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HomeMy WebLinkAboutCity of Tamarac Resolution (227)Temp. Reso. #9870 August 14, 2002 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO, R-2002-227 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE A SUPPLEMENTAL AGREEMENT TO THE EXISTING AGREEMENT BETWEEN THE CITY OF TAMARAC AND FIRST UNION NATIONAL BANK AS AUTHORIZED BY CITY OF TAMARAC RESOLUTION 2001-289, FOR FIRST CONNECT® ASSETVISION SERVICES; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission authorized a contract with First Union National Bank (FUNB) to provide banking services through City of Tamarac Resolution 2001-289 (Agreement attached as Exhibit 2); and WHEREAS, the said Agreement authorizes supplements and/or amendments if executed by both the Bank and the City; WHEREAS, FUNB offers direct access to City of Tamarac bank account information through First Connect® AssetVision, an Internet -based application; and WHEREAS, the Assistant City Manager/Interim Director of Finance and the Finance and Policy Officer recommend that a supplement to the Agreement be approved for First Connect® AssetVision, and 1 Temp. Reso. #9870 August 14, 2002 Page 2 WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in the best interest of the citizens and residents of the City of Tamarac to approve a supplement to the Agreement for First Connect® AssetVision. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution. SECTION 2: The appropriate City officials are hereby authorized to accept and execute a supplemental agreement to the October 10, 2001 Agreement between the City of Tamarac, Florida and First Union National Bank providing for direct access to City of Tamarac bank account information through First Connect® AssetVision, (attached hereto as Exhibit 1). SECTION 3: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: 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. n 1 Temp. Reso. #9870 August 14, 2002 Page 3 SECTION 5: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this 28th day of August, 2002. /_IaIONI Marion Swenson, CMC City Clerk I H je�dy ERTIFY that ave a pro ION s to MIT CITY ATT 1 .,f JOE SCHREIBER, MAYOR RECORD OF COMMISSION VOTE MAYOR SCHREIBER AYE DIST 1: V/M PORTNER AYE DIST 2: COMM. MISHKIN AYE DIST 3: COMM. SULTANOF AYE DIST 4: COMM. ROBERTS ABSENT FON & FiRSTCONNECTO ASSETVISION CUSTOMER AGRE, EMENT tt This agreement, effective as of then day of 140-JU-I r, 2002, is by and between First Union National Bank ("First Union") and each client who signs this Agreement ("you" or "client"). In consideration of the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, First Union and client hereto agree as follows: The Capital Management Group of First Union National Bank ("First Union") will provide you with direct access to account information through First Connect AssetVision, an Internet -based application (the "System"). it is understood by both parties that the System shall be used only by authorized individuals. You further agree to take all necessary security precautions to ensure that access to First Connect AssetVision is available only to the authorized individual. First. Union is entitled to presume that all communications containing proper ID's are being originated by authorized individuals and to act upon the same accordingly. First Union shall not be responsible for updates or malfunctions of the client's communications software and shall not be liable for any loss or damage suffered by you as a result of the use or malfunction of the client's software. Any information acquired through the use of software shall be subject to the same restrictions and limitations as information acquired by you through First Connect AssetVision. All transactions and information acquired through First Connect AssetVision are subject to verification by First Union. You agree to use and verify all information at your own risk. Except as may be expressly set forth in this Agreement, First Union makes no representations or warranties, express or implied, with respect to the services of this Agreement. First Union will not be liable for any error or delay on the part of any unrelated parties involved in First Union's providing of the services; nor shall First Union be liable for any other error or delay due to any cause other than First Union's own negligence or misconduct. You agree to keep strictly confidential this agreement and all information about First Connect AssetVision and warrant that you will not divulge any information about First Connect AssetVision, First Union's business operations, including, but not limited to the unauthorized copying of copyrighted or proprietary information, unless such information is publicly available or you are directed to do so by court order or applicable law, in which case you will promptly notify First Union. You further agree that you will not knowingly do anything that would cause First Union to be in violation of its licenses and contracts with applicable suppliers. Amendments or specialized reporting requests that require custom programming by First Union or its vendors must be agreed to in writing by both parties. Either party may terminate this Agreement upon thirty des written notice to the other. The termination of this Agreement shall not terminate the rights or obligations of party to meet all confidentiality and liability agreements. This Agreement amends all existing agreements regarding your relationship with First Union. In the event of inconsistencies between such agreements and this Agreement, the provisions of the "Agreement for Banking Services, Agreement No. 01-11R", dated October 10, 2001, as authorized by the City of Tamarac Commission Resolution R-2001- 289, shall prevail. Confidenlrul 1 08/23/02 Exhibit 1—Temp Reso #9870 FON 0 FIRST CONNECT@ ASSETVISION CUSTOMER AGREEMENT 4. First Union will assign a Login Name to you for on-line access to First Connect AssetVision. A password will be issued to you at the time a. First Connect AssetVision Login Name is assigned which will be required to be changed by you as notified through First Connect AssetVision. First Connect AssetVision will be available to authorized individuals unless First Union or its vendors determines First Connect AssetVision shall be closed for: Y Bank Holidays Y Special Processing and/or Maintenance, and Y when First Connect AssetVision is down due to Force Major events such as fires, floods, other acts of God, or actions of First Union partners or suppliers. Current day (on-line) posting to First. Union accounts is accessible twenty-four hours a day except for scheduled maintenance. Client acknowledges and understands the data appearing on First Connect AssetVision covering a "Banking Day's" activity will show more transactions if accessed later in the "Banking Day" than in the morning. Client also understands that a transaction may be changed after posting and that account balances and security positions may change as transactions are posted. The account information delivered via First Connect AssetVision does not replace the scheduled First Union account statements rendered on a monthly, quarterly basis or the schedule applicable to your customer accounts. G. Notwithstanding anything in this Agreement to the contrary, First Connect AssetVision is designed for use by End Customers to facilitate their own direct access to information regarding their trust accounts and is not intended for use by and may not be used by Internet Information Consolidators. First Connect AssetVision shall be used solely by individual natural persons manually and directly accessing the .First Union Website and First Connect AssetVision Information. Access to First Connect AssetVision Information may not be made by any automated program that does not request direct and individual human intervention. For purposes of this paragraph, "Internet Information Consolidator" means any person engaged in the business of providing information aggregation services, screen -scraping services, information consolidation services or information re -distribution services by means of the Internet for the purpose of aggregating or consolidating information from more than one website. First Union National Bank makes no warranties concerning the availability, reliability, security or operation of the internet, and shall not be responsible for problems with First Connect AssetVision attributable thereto. Client acknowledges that the ability of First Union National Bank to deliver First Connect AssetVision information using First Connect AssetVision is dependent on the internet and equipment, software, systems, data, and services provided by various telecommunications carriers, internet service providers, equipment manufacturers, firewall providers, encryption system developers and other vendors and third parties. First Union National Bank does not warrant that First Connect AssetVision, First Connect infrastructure and First Connect AssetVision information will Confidential 2 08/23/02 FfffN0 FIRSTCONNECTO ASSETVISION CUSTOMER AGREEMENT operate without interruption or delay and/or be error free, or that all failures of First Connect AssetVision to conform to the specifications therefore can or will be corrected. 8. In no event shall First Union National Bank be liable for lost profits or business, loss of goodwill, loss of data, interruption of business, or any exemplary, punitive, special, indirect, incidental, consequential damages, regardless of whether such claim arises under any theory of tort, contract, strict liability or otherwise and regardless of whether First Union National Bank is advised of the possibility of any such damages. First Union National Bank's sole obligation and liability with respect to any nonconformity shall be to use commercially reasonable efforts to remedy the nonconformity as soon as practicable. First Union National Bank's sole obligation and liability with respect to any transmission of incorrect information or data shall be to retransmit the correct information or data to the custorner or the appropriate person. Confidential 3 08/23/02 FIRSTCONNECTO ASSETVISION CUSTOMER AGREEMENT 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 First Union National Bank (aka Wachovia Bank, N.A., signing by and through duly authorized to execute same. ATTEST: �- jl� Marion Swenson, CMC City Clerk Date ATTEST: CITY OF TAMARAC Joe S reiber, Mayor Date Jeffrey f ill ,City Manager Date FIRST UNION NATIONAL BANK, (aka WACIJOVIA BANK, N.A.) Com any Name Q . Cap Witness Authorized Signature �)ao "ko Q0g k )M Type/Print Name of (CORPORAT.E. SEAL) C7� io }a-o- I'D _ t r jl-j Type/Print. Name Date Confidential 4 08/23/02 FON0 FIRSTCONNECT® ASSETVISION CUSTOMER AGREEMENT CORPORATE ACKNOWLEDGEMENT S"I'ATE OF FLORIDA :SS COUNTY OFAXkvx�: 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 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 thisa13day of C Crt 20 0 Signature of Notary Public State of Florida at Large �� ��EPHA1Vi� iuyUURE NM+VPUYIXBrAfl�// Print, Type or Stamp CDI0AZj,lOHIName of Notary Public � MAR [.Personally known to me or [] Produced Identification Type of I.D. Produced [� DID take an oath, or 0� DID NOT take an oath. C:nnfidentwl 5 08/23/02 EXHIBIT 2 TEMP. RESO. # 9870 AUGUST 14, 2002 AGREEMENT FOR BANKING SERVICES AGREEMENT NO. 01-11R THIS AGREEMENT made and entered into this /0 day of (0- '_-) , 20 0[ , by and between the City of Tamarac, a municipal corporation with principal offices located at 7525 N.W. 88th Avenue, Tamarac, Florida 33321, hereinafter referred to as CITY, and First Union National Bank a corporation with principal offices located at 1950 Hillsboro Boulevard, 2"' Floor, Deerfield Beach, Florida 33442 hereinafter referred to as the BANK. WHEREAS, the City intends to utilize a Bank to provide full Banking and certain investment services for all City funds, except for its employees' pension funds, which are organized and administered separately. The objectives are to obtain the most efficient Banking services, while minimizing cost to the City; and to maximize return on investments while pre -servicing capital and avoiding unreasonable risks and providing readily availability of funds; and, WHEREAS, the City requires certain professional services in connection with Banking services; and, WHEREAS, the Bank represents that it is capable and prepared to provide such Services. NOW THEREFORE, in consideration of the promises contained herein, the parties hereto agree as follows: ARTICLE 1 - EFFECTIVE DATE The term of this Agreement is for a period of five (5) years from date of execution. Upon expiration of the five (5) year term, the parties may choose to terminate this Agreement, or renew by written agreement signed by the parties hereto for an additional two-year period. ARTICLE 2 - SERVICE TO BE PERFORMED BY THE BANK The contract documents consist of this Agreement, conditions of the Request for Proposal (General, Supplementary and other Conditions), specifications, all addenda issued prior to, 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 if attached to this Agreement or repeated therein. The Bank shall perform these services as specifically stated and as may be specifically designated and additionally authorized by the City. Such additional authorizations will be in the form of a Task Order_ - Each Task Order will set forth a specific Scope of Services, amount of compensation and completion date and shall be approved by resolution of the City Commission. ARTICLE 3 - STANDARD OF CARE Bank shall exercise the same degree of care, skill, and diligence in the performance of the Services as is ordinarily provided by a Bank under similar circumstances and Bank shall, at no additional cost to the City, re -perform services which fail to satisfy the foregoing standard of care. ARTICLE 4 - INDEMNIFICATION The Bank 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 the work performed by the Bank or its officers, employees, agents, subcontractors, or independent contractors, excepting only such 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 pertain to any occurrence during the term of this Agreement, even though the claim may be made after the termination hereof. 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. Upon completion of all Services, obligations and duties provided for in this Agreement, or in the event of termination of this Agreement for any reasons, the terms and conditions of this Article shall survive indefinitely. ARTICLE 5 - INDEPENDENT CONTRACTOR Bank undertakes performance of the Services as an independent contractor and shall be wholly responsible for the methods of performance. Personal services provided by the Bank shall be by employees of the Bank and subject to supervision by the Bank, and not as officers, employees, or agents of the City_ Personnel policies, tax responsibilities, social security and health insurance, employee benefits, purchasing policies and other similar administrative procedures applicable to services rendered under this Agreement shall be those of the Bank. The City shall have no right to supervise the methods used, but the City shall have the right to observe such performance. Bank shall work closely with the City in performing Services under this Agreement. ARTICLE 6 - NON-DISCRIMINATION The Bank agrees that it shall not discriminate against any of its employees or applicants for employment because of their age, handicap, race, color, religion, sex, or national origin, and to abide by all federal and State laws regarding non-discrimination. The Bank further agrees to insert the foregoing provisions in all subcontracts hereunder except subcontracts for standard commercial supplies or raw materials. Any violation of such provisions shall constitute a material breach of this Agreement. ARTICLE 7 - ASSIGNMENT AND SUBCONTRACTING Bank 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. ARTICLE 8 - COMPLIANCE WITH LAWS In performance of the Services, Bank will comply with applicable regulatory requirements including federal, state, and local laws, rules regulations, orders, codes, criteria and standards. ARTICLE 9 - INSURANCE During the performance of the Services under this Agreement, Bank shall maintain the following insurance polices, and provide originals or certified copies of all policies, and shall be written by an insurance company authorized to do business in Florida. irk ARTICLE 11 - TERMINATION OF AGREEMENT This Agreement may be terminated by City or Bank upon 120 days of written notice by the terminating party to the other party for such termination in which event the Bank shall be paid its compensation for services performed to termination date, including services reasonably related to termination. In the event that the Bank abandons this Agreement or causes it to be terminated, Bank shall indemnify the City against loss pertaining to this termination. Default by Bank: In addition to all other remedies available to the City, this Agreement shall be subject to cancellation by the City should the Bank 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 Bank of written notice of such neglect or failure. ARTICLE 12 - 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. ARTICLE 13 - NONDISCLOSURE OF PROPRIETARY INFORMATION Subject to Florida Statutes, Bank shall consider all information provided by City and all reports, studies, calculations, and other documentation resulting from the Bank's performance of the Services to be proprietary unless such information is available from public sources. Bank shall not publish or disclose proprietary information for any purpose other than the performance of the Services without the prior written authorization of City or in response to legal process. ARTICLE 14 - UNCONTROLLABLE FORCES Neither the City nor Bank 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 nonperforming 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 non -performing 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 non-performance is due to forces which are preventable, removable, or remediable and which the non -performing party could have, with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The non -performing 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. ARTICLE 15 - GOVERNING LAW AND 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. 4 ARTICLE 20 - OWNERSHIP OF DOCUMENTS Bank shall be required to work in harmony with other Banks relative to providing information requested in a timely manner and in the specified form. Any and all documents, records, disks, original drawings, or other information shall become the property of the City upon completion for its use and distribution as may be deemed appropriate by the City. ARTICLE 21 - 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, sent by registered United States mail, with return receipt requested, addressed to the party for whom it is intended at the following addresses. CITY City Manager City of Tamarac 7525 N.W. 88th Avenue Tamarac, FL 33321 With a copy to City Attorney at the same address. BANK Paul F. Vincent, Vice President First Union National Bank 1950 W. Hillsboro Boulevard, 2"d Floor Deerfield Beach, FL 33442 ARTICLE 22 - SIGNATORY AUTHORITY The Bank shall provide the City with copies of requisite documentation evidencing that the signatory for Bank has the authority to enter into this Agreement. ARTICLE 23 - MERGER; AMENDMENT This Agreement constitutes the entire Agreement between the Bank 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 Bank and the City. CORPORATE ACKNOWLEDGEMENT STATE OFFLORIDA COUNTY OF BROWARD The foregoing instrument was acknowledged before me this Pf day of September, 2001 by Paul F. Vincent, Vice of First Union National Bank, a Florida corporation, on behalf of the corporation. OFFICIAL- NOTARY SEAL ,JUNE A WHITE NOTARY PUBLIC STATE OF FL.ORII)A COMMISSION NO. CC775720 MY COMMISSION EXP. SEPT 15,2002 Sign =e-&Notiaary Public -- State of Florida E k - W4 LTie- Printed, typed/stamped name of Notary Public Exactly as commissioned ❑ Personally known by me, or 9-Produced identification: Lo,2 c /�A L✓�T� t Gr c�Us�� (Type of identification produced) Fv�id take an oath, or ❑ Did not take an oath E:3 To the extent required by applicable law, all Securities in the possession of the Bank shall be segregated from other securities in its possession and shall be identified as subject to this Agreement. Segregation may be accomplished by appropriate identi 1 cation on the books and records of the holder, including a financial intermediary or a clearing corporation. Title to all Securities shall pass to the Company, provided the Company may not engage in repurchase transactions with the Securities or otherwise pledge or hypothecate the Securities. 4. Intent (a) The parties recognize that each Transaction is a "repurchase agreement" as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Securities subject to such Transaction or the term of such Transaction would render such definition inapplicable), and a "securities contract" as that term is defined in Section 741 of Title I I of the United States Code, as amended. (b) It is understood that the Company's right to liquidate Securities delivered to it in connection with Transactions hereunder or to exercise any other remedies with respect to this Agreement, is a contractual right to liquidate such Securities as described in Sections 555 and 559 of Title 11 of the United States Code, as amended. 5. Disclosure Relatinp, to the Bank The Company acknowledges that is has been advised that funds held by the Bank pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation. l' By: _ c� iyrr,a.{cc� By: First Union National Bank (the " ContpanV (The "Bank" ( t tori_-edsi nature) (authorizer)st tnti tu-e) Title: V 1(.t,.1. t' ✓ Title: L ' �5e'GrE Date: ; ( If C' Date: IN ADDITION TO ABOVE, CUSTOMER MUST COMPLETE TAXPAYER CERTIFICATION BELO`V. SUBSTITUTE FORM w-9 - Taxpayer Identification Number and Certification. Under Penalties of Perjurv, I Certify That: I ) The number shown on this form is my correct Taxpayer Identification Number (or that I am waiting for a number to be issued to me); and (2) 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that 1 am subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified me that 1 am no longer subject to backup withholding. Certification instruction - You must cross out item (2) above if you have been notified by IRS that you are currently subject to backup withholding because of under reporting interest or dividends on your tax return - Primary Applicant Social Security or Tax I.D.#: - O.3" C1 o900- SqQ-- Exempt Recipients Check Here: P e 4 - *- lsq- 103R155,. The Internal Revenue Service d es n require your consent to any provision of this document other than the certifications required to avoid backup withholding. Primary Applicant Sibnatur Date: % �d Revision 08/30/00 C.A Ofi Times. ,Au payment orders must be received b,, is before the cut-off time for funds transfers on a business day established by us from time e. Any payment orders or related requests received after such deadlines, or on weekends, i._,jays for us or the bank or institution to receive the transfer, or the funds transfer system to be used, will be treated as received on our next funds transfer business day. We will make efforts to execute all payment orders received prior to the deadline. Advice of Funds Transfers. After executing each payment order, we will use our best efforts to mail to you a confirmation of such payment order at your address indicated on our records. You agree to examine the confirmation promptly upon receipt and to notify us immediately of any discrepancies between the confirmation and your records. We shall not be liable for interest compensation, unless we are notified of the discrepancy within thirty days after the date of your receipt of the confirmation or your bank statement indicating the debit for the payment order in question, whichever is earlier. You agree that your right to assert a claim against us with respect to any transaction reasonably identified on a statement shall expire within one year of your receipt of that statement, and that if you have elected not to receive a statement, such right shall expire within one year of receipt of the transaction advice which reasonably identified the transaction. Limitation of Liability and Indemnification. You expressly agree that we shall be liable to you only for our negligent performance or non-performance of the service provided pursuant to the Agreement, and that our responsibility shall be limited to the exercise of reasonable and ordinary care. We shall not be liable for any errors or delay on the part of any third party, including without limitation, third parties used by us in executing a payment order or performing a related act du,! to any cause other than our own failure to exercise reasonable and ordinary care, and no such third party shall be deemed to be our agent. We shall not be liable for our refusal to honor any request if we in good faith are unable to satisfy ourselves that such request is valid, based upon our adherence to the Security Procedures. IN NO EVENT SHALL WE BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EXCEPT AS MAY BE OTHERWISE PROVIDED BY LAW EVEN IF WE SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. Except as may be limited by applicable law, you agree to indemnify us and hold us harmless (including the payment of reasonable attorneys' fees) against all liability to third parties arising out of or in connection with the terms and conditions of this Agreement of the services provided hereunder or otherwise pursuant to your instructions. Use of Identifying Numbers. When a payment or payment order identifies a beneficiary, beneficiary's bank or intermediary bank inconsistently by name and an identifying number such as an account number, SW LF,T. address or universal identification number, payment may be made by the intermediary or beneficiary bank on the basis of the identifying number, even if the identifying number identifies a person or entity different from the named person or entity in your payment order and that your obligation to pay the payment order shall not be excused by your error. We will rely on the identifying number as proper identification of a beneficiary. Interest Compensation. In the event that we shall be liable to you for interest compensation under this Agreement or by applicable law, interest shall be calculated on the basis of the average Federal Funds rate for the period involved. You agree that we may. at our sole option, pay interest compensation as follows: (1) by lump sum payment of cash, or (2) by providing a credit to your account with us. International Payments. Orders for the transfer of U.S. Dollars shall be paid in U.S. dollars if transferred to a beneficiary located in the United States. If transferred to a beneficiary located in a foreign country, the beneficiary's bank may elect to pay the beneficiary in foreign currency at the bank's buying rate of exchange for wire transfers. It is your responsibility to advise the beneficiary of this possibility. We may send any message relative to this order in explicit language, code or cipher, Foreign currency transfer orders are final when made to us. However, pursuant to the request of the originator, and, if possible. we may cancel or amend any order before the transfer is made. We shall incur no liability if we are unable. for any reason, to cancel or amend an order. Refunds of U.S. Dollar orders shall be in the U.S. Dollar amount. Refunds of foreign currency orders shall be in the amount of U.S. Dollars that can be bought for the foreign currency amount at our then current rate of exchange. The originator bears all risk of loss due to fluctuation in the rate of exchange. No transfer fee shall be refunded. ACH TERMS AND CONDITIONS If you wish to use our ACH service, the following terms and conditions shall govern all transactions arising out of this service. Services. The ACH services to be performed by us and in accordance with the rules of the National Automated Clearing House Association ("NACHA") (hereinafter the "Rules") as such Rules are amended from time to time include the transmission of electronic credit and/or debit entries (hereinafter "Entries") initiated by you and processed through us from your demand depository accounts with us (the "Accounts") to accounts maintained with us and at other banks and financial institutions by means of NACHA in Conjunction with the Federal Reserve Bank (the "Services"), and we will act as an Originating Depository Financial Institution as defined in the Rules with respect to such Entries. Capitalized terms in this Service Description, unless otherwise defined, will have the meaning given in the adoption of Article 4A of the Uniform Commercial Code in the state in which your account or relationship is maintained. except South Carolina accounts will apply North Carolina Article 4A definitions and governing law. Services Performed. You will give us Instructions detailing the services to be performed with regard to the initiation, acceptance, rejection and transmission of Entries. transfer of funds, accounts to be utilized as Authorized Accounts, and the disposition of information regarding the Services performed. When accepted by us, your Instructions are hereby incorporated by reference as though fully set forth herein. Such Instructions may be changed from time to time by you upon notice to and acceptance by us without disturbing the validity of these Terms and Conditions. Rules and Verification r` Entries. You agree we will transmit Entries by means of the Fede Reserve Bank in actor, with the Rules. You agree that we are not required to verify En information but instead m.y rely that the information furnished by you is authentic, accurate a conforms to the Rules Office of foreign Assets Control (OFAC). The ACH system may not be used to proce transactions in violation of OFAC sanctions. At a minimum, illicit transactions will be blocked rejected and originators could face penalties. Prenotification. If required by the Rules, you agree to provide us with NACHA prescrib. prenotification information for all Entries that Company intends to initiate, within the time lim prescribed in the Rules Cancellation, Amendment and Rejection of Entries. 1. Cancellation and Amendment, You will have no right to the amendment, cancellation stop payment of an Entry after its receipt by us. However, we will use reasonable efforts act on such a request by you prior to transmittal to the ACH to the extent provided in Artic Seven of the Rules, or, in the case of an Entry for transmittal to an account maintained vvi us ("On -Us Entry"), prior to crediting or debiting the On -Us account, but we will have r liability if such amendments, cancellations or stop payments are not affecte( notwithstanding, timely receipt of the amendment, cancellation or stop payment request. 2. Rejection By Bank. We will have the right to reject any Entry and may at our optic reject an Entry which is in excess of the collected balance in the Account(s). We will noti you by telephone or electronic transmission of such rejection no later than the business da such Entry would otherwise have been transmitted by us to the ACH. We will have n liability to you by reason of the rejection of any Entry or the fact that such notice is not give at an earlier time than that provided for herein. 3. Rejection by ACH. We reserve the right to place a limit on aggregate transfers of fund out of any account which might result in a negative Collected balance in the account or a overdraft occurring in the account. In the event any Entry is rejected by the ACH for an reason whatsoever. it will be your responsibility to remake such Entry, provided, however that we can remake any Entry where the rejection by the ACH was due to a discrepancy i the Entry by us and sufficient data is available to us to permit a remake of such Entry. 4. Unauthorized ACH Transactions. If you receive an unauthorized transaction posted t, your account, you have until 2 o'clock PM of the banking day after the item was posted tr notify us to return the item as unauthorized. We will not be able to return the item after tha time without the cooperation and agreement of the onginating bank and the originating company. Any other action must be conducted between you and the originator of thr transaction. Retention of Information and Authorizations. You will retain and provide us. upon request, a information necessary to remake any Entry for three (3) days after midnight of the Effective Dat, of an Entry. For the purposes of these Terms and Conditions, the "Effective Date" is the day thI offsetting Entry is to post to the Accounts, as stated in your Instructions. You will retain a; original or copy of each authorization for six (6) years after the date of termination or revocatioi of such authorization. Inconsistency of Name and Account Number. You acknowledge and agree that if an Entr describes the Beneficiary'Receiver of the Entry inconsistently by name and account number payment of the Entry transmitted by us may be made on the basis of the account number even i the identifying number identifies a person or entity different from the named BeneficiarylReceive and that your obligation to us for the amount of the Entry is not excused in such circumstance b your error. Security Procedures. 1. Agreement to Security Procedures. You and we acknowledge that as part of you Instructions for the Services. we have each agreed to security procedures. hereinafte "Security Procedures". which we will each use to verity that Entries are correct and valid o are those of Company. You agree that such Security Procedures are Commerciall Reasonable in light of your circumstances and the type, value and frequency of the Entrie you will initiate. 2. Security Procedures. For Electronic Data Transmission of ACH Entry file(s) to us by yo and for Electronic Data Transmission of ACH files to us from you where we are retrieving th, file(s), you agree to utilize security procedures provided by us and you further agree that th, security provided is Commercially Reasonable data security. If our transmission softwan accepts the file(s) or it successfully retrieves the file(s) based on this security and the files are in ACH system readable format, you agree that acceptance shall occur and we ma process the file(s). If you opt for tape delivery of ACH file(s), you must complete Attachmer A - Security Procedures Tape Delivery which is incorporated in these Terms and Condition by reference. 3. Confidentiality of Security Procedures. You agree to keep the Security Procedure confidential and not to disclose the Security Procedures to anyone except Authorize Representatives. If ,you or any of your Authorized Representatives have reason to believ+ that the Security Procedures may have been learned or are known by an unauthonze person, you agree to notify our Cash Management Technical Services area immediately. 4. Modification of Security Procedures. All modifications and additions to the Securit- Procedures or list of Authorized Representatives must be in writing, except if you request u by oral instructions to delete a name of an Authorized Representative, in which event, yo. agree to send Bank immediate written confirmation of such deletion. EXTRACT FROM THE BY-LAWS OF FIRSTUNION NATIONAL BANK Section 8.2 Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, notices, applications, schedules, accounts, affidavits, bonds, undertakings, proxies, and other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted in behalf of the Association by the Chairman of the Board, the Vice Chairman of the Board, any Chairman or Vice Chairman, the President, any Vice President or Assistant Vice President, the Secretary or any Assistant Secretary, the Cashier or Treasurer or any Assistant Cashier or Assistant Treasurer, or any officer holding similar or equivalent titles to the above in any regions, divisions or functional units of the Association, or, if in connection with the exercise of fiduciary powers of the Association, by any of said officers or by any Trust Officer or Assistant Trust Officer (or equivalent titles); provided, however, that where required, any such instrument shall be attested b}, one of said officers other than the officer executing such instrument. Any such instruments may also be executed, acknowledged, verified, delivered or accepted in behalf of the Association in such other manner and by such other officers as the Board of Directors may from time to time direct. The provisions of this Section 8.2 are supplementary to any other provision of these By-laws. I HEREBY CERTIFY THAT the foregoing is a true and complete extract from the By - Laws of First Union National Bank, a national banking association, now in full force and effect; and that the following person has been duly appointed and now holds the office designated; and that the signature set opposite their name is their genuine signature: Paul P. Vincent. Vice President IN N` ITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of said Association on May 10, 2001. Assistant Secrctary FULNC:3702;-I shall have no liability to you if we refuse to process the bag. D. You may deliver the bag into our night depositor ty at any hour of the day or night, whether or not we are open for business. You gave received and acknowledged receipt of a key which opens such night depository facility, which key belongs to us and shall be returned to us upon termination of your right to use the night depository facility or upon our demand. You may not permit any other person or entity to use any key entrusted to you or allow any other person or entity to make use of our night depository facility with any such key. We shall remove bags from the night depository facilities at least once a day on each day we are open for business. The Bank employee removing the bag or other Bank employee shall open the bag and process the contents in accordance with paragraph E. We may withdraw any night depository facility from use at any time without notice. E. You hereby direct us to open the bag and deposit the contents to your designated account with us. We shall process the contents of the bag in accordance with our normal processing procedures. We will notify you upon discovery of any discrepancy or missing documentation. Our count of the coins and currency contents of the bag shall be conclusive as to the amount it contains. We will conditionally credit all checks and other items contained in the bag as shown on the deposit ticket subject to later verification and final settlement. Notwithstanding the foregoing, we shall not be liable for opening or not opening the bag. F. You agree that nothing will be placed in the bags except money, checks and other like negotiable items ("Property") and no Property will be placed in the chute to the night depository facility unless enclosed in a properly sealed or locked bag. The use of the night depository facility shall be at your sole risk. You agree that neither we nor any of our agents shall be responsible for any loss or damage sustained by you in the use of the night depository facility which results from a mechanical defect of the facility. from an act of God, from the inability of the user to properly operate the facility. or from acts of vandafism or malicious mischief unless loss or damage is caused by our gross negligence or intentional misconduct. G. Prior to the receipt and acceptance of the contents of the bag by us as a deposit, the relationship between you and us as to all Property placed in the night depository facility shall be that of bailor and bailee of such Property, and we shall be liable to you, not as an insurer of said Property. but only for that degree of care required of gratuitous bailee having the custody of the Property of others. No debtor/creditor relationship shall exist between us with respect to any cash. Check or other items contained in the bag until we shall have received and accepted the contents of the bag as a deposit. credited the amount of your account. and. in the case of non -cash items, when we have finally collected the check or item. We shall not be liable to you except for our own lack of good faith or failure to exercise ordinary care with regard to any matters covered by Article 4 of the Uniform Commercial Code, and for our gross negligence and wilful misconduct with regard to any other matters We shall not be liable for any act performed by us. nor any claims, expenses. damages or losses arising therefrom, if such act is performed by us pursuant to instructions. written or oral. which we reasonably and in good faith believe to be yours. In no event shall we be liable for indirect, consequential or exemplary damages, even it we have been advised of such possibility H, The right to use the bag may be terminated by us on seventyhvc (721 hours notice given orally to you or your agents, or by written notice mailed to your last address shown on our books. We reserve the right to assess a fee for the use of Bank's Night Depository Services. Such fee will be in keeping with Bank policy and disclosed on the Commercial Accounts Schedule of Fees available at any branch office. 22. COURIER BAG RETRIEVAL AND DELIVERY, If you elect to have any Bag retrieved and delivered by a third party whom you have authorized to do so under the terms of th,s Agreement, but is acting as your third party agent. Bank shall not be authority of the personis) or entity purporting to be your agent. You agree that notwithstanding anything to the contrary contained in this Agreement or elsewhere. you shall indemnify, defend. and hold harmless Bank and each of its affiliates. directors. officers, employees, attorneys, and agents (to the fullest extent permitted by law) from and against any and all claims, demands, lawsuits. costs. expenses, fees. fines, obligations, liabilities, losses, damages, recoveries, and deficienues. including interest, penalties and reasonable attorneys' fees and costs, whether direct, indirect, consequential, incidental or at any time asserted that Bank may incur or suffer or that may arise out of, result from or relate to your third party agent or any person or entity purponing to be your third party agent retrieving, delivering and/or taking custody of any Bag. 23, CASH MANAGEMENT. If you wish to use our Cash Management Services. your selection and use of our provisions of these Services are subject to the following terms and conditions, The Services are more fully described in the Automated Clearing House Terms and Conditions and separate Service Description(s) provided by us, both initially and at any time hereafter, You agree that if any terms and conditions of the Service Description(s) conflict with the terms of this Agreement, the terms and conditions of the Service Description(s) shall govern. We may change our operational procedures without amending this Agreement, upon notice to you. Documentation. We, in our sole discretion, will determine the adequacy of the documents and instruments and may delay the implementation of the Services prior to the receipt of adequate documents and instruments. You will promptly notify our Cash Management Department in writing of any actual changes underlying or represented in the documentation, and will promptly execute and deliver new documentation as may be required by us. We Shall not be liable for any actions taken by us in reliance upon such new documentation until actual notice is received by us in sufficient time for us to act thereon. We reserve the right periodically to request, and you agree to provide upon our request. financial statements and other information we may feel are appropriate in consideration of various Cash Management or other depository services you ask us to provide or continue providing to you. Subsidiaries. If you are executing this agreement on behalf of separate corporate entities subsidiaries as well your own behalf, you hereby represent and warrant to us that y have received prof., ruthorization or powers of attorney from each of such separ: corporate entities or subsidiaries and that you have full power and authority to bind su entities to the terms of this Agreement. Termination. Either party may terminate the services by giving the other party at least thi. (30) days prior written notice. However, we may terminate all services immediately and > shall be entitled to any remedy available to us at law or equity if (1) you fail to make ai payment to us when due, or (2) you should seek protection under any law for the protectir of those unable to pay their debts or should any action in bankruptcy be filed by or again you or (3) any failure or default you have under obligation. In the event of termination f, whatever reason, all sums and fees owed by you to us shall be immediately due ar payable. Indemnification; Limitation of Liability. You agree to indemnify and hold us harmless, of officers, employees and agents from any and all losses or claims of any kind arising connection with the Services provided under this Agreement, except losses or claims arisin out of negligence or wilful misconduct of the Bank or its employees. You further agree t indemnify and hold us harmless, our officers, employees and agents from any and all losse or claims of any kind arising out of actions taken or omitted in goad faith by us in reliant upon instructions from you. We shall not be responsible for any other entity's (not under ou direct control) acts or omissions, including, without limitation, any Federal Reserve Bank o transmission or communication facility, Even if liability is established for actual damages, it no event shall we or you be liable, to one another, for special, consequential or punitive damages arising out of or in connection with the furnishing, performance or use of the Services provided for under this Agreement. even if we or you have been advised of the possibility of such damages. The limitations and exclusions in this paragraph shall apply tc all claims of every kind. nature and description whether arising from breach of contract. breach of warranty. negligence or other tort, and shall survive the termination of thiE Agreement. Disbursement Fraud Detection Services. You acknowledge that we have developed anc made available to you several Services designed to reduce the likelihood that a fraudulent. unauthorized or altered check or other item will be paid. You also acknowledge that failure to utilize those Services could substantially increase the likelihood that a fraudulent. unauthorized or altered check or other item will ultimately be paid out of your account. 24. TIME DEPOSITS. Time deposits may be issued either in the form of a Certificate of Deposit, passbook, or a time deposit for which no certificate is issued. On the initial or any subsequent maturity date. you may present your properly endorsed Ce-,ficate (for accounts where Certificates were issued), your passbook, or sign a receipt form (for accounts with no certificate issued) at any branch office and you will be paid the amount due. Redemption. We may redeem the Time Deposit on the initial or any subsequent maturity date, and may accelerate maturity if you default in the payment of money owed to us. applying the redemption proceeds against such obligations. Interest Calculation. We use the daily balance method to calculate interest on your account. This method applies a daily periodic rate to the ledger balance in your account each day and to any interest you've earned that has not been credited to your account. The daily rate interest is compounded at the frequency indicated on the Rate Disclosure provided from the opening date. Interest is paid from the date of deposit through the day prior to the maturity date. and begins to accrue on the business day you deposit non -cash items. The APY assumes that interest will remain on deposit for the term of the account A withdrawal of interest will reduce earnings. The daily rate is 1l365 (or 1,366 in a leap year) of the interest rate. Interest Rates. The interest rate for your deposit is established based upon the amount of deposit and the term you select. and is fixed for the term of the account. Receiving Interest. You may choose to have interest automatically reinvested, paid to a First Union checking, savings. or money market account or paid to you by check, Interest payments can be made monthly. quarterly, semi-annually, or annually depending on the term of the time deposit. For terms from three months to one year, we also offer the option of having interest paid at maturity. Interest payments can be made only at maturity for time deposits with terms shorter than three months. If you elect to have your interest reinvested. your interest is credited to your account monthly. Automatically Renewable Time Deposits. If "Automatically Renewable" is indicated on your account opening documents, the following terms apply: Grace Period. For accounts with a maturity of 7 through 31 days, you have one calendar day after the maturity date to withdraw funds without penalty. For all other accounts, you have 7 days after the maturity date to withdraw funds without penalty, This time period is known as a grace period Automatic Renewal. Unless your account is closed on the initial or any subsequent maturity date or within the grace period, this time deposit account will automatically be extended for a time period equal to the initial term beginning at the initial maturity date or at each subsequent maturity date. The interest rate for each renewal term will be the currently offered rate in effect on the maturity date for the terrn just ended. Withdrawal of Principal. If any principal is withdrawn within the grace period and it is reinvested in any Firs: Union account. interest will be paid through the grace period on the amount withdrawn at the interest rate in effect for the term just ended. However, interest will not be paid for the days in the grace period if any of the principal is withdrawn and not reinvested at First Union.