Account balance obligations under Section 2,
Customer Obligations, or Customer's Exposure Limit under
Section 3, Risk Exposure Limits. Notices of rejection shall be
effective when given. Bank shall have no liability to Customer
by reasons of the rejection of any such Entry or the fact that
such notice is not given at an earlier time than that provided for
herein. Bank may monitor Customer's rejected or returned
Entries. Bank reserves the right, in its sole and exclusive
discretion, to require Customer to establish a reserve Account
in the event that an excessive number of Customer's debit
Entries are rejected or returned.
12.4 In accordance with NACHA Rules. Bank
may monitor returned Entries, and in its sole discretion, may:
(1) require Customer to lower its return rates, (2) invoke
premium penalty fees for unauthorized or excessive return
rates, and/or (3) invoke termination or suspension of the
Services and/or this Appendix in conjunction with Section 31
of this Appendix.
12.5 In Bank's sole discretion, and upon
Customer request, Bank may enroll eligible customers in the
ACH Auto-Redeposit service for ACH debit origination. The
service automates Customers redeposit of eligible returns due
to insufficient funds (ROI) and uncollected funds (R09), one or
two additional times, within nine (9) calendar days as selected
by Customer at the time of enrollment in the service. Customer
CAP ID 88442 0722
will receive notice of each return attempt and be responsible for
any associated fees. Customer's account will be setoff for the
amount of the returned Debit Entry after the final attempt to
Auto-Redeposit the Entry is determined by Bank to be
unsuccessful.
13. Cancellation or Amendment by Customer.
Customer shall have no right to cancel or amend any Entry
or file after its receipt by Bank. However, if such request
complies with the Security Procedures applicable to the
cancellation of data, Bank shall use reasonable efforts to act
on a request by Customer for cancellation of an Entry prior
to transmitting it to the ACH Operator, or in the case of an
On -Us Entry, prior to crediting or debiting a Receiver's
account, but Bank shall have no liability if such cancellation
is not effected. Customer shall reimburse Bank for any
expenses, losses, or damages Bank may incur in effecting or
attempting to effect the cancellation or amendment of an
Entry.
14. Reversing Entries/Files. If Customer discovers
that any Entry or file Customer has initiated was in error, it
may use the Services to correct the Entry or file by initiating
a reversal or adjustment, or Customer may notify Bank of
such error and Bank will utilize reasonable efforts on behalf
of Customer, consistent with the NACHA Rules, to correct
the Entry or file by initiating a reversal or adjustment of such
Entry or file. In all such cases, it shall be the responsibility
of Customer to notify the affected Receiver that an Entry or
file has been made which is at variance with the
authorization or is otherwise erroneous. Customer
indemnifies Bank against any claim by any Receiver that a
reversing Entry or file requested by Customer is wrongful.
Customer understands and acknowledges that certain RDFIs
may not or cannot comply with such reversal and that, in
such an event, Bank will debit Customer's Settlement
Account in the amount of the provisional credit applied to
the Settlement Account for such Entry or file.
15. Notice of Returned Entries. Bank will use
reasonable efforts to notify Customer by electronic
transmission of the receipt of a returned Entry from the ACH
Operator no later than one (1) Business Day after the
Business Day of such receipt. Except for an Entry re-
transmitted by Customer in accordance with the
requirements of Section 5, Transmittal of Entries by
Customer, or the enrollment in Bank's Auto-Redeposit service
for ACH Debit Entries, Bank shall have no obligation to re-
transmit a returned Entry to the ACH Operator if Bank
complied with the terms of this Appendix with respect to the
original Entry.
16. Notifications of Change. Bank will use
reasonable efforts to notify Customer of each Notification of
Change ("NOC") or Corrected Notification of Change
("Corrected NOC") received by Bank related to Entries
transmitted by Customer within two (2) Business Days after
receipt thereof. Customer shall ensure that changes
requested by the NOC or Corrected NOC are made within
six (6) Business Days of Customer's receipt of the NOC or
Corrected NOC information from Bank or prior to initiating
another Entry to the Receiver's account, whichever is later.
In the event that Customer has not updated the NOC, the
Bank will undertake this correction on the Customer's
behalf, before each subsequent Entry is placed into the
Network, in order to be compliant with the NACHA Rules.
Bank will access a fee for updating the NOC as outlined in
the fee schedule.
17. Pre -Notification and Rejection of Pre -
Notification. Bank recommends that, as permitted by the
NACHA Rules or applicable law, Customer send pre -
notifications at least three (3) Business Days prior to
initiating an authorized Entry to a particular account in a
format and medium approved by the NACHA Rules.
Customer may also initiate a new pre -notification (i) when
any changes are made to an account number, financial
institution, or individual identification number or (ii) as
otherwise stated in the NACHA Rules. Customer understands
and acknowledges that once a pre -notification has been
initiated using the Services, Customer will be restricted from
initiating any Entry to such customer(s) for three (3)
Business Days.
18. Participant Authorization for Entries.
18.1 To the extent required by the NACHA
Rules or applicable law, Customer will obtain all consents
and written authorizations for all Entries in accordance
therewith. Such authorizations and any related disclosures
shall be in a form that complies with (i) all requirements of
the NACHA Rules and (ii) all applicable federal and state
laws and regulations, as the same may be amended from time
to time, including, without limitation, any applicable
requirements of Regulation E, the Federal Electronic Funds
Transfer Act, and sanctions enforced by OFAC. Customer
shall obtain and maintain current information regarding
OFAC enforced sanctions. (This information may be
obtained directly from the OFAC Compliance Hotline at
(800) 540-OFAC or by visiting the OFAC website at
www.ustreas. ovg /ofac.) Each Entry will be made according to
such authorization and shall comply with the NACHA Rules.
No Entry will be initiated by Customer after such authorization
has been revoked or the arrangement between Customer and
such Receiver or other party has terminated.
18.2 Customer shall retain all consents and
authorizations for the period required by the NACHA Rules.
Customer will furnish to Receiver, or to Bank upon its
request, an original or a copy of an authorization as required
under or for any purpose required by the NACHA Rules. No
investigation or verification procedure undertaken by Bank
shall be deemed to limit or waive Customer's obligations
under this Section.
19. Re -initiation of Entries. Customer may not re-
initiate Entries except as prescribed by the NACHA Rules.
20. Payment by Customer for Entries; Payment
by Bank for Entries.
20.1 Except as may otherwise be agreed by
Bank in its sole and exclusive discretion, Customer shall pay
Bank the amount of each credit Entry transmitted by Bank
pursuant to this Appendix at such time on the date of
CAP !D 88442 0722
transmittal by Bank of such credit Entry as Bank, in its
discretion, may determine.
20.2 Customer shall promptly pay Bank the
amount of each debit Entry returned by an RDFI pursuant to
this Appendix.
20.3 Bank will pay Customer the amount of
each debit Entry transmitted by Bank pursuant to this
Appendix at such time on the Settlement Date with respect
to such debit Entry as Bank, in its discretion, may determine,
and the amount of each On -Us Entry at such time on the
Effective Entry Date as Bank, in its discretion, may
determine.
20.4 Bank will use reasonable efforts to
promptly pay Customer the amount of each credit Entry
returned by an RDFI that was transmitted by Bank pursuant
to this Appendix.
20.5 Customer acknowledges and agrees that
any failure of Customer to make payment to Bank as
described in this Section may constitute an event of default
under any other agreement for credit that Customer or any of
Customer's Affiliates has with Bank or any Affiliate of
Bank. Customer further acknowledges and agrees to execute
and deliver any further documents and instruments as Bank
may require to effectuate the cross -default contemplated
hereby.
21. Third -Party Service Provider; Third -Party
Sender Activities.
21.1 Subject to Bank's prior approval and in
its sole and exclusive discretion, Customer may appoint a
third party to act as Customer's agent to process Entries on
Customer's behalf and for purposes of the services provided
hereunder ("Third -Party Service Provider"), as set forth in
the Services' Setup Form(s). All data received by Bank from
Third -Party Service Provider, including Entries and
instructions (and corrections or adjustments thereto), are
hereby authorized by Customer. All acts and omissions of
Third -Party Service Provider shall be the acts, omissions and
responsibility of Customer and shall be governed by the
provisions of this Appendix. Customer agrees, jointly and
severally with Third -Party Service Provider, to indemnify
and hold Bank harmless from any and all liabilities, losses,
damages, costs and expenses of any kind (including, without
limitation, the reasonable fees and disbursements of counsel
in connection with any investigative, administrative or
judicial proceedings, whether or not Bank shall be
designated a party thereto) which may be incurred by Bank
relating to or arising out of the acts or omissions of Third -
Party Service Provider on behalf of Customer. Customer and
Third -Party Service Provider shall execute any such other
agreement(s) or documents as deemed necessary or
appropriate by Bank prior to the initiation or continuation by
Third -Party Service Provider of any services on Customer's
behalf, including without limitation Bank's Third -Party
Service Provider Agreement, as the same may be modified
by Bank from time to time. Notice of any termination of
Third -Party Service Provider's authority to transmit data and
instructions to Bank on Customer's behalf shall be given to
Bank in writing. The effective date of such termination shall
be ten (10) Business Days after Bank receives written notice
of such termination. Customer agrees that Bank retains the
right to reject any Third -Parry Service Provider and any
Entries initiated by Customer's Third -Party Service Provider
in its sole discretion.
21.2 Customer may not use the services
provided hereunder to process Entries on behalf of
Customer's clients (defined as a "Third -Party Sender" under
the NACHA Rules), except where Customer has formally
requested to engage in such activity in advance and where
Bank has provided its prior approval, which Bank may grant
or withhold in its sole and exclusive discretion. In the event
Bank approves of such use, Customer shall execute such
other agreement(s) or documents as deemed necessary or
appropriate by Bank prior to the initiation or continuation by
Customer of any ACH services in the capacity of a Third -
Party Sender. Customer agrees that Bank retains the right to
reject any request by Customer to engage in Third -Party
Sender activities as well as any Entries initiated by Customer
in such capacity, in Bank's sole discretion.
22. Customer Representations and Agreements;
Indemnity. In addition to Customer representations,
agreements and warranties otherwise described in this
Appendix, Customer further represents and warrants to Bank
and agrees, with respect to each and every Entry transmitted
by Customer or any Third -Party Service Provider on
Customer's behalf, that:
(i) Each person shown as the Receiver of an
Entry received by Bank from Customer has authorized the
initiation of such Entry and the crediting or debiting of its
account in the amount and on the Effective Entry Date
shown on such Entry;
(ii) Such authorization is operative at the
time of transmittal or crediting or debiting by Bank as
provided herein;
(iii) Entries transmitted to Bank by
Customer are limited as set forth in Sections 3 and 5;
(iv) Customer shall perform its obligations
under this Appendix in accordance with the laws of the
United States and all other applicable laws, regulations and
orders, including, but not limited to, the transaction
screening and sanctions laws, regulations and orders
administered by OFAC; laws, regulations and orders
administered by FinCEN; and any state laws, regulations or
orders applicable to the providers of ACH payment services;
(v) Customer shall be bound by and comply
with the provisions of the NACHA Rules (among other
provisions of the NACHA Rules) that make payments of an
Entry by the RDFI to the Receiver provisional until receipt
by the RDFI of final settlement for such Entry;
(vi) Customer specifically acknowledges
that it has received notice of the rule regarding provisional
payment and of the fact that, if such settlement is not
received, the RDFI shall be entitled to a refund from the
Receiver of the amount of the Entry;
CAP /D 88442 0722
(vii) with respect to each International ACH
Transaction ("IAT") that Customer may be permitted by
Bank to initiate, Customer shall (a) classify and format
payments transmitted to or received from a financial agency
outside the U.S. as an IAT in accordance with the NACHA
Rules, (b) provide data necessary to accompany the
transaction in compliance with the Bank Secrecy Act's
"Travel Rule," (c) screen the IAT prior to transmitting any
file(s) of Entries to the Bank in accordance with the
requirements of OFAC and comply with OFAC sanctions,
and (d) otherwise comply with and be subject to all other
requirements of U.S. law, the NACHA Rules, OFAC and
FinCEN, as well as the Foreign Country Rules;
(viii) with respect to each Internet-
initiated/mobile ("WEB") (as defined under the NACHA
Rules) ACH Entry that Customer may be permitted by Bank
to initiate, (a) Customer employs (1) commercially
reasonable detection systems to minimize risk of fraud
related to Internet -initiated payments, (2) commercially
reasonable procedures to verify validity of routing numbers,
(3) commercially reasonable methods of authentication to
verify the identity of the Receiver, and (4) a commercially
reasonable level of encryption technology, and (b) where
required by the NACHA Rules and/or Bank, Customer
conducts annual audits as to its security practices and
procedures that include, at a minimum, verification of
adequate levels of (1) physical security to protect against
theft, tampering, or damage, (2) personnel and access
controls to protect against unauthorized access and use and
(3) network security to ensure secure capture, storage, and
distribution, and will provide proof of such audits to Bank
upon request;
(ix) with respect to each Telephone -Initiated
("TEL") Entry that Customer may be permitted by Bank to
initiate, Customer has (a) employed commercially
reasonable procedures to verify the identity of the Receiver,
and (b) utilized commercially reasonable procedures to
verify that routing numbers are valid;
(x) with respect to each Accounts
Receivable ("ARC") Entry that Customer may be permitted
by Bank to initiate, (a) the amount of the Entry, the routing
number, the account number and the check serial number are
in accordance with the source document, (b) Customer will
retain a reproducible, legible image, microfilm or copy of the
front of the Receiver's source document for each ARC Entry
for two (2) years from the Settlement Date of the ARC Entry,
(c) Customer has employed commercially reasonable
procedures to securely store (1) all source documents until
destruction and (2) all banking information relating to ARC
Entries, (d) Customer has established reasonable procedures
under which the Receiver may notify Customer that receipt
of Receiver's checks does not constitute authorization for
ARC Entries to the Receiver's account and that Customer
will allow the Receiver to opt -out of check conversion
activity, and (e) the source document to which each ARC
Entry relates may not be presented or returned such that any
person will be required to make payment based on the source
document unless the ARC Entry is returned;
(xi) with respect to each Back Office
Conversion (`BOC") Entry that Customer may be permitted
by Bank to initiate, (a) Customer has employed
commercially reasonable procedures to verify the identity of
the Receiver, (b) Customer has established and maintains a
working telephone number for Receiver inquiries regarding
the transaction that is answered during normal business
hours and that such number is displayed on the notice
required by the NACHA Rules for BOC Entries, (c) the
amount of the Entry, the routing number, the account
number and the check serial number are in accordance with
the source document, (d) Customer will retain a
reproducible, legible image, microfilm or copy of the front
of the Receiver's source document for each BOC Entry for
two (2) years from the Settlement Date of the BOC Entry,
(e) Customer has employed commercially reasonable
procedures to securely store (1) all source documents until
destruction and (2) all banking information relating to BOC
Entries, and (f) the source document to which each BOC
Entry relates will not be presented or returned such that any
person will be required to make payment based on the source
document unless the BOC Entry is returned;
(xii) with respect to each Point -of -Purchase
("POP") Entry that Customer may be permitted by Bank to
initiate, the source document provided to Customer for use
in obtaining the Receiver's routing number, account number,
and check serial number for the initiation of the POP Entry
(a) is returned voided to the Receiver after use by Customer
and (b) has not been provided to the Receiver for use in any
prior POP Entry; and
(xiii) with respect to each Returned Check
("RCK") Entry that Customer may be permitted by Bank to
initiate, (a) all signatures on the item are authentic and
authorized, (b) the item has not been altered, (c) the item is
not subject to a defense or claim, (d) the Entry accurately
reflects the item, (e) the item will not be presented unless the
related Entry has been returned by the RDFI, (f) the
information encoded after issue in magnetic ink on the item
is correct, and (g) any restrictive endorsement placed on the
item is void or ineffective.
Customer shall indemnify and hold Bank harmless from any
loss, liability or expense (including reasonable attorneys'
fees and costs) resulting from or arising out of any breach of
the foregoing warranties, representations or agreements.
Customer shall also indemnify and hold Bank harmless from
any claim of any person that Bank is responsible for any acts
or omissions of Customer regarding any Entry received from
Customer, or those of any other person related thereto,
including, without limitation, any Federal Reserve Bank, ACH
Operator or transmission or communications facility, any
Receiver or RDFI.
23. Same Day ACH ("SDA"). Customer may be
permitted, in Bank's sole and exclusive discretion, to initiate
SDA Entries. In the event Bank approves Customer's
initiation of SDA Entries, either on a one time or other
periodic basis, Customer agrees as follows:
23.1 Customer shall be solely responsible for
transmitting its SDA Entries with the appropriate intended
CAP /D 88442 0722
Effective Entry Date to qualify as an SDA Entry under the
NACHA Rules.
23.2 Customer shall only initiate individual
Entries that comply with the transaction limit per SDA
Entry, as provided in the NACHA Rules
23.3 Customer will not initiate an SDA Entry
as an IAT, as IATs are not eligible for same -day processing
under the NACHA Rules.
23.4 Customer will transmit its SDA Entries
to Bank in accordance with Bank's SDA Entry processing
deadlines, as established by Bank from time to time and
disclosed to Customer.
23.5 Customer acknowledges and agrees that
if Customer sends an Entry with a stale or invalid Effective
Entry Date, such Entry may be deemed and processed by
Bank as an SDA Entry if transmitted in accordance with
Bank's SDA Entry processing deadlines.
23.6 Customer acknowledges and agrees that
if any of the requirements of this Section 23 are not met,
including without limitation a failure by Customer to meet
Bank's or the ACH Operator's deadline for SDA, Bank shall
use reasonable efforts to transmit such Entries to the ACH
Operator by the next available processing deadline on which
the ACH Operator is open for business.
23.7 Customer further acknowledges that
Bank will not consider the content of the Company
Descriptive Date indicator when determining Customer's
intent for processing and settlement of SDA Entries.
23.8 Customer will not initiate SDA Entries
that are otherwise ineligible for SDA Entry processing and
settlement in accordance with the NACHA Rules.
23.9 Customer otherwise agrees to and will
comply with all other requirements under the NACHA Rules
and by Bank with respect to SDA Entries, including as the
same may be amended from time to time.
23.10 Customer will indemnify and hold Bank
harmless from any SDA Entry processing and settlement that
is performed by Bank as described herein and in accordance
with the NACHA Rules, notwithstanding Customer's intent.
23.11 Customer will indemnify and hold Bank
harmless from any intended SDA Entry not meeting the
ACH Operator deadline due to Customer delays, or due to
Bank processing delays that are beyond Bank's reasonable
control.
24. Inconsistency of Name and Account Number.
Customer acknowledges and agrees that if an Entry
describes a Receiver inconsistently by name and account
number, then (i) payment of such Entry transmitted to an
RDFI may be made by the RDFI (or by Bank for an On -Us
Entry) on the basis of the account number, even if it
identifies a person different from the named Receiver and
(ii) Customer's obligation to pay the amount of Entry to
Bank is not excused in such circumstances. Similarly, if an
Entry describes an RDFI inconsistently by name and routing
number, payment of such Entry may be made based on the
routing number, and Customer shall be liable to pay that
Entry.
25. Banks Unable to Accept ACH Transactions. If
Customer submits an Entry to Bank relating to an RDFI
which is not a participant in the ACH, then (i) Bank may
reject such Entry and use reasonable efforts to notify
Customer of such rejection or (ii) if Bank does not reject
such Entry, upon receiving a return transaction related to the
Entry from the ACH Operator, Bank may offset the
Settlement Account and notify Customer of such
transaction.
26. Notices, Instructions, Etc.
26.1 Except as otherwise expressly provided
herein, Bank shall not be required to act upon any notice or
instruction received from Customer or any other person, or
to provide any notice or advice to Customer or any other
person with respect to any matter.
26.2 Bank shall be entitled to rely on any
written notice or other written communication believed by it
in good faith to be genuine and to have been provided in
accordance with the provisions of the parties' Cash
Management Master Agreement.
27. Data Retention. Customer shall retain data on
file adequate to permit remaking of Entries for five (5)
Business Days following the date of their transmittal by
Bank as provided herein and shall provide such data to Bank
upon request. Without limiting the generality of the
foregoing provision, Customer specifically agrees to be
bound by and comply with all applicable provisions of the
NACHA Rules regarding the retention of documents or any
record, including, without limitation, Customer's
responsibilities to retain all items, source documents and
records of authorization, in accordance with the NACHA
Rules.
28. Data Breaches.
28.1 Customer agrees that it will adopt and
implement commercially reasonable policies, procedures
and systems to provide security as to the information being
transmitted and to receive, store, transmit and destroy data
or information in a secure manner to prevent loss, theft, or
unauthorized access to data or information ("Data
Breaches"), including but not limited to, Consumer -Level
ACH Data.
28.2 Customer agrees that it will promptly
investigate any suspected Data Breaches and monitor its
systems regularly for unauthorized intrusions.
28.3 Customer will provide timely and
accurate notification to Bank by calling 1-866-475-7262
with regard to any Data Breaches when known or reasonably
suspected by Customer, including but not limited to, Data
Breaches to Consumer -Level ACH Data, and will take all
CAP ID 88442 0722
reasonable measures, including, without limitation, retaining
computer forensic experts, to determine the scope of any
data or transactions affected by any Data Breaches,
providing all such determinations to Bank.
29. Audit. Bank has the right to periodically audit
Customer's compliance with the NACHA Rules, U.S. law
and Bank policies, including, but not limited to, this
Appendix.
30. Records. All electronic or other files, Entries,
Security Procedures and related records used by Bank for
transactions contemplated by this Appendix shall be and
remain Bank's property. Bank may, in its sole discretion,
make available such information upon Customer's request.
Any expenses incurred by Bank in making such information
available to Customer shall be paid by Customer.
31. Termination. The parties may terminate this
Appendix in accordance with the terms and conditions of the
parties' Cash Management Master Agreement. In addition,
if Customer breaches the NACHA Rules or causes Bank to
breach the NACHA Rules, this Appendix may be terminated
or suspended by Bank upon ten (10) Business Days' notice,
or such shorter period as may be provided in the parties'
Cash Management Master Agreement. Any termination of
this Appendix shall not affect any of Bank's rights and
Customer's obligations with respect to Entries initiated by
Customer prior to termination, the payment obligations of
Customer with respect to services performed by Bank prior
to termination, or any other obligations or provisions that by
the nature of their terms survive termination of this
Appendix, including without limitation Sections 2, 5, 10, 12,
13, 14, 18, 20, 21, 22, 27, 32, 33 and 34.
32. Cooperation in Loss Recovery Efforts. In the
event of any damages for which Customer or Bank may be
liable to the other or to a third party relative to the Services,
both parties shall undertake reasonable efforts to cooperate
with the other, as permitted by applicable law, in performing
loss recovery efforts and in connection with any actions that
Customer or Bank may be obligated to defend or elects to
pursue against a third party.
33. Governing Law. In addition to the terms and
conditions of the parties' Cash Management Master
Agreement, the parties agree that if any payment order
governed by this Appendix is part of a funds transfer subject
to the federal Electronic Funds Transfer Act, then all actions
and disputes as between Customer, or any Third -Party
Service Provider acting on Customer's behalf, and Bank
shall be governed by Article 4-A of the Uniform
Commercial Code, as varied by this Appendix.
34. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank under
this Appendix shall in all cases be subject to the provisions
of the Cash Management Master Agreement, including,
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
available from Bank. This Appendix replaces and
supersedes all prior agreements on file with respect to the
services described herein and shall remain in full force and
effect until termination or such time as a different or
amended Appendix is accepted in writing by Bank or the
Cash Management Master Agreement is terminated.
CAP /D 88442 0722
APPENDIX III
TD WIRE TRANSFER SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement, and the parties' Bank Internet
System Appendix, and applies to all TD Wire Transfer Services ("Services") made available to Customer by Bank via the Bank
Internet System. All capitalized terms used herein without definition shall have the meanings given to them in the Cash
Management Master Agreement or the Bank Internet System Appendix, as applicable. To the extent that this Appendix is
inconsistent with the provisions of the Cash Management Master Agreement, or with the terms and conditions of the Bank Internet
System Appendix, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to
resolve such conflict.
TERMS AND CONDITIONS
1. Description of the Services.
1.1 The Services described in this Appendix
provide Customer with the capability to transfer funds from
specific Account(s) with Bank to other accounts (the
"Recipient Account(s)") as directed via the Bank Internet
System. The Recipient Account(s) may be Customer
accounts or third -party accounts, and may be with Bank or
with domestic or foreign third -party financial institutions.
Customer may use the Services to initiate one-time wire
transfers, or to create templates for wire transfers made on a
repetitive basis which involve the same Customer Account
and Recipient Account ("Repetitive Transfer(s)"). All wire
transfers must be initiated by an Authorized Representative
of Customer.
1.2 Prior to Customer's use of the Services,
Customer must first agree to and transmit all instructions in
accordance with all of the terms, conditions and security
procedures associated with the Bank Internet System, as
further set forth in the Cash Management Master Agreement,
including the Bank Internet System Appendix.
2. Execution of Wire Transfers.
2.1 By submitting a wire transfer, Customer
authorizes Bank to withdraw the amount of any requested
wire transfer which Customer may authorize and instruct via
the Bank Internet System, plus any applicable fees and
charges, which may be withdrawn from Customer's
designated Account or from the wire transfer amount.
Subject to the terms of this Appendix, Bank will accept and
execute a wire transfer received from Customer that has been
authenticated by Bank and that is in conformity with the
Security Procedure (as further described below), cut-off
times and other requirements as described in this Appendix
and associated Bank Setup Form(s) and other
documentation.
2.2 All wire transfers to accounts at other
depository institutions are transmitted using the Fedwire
funds transfer system owned and operated by the Federal
Reserve Bank, or a similar wire transfer system used
primarily for funds transfers between financial institutions.
Notwithstanding the foregoing or anything to the contrary in
this Appendix, Bank may use any means of transmission,
HCd 4811-7511-8896 v.1 32 of 57
funds transfer system, clearing house, intermediary or
correspondent bank that Bank reasonably selects to transfer
funds from time to time.
2.3 Each wire transfer must include the
following information in addition to any information which
Bank may require for proper identification and security
purposes: (i) Account number from which the funds are to
be withdrawn, (ii) amount to be transferred, (iii) currency
type, (iv) Customer's address, (v) name and ABA routing
number or SWIFT BIC of the payee's (i.e., beneficiary's)
bank, and (vi) name, address and account number of the
payee (i.e., beneficiary). In the event a wire transfer
describes an account number for the payee that is in a name
other than the designated payee, Bank may execute the wire
transfer to the account number so designated
notwithstanding such inconsistency.
2.4 Templates created by Customer for
Repetitive Transfers are the sole and exclusive responsibility
of Customer. Except as otherwise expressly prohibited or
limited by law, Customer agrees to release and hold Bank
harmless from any loss or liability which Customer may
incur after Bank has executed a Repetitive Transfer,
including without limitation, any loss due to Customer error
in creating the Repetitive Transfer template.
3. Time of Execution.
3.1 Bank will execute each authenticated
wire transfer that is in conformity with all security
procedures, cut-off times and other requirements set forth
herein. Bank may require additional authentication of any
wire transfer request. Bank reserves the right to reject a wire
transfer request that cannot be properly authenticated. Cut-
off times may be established and changed by Bank from time
to time. Instructions for wire transfers received after such
cut-off times may be treated by Bank for all purposes as
having been received on the following Business Day.
3.2 Except for future -dated wire transfers,
domestic wire transfers (U.S.-based receivers) initiated and
approved by Bank's cut-off time on a Business Day will be
processed that same day if that day is also a Business Day
for Bank's correspondent facility and the recipient bank;
wire transfers initiated and approved after Bank's cut-off
time for domestic wire transfers will be processed the next
Business Day if that day is also a Business Day for Bank's
correspondent facility and the recipient bank. Future -dated
0621
domestic wire transfers will be initiated on the effective c
requested by Customer, not on the date Customer entered
transaction using the Services.
3.3 Bank may handle wire tr
received from Customer in any order convenient to
regardless of the order in which they are received.
4. International Wires.
4.1 International wire transfers (non-U.'
receivers) of foreign currency initiated and approved b
Bank's cut-off time for international wire transfers of foreig
currency on a Business Day, and an international wir
transfer of U.S. currency initiated and approved by Bank'
cut-off time for international wire transfers of U.S. currenc
on a Business Day, will be processed within the industr
standard delivery time (in most, but not all cases, two (2
Business Days). Foreign wire transfers may be subject t
delays based on time -zone issues; the remote location of th
recipient bank; cultural differences with respect to holiday
and times of observation, etc.; and incorrect or incomplet
information supplied by Customer.
4.2 Bank shall send Customer's authorize
and authenticated wire transfers to foreign banks throug
any bank which is a member of Bank's corresponden
network. Neither Bank nor any of Bank's correspondent
shall be liable for any errors, delays or defaults in the transfe
of any messages in connection with such a foreign wir
transfer by any means of transmission. Customer
acknowledges that foreign currency wire transfers must be
based on a currency that Bank trades and that all rates of
exchange will be the rate in effect at the time of execution of
the wire transfer order, or at any other rate as may be agreed
to by the parties. If the financial institution designated to
receive the funds does not pay the payee (beneficiary)
specified in a wire transfer order that is payable in foreign
currency and the funds are returned to Bank, Bank will not
be liable for a sum in excess of the value of the funds after
they have been converted from foreign currency to U.S.
dollars at Bank's buy rate for exchange at the time the
cancellation of the wire transfer order is confirmed by Bank,
less any charges and expenses incurred by Bank. If Customer
elects to initiate an international wire transfer in U.S.
currency, Customer acknowledges that the receiving bank
may elect to pay the payee (beneficiary) in foreign currency
at an exchange rate determined by the receiving bank.
Customer agrees to bear all risk of loss due to fluctuation in
exchange rates, and Customer shall pay Bank any costs and
expenses of foreign currency conversion at Bank's then -
prevailing rates, terms and conditions. Customer is advised
that Bank's prevailing exchange rates may be less favorable
to Customer than market exchange rates.
4.3 Bank makes no guarantee or
representation as to the availability of funds at the foreign
destination. Bank makes no express or implied warranty as
to the time or date the wire transfer will arrive at the
receiving bank, the amount of any fees to be charged by the
receiving bank, or the time or date the payee (beneficiary)
will receive credit for funds.
4.4 Customer understands and
acknowledges that if the named payee (beneficiary) does not
match the account at the receiving bank, there is a risk the
payee may not receive the wired funds. If the transfer is not
received or credited in a timely manner, Bank will follow
normal and customary procedures to complete the wire
transfer, determine the location of the wired funds and/or
return the funds to Customer. If Bank is unable to determine
that the funds have been credited to the payee's account or
have the funds returned, Customer assumes all financial
liability or risk of loss for the amount of the wire transfer.
4.5 International wire transfers are subject
to any and all applicable regulations and restrictions of U.S.
and foreign governments relating to foreign exchange
transactions. Bank has no obligation to accept any
international wire transfer(s) directed to or through persons,
entities or countries restricted by government regulation or
prior Bank experience with particular countries. To the
extent not otherwise prohibited by law, in connection with
any international wire transfer(s) involving a transfer to or
from any country outside of the U.S., and except as
otherwise expressly prohibited or limited by law, Customer
agrees to release and hold Bank harmless from any loss or
liability which Customer may incur after Bank has executed
the international wire transfer(s), including without
limitation, any loss due to failure of a foreign bank or
intermediary to deliver the funds to a payee (beneficiary).
5. Cancellation and Amendment of a Wire.
5.1 An Authorized Representative may
request that Bank attempt to cancel or amend a wire transfer
previously received from Customer. If a cancellation or
amendment request is received by Bank before the wire
transfer is executed and with sufficient time to afford Bank
an opportunity to act upon Customer's request, Bank may,
on its own initiative but without obligation, make a good
faith effort to act upon such request. In the event Customer's
cancellation or amendment request is received after
execution of Customer's wire transfer request, Bank will
attempt to have the wire transfer returned. Notwithstanding
the foregoing, Bank shall have no liability for the failure to
effect a cancellation or amendment, and Bank makes no
representation or warranty regarding Bank's ability to
amend or cancel a wire transfer. Except as otherwise
expressly prohibited or limited by law, Customer agrees to
indemnify Bank against any loss, liability or expense which
Bank incurs as a result of the request to cancel or amend a
wire transfer and the actions Bank takes pursuant to such
request. Without limiting the foregoing, Customer agrees to
be responsible for any losses arising from currency
conversions effected by Bank pursuant to any foreign
currency wire transfer order previously received from
Customer that Customer subsequently requests be cancelled
or amended.
5.2 Customer acknowledges and agrees that
after a wire transfer order has been accepted by the payee's
(beneficiary's) financial institution, return of such funds must be
authorized by the beneficiary, and Bank has no responsibility to
procure the return of such funds. If Customer asks Bank to
recover funds which Bank has already transferred, Bank shall be
under no obligation to do so. If Customer deposits with Bank an
amount reasonably determined in good faith by Bank to
approximate the costs and expenses (including attorney's fees)
which Bank may incur in attempting to recover the funds
HCN 4811-7512-8896 v.1 133 of 57 0621
transferred, Bank may, in its sole discretion make an attempt to
recover the funds. hi lieu of such a deposit, Bank may request
Customer to provide a bond or other assurance of payment
reasonably satisfactory to Bank. Upon such deposit, or the
supplying of such other assurance, Bank may take such action as
it deems reasonable under the circumstances, including, for
example, sending a request to reverse the transfer to any financial
institution that received such funds. In no event, however, shall
Bank be deemed to have guaranteed or otherwise assured the
recovery of any portion of the amount transferred, nor to have
accepted responsibility for any amount transferred.
6. Notice of Rejection or Return. Bank shall have
no liability for wire transfers sent by Bank as directed by
Customer which cannot be completed or which are returned
due to incorrect information furnished by Customer.
Customer is required to fully complete payee (beneficiary)
name, and address, as the payee (beneficiary) bank may elect
to return an otherwise valid wire transfer for incomplete
payee (beneficiary) information. Bank may reject or impose
conditions that must be satisfied before it will accept
Customer's instructions for any wire transfer, in its sole
discretion, including without limitation Customer's
violation of this Appendix, Customer's failure to maintain a
sufficient Account balance, or Bank's belief that the wire
transfer may not have in fact been authorized. A wire
transfer may also be rejected by an intermediary or payee
(beneficiary) bank other than Bank, or by operation of law.
If a wire transfer is rejected by Bank, Bank will notify
Customer by telephone, by electronic means, by facsimile or
by mail, depending on the method of origination. Upon
rejection or return, Bank shall have no further obligation to
act upon a wire transfer, nor shall Bank have any liability to
Customer due to rejection by another person in the wire
transfer process, or the fact that notice was not given or was
not given at an earlier time, or within any specified time of
receipt, acceptance, execution or payment of any wire
transfer.
7. Security Procedure.
7.1 Customer agrees that the security
procedures used by Customer and set forth or incorporated by
reference in this Appendix and/or associated documents,
including but not limited to the Bank Internet System
Appendix, are a commercially reasonable method of providing
security against unauthorized wire transfers and for all other
instructions from Customer to Bank (hereinafter the "Security
Procedure"). Any wire transfer by Customer shall bind
Customer, whether or not authorized, if transmitted in
Customer's name and accepted by Bank in compliance with the
Security Procedure. Customer also agrees that any election
Customer may make to change or refuse the Security
Procedure is at Customer's risk and that any loss resulting in
whole or in part from such change or refusal will be
Customer's responsibility.
7.2 Bank may, from time to time, modify the
Security Procedure. Except as expressly provided otherwise
in this Appendix or in the parties' Cash Management Master
Agreement, any such changes generally will be effective
immediately upon notice to Customer as described in the
parties' Cash Management Master Agreement. Customer
will be deemed to accept any such changes if Customer
accesses or uses any of the Services after the date on which
the change becomes effective.
7.3 Bank may, from time to time, propose
additional or enhanced security procedures to Customer.
Customer understands and agrees that if it declines to use any
such additional or enhanced procedures, it will be liable for any
losses that would have been prevented by such procedures.
Notwithstanding anything else contained in this Appendix, if
Bank believes immediate action is required for security of
Bank or Customer funds, Bank may initiate additional security
procedures immediately and provide prompt subsequent notice
thereof to Customer.
7.4 Customer hereby acknowledges that the
Security Procedure is neither designed nor intended to detect
errors in the content or verify the contents of a wire transfer by
Customer. Accordingly, any errors contained in wire transfers
from Customer shall be Customer's responsibility, and
Customer shall be obligated to pay or repay (as the case may
be) the amount of any such wire transfer. No security
procedure for the detection of any such Customer error has
been agreed upon between Bank and Customer.
7.5 Customer is strictly responsible for
establishing and maintaining its own procedures to
safeguard against unauthorized wire transfers. Customer
covenants that no employee or other individual will be
allowed to initiate wire transfers in the absence of proper
authority, supervision and safeguards, and agrees to take
reasonable steps to maintain the confidentiality of the
Security Procedure and any Access Devices and related
instructions provided by Bank in connection with any
Security Procedure utilized by Bank and/or Customer. If
Customer believes or suspects that any such Access Devices,
Security Procedure, information or instructions have been
disclosed to or accessed by unauthorized persons, Customer
agrees to notify Bank immediately by calling 1-866-475-
7262, followed by written confirmation to TD Bank, N.A.,
Attn: Treasury Management Services Support, 6000 Atrium
Way, Mt. Laurel, New Jersey, 08054. The occurrence of
unauthorized access will not affect any transfers made in
good faith by Bank prior to receipt of such notification and
within a reasonable time period thereafter.
8. Accuracy; Inconsistency of Receiving
Beneficiary Name and Account Number. In submitting
any order or related instructions, Customer shall be
responsible for providing all necessary information required
by Bank in conjunction with the Services. The Services are
only designed to respond to information provided by
Customer. Accordingly, any inaccuracy in any information
provided by Customer may result in an unintended transfer
of funds. Bank bears no responsibility and shall not be liable
to Customer for any information provided by Customer in an
order or related instructions that are inaccurate, incomplete
or otherwise incorrect. When placing an international wire
transfer order, Customer may be responsible for entering
certain information provided to Customer by Bank, which
may include, but is not limited to, the applicable exchange
rate and/or a contract number. Customer acknowledges and
agrees that Bank will not be liable for any loss, liability or
expense incurred as a result of a Customer error related to
entry of such required information. Customer acknowledges
and agrees that, in accordance with Article 4A of the
HCs 481 /-75/1-8896 v. / 134 oj57 0621
Uniform Commercial Code, Bank shall be entitled to re
upon the numbers supplied by Customer to identify bank
payees (beneficiaries) and other parties to the wire transft
even if those numbers disagree or are inconsistent with tl
names of those parties as provided by Customer. Bank ai
any other receiving financial institution shall have i
obligation to determine whether a name and number identi
the same person or institution. Customer acknowledges th
payment of an order or related instructions may be made 1
the payee's (beneficiary's) bank on the basis of o
identifying or bank account number even if it identifies
person different from the named payee (beneficiary).
9. Payment; Authorization to Charge Accou
Customer agrees to pay Bank the amount of each w
transfer received from Customer on the Business Day Bi
executes said wire transfer or at such other time as Bank n
determine. Bank will validate that sufficient funds
available in Customer's Account prior to a wire trans
being executed. Generally, if sufficient funds are
available in Customer's Account, the wire transfer will i
be executed by Bank. Bank may, without prior notice
demand, obtain payment of the amount of each wire trans
by debiting the Account designated. In the event there
not sufficient funds available in the Account, Bank a
reserves the right to debit any other Account that Custor
maintains with Bank.
10. Wire Confirmation; Account Reconciliation.
Customer may confirm the execution of a wire transfer via
the Bank Internet System. Completed wire transfers will also
be reflected in Customer's periodic Account statement.
Customer acknowledges and agrees that Bank is not
obligated to provide Customer with a separate advice or
notice for each completed wire transfer. If Customer
requests that Bank provide a special notice and Bank agrees
to do so, Bank reserves the right to impose a Service Fee for
such notice in accordance with the Cash Management
Master Agreement.
11. Service Providers. Bank may use a service
provider to perform, as Bank's agent, all or any portion of
Bank's obligations under this Appendix. Customer may be
required to direct wire transfers and other requests to said
provider.
12. Bank Reliance; Authentication.
12.1 Bank shall be entitled to rely in good
faith on communications it receives as being given or sent
by an Authorized Representative and as being genuine and
correct. Bank shall not be liable to Customer for the
consequences of such reliance.
12.2 BANK MAY TAKE SUCH
ADDITIONAL STEPS AND IMPLEMENT SUCH
PROCEDURES AS IT MAY DEEM APPROPRIATE
TO VERIFY THE AUTHENTICITY OF ANY WIRE
TRANSFER. BANK MAY DELAY THE EXECUTION
OF ANY WIRE TRANSFER PENDING
COMPLETION OF A CALL-BACK, OR RECEIPT OF
ANOTHER FORM OF VERIFICATION WHICH IS
SATISFACTORY TO BANK. IF BANK IS UNABLE
TO OBTAIN SATISFACTORY VERIFICATION,
BANK, IN ITS SOLE DISCRETION, MAY REFUSE
TO EXECUTE ANY WIRE TRANSFER. In no event
shall Bank be liable for any delay in executing a wire transfer
or for failure to execute a wire transfer due to the absence of
satisfactory verification.
12.3 Bank may electronically record any
telephone conversations between Bank personnel and
Customer with respect to the Services, in accordance with
applicable law.
12.4 Wire transfer transactions are subject to
all the foregoing and all regulations governing electronic
transactions, including but not limited to Article 4A of the
Uniform Commercial Code.
13. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank under
this Appendix shall in all cases be subject to the provisions
of the Cash Management Master Agreement, including,
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
available from Bank. This Appendix replaces and
supersedes all prior agreements on file with respect to the
Services and shall remain in full force and effect until
termination or such time as a different or amended Appendix
is accepted in writing by Bank or the Cash Management
Master Agreement is terminated.
HCb 4811-7512-8896 v.1 135 of 57 0621
APPENDIX V
TD POSITIVE PAY SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Positive
Pay Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have
the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix,
to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and
any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. In the event of
inconsistency between a provision of this Appendix and the Uniform Commercial Code ("U.C.C.," as further defined below), the
parties intend to modify the effect of the applicable U.C.C. provisions to the maximum extent permitted by law.
TERMS AND CONDITIONS
Definitions.
1.1 Statutory Definitions. Unless
otherwise defined in this Appendix, words or phrases shall
have the meanings set forth in the U.C.C. in effect from time
to time under the laws of the State specified in the governing
law provision of the parties' Cash Management Master
Agreement.
1.2 Definitions.
"Authorized Account" means the Account(s) of
Customer, maintained at Bank, to which the Services
described herein will apply.
"Available Funds" means funds on deposit in an
Authorized Account and available for withdrawal pursuant
to Federal Reserve Board Regulation CC and Bank's
applicable funds availability schedule and policies.
"Check Issue File" means a record describing
checks drawn by Customer on an Authorized Account and
provided by Customer to Bank in accordance with Section
2.2.
"Exception Check" means a Presented Check or a
Systematic Override Check (described in Section 2.2.2
below) that does not match data included in a Check Issue
File.
"Exception Check Report" means a record
describing Exception Checks which is provided by Bank to
Customer in accordance with Section 2.3.
"Pay Decision(s)" means the instructions of
Customer to Bank instructing Bank to pay an Exception
Check.
"Presented Check" means a check, substitute
check, or electronically -presented check drawn on an
Authorized Account and presented to Bank for payment
through the check collection system or over-the-counter at
one of Bank's branch teller stations.
"Return Decision(s)" means the instructions of
Customer to Bank instructing Bank not to pay an Exception
Check.
"U.C.C." means the Uniform Commercial Code as
in effect under the laws of the State specified in the parties'
Cash Management Master Agreement, as it may be amended
from time to time.
2. Services.
2.1 Description.
2.1.1 The Services described in this
Appendix will provide Customer with a means to either
affirmatively approve the payment of a particular check
upon presentment or to object to its payment. Customer
acknowledges that the Services have been identified by Bank
as reducing the risk of fraudulent items being paid against
Customer's Account(s) when such Services are adopted and
properly utilized by Customer. By conforming to the terms
and conditions of this Appendix, Customer agrees and
acknowledges that Customer may significantly reduce the
possibility that fraudulent items will post to Customer's
Account(s).
2.1.2 Customer acknowledges and
agrees that the Services apply only to magnetic ink character
recognition (MICR) encoded paper checks and documents.
Therefore, the Services and this Appendix shall not apply to
any electronic funds transfer (EFT), Automated Clearing
House (ACH) transaction, or check that has been converted
to an ACH transaction that does not contain a serial number.
Accordingly, this Appendix shall have no effect with respect
to any such transactions on Bank or Customer's respective
rights, obligations, duties or responsibilities under any other
agreement between the parties or applicable law or
regulation.
2.2 Check Issue File.
2.2.1 Customer shall submit a
Check Issue File to Bank. The Check Issue File shall
accurately state the check number and the exact amount of
each check drawn on each Authorized Account since the last
Check Issue File was submitted (and the payee name, if
Customer elects to receive payee verification services
HO 4836-1579-3465 v. / 136 of 57082!
described below). Each Check Issue File shall also identify
any checks that have been cancelled by Customer prior to
issuance.
2.2.2 Payee Verification Services.
If Customer elects to receive payee verification services in
conjunction with the Services, the following additional
terms shall also apply. Bank's payee verification services
require the payee name to match against Customer's Check
Issue File at a minimum threshold or matching score. The
payee name in the Check Issue File will be electronically
compared to the payee name on Presented Checks. Other
information related to the payee name may also be
electronically compared as part of the automated verification
process to establish a matching score. Such comparisons that
result in a minimum threshold or matching score will be
deemed to be a matching check. Customer is responsible for
complying with the payee verification services' check
specifications as specified by Bank from time to time in
order to ensure the highest level of performance from the
payee verification services. If Customer is unable or
unwilling to comply with the payee verification services'
check specifications as specified by Bank, Bank may, in its
sole and exclusive discretion: (a) terminate or suspend
Customer's use of the payee verification services as
provided in the Cash Management Master Agreement, or (b)
at Customer's request, re -configure the software associated
with the payee verification services to systematically process;
Presented Checks in reliance solely on the payee name;
provided by Customer to Bank in the Check Issue File and
without regard to any other information related to the payee
name that may appear on the Presented Checks (hereinafter
"Systematic Override Checks"). Any Presented Check or
Systematic Override Check that does not result in a
minimum threshold or matching score shall be deemed an
Exception Check and reported as such in accordance with
the terms of this Appendix. Except as may otherwise be
provided in this Appendix and in the Cash Management
Master Agreement, Bank shall have no liability for
Systematic Override Checks.
2.2.3 Customer shall send the
Check Issue File to Bank in the format and medium, by the
deadline(s), at scheduled day(s), at the place(s) specified b
Bank and agreed to by Customer, as set forth in Services
Setup Form(s). The deadline for transmissions of the Check
Issue File to Bank shall be set forth in the Services' Setup
Form(s).
2.3 Payment of Presented Checks and
Reporting of Exception Checks.
2.3.1 Bank shall compare each
Presented Check by check number, check amount and payee
name (if Customer elects to receive payee verification
services) against each Check Issue File received by Bank.
Bank may satisfy its obligation hereunder by comparing
check number, amount and payee name (if applicable) set
forth in Substitute Checks, checks presented over-the-
counter at one of Bank's teller stations and/or electronic;
presentment of checks. On each Business Day, Bank:
(a) may pay and charge to the
Authorized Account each Presented Check that matches, by
check number, amount and payee name (if applicable), a
check shown in any Check Issue File;
(b) may pay and charge to the
Authorized Account all Systematic Override Checks that
match, by check number, amount and payee name (if
applicable and as described herein), a check shown on any
Check Issue File; and
(c) shall provide to Customer an
Exception Check Report that indicates whether Bank has
received any Exception Checks and, if so, provide the image
of the Exception Check(s) by the deadline set forth in the
Services' Setup Form(s) via the Bank Internet System.
Customer must provide check payment approval or return
instructions to Bank on each Exception Check reported by
the deadline set forth in the Services' Setup Form(s) via the
Bank Internet System ("Pay or Return Decisions").
2.3.2 Bank shall not pay any
Presented Check for which Bank has received from
Customer a stop payment request consistent with the terms
and conditions of the parties' eTreasury Services Appendix
or the Account Agreement.
2.4 Payment and Dishonor of Exception
Checks. Except as provided in Section 2.4.4 below, Bank
will pay or return Exception Checks in accordance with
Customer's Pay or Return Decisions.
2.4.1 Pay Decisions. Bank shall
finally pay and charge to the Authorized Account, to the
extent there are sufficient Available Funds in the Authorized
Account, any Exception Check that Customer directs Bank
to pay.
2.4.2 Return Requests. Bank shall
return to the depositary bank any Exception Check drawn on
an Authorized Account that Customer directs Bank to return.
2.4.3 Default Options. If
Customer fails to provide Pay or Return Decisions to Bank
in accordance with these requirements, Exception Checks
will be handled in accordance with the default option as set
forth in the Services' Setup Form(s) for each Authorized
Account, in accordance with the following:
(a) Return Default. Where
Customer has agreed to the return default option, Bank shall
return to the depositary bank any Exception Check drawn on
that Authorized Account.
(b) Pay Default. Where
Customer has agreed to the pay default option, Bank may
finally pay and charge to the Authorized Account any
Exception Check drawn on that Authorized Account.
2.4.4 Checks Presented for
Payment at Bank Teller Stations.
2.4.4.1 Notwithstanding
anything in this Appendix to the contrary, Bank may, in its
sole and absolute discretion, return to the person presenting
a check drawn on an Authorized Account for payment over-
the-counter at one of Bank's teller stations any such check
that does not appear on a Check Issue File (i.e., an Exception
Check). Customer acknowledges and agrees that Bank shall
HO 4836-1579-3465 v.1 37 of 570811
have no obligation to inform Customer that any such check
has been presented for payment at a Bank teller station. Bank
shall have no liability to Customer for wrongful dishonor
with respect to any such check.
2.4.4.2 If a check drawn on
an Authorized Account is presented for payment over-the-
counter during such time the Bank is experiencing an
interruption or failure of communications or data processing
facilities or systems, emergency conditions, or any other
difficulties beyond the control of Bank, then,
notwithstanding any other provision of this Appendix,
Customer authorizes Bank to pay the Presented Check, even
if the Presented Check is an Exception Check. Additionally,
Bank shall have no obligation to notify Customer of any such
Presented Check.
2.5 Customer and Bank
Communications.
2.5.1 Customer or Bank, at its
discretion, may each submit to the other party a revision of
any communication provided for under this Appendix (e.g.,
the revision of Check Issue Files, Exception Check Reports,
Pay Decisions, Return Decisions). The revised
communication must (i) be sent in its entirety and not in the
form of a partial amendment to the communication
originally sent, (ii) identify the original communication, and
(iii) be sent in the format and medium, by the deadline(s),
and at the place(s) established by the receiving party. A
properly submitted revised communication serves to revoke
the original communication.
2.5.2 Bank shall use only Check
Issue Files that comply with Section 2.2 and have not been
revoked in accordance with Section 2.5.1 in the preparation
of Exception Check Reports under this Appendix.
2.5.3 Customer shall use only
Exception Check Reports that comply with Section 2.3 and
have not been revoked in accordance with Section 2.5.1 in
the preparation of Pay Decisions and Return Decisions)
Bank shall not be obligated to comply with any Pay Decisiol
or Return Decision received in a format or medium, after a
deadline, or at a place not permitted under this Appendix and
Services' Setup Form(s), but may instead treat such a Pay
Decision or Return Decision in accordance with the default
option agreed to by Customer in the Services' Setup
Form(s).
2.5.4 Bank is not responsible f
detecting any Customer error contained in any Check Issit
File, Pay Decision or Return Decision sent by Customer
Bank.
2.6 Submission of Data Prior to
Implementation of Services. Customer shall submit to
Bank a current, reconciled list of all outstanding checks
issued on each Authorized Account one (1) week prior to the
implementation of the Services hereunder. Depending on
the frequency with which Customer issues checks, Bank
reserves the right to require Customer to submit one or more
additional such lists so that all outstanding, unpaid checks
issued on any Authorized Account have been reported to
Bank prior to the implementation of the Services.
3. Remedies.
3.1 U.C.C. Liability. To the extent
applicable, the liability provisions of U.C.C. Articles 3 and
4 shall govern this Appendix, except as modified below. To
the extent permitted by U.C.C. Articles 3 and 4, the liability
of Bank under this Appendix shall in all cases be subject to
the provisions of the parties' Cash Management Master
Agreement, including, without limitation, any provisions
thereof that exclude or limit warranties made by, damages
payable by or remedies available from Bank.
3.2 Wrongful Honor. It shall constitute
wrongful honor by Bank if Bank pays an Exception Check
listed in a timely Exception Check Report unless: (i)
Customer issued a Pay Decision, or (ii) Customer agreed to
the pay default option and did not issue a Return Decision
by the deadline set forth in the Services' Setup Form(s). In
the event that there is wrongful honor, the following shall
apply:
3.2.1 Bank shall be liable to
Customer for the lesser of the amount of the wrongfully paid
Exception Check or Customer's actual damages resulting
from Bank's payment of the Exception Check.
3.2.2 Bank expressly waives any
right it may have to assert that Customer is liable for the
amount of the wrongfully honored Exception Check on the
grounds that the Exception Check was properly payable
under U.C.C. Section 4-401.
3.2.3 Bank retains the right to assert
Customer's failure to exercise reasonable care under U.C.C.
Sections 3-406 and 4-406.
3.2.4 Bank retains the right to assert
the defense that Customer has sustained no actual damages
because Bank's honor of the Exception Check discharged for
value an indebtedness of Customer.
3.3 Wrongful Dishonor. Except as
provided below, it shall constitute wrongful dishonor by
Bank if Bank dishonors an Exception Check: (i) that Bank
has been ordered to pay pursuant to a Pay Decision, or (ii)
for which Customer has not issued a Return Decision under
the pay default option by the deadline set forth in the
Services' Setup Form(s).
3.3.1 Bank's liability for wrongful
dishonor of an Exception Check shall be limited to the
damages for wrongful dishonor recoverable under U.C.C.
Articles 3 and 4.
3.3.2 Notwithstanding Section
3.3.1, Bank shall have no liability to Customer for wrongful
dishonor when Bank, acting in good faith, returns an
Exception Check:
(a) that it reasonably believed was not
properly payable; or
(b) if there are insufficient Available
Funds on deposit in the Authorized Account; or
HO 4836-1579-3465 e I 1 38 oj570821
(c) if required to do so by the service of
legal process on Bank or the instructions of regulatory or
government authorities or courts.
3.4 Rightful Payment and Dishonor.
Except as provided in Section 3.5, the following shall apply:
3.4.1 If Bank honors an Exception
Check in accordance with the pay default option agreed to
Customer or in accordance with a Pay Decision issued by
Customer, such honor shall be rightful, and Customer waives
any right it may have to assert that the Exception Check was
not properly payable under U.C.C. section 4-401.
3.4.2 If Bank dishonors an
Exception Check in accordance with the return default
option agreed to by Customer or in accordance with a Return)
Decision issued by Customer, the dishonor shall be rightful,
and Customer waives any right it may have to assert that the
dishonor was wrongful under the U.C.C. section 4-402.
3.4.3 Customer agrees that Bank
exercises ordinary care whenever it rightfully pays or returns
an Exception Check consistent with the provisions of this
Appendix.
3.5 Faulty Information. Subject to the
terms and conditions of the Cash Management Master,
Agreement, Bank shall be liable for losses, other than
incidental or consequential damages, proximately caused by
its honor of a check that was not properly payable, or its
dishonor of a check that was properly payable, if the honor
or dishonor occurred because Bank, in accordance with the
provisions of Section 2 of this Appendix:
(a) should have shown the check on an Exception
Check Report but failed to do so due to Bank error, unless
Bank provided Customer with timely information that
disclosed the error; or
(b) showed the check on an Exception Check
Report but referenced the wrong check number due to Bank
error, unless Bank provided Customer with timely
information that disclosed the error.
3.6 Assignment. To the extent that
Customer suffers a loss under this Appendix, Bank assigns
to Customer any claim that Bank would have against a
depositary or collecting bank to recover the loss, including
any claim of breach of warranty under U.C.C. Sections 4-
207, 4-208, and 4-209.
4. Stop Payment and Return Decisions. The
Services will not be used as a substitute for Bank's stop
payment services. Customer will follow Bank's standard
stop payment procedures if it desires to return a check that
matches the data included in a Check Issue File or other
check that was validly issued. Nothing in this Appendix will
limit Customer's right to stop payment on any check that
matches the data included in a Check Issue File or other
check, or Bank's right to return any check that matches the
data included in a Check Issue File or other check that
Customer has authorized Bank to pay in accordance with this
Appendix if Bank determines in its sole discretion that the
check is not properly payable for any reason (without Bank's
agreeing to, or being required to, make such determination
in any circumstance) or that there are insufficient collected
or Available Funds in the Authorized Account to pay it.
5. Governing Law. Except where expressly
required by contrary provisions of the U.C.C., any claim,
controversy or dispute arising under or related to this
Appendix shall be governed by and interpreted in
accordance with the governing law provision of the parties'
Cash Management Master Agreement.
6. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank under
this Appendix shall in all cases be subject to the provisions
of the Cash Management Master Agreement, including,
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
available from Bank. This Appendix replaces and supersedes
all prior agreements on file with respect to the Services and
shall remain in full force and effect until termination or such
time as a different or amended Appendix is accepted in
writing by Bank or the parties' Cash Management Master
Agreement is terminated. In the event of .termination, all
sums owed to Bank hereunder shall be immediately due and
payable.
HO 4836-1579-3465 v.1 39 of 570821
• 1 k,
APPENDIX VI
TD CONTROLLED DISBURSEMENT SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Controlled
Disbursement Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition
shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this
Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this
Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict.
TERMS AND CONDITIONS
1. Defined Terms. Capitalized terms used herein
shall have the following meanings:
"Controlled Disbursement Account" means a
checking Account established by Customer for the purpose
of obtaining the Services described in this Appendix.
"Funding Account" means a checking Account
designated by Customer in the Services' Setup Form(s) that
will fund all checks presented for payment from the
Controlled Disbursement Account, as described below.
2. Services. The Services provide check
presentment information to Customer each Business Day
intended to permit Customer to use the Funding Account to
fund the total amount of checks presented for payment from
the Controlled Disbursement Account for that Business Day.
The Services will be provided to Customer in accordance
with the selections, designations, authorizations and othe�
instructions set forth in the Services' Setup Form(s).
3. Controlled Disbursement Account. Customer
agrees to open and maintain a Controlled Disbursement
Account at Bank, which Account will be subject to and
governed by the terms and conditions of the Account
Agreement. Customer agrees to comply with all
requirements established by Bank from time to time with
respect to the handling of Controlled Disbursement
Accounts, including, but not limited to, all specifications for
printing checks to be paid from the Controlled Disbursement
Account. Customer agrees to complete and sign all
documents required by Bank in order to establish the
Controlled Disbursement Account and/or to provide the
Services to Customer. Customer also hereby authorizes and
directs Bank to act on its behalf and as its agent, as Bank in
its sole discretion deems necessary or advisable, in
performing the Services. Upon termination of the Services
or this Appendix for any reason, Customer authorizes Bank
to close the Controlled Disbursement Account, subject to
any written agreement between Customer and Bank with
respect to the handling of checks presented for payment after
the Controlled Disbursement Account is closed.
4. Presentment Information and Controlled
Disbursements.
4.1 Bank will use commercially reasonable efforts to
make available to Customer a report of the total aggregate
amount of all checks presented for payment from the
Controlled Disbursement Account (the "Presentment
Information"). Customer may access the Presentment
Information within the Bank Internet System (i.e.,
eTreasury), via the module associated with the Services. The
Presentment Information is provided by the Federal Reserve
Bank, and thus its accuracy is not guaranteed by Bank.
Customer acknowledges that the Presentment Information
will not include items presented for payment over-the-
counter during the Business Day. Customer further
acknowledges that the Presentment Information provided
through the Services may reflect items that, for various
reasons, do not actually post to the Controlled Disbursement
Account on the Business Day that the Presentment
Information is provided (e.g., checks with damaged MICR
lines that require special handling). Bank is not responsible
for any financial loss or damage of any kind that Customer
may incur from the inclusion of those items in the
Presentment Information provided via the Services.
4.2 Bank will transfer into the Controlled
Disbursement Account from the Funding Account such
amounts as may be required in order to pay all checks
presented and identified in the Presentment Information
provided to Customer. Customer authorizes Bank to execute
such funds transfers from the Funding Account as may be
required in order to pay all such checks, including all checks
presented for payment from the Controlled Disbursement
Account after termination of the Services.
5. Over -the -Counter Presentment; Funds
Availability. Bank may, without liability to Customer:
CAP ID 88095 40 of 57 0722
refuse to pay any check drawn on the Controlled
Disbursement Account that is presented for payment at any
of Bank's branch or store locations, or
otherwise make funds from any deposits of checks drawn on
the Controlled Disbursement Account available to a Bank
depositor in accordance with Bank's funds availability
policy.
6. Sufficient Balances. Customer agrees to maintain
sufficient collected balances in the Funding Account to pay
all amounts required to be transferred by Bank to the
Controlled Disbursement Account to pay all checks
presented for payment and drawn on the Controlled
Disbursement Account, and all debits thereto, including
checks presented for payment after termination of the
Services. In the event there are not sufficient collected funds
in the Funding Account to pay all checks so presented,
checks may be paid in the order determined by Bank, in its
sole discretion.
7. Return of Items Unpaid. Checks presented for
payment or other debits to the Controlled Disbursement
Account will generally be returned unpaid (in any order) if-
(i) there are not sufficient collected funds in the
Controlled Disbursement Account or available for transfer
from the Funding Account by Bank's established deadline to
cover the debits;
(ii) debits cannot be posted because the Controlled
Disbursement Account or Funding Account is frozen,
blocked, closed or because of any other condition; or
(iii) any communications failure or other condition
prevents Bank from monitoring Customer's items presented
for payment.
If there are insufficient funds in the Controlled Disbursement
Account or the Funding Account to cover checks or other
debits, Bank shall have no obligation to pay or liability for
refusing to pay such checks or other debits presented for
payment, even if such payment would result in the creation
of an overdraft in the Controlled Disbursement Account or
the Funding Account. The transfer of funds from the
Funding Account by Bank on one occasion to pay checks
presented for payment hereunder shall not obligate Bank to
transfer funds to pay checks presented for payment on any
other occasion.
8. Stop Payment Orders. Customer may issue stop
payment orders on items drawn on the Controlled
Disbursement Account in accordance with the terms of the
Account Agreement and with Bank's stop payment
procedures.
9. Customer Warranties. In addition to the
representations and warranties that Customer makes in the
Cash Management Master Agreement, Customer represents,
warrants and covenants that: (i) it will not use the Services
to delay payment of obligations to its own customers,
vendors or employees; (ii) for so long as it uses the Services,
Customer will maintain a collected balance in the Funding
Account sufficient to cover all items and other debits
payable from the Controlled Disbursement Account at the
times when such items and debits post to the Controlled
Disbursement Account; and (iii) Customer will refrain from
any activities with respect to the Controlled Disbursement
Account or the Services which are unlawful.
10. Protection Against Fraudulent Checks.
Customer and Bank acknowledge that there is a growing risk
of loss resulting from the increasing use of counterfeit and
certain other types of fraudulent checks. Customer
recognizes that controlled disbursement service customers
are especially susceptible to losses from these checks.
Customer is aware that Bank offers and strongly
recommends use of the "TD Positive Pay Services," which
is an effective means of controlling risk from counterfeit
checks and certain other types of fraudulent checks.
Consistent with the terms of the parties' Cash Management
Master Agreement, Bank has advised Customer that if it
does not use or continue to use such services, Bank will be
unable to prevent losses from counterfeit and certain other
types of fraudulent checks and Customer will be treated as
having assumed the risk of those losses.
11. Liabilityand Indemnification. In addition to the
liability and indemnification provisions in the parties' Cash
Management Master Agreement, Bank will not be liable to
Customer or any third party for, and Customer will
indemnify Bank from and hold it harmless against, any
claims, demands, judgments or expenses ("Losses") paid,
suffered or incurred by them, arising directly or indirectly as
a result of or in connection with:
(a) Bank acting on any information furnished by or on
behalf of Customer in any documentation or form related to
the Services or otherwise;
(b) Bank's return of any check unpaid because
Customer has not deposited collected funds in the Funding
Account related to the Controlled Disbursement Account on
which an item is drawn sufficient to cover the item;
(c) Bank's dishonor and return of any item unpaid if
Customer issues the item before Bank notifies Customer that
the Controlled Disbursement Account on which it was drawn
is operational;
(d) Bank's nonpayment of an item, unless such
nonpayment results directly or proximately from Bank's
gross negligence or willful misconduct;
(e) Bank's late return of an item as a result of, and any
presentment -related problem resulting from, the failure of
any item which has not been tested and approved by Bank to
conform in any respect to Bank's check specifications
including without limitation failure to include Bank's full
name and address and Bank's full name on any check or
payable -through draft; and
(f) Bank's performance of its obligations or exercise
of its rights in accordance with this Appendix or Bank's
Positive Pay or similar fraud-detection/deterrence service
agreement, if Bank provides Customer with one or more of
those services.
12. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank under
this Appendix shall in all cases be subject to the provisions
of the Cash Management Master Agreement, including,
CAP /D 88095 41 of 57 0722
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
available from Bank. This Appendix replaces and supersedes
all prior agreements on file with respect to the Services and
shall remain in full force and effect until termination or such
time as a different or amended Appendix is accepted in
writing by Bank or the Cash Management Master Agreement
is terminated.
CAP ID 88095 42 of J7 0722
APPENDIX VII
TD LOCKBOX SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Lockbox
Retail and TD Lockbox Wholesale Services (the "Services") made available to Customer by Bank. All capitalized terms used
herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise
expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management
Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to
resolve such conflict.
TERMS AND CONDITIONS
1. Services. The Services described in this
Appendix provide Customer with a remittance or payment
processing arrangement that offers an efficient method for
the collection and processing of certain payment items
payable to Customer, and the accompanying documents or
information associated with such payment items. Through
the Services, Bank receives, opens and processes checks and
credit card payment authorizations (if authorized) for
Customer, and the accompanying documents for such
payments, that are addressed to Customer and delivered to
U.S. Post Office Boxes or locations designated by Bank.
1.1 Retail Lockbox. The Services
consolidate and expedite the automated processing of high
volume, low dollar remittance payments received by
Customer, as applicable, from its retail clients.
1.2 Wholesale Lockbox. The Services also
consolidate and expedite the automated processing of low
volume, large dollar remittance payments received by
Customer, as applicable, from its vendors or other third
parties.
2. Customer Obligations & Authorizations.
2.1 Customer will maintain an Account at
Bank as the designated depository Account for the Services
("Designated Account"). Customer will maintain balances in
the Designated Account or other Customer Account(s)
sufficient to offset any returns for payments that cannot be
deposited.
2.2 Customer authorizes Bank to establish
United States Postal Service ("USPS") Caller Boxes (as such
terms are defined by the USPS) (collectively, the "PO
Box(es)" or "Lockbox(es)") at pre -determined postal
facilities, or to utilize existing Customer -established PO
Boxes, to collect payments and accompanying documents
remitted for the benefit of Customer. If a Customer -
established PO Box will be used for purposes of the
Services, Customer is solely responsible for any and all
charges related to the rental and use of the PO Box.
2.3 Customer agrees to provide Bank with
unrestricted and exclusive access to Customer -established
Lockbox location(s) and contents, and Bank has the sole
right to process remittance materials contained therein.
2.4 Prior to deposit into the Designated
Account, the Lockbox contents will not be available to
Customer, except upon request to Bank, and only with
Bank's consent.
2.5 Customer is responsible for instructing
all of its clients about the requirements of the Services as
they relate and apply to payments and accompanying
documents remitted by those clients for the benefit of
Customer.
2.6 Customer authorizes Bank to endorse all
payments received by Bank with a standard lockbox
endorsement used by Bank and without the signature of
payee, date or payor name, and to deposit payments,
including those with restrictive legends and endorsements,
into Customer's Designated Account.
2.7 Bank may delegate all or a portion of its
duties or rights regarding the Services and as set forth in this
Appendix to Bank Third Parties (as defined in the Cash
Management Master Agreement). Bank may change the
Bank Third Parties to which it delegates these
responsibilities in its sole and exclusive discretion.
3. Mail Collection and Processing.
3.1 Mail Collection and Pre -Processing.
Bank shall collect the mail from Lockboxes in accordance
with Bank's schedule, as such schedule may change from
time to time. Bank will transport mail by courier to its
processing location(s), open the mail containing checks,
share drafts, money orders, credit card payment information
(if authorized), invoices or other contents (hereinafter
referred to collectively as "Lockbox Item(s)"). Bank will
also accept overnight delivery packages as part of the
Services, when the same are properly addressed to and
receipt properly confirmed by Services' personnel at Bank's
processing location(s), and will process the same in
accordance with this Appendix. For each Lockbox Item
HCN 4853-3056-9524 e I Page 43 of 57
0716
received, using ordinary care, Bank will date stamp, inspect
and process the Lockbox Item as specified in the Services'
Setup Form(s).
3.2 Item Processing. Lockbox Items will
be processed according to the Account Agreement, except as
modified by this Appendix.
3.2.1 Domestic Checks. Bank may
accept for deposit to Customer's Account all items made
payable to or endorsed by Customer as an individual payee
or joint payee, regardless of whether those items bear
Customer's endorsement, subject to Bank's verification and
final inspection. Customer may also provide a list of
acceptable payee(s) (an "Acceptable Payee") on the
Services' Setup Form(s).
3.2.2 Foreign Checks. Foreign
check deposits are processed in accordance with the
Services' Setup Form(s). Checks drawn on U.S. banks in
U.S. dollars will be deposited. Checks drawn in foreign
currency (including Canadian checks in CAD) will be
processed according to the Services' Setup Form(s).
3.2.3 Cash. Cash deposits are not
accepted for processing under the Services. Customer shall
advise its clients not to send currency or coin to the Lockbox.
Bank is not responsible for cash intentionally sent to the
Lockbox, but never processed. Notwithstanding the
foregoing, in the event cash is received in the Lockbox, Bank
will make a good faith effort to deposit cash into Customer's
Designated Account and provide a control report regarding
these items to Customer.
3.2.4 Credit Cards.
(a) Credit
card payments may only be
processed through the Lockboxes
upon approval by Bank and
execution by Customer of all
required agreements and related
documentation, including without
limitation a merchant credit card
processing services agreement
("Card Processing Agreement")
and associated merchant account
with Bank and/or another financial
institution. Customer is responsible
for complying with the terms of
Customer's Card Processing
Agreement, and with all applicable
card network rules with respect to
credit card payments.
(b) In order
to be eligible for processing by
Bank, written authorizations to
charge payments due Customer to
the payors' credit cards ("Charge
Authorizations") must be received
through the Lockboxes. A Charge
Authorization received in the
Lockbox must contain the name of
the account debtor, the account
debtor's credit card number,
expiration date, the three digit
security code, and the amount of
the payment authorized, all of
which must be written or imprinted
on the authorization form in a
reasonably legible manner. If any
one of these items of information is
missing from a Charge
Authorization, or is, in the sole
judgement of Bank or its service
provider, not sufficiently legible
for processing purposes, the
Charge Authorization will not be
processed, and will be forwarded to
Customer as set forth below.
(c) Bank will proceed to process
for approval each Charge Authorization received in the
Lockbox which contains the information required above and
is otherwise eligible for processing. Bank will seek approval
from the issuer of the applicable credit card for the payment
transaction set forth on the Charge Authorization. Bank will
submit for settlement each Charge Authorization approved
in this manner.
(d) Credit card payments will be
batched independently from regular payment items in the
Lockbox. Following processing of Charge Authorizations
for approval, Bank will segregate those Charge
Authorizations which are approved from those Charge
Authorizations which are declined. Reports will be sent to
Customer regarding these deposits based on the Services'
Setup Form(s).
3.2.5 Other Items. Items received
from the Lockbox other than Lockbox Items or cash will be
forwarded to Customer as unprocessed items. Except for its
gross negligence or willful misconduct, Bank shall not be
responsible for any claimed loss or disappearance of cash or
other payments in bearer form.
3.2.6 Additional Terms.
(a) Customer guarantees to Bank
the payment of all deposited items identified in this Section
3.2. Bank will return to Customer any payments that cannot
be deposited. Lockbox Items with apparent alterations will
not be deposited. Under no circumstances shall Bank be
responsible or liable for identifying or failing to identify
stale -dated and post-dated checks or checks specifying
"payment in full" (or similar statements) in Customer's
Lockbox Items, or for processing such items. Customer
acknowledges that if checks specifying "payment in full"
(or similar statements) are negotiated, that could adversely
affect Customer's ability to collect any balance owed on the
related liability. Customer understands and agrees that
Bank makes no representation or warranty that it will apply
an endorsement intended to preserve Customer's rights to
collect the full amount owed or that any endorsement that
applies to a Lockbox Item will in fact preserve Customer's
HC 4814-6754-1549 Page 44 of 57 0420
right to collect the full amount owed. Customer assumes all
risks of negotiation of such items.
(b) Bank's receipt of Customer's
mail hereunder shall not make Bank a bailee of the
Lockbox Items. With respect to the Lockbox Items that are
deposited and become part of the balance in Customer's
Designated Account, Bank and Customer will have a
debtor -creditor relationship as normally exists between a
depository bank and its depositors. If Customer is a
governmental entity, Customer agrees that, in performing
the Services, Bank is not acting as an agent for the
collection of taxes.
3.3 Remittance Transaction Processing.
3.3.1 Transactions processed as
part of the Services are comprised of two separate
documents: the remittance coupon, stub or invoice
(hereinafter "Coupon(s)") and the drawer's payment. High-
speed image -enabled devices capture Customer's retail
remittance documents, including checks and Coupons.
Transactions are captured using image -enabled capture
devices that collect both financial and non -financial
information. The actual document capture requirements are
set forth in the Services' Setup Form(s).
3.3.2 Bank will process
transactions with (i) one payment and one Coupon, (ii)
multiple payments and/or multiple Coupons, and (iii) one or
more payments and no Coupon, as specified in the Services'
Setup Form(s). Bank will process remittance transactions as
set forth in the Services' Setup Form(s).
3.3.3 To accomplish high-speed
automated processing, Bank does not examine checks
(including, without limitation, any inspection for missing
signatures, dates, payees, or endorsements) except as the
parties may otherwise be described in the Services' Setup
Form(s). Customer agrees that Bank does not assume any
responsibility or liability for its failure to discover and
forward to Customer items bearing restrictive legends or
endorsements (e.g., "paid in full," "final payment" or words
of similar meaning). Bank will use a standard endorsement
that will be considered Customer's payee endorsement.
3.3.4 Transaction totals are
captured and balanced against individual check totals
generated and with the Coupon (if applicable) supplied by
Customer's client. Full check MICR line capture is
supported during the capture process. Once balanced,
transactions are released for deposit processing.
3.3.5 As part of the Services,
wholesale payments will be imaged, and such payments may
be re -associated with the Coupon (if enclosed), to the extent
set forth in the Services' Setup Form(s).
4. Deposit Processing.
4.1 Bank prepares items for deposit into
Customer's Designated Account. These deposited items are
memo posted throughout the Business Day and reflect the
amount of items processed. The credit and collection of
these items are subject to the terms and conditions of the
Account Agreement.
4.2 Bank reserves the right to not process
any item received for deposit if Bank decides not to handle
that item. If Bank makes this decision, Bank will forward
the item to Customer for further handling.
4.3 Transactions processed after Bank's
cut-off time or during a non -Business Day will be credited
on the next Business Day, as set forth in the Services' Setup
Form(s).
5. Insufficient Funds and Returned Items.
5.1 Bank may deduct the amount of an item
deposited to the Designated Account or other Account if
Bank receives notice that the item has not been paid and has
been returned. Returned items are processed in accordance
with the Services' Setup Form(s). Returned items that are
not re -deposited, or that have been returned a second time,
will be debited from the Designated Account or another
Account at Bank, as set forth in the Services' Setup Form(s),
even if Bank could have made a claim for reimbursement on
the item from the bank on which the item was drawn or from
another bank. Bank may charge an item against the
Designated Account or other Account even if the charge
results in an overdraft.
5.2 Bank may incur losses or expenses due
to a delay in returning an unpaid item if the item's
endorsement is obscured by other material on the back of the
item. If an item is issued with material on the back (for
example, a carbon band), Customer agrees to indemnify
Bank against any related losses and expenses, including any
finance charges, legal fees and court costs incurred in Bank's
attempt to receive payment on the item.
6. Remittance Reporting.
6.1 Remittance Package. At the end of
each Business Day on which Customer has Lockbox
activity, Bank may send a remittance package with contents
as selected in the Services' Setup Form(s).
6.2 CD-ROM. Bank may create a CD-
ROM of images of processed checks and remittance detail,
at Customer's request, on a daily, weekly, or monthly basis.
If the documents are unable to be imaged, Bank reserves the
right to forego scanning and forward the original documents
to Customer. Bank has no liability for illegible images
created from a damaged or illegible original document, and
such original document will be forwarded to Customer, if
requested, assuming that such original has not yet been
destroyed.
6.3 Electronic Transmission.
6.3.1 Subject to the terms and
conditions of and in accordance with Bank's Appendix for
Data Transmission Services, remittance data will be
H('4814-6754-1549 Page 45 of S7 0420
transmitted to Customer electronically at such time(s) as
selected in the Services' Setup Form(s).
6.3.2 Retail Lockbox. As
applicable, the optical character recognition ("OCR") scan
line is captured from a retail remittance Coupon with check
digit validation (when supplied on the Coupon), as outlined
in the Services' Setup Form(s). Bank will provide scan line
requirements for this purpose. Bank may accommodate
additional fields by mutual agreement and designation in the
Services' Setup Form(s). Bank may provide a daily file of
retail payments formatted to interface with Customer's
accounts payable system.
6.3.3 Wholesale Lockbox. As
applicable, information is taken from the wholesale
remittance Coupon together with payment information, as
outlined in the Services' Setup Form(s), to create a data
transmission of receivables information.
6.3.4 Reporting fields will be
determined based on Customer's capture specifications and
available fields or information on the Coupon, as set forth in
the Setup Form(s). All Customer requests for re-
transmission of a failed transmission should occur within
one (1) Business Day of the originally scheduled
transmission.
6.4 Web Access.
6.4.1 As may be made available by
Bank from time to time, Customer may use a Web -based
service to access a variety of reporting options for the
Services ("Web Access"), including reporting of deposits,
images of Lockbox Items, and online review of deposit
details subject to pre -established data entry fields.
Information is available for review by Customer as the
Lockbox Items are processed.
6.4.2 A user guide and procedures
shall be provided to Customer as well as hardware
requirements. Customer agrees not to use Web Access in
connection with any activity other than those permitted by
this Appendix, unless Bank provides prior written approval.
Customer shall use Web Access solely for the purposes
described in this Appendix. When Bank uses Web Access,
Customer accepts the Terms of Use for Web Access, as
posted on Web Access pages from time to time, and all
selected features and functions of the modules on Web
Access.
6.4.3 Bank shall use commercially
reasonable efforts to notify Customer promptly of any
system interruption, and notify Customer in advance of any
update releases or other permitted changes that may
reasonably be expected to affect Customer. Bank may make
available to Customer new service releases and
enhancements from time to time.
6.4.4 Bank offers its general
security system capabilities to protect the integrity of the
account transaction and remittance information. If a
password, PIN, or other security device or identifier is used
in connection with Web Access, Customer is responsible for
the safekeeping of that device or identifier. Customer shall
not disclose the security device or identifier to any
unauthorized individual. Bank will establish for Customer a
log -on ID ("user ID"). Customer will establish a unique
password. Bank recommends that Customer change its
password periodically. Customer agrees to notify Bank
immediately if Customer becomes aware of. (i) any loss or
theft of Customer's user ID and/or password; or (ii) any
unauthorized use of Customer's user ID and/or password.
Within established security procedures, Bank will be
responsible for: (i) restricting Web Access to valid user
IDs/passwords, (ii) restricting access to customer
information only to valid user IDs/passwords assigned to
such user, and (iii) properly acting upon instructions and
communications associated with a valid user ID/password
assigned to a specific user. Bank may provide optional
security features to include such features as passwords that
expire at pre -established time periods or restrict log -on user
ID to certain times in the day. Bank may cancel any user
ID/password if Bank has reason to suspect improper use.
Prior to cancellation, Bank shall confer with Customer,
unless in Bank's reasonable opinion it would be
impracticable or imprudent to do so.
7. Retail Lockbox Remittance Document Testing.
Customer and Bank understand and agree that the Services
are dependent on the successful testing and pre -approval by
Bank of Customer's remittance documents. Customer
agrees that it will not change, in any respect, any remittance
document or its contents without thirty (30) days' minimum
prior written notification to Bank, and subsequent
acceptance, testing, and approval by Bank. Bank reserves
the right to test Customer's remittance documents from time
to time to assess poor quality Coupons that may require
manual processing by Bank. All custom, non-standard
assessment, testing and review, and any required custom
handling, may be subject to additional Bank fees.
8. Liability. Remittance processing is a highly
automated service, and Bank uses commercially reasonable
efforts to process items. The liability of Bank under this
Appendix shall in all cases be subject to the provisions of the
Cash Management Master Agreement and the Account
Agreement.
9. Termination of this Appendix. In the event that
Customer terminates the Services, Bank may forward mail
from a closed Lockbox to the address designated by
Customer, in writing, for a period of ninety (90) calendar
days. Bank charges apply and are payable in advance of
Bank providing such forwarding service. If Customer does
not select forwarding service, mail will be returned to
sender. Customer understands that PO Box numbers may
not be transferable, as the PO Box may be issued within
Bank's unique zip code, and, therefore, must be retired.
10. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank under
this Appendix shall in all cases be subject to the provisions
of the Cash Management Master Agreement, including,
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
H(' 48M-6754-/549 Page 46 of 57 0420
available from Bank. This Appendix replaces and supersedes time as a different or amended Appendix is accepted in
all prior agreements on file with respect to the Services and writing by Bank or the Cash Management Master Agreement
shall remain in full force and effect until termination or such is terminated.
HC 4814-6754-1549 Page 47 af57 0420
APPENDIX IX
TD ACCOUNT RECONCILEMENT SERVICES - FULL
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Account
Reconcilement Services — Full (the "Services") made available to Customer by Bank. All capitalized terms used herein without
definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly
provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master
Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve
such conflict.
TERMS AND CONDITIONS
1. Services. The Services described in this
Appendix will assist Customer in reconciling and managing
the check and deposit activity in Customer's designated
checking Account(s) ("Authorized Accounts"). Use of the
Services does not affect any of Customer's obligations,
which are described in the Account Agreement, to discover
and report unauthorized or missing signatures and
endorsements, or alterations on checks drawn on Customer's
Accounts.
2. Submission of Data.
2.1 Customer shall have its checks prepared
in accordance with Bank specifications, and will supply
Bank with twenty-five (25) voided checks to be used for
testing. The checks will be tested to ensure the paper stock
is of a minimum weight and is encoded with Bank's ABA
(routing and transit) number, account number and check
number to ensure the readability of the MICR line on Bank's
equipment.
2.2 Customer shall send a file to Bank
containing information regarding checks that have been
issued by Customer (`Check Issue File") in the format and
medium, by the scheduled day(s) and to the place(s)
specified by Bank and agreed to by Customer as set forth in
the Services' Setup Form(s). The Check Issue File shall
include check issue date, check issue amount, payee, stop
payments, and voided or cancelled checks, if applicable.
2.3 Prior to implementation of the Services,
Customer shall submit to Bank a current, reconciled list of
all outstanding checks issued on each Authorized Account
one (1) week prior to the implementation of the Services
hereunder. Depending on the frequency with which
Customer issues checks, Bank reserves the right to require
Customer to submit one or more additional lists so that all
outstanding, unpaid checks issued on any Authorized
Account have been reported to Bank prior to the
implementation of the Services hereunder.
2.4 Customer will send to Bank a test file in
the format and medium as identified in the Services' Setup
HC# 4828-2182-3799 v. I
Form(s) to ensure the readability of the Check Issue File on
Bank's equipment.
2.5 Customer agrees to receive its paid
check data ("Paid Check Data") from Bank in the specified
format and medium, on the scheduled day(s) and at the
place(s) specified by Bank and as set forth in the Services'
Setup Form(s).
2.6 Prior to receiving a file from Bank
containing Customer's Paid Check Data, Customer will be
provided with a test file by Bank to ensure the readability of
the Paid Check Data, on Customer's equipment. Customer
agrees to report any test file failures.
2.7 Bank shall compare each of Customer's
paid checks by check number and amount against each
Check Issue File received by Bank. Bank does not, and shall
not be obligated to, compare any other data (such as payee
names) on a presented check with a Check Issue File, even
if a Check Issue File contains such other data. Bank may
satisfy its obligation hereunder by comparing check numbers
and amounts received in Substitute Checks (as defined in the
Cash Management Master Agreement) and/or via electronic
presentment of checks.
3. Statement of Transactions. Within five (5)
Business Days following the scheduled date for
reconcilement, as set forth in the Services' Setup Form(s), or
receipt of the final Check Issue File for the current
reconcilement period as set forth in the Services' Setup
Form(s), Bank will provide a fully reconciled report
including a listing in check number sequence of all
outstanding paid, issued, voided, stopped and cancelled
items from the statement schedule. Customer shall review
the listing and report any errors as set forth in the Cash
Management Master Agreement between Bank and
Customer. Customer's use of the Services or Bank's receipt
of information associated with the Services does not increase
Bank's duties or obligations with respect to Customer's
Accounts.
4. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. Bank's liability under this
Appendix shall in all cases be subject to the provisions of the
Cash Management Master Agreement, including, without
0120
limitation, any provisions thereof that exclude or limit
warranties made by, damages payable by or remedies
available from Bank. This Appendix replaces and supersedes
all prior agreements on file with respect to the Services and
shall remain in full force and effect until termination or such
time as a different or amended Full Reconcilement Services
Appendix is accepted in writing by Bank or the Cash
Management Master Agreement is terminated.
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NC# 4828-2182-3799 v.1 0120
I: FT"11 Ll
APPENDIX XI
TD DEPOSIT RECONCILEMENT SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Deposit
Reconcilement Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition
shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this
Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this
Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict.
TERMS AND CONDITIONS
1. Services. The Services described in this
Appendix will assist Customer in capturing and reconciling
its deposit transactions made from multiple Customer
locations into Customer's single designated deposit
Account. To utilize the Services, Customer must use
specialized deposit tickets that are pre -encoded with specific
location numbers.
2. Statement of Transactions. Within two (2)
Business Days after the scheduled date for reconcilement, as
set forth in the Services' Setup Form(s), Bank will provide a
listing of Customer's deposits sorted by field location.
Customer shall review the listing and report any errors as set
forth in the Cash Management Master Agreement between
Bank and Customer. Customer's use of the Services or
Bank's receipt of information associated with the Services
does not increase Bank's duties or obligations with respect
to Customer's Accounts.
3. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank under
this Appendix shall in all cases be subject to the provisions
of the Cash Management Master Agreement, including,
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
available from Bank. This Appendix replaces and supersedes
all prior agreements on file with respect to the Services and
shall remain in full force and effect until termination or such
time as a different or amended Appendix is accepted in
writing by Bank or the Cash Management Master Agreement
is terminated.
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CAP !D 50 of 5788099
0722
•
APPENDIX XVI
TD INFORMATION REPORTING FILE TRANSMISSION
SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to TD
Information Reporting File Transmission Services (the "Service(s)") made available to Customer by Bank. All
capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master
Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent
with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to
time shall control, but only to the extent necessary to resolve such conflict.
TERMS AND CONDITIONS
1. Services. The Services described in this
Appendix provide Customer with an automatic, daily or
other periodic electronic transmission of Account(s)
balance(s) and transaction information in an industry
standard and Bank -approved file format, which may
include BA12 or BRTS file formats as defined and/or
established, from time to time, by the Accredited
Standards Committee X9, Inc., or similar industry
organization. The transmission shall be made in
accordance with the terms and conditions of the parties'
Data Transmission Services Appendix.
2. Available Information. With the Services,
Customer can receive information regarding one or
more checking, savings, or loan Accounts. Customer
can select summary, balance and transaction detail
information for each Account(s). Customer may choose
to have the information made available on a previous
day basis, current day basis, or as otherwise agreed
between Customer and Bank. Information reported on
a current day basis is subject to updating and, therefore,
at any point in time, may not reflect the information on
Bank's records at such time. In addition, any
information reported to Customer is subject to
adjustment upon final posting to Customer's
Account(s).
3. Delivery. Information provided with the
Services will be available for delivery via Bank's Data
Transmission Services at such time(s) as agreed to by
the parties from time to time and in accordance with the
Services' Setup Form(s).
4. Effectiveness. Customer agrees to all the
terms and conditions of this Appendix. The liability of
Bank under this Appendix shall in all cases be subject
to the provisions of the Cash Management Master
Agreement, including, without limitation, any
provisions thereof that exclude or limit warranties made
by, damages payable by or remedies available from
Bank. This Appendix replaces and supersedes all prior
agreements on file with respect to the Services and shall
remain in full force and effect until termination or such
time as a different or amended Appendix is accepted in
writing by Bank or the Cash Management Master
Agreement is terminated.
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CAP !D 8807S 51 of 57 0722
i
APPENDIX XXI
TD DATA TRANSMISSION SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to TD Data
Transmission Services made available to Customer by Bank or Bank's third -party service provider. All capitalized terms used
herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as
otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash
Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent
necessary to resolve such conflict.
TERMS AND CONDITIONS
1. Services. The Data Transmission Services (the
"Services") provide Customer with the ability to exchange
information files with Bank's (or its third -party service
provider's) information systems for a variety of needs and
functions. This Service allows Customer to send and/or
receive its Bank files using File Transfer Protocol ("FTP"),
Hypertext Transfer Protocol Secure ("Secure Web"), Secure
File Transfer Protocol ("SFTP"), SWIFT Transmission, or
via such other method as the parties may agree upon from
time to time, as may be set forth in a Services' Setup
Form(s), and as further described below.
2. FTP Transmission.
2.1 This method of data transmission
permits Customer to deliver and/or receive encrypted files to
a Bank -maintained FTP server. Bank will create a drop -box
directory on the server where Customer may upload and
deliver data files. To send data to Bank, Customer will either
push the data files to Bank's directory, or Customer will give
Bank a unique user name, password and Customer service
address, and Bank will deliver the file. For data Bank sends
Customer, Customer will pull the data files from its
outbound directory on the server.
2.2 The technical requirements for FTP over
the Internet include an Internet connection, FTP client
capabilities, and Pretty Good Privacy ("PGP") or equivalent
software for file encryption and decryption.
2.3 Files for transmission by FTP must be
encrypted using PGP Version 4.0 or higher. PGP provides
encryption technology including encryption, decryption, key
management, encrypted email, digital signatures, key
generation, certified keys and key revocation. Bank will
generate a public key/private key pair for Customer. The
public part of the key will be sent to Customer via
Customer's assigned mailbox on Bank's transmission
platform. The private part of the key will be securely kept
within Bank. Customer will also generate a key pair for files
that it sends to Bank. The public part of this key pair will be
sent to Bank, also via the mailbox, while only Customer will
know the private key.
2.4 To begin transmission by FTP, Bank
will establish Customer's access to Bank's FTP server. Bank
will provide Customer with the domain name required for
the FTP connection. Customer will be provided a User ID
and password that is unique to Customer and will be required
each time Customer wishes to connect to Bank's
transmission platform to send or receive files. PGP public
keys for encryption will be exchanged. Bank and Customer
will perform, to their mutual satisfaction, connectivity
testing between platforms and encryption testing on
transmitted files prior to Customer's use of the Service via
FTP transmission.
3. Secure Web Transmission.
3.1 This method of data transmission
permits Customer to deliver and/or receive files using an
Internet connection, User ID and password. Bank will
provide Customer with the domain name of a website that
will display a web page with Customer's root directory.
Customer can upload data files to this directory by clicking
the Browse button and selecting the file from Customer's
local network. Data files sent by Bank will be displayed in
Customer's outbound directory and may be downloaded by
Customer to its local network.
3.2 The technical requirements for Secure
Web include an Internet connection and browser supporting
128-bit Secure Sockets Layer ("SSL") encryption.
3.3 Files for transmission through Secure
Web are encrypted using SSL. SSL is an open protocol for
securing data communication across computer networks that
provides a secure channel for data transmission through its
encryption capabilities. SSL allows for the transfer of
digitally -signed certificates for authentication procedures
and provides message integrity to protect against data being
altered en route. Bank and Customer will perform, to their
mutual satisfaction, connectivity testing between platforms
and encryption testing on transmitted files prior to
Customer's use of the Service via Secure Web.
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4. Secure FTP (SFTP) Transmission.
4.1 This method of data transmission permits
Customer to deliver to and/or receive files from a Bank -
maintained SFTP server. Files transfers through SFTP
communications are encrypted using Secure Shell ("SSH").
SSH is an open protocol for securing data communication
across computer networks providing a secure channel for
data transmission. The encryption used by SSH is intended
to provide confidentiality and integrity of data over an
unsecured network, such as the Internet. SSH uses public -
key cryptography to authenticate the remote computer and
allow the remote computer to authenticate the user, if
necessary.
4.2 Customer has the option to push files to Bank's
SFTP server or have Bank pull Customer's files. For
Customer push, Bank will create a drop -box directory on the
SFTP server and provide Customer with a user name,
password, and URL/domain name. Customer must provide
an external IP address of the location sending files so that
Customer's IP address can be added to access control lists
within Bank's firewalls. For Bank to pull Customer's files,
Bank will need a user name, password, URL/domain name,
and directory from Customer so that Bank can pull files from
Customer's SFTP servers. Bank and Customer will perform,
to their mutual satisfaction, connectivity testing between
platforms prior to Customer's use of the Services.
4.3 Customer also has the option for Bank to push
Customer files (recommended by Bank) or Customer can
pull the files from Bank's SFTP server. For Bank to push
Customer's file, Bank needs Customer's URL/domain
name, unique user name, password, and directory. For
Customer to pull files from Bank's SFTP server, Customer
must provide the external IP address of the location pulling
the files so that Customer's IP address can be added to access
control lists within Bank's firewalls. If Customer chooses to
pull files from Bank's SFTP server, then files must be PGP
encrypted, since files will reside on an SFTP server within
Bank's DMZ. Bank will need Customer's public PGP key so
that Bank can encrypt files. Bank and Customer will
perform, to their mutual satisfaction, connectivity testing
between platforms and encryption testing (if necessary) on
transmitted files prior to Customer's use of the Services.
4.4 Customer will need an FTP client capable of using
the SSH protocol. If Customer decides to pull files from
Bank, Customer will need an application/utility capable of
creating a PGP key pair and decrypting PGP files.
5. Secure Software.
5.1 This method of data transmission involves
the use of a Java® -based program that serves as a secure
access channel through which information may be
exchanged between Customer's Computer and Bank. This
software is provided by Bank and must be installed on a
Customer's Computer or network. Secure Software
facilitates the secure transfer of files both to and from
Customer's network location.
5.2 The technical requirements for Secure Software
include an Internet connection.
5.3 Files for transmission through Secure Software are
encrypted using SSL. SSL is an open protocol for securing
data communication across computer networks that provides
a secure channel for data transmission through its encryption
capabilities. SSL allows for the transfer of digitally -signed
certificates for authentication procedures and provides
message integrity to protect against data being altered en
route. Bank and Customer will perform, to their mutual
satisfaction, connectivity testing between platforms and
encryption testing on transmitted files prior to Customer's
use of the Services via Secure Software.
6. SWIFT Transmission.
6.1 This method of transmission provides
Customer with the ability to use Society of Worldwide
Interbank Financial Telecommunications operating as
S.W.I.F.T. SCRL, Limited Liability Cooperative Society
("SWIFT") messaging services as described in this Section
to engage in certain electronic communications with Bank
(hereinafter the "SWIFT Services"). With the SWIFT
Services, Customer may: (1) transmit certain SWIFT
messages and documents to Bank and receive certain SWIFT
messages and documents from Bank and other financial
institutions, using SWIFT FIN and/or SWIFTNet FileAct,
the latter of which is a file transfer service that allows the
transmission of messages and documents over the SWIFT
network in all formats agreed upon by Bank, and (2) transmit
and receive SWIFT Instructions (as further described below)
from Bank and other financial institutions in connection with
certain Cash Management Services as agreed by the parties
from time to time. Bank is a participating depository
financial institution in SWIFT.
6.2 SWIFT Rules. The "SWIFT Rules" are
the documents and other publications as amended by SWIFT
from time to time that Customer may access at
www.swift.com, whether in paper or electronic format,
providing specific terms and conditions and other details
relating to the provision and use of the SWIFT Services,
including without limitation the SWIFT Contractual
Arrangements; the SWIFT General Terms and Conditions;
the SWIFT Service Bureau Policy and the SWIFT Data
Retrieval Policy; the SWIFT MA-CUG, SCORE and TRCO
Service Descriptions and any other SWIFT Service
Descriptions applicable to the SWIFT Services; and the
SWIFT On-line Support Service information. This
Appendix, the SWIFT Services provided hereunder and the
rights and obligations of the parties hereto shall be subject to
the SWIFT Rules, as they may be amended from time to
time. The parties agree to comply with the SWIFT Rules and
to be aware of and comply with changes or updates to the
SWIFT Rules.
6.3 SWIFT Instructions.
6.3.1 Bank may honor and act upon
any authenticated SWIFT message, communication or
instruction, including any Payment Order (hereinafter a
"SWIFT Instruction") received in Customer's name or under
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any SWIFT Business Identifier Code (BIC) that: (1) is
unique to Customer, (2) is owned by a parent company or
other affiliate of Customer, or (3) is owned by an unrelated
third party and/or that is otherwise operating by agreement
with Customer as Customer's agent for purposes of
Customer's use of the SWIFT Services. Each such BIC(s)
shall be identified by or through Customer in the Services'
Setup Form(s) (hereinafter, collectively, "Customer's
BIC(s)"). Customer acknowledges that the Services' Setup
Form(s) shall also set out the key features and requirements
that shall apply to Customer's use of the SWIFT Services,
which may include but are not limited to the following:
i. the SWIFT messaging services to be
used to transmit SWIFT Instructions to Bank (e.g., SWIFT
FIN and/or SWIFTNet FileAct);
ii. the SWIFT message types and file
formats that are supported by Bank under the SWIFT
Services, including the types of Payment Orders that
Customer may transmit;
iii. the technical parameters associated with
and required for SWIFTNet FileAct (e.g., file transfer mode
options and file transfer fields, etc.);
iv. the type of information that Bank shall
provide in conjunction with any SWIFT message sent by
Bank to Customer within the SWIFT Services, including any
account status or other information made available by Bank;
V. the Customer Account(s) to be used in
connection with the SWIFT Services; and
vi. the SWIFT access model (e.g., SCORE,
MA-CUG, etc.) and connectivity (e.g., direct access,
Alliance Lite, member, service bureau, etc.) associated with
Customer's use of the SWIFT Services.
6.3.2 SWIFT Instructions made in
accordance with this Appendix and the SWIFT Rules shall
be deemed to have been given by an individual authorized to
act on behalf of Customer. Bank will act in reliance on the
accuracy and completeness of the SWIFT Instruction
received by Bank in Customer's name or via Customer's
BIC(s). Customer shall ensure that any SWIFT Instruction
sent to Bank fully and accurately reflects the advice, request,
instruction or communication intended to be provided to
Bank by Customer and is duly authorized. Customer
irrevocably authorizes Bank to (a) treat as accurate,
authentic and properly authorized, rely upon and implement
any SWIFT Instruction received by Bank which originates
(or appears to originate) from Customer (including, in the
case of a Payment Order, debiting the Account as specified
in the SWIFT Instruction), and (b) to process each such
SWIFT Instruction as described in this Section 6.
6.3.3 Notwithstanding the
foregoing, Bank is not obligated to act on a SWIFT
Instruction or treat a SWIFT Instruction as accurate,
authentic or authorized, if:
• the SWIFT Instruction does not meet the
requirements of the SWIFT Rules or
otherwise appears not to have been
prepared or sent in accordance with this
Section;
• Bank considers that the execution of that
SWIFT Instruction may place Bank in
breach of any law or regulation; or
Bank reasonably suspects that the SWIFT
Instruction received by Bank (a) may not
fully and accurately reflect an advice,
request, instruction or communication
that Customer intended to give to Bank;
or (b) may not have been given in
accordance with Customer's
authorization procedures.
Except to the extent prevented by applicable law or
regulation, Bank shall notify Customer if, under this Section
6.3, it does not act on a SWIFT Instruction.
6.4 Secure Communications Channel.
6.4.1 SWIFT offers SWIFT
messaging services as a secure communications channel.
SWIFT has established procedures and requirements for
controlling access to SWIFT messaging services (each, an
"Access Control") that may include, without limitation,
access codes, message authentication codes, secure card
readers, digital signatures, and hardware security modules.
In addition, SWIFT authenticates certain messages based on
SWIFT message type prior to accepting them for routing as
SWIFT Instructions (each, an "Authenticated Message").
This authentication may include confirming that the sender
and recipient of the message have exchanged bilateral keys
("BKE"), entered into a relationship management
application ("RMA") agreement, or taken other steps to
secure the transmission of SWIFT Instructions between
them as SWIFT requires from time to time (each, an
"Authentication Procedure"). Collectively, the Access
Controls and Authentication Procedures shall be referred to
herein as the "SWIFT Security Procedures."
6.4.2 Bank and Customer rely on SWIFT's
Access Controls and, in the case of an Authenticated
Message, the Authentication Procedures, if any, that SWIFT
requires to secure the transmission of Customer's SWIFT
Instructions. Bank does not undertake and will have no
obligation to Customer to separately authenticate any
SWIFT Instruction that Bank receives in Customer's name
or under Customer's BIC, whether or not Customer actually
issued the SWIFT Instruction. Bank may, at Bank's sole
election and option, contact Customer with respect to any
SWIFT Instruction that Bank receives in Customer's name
or under Customer's BIC, but Bank's election to contact
Customer with respect to one or more SWIFT Instruction
will not obligate Bank to contact Customer with respect to
subsequent SWIFT Instructions that Bank receives in
Customer's name or under Customer's BIC.
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54 of 57 0722
6.5 Customer Representations
and Warranties. Customer represents and warrants with
respect to itself and the Customer's BIC(s) identified by or
through Customer in the Services' Setup Form(s) that it:
• is registered with SWIFT as either a "Member
Administered Closed User Group" and/or "Closed User
Group" and/or "SCORE (Standardized Corporate
Environment)" member;
is in compliance with applicable SWIFT Rules;
• is not in violation of any federal, state or local laws
with respect to the SWIFT Services;
• is a duly incorporated and validly existing legal
entity;
• is in good standing financially and in compliance
with all laws and regulations applicable to Customer; and
• is subject to regular audits in accordance with
internationally recognized accounting standards by
independent auditors.
6.6 Third -Party Service Providers: Third
Party -Service Provider Activities.
6.6.1 Customer may appoint a third
party, whether a SWIFT registered user/member, SWIFT
authorized service bureau or other third party, to send or
receive SWIFT Instructions, perform other functions and/or
otherwise act as Customer's agent for purposes of the
SWIFT Services provided hereunder (a "Third -Party Service
Provider"), as shall be set forth in the Services' Setup
Form(s). In such event, Customer agrees that the Third -
Party Service Provider shall have all the powers of Customer
in relation to the SWIFT Services. Customer unconditionally
authorizes Bank to deal directly with the Third -Party Service
Provider in connection with all matters relating to the
SWIFT Services, including, without limitation, the receiving
and sending of SWIFT Instructions (including Payment
Orders), and any testing to be completed with respect to the
SWIFT Services. All SWIFT Instructions received by Bank
from Third -Party Service Provider are hereby authorized by
Customer. All acts and omissions of Third -Party Service
Provider shall be the acts, omissions and responsibility of
Customer and shall be governed by the provisions of this
Appendix. For the avoidance of doubt, Customer shall
ensure the Third -Party Service Provider complies with the
relevant provisions of this Appendix. Notice of any
termination of Third -Party Service Provider's authority to
receive and send SWIFT Instructions to Bank on Customer's
behalf shall be given to Bank in writing. The effective date
of such termination shall be ten (10) Business Days after
Bank receives written notice of such termination.
Notwithstanding the foregoing, Customer agrees that Bank
retains the right to reject any such Third -Party Service
Provider and thus any associated SWIFT Instructions
initiated by Customer's Third -Party Service Provider in
Bank's sole discretion.
6.6.2 Subject to Bank's prior approval and in
its sole and exclusive discretion, Customer may be
permitted to use the SWIFT Services provided
hereunder on behalf of and in conjunction with
Accounts that belong to Customer's clients, as well as
on Customer's own behalf. Customer shall provide an
appropriate letter of authority and/or execute any such
other agreement(s) or documents as deemed necessary
or appropriate by Bank prior to the initiation or
continuation by Customer of the SWIFT Services in the
capacity of a third -party service provider. Customer
agrees that Bank retains the right to reject any request
by Customer to engage in such activities as well as any
SWIFT Instructions by Customer in such capacity, in
Bank's sole discretion. In the event Bank approves
Customer's use of the SWIFT Services as a third -party
service provider, then the following shall also apply:
(a) Customer represents and warrants to
Bank that each Customer client has given Customer
authority to access and engage in SWIFT Instructions
with respect to its Accounts through use of the SWIFT
Services to the same extent as if Customer owned them,
including in the capacity of a "third party service
provider;"
(b) each reference to "Customer" herein
will be deemed to be a collective reference to Customer
and each Customer client whose Accounts are included
in Bank's implementation of Customer's set-up for the
SWIFT Services;
(c) all of the provisions set forth herein will
apply to the Customer client's Account(s) as if
Customer owned them;
(d) each person who is authorized to act on
Customer's behalf with respect to the SWIFT Services
is also authorized to act on Customer's behalf to the
same extent with respect to the Accounts of each
Customer client whose Accounts are included in
Bank's implementation of Customer's set-up for the
SWIFT Services; and
(e) Customer shall be liable for all
monetary, confidentiality and other obligations to Bank
hereunder as they relate to Customer's use of the
SWIFT Services for itself as well as each such
Customer client. Customer agrees to notify Bank
immediately if Customer's authority with respect to
Customer's client(s) is revoked or changed.
6.7 Customer Direction and Indemnity.
6.7.1 In the event that the BIC(s)
identified by or through Customer in the Services' Setup
Form(s) are owned by a parent company or other affiliate of
Customer, or are owned by an unrelated third party and/or
such third party is otherwise operating by agreement with
Customer as Customer's Third -Party Service Provider for
purposes of the SWIFT Services, Bank is prepared to act on
a SWIFT Instruction from Customer's SWIFT BIC(s) only
upon receipt of the indemnity provided in this Section 6.
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This indemnity shall be in addition to and not in lieu of an
additional indemnity provided by Customer in the Cash
Management Master Agreement.
6.7.2 Bank is authorized to accept
and honor any files and/or SWIFT Instructions sent from any
of Customer's SWIFT BIC(s) without making any inquiry as
to the validity or sufficiency of the SWIFT Instructions and
to consider the SWIFT Instructions of like force and effect
as written orders made in accordance with the signing
authorities held by Bank from time to time for the operation
of Customer's Account(s) with Bank.
6.7.3 Without limiting the scope of
Section 6.7.2, Bank is authorized to disclose information
about Customer, its Accounts and banking relationship with
Bank, including any changes to such information, in
response to and as directed in the SWIFT Instructions as
required to process the same.
6.7.4 Bank shall not be liable for any loss or
damage incurred by Customer, or any third party arising
from or in any way related to Bank acting upon or refusing
to act upon any SWIFT Instructions from Customer's BIC(s),
unless due to the gross negligence or willful misconduct of
Bank. Notwithstanding the foregoing, in no event shall Bank
be liable for any indirect, special or inconsequential damages
incurred by Customer or any third party arising from or in
any way related to Bank acting upon or refusing to act upon
any SWIFT Instructions.
6.7.5 Customer hereby agrees to indemnify
and hold Bank harmless from and against any losses,
liabilities, claims, damages, fees, or expenses whatsoever
that Bank may suffer, incur or be under or that may be
brought against Bank, pursuant to, in connection with, or in
any way related to Bank acting upon, delaying in acting upon
or refusing to act upon any SWIFT Instructions from
Customer's BIC(s).
6.8 Termination of SWIFT Services. In
addition to but not in lieu of the provisions of the Cash
Management Master Agreement, the SWIFT Services shall
terminate automatically in the event that:
• either party loses user status as defined in the
SWIFT General Terms and Conditions of the By-
laws;
• SWIFT has ceased to provide, and not resumed
providing, any of the SWIFT messaging services;
• SWIFT, in exercise of its rights under the SWIFT
Rules, has required either party to terminate the
SWIFT Services; or
• Bank has ceased to provide the Cash Management
Services.
6.9 Suspension of SWIFT Services. In addition to but
not in lieu of the provisions of the Cash Management Master
Agreement, either party may suspend the use of the SWIFT
Services for such period(s) as it considers appropriate in its
absolute discretion by notice to the other party if. (a)
suspension is necessary for the purposes of (routine or
emergency) maintenance; (b) for security or technical
reasons, including a suspension of the SWIFT messaging
services by SWIFT, use of the SWIFT messaging services is
impossible or cannot be achieved without unreasonable cost
to Bank or Customer; (c) suspension is required by SWIFT
or the SWIFT Rules; or (d) suspension is necessary to avoid
or reduce any material damage or disadvantage to either
party.
7. Security Procedures.
7.1 Customer agrees that the security procedures set
forth or incorporated by reference in this Appendix
(including without limitation the SWIFT Security
Procedures), the Cash Management Master Agreement
and/or associated documents provided by Bank, including
without limitation the Services' Setup Form(s), are a
commercially reasonable method of providing security
against unauthorized access to or interception of
transmissions between Customer and Bank (hereinafter
collectively the "Security Procedures"). Any transmission
by Customer shall be deemed authorized if transmitted in
accordance with the Security Procedures. Bank may, from
time to time, modify the Security Procedures. Such
modifications shall become effective upon receipt of notice
by Customer or such later date as may be stated in the Bank's
notice to Customer. If Customer fails to object to such
change, it shall be deemed to agree to such change.
7.2 With respect to SWIFT in particular,
Customer further acknowledges that the SWIFT Security
Procedures are the only security procedures offered for
SWIFT Instructions that Customer transmits through the
SWIFT Services. Customer has solely determined that the
SWIFT Security Procedures best meet Customer's
requirements with regard to the size, type and frequency of
the SWIFT Instructions issued by Customer to Bank using
the SWIFT Services and that the SWIFT Security
Procedures are a commercially reasonable method of
providing security against unauthorized access to or
interception of transmissions between Customer and Bank.
Customer acknowledges that it is bound by the terms and
conditions of each SWIFT Instruction, including any request
to cancel or amend a SWIFT Instruction, whether or not
authorized by Customer, that Bank receives in Customer's
name or under Customer's BIC(s)through the SWIFT
Services and in accordance with the SWIFT Security
Procedures.
7.3 Nothing in this Appendix shall be deemed a
representation or warranty by Bank that FTP, Secure Web,
SFTP or SWIFT communications are secure. Rather, after
review of the alternatives, Customer has selected a
communication method that it believes best suits its needs.
7.4 Bank and/or SWIFT (as applicable) may, from
time to time, propose different, additional or enhanced
security procedures to Customer. Customer understands and
agrees that if it declines to use any such enhanced
procedures, it will be liable for any losses that would have
been prevented by such procedures. Notwithstanding
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anything else contained in this Appendix, if Bank and/or
SWIFT believes immediate action is required for the security
of Bank, SWIFT or Customer funds or data, Bank and/or
SWIFT may initiate additional security procedures
immediately and provide prompt subsequent notice thereof
to Customer.
7.5 Customer hereby acknowledges that the Security
Procedures are neither designed nor intended to detect errors
in the content or verify the contents of a transmission
between the parties. Accordingly, any errors contained in a
transmission from Customer shall be Customer's
responsibility. Except as otherwise expressly provided in
the parties' Cash Management Master Agreement or other
Appendix between the parties, no security procedure for the
detection of any such Customer error has been agreed upon
between Bank and Customer.
7.6 Customer is strictly responsible for establishing
and maintaining procedures to safeguard against, detect and
mitigate unauthorized access to or interception of
transmissions. Customer covenants that no employee or
other individual under Customer's control will be allowed to
initiate transmissions in the absence of proper authority,
supervision and safeguards, and agrees to take reasonable
steps to maintain the confidentiality of the Security
Procedures and any passwords, codes, security devices and
related instructions provided by Bank in connection with any
Security Procedure utilized by Bank, SWIFT and/or
Customer. If Customer believes or suspects that any such
password, code, security device, Security Procedure,
information or instructions have been disclosed to or
accessed by unauthorized persons, Customer agrees to notify
Bank immediately followed by written confirmation as
provided in the Services' Setup Form(s).
7.7 Customer shall retain data files for five (5)
Business Days following the date of their transmittal by
Customer as provided herein, and shall provide such data
files to Bank upon request.
8. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank under
this Appendix shall in all cases be subject to the provisions
of the Cash Management Master Agreement, including,
without limitation, any provisions thereof that exclude or
limit warranties made by, damages payable by or remedies
available from Bank. This Appendix replaces and supersedes
all prior agreements on file with respect to Data
Transmission Services and shall remain in full force and
effect until termination or such time as a different or
amended Appendix is accepted in writing by Bank or the
parties' Cash Management Master Agreement is terminated.
('AP /D 88073 57 of 57 0722