HomeMy WebLinkAboutBank of America Merrill Lynch NA -Government Banking ServicesAGREEMENT
CITY OF FRESNO, CALIFORNIA
)VERNMENT BANKING SERVICES
THIS AGREEMENT for Government Banking Services (the'Agreemem") is made
and entered into effective the 15th day of March 2010, ('Effective Date") by and between
the CITY OF FRESNO, a municipal corporation (hereinafter referred to as 'CITY" or
'CLIENT"), and Bank of America Merrill Lynch NA, a national banking association,
(hereinafter referred to as'BANK").
RECITALS
WHEREAS, BANK has provided banking services to CITY pursuant to an
agreement, dated February 1, 2004, as amended from time -to -time, wherein such
agreement will expire March 31, 2010 (the'Contrdct"); and
WHEREAS, CITY desires to obtain professional banking services for CITY, after
March 31, 2010; and
WHEREAS, CITY issued a Request for Proposal for professional banking services,
dated August 14, 2009, with addendum and attachment dated September 14, 2009,
(collectively'the RFP'); and
WHEREAS, BANK responded to RFP, submitting a Proposal In a 3 -ring binder,
dated October 8, 2009, containing information about and an offer to provide CITY with
CITY'S current banking services (the 'Initial Services'), a pricing structure for Initial
services reflecting a reduction from prices currently paid by CITY ("Proposed Pricing'),
information about various additional services that BANK pri ("Other Services"),
relevant information about BANK ('Other Information'), an additional pricing schedule for
Initial Services not included in the RFP (Attachment "A-1;' Additional Pricing Schedule), a
Financial Benefits Statement (Attachment 'A -2,m Financial Benefits Statement), CITY'S
Conflict of Interest Disclosure Form (Attachment -A-3; Conflict of Interest Disclosure),
documentation of demonstration of BANK'S Initial and Other Services (Attachment'A-4,'
Banking Services Presentation October 2$ 2009), electronic mail from Susan Slefkas to
Greg Wiles dated October 24, 2009. (Attachment -A-5; email on Bank security), sample
FDIC Assessment Calculation (AttachmenI FDIC Calculation);
Banking Services Agreement
Between city of Fresno and Bank of America
March 15, 2010
TABLE 1
Attachment 'A"
INITIAL SERVICES
3RING BINDER TAB
NAME
Tab IV
Deposit Processing
Tab V
FDIC Charges and Float
Tab VI
Acmunt Reconcilement
Tab VII
Electronic Money Transfers
Tab VIII
Subvention Payments LAW
Tab IX
ChangelCummcy Service
Tab X
Balance Reporting
Tab XI
Direct Deposit
Tab XII
Payroll Tax Processing
Tab XIII
Credit Card Processing
Tab XV
Earnings Allowance
Tab XVI
Overdraft Protection
Tab XVII
Positive Pay
Tab XVIII
Courler Service
Tab XXIV
Employee Benefits
PROPOSED PRICING
Tab XIX
Pricing Terns and Cond0ions
Tab XX
Pricing Schedule
OTHER SERVICES
Tab XIV
Ovemight Sweep Account
Tab Mill
Service Enhancements
Tab XXV
Remoe Deposit
Tab XXVII
Electronic Check Conversion
Tab XXX
Controlled Disbursement
Tab F
Merchant Service Agreement
OTHER INFORMATION
Tab I
Table of Contends
Tab II
Transmittal Letter
Tab III
Bank and Staff Profile
Tab Ml
Conversion Plan
Tab XXII
Merchant Services
Tab XXVI
Lockbox
Tab XXVIII
Economic Development
Tab XXIX
Cade of Ethics
Banking Services Agreement
Between City of Fresno and Bank of America
March 15, 2010
Tab )=I
Business Continuation Plan
Tab XXXII
Red Flag Requirements
Tab A
BANK Contract Samples
Tab 8
Annual Report and Ratings
Tab C
Account Analysis
Tab D
Disclosures
Tab E
Standard Pdcing Schedule
Attachments A-1 throuah A-6
PRICING
ATTACHMENT
NAME
"A-1"
Additional Pricing Schedule
"A3"
Financial Benefits Statement
CITY FORMS
'A-3'
Financial Benefits Statement
"A4"
Bank Presentation Oct. 22
"A-5"
Electronic Mail on Security
"A-8"
FDIC Assessment
and
WHEREAS, BANK is engaged in the business of furnishing technical and expert
services as bankers and hereby represents that it is professionally capable of performing
the services called for by this Agreement; and
WHEREAS, BANK acknowledges that this Agreement is subject to me
requirements of Fresno Municipal Code Section 4107 and Administrative Order No. 6-19;
and
WHEREAS, BANK and CITY wish to enter Into this Agreement for the purpose of
specifying the terms and conditions negotiated between the parties during the RFP
process and the constituent documents of the Agreement between CITY and BANK
regarding the professional banking services to be provided by Bank after expiration of the
Contract on March 31, 2010; and
WHEREAS, this Agreement will be administered for CITY by Its City Controllenex-
oficlo TreasurerfFinance Department Director (hereinafter referretl to as "Administrator)
or his/her designee.
Banking Services Agreement
Between City of Fresno and Bank of America
March 15, 2010
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing
and
of the covenants,
Conditions, and promises hereinafter contained, to
be kept
and
performed by the
respective parties, it is mutually agreed as follows:
1. Integrated Agreement and Precedence of Documents.
(a) For purposes of this Agreement, the Proposal binder, Including all
tabbed portions as set forth in Table 1, Initial Services, proposed Pricing, Other Services,
and Other Information, with the exception of two certain documents in Tab A of the
Proposal binder, as set forth herein, and the inclusion of four certain documents in Tab A.
one accepted in its entirety, and three as modified herein, are incorporated by reference as
Attachment "A" herein and made a part of this Agreement.
(b) For purposes of this Agreement, the following two documents are
hereby excluded tram this Agreement: in Tab A, BANK'S redline version of CITY'S Sample
Agreement, and also in Tab A, copy of BANK'S ePayables Authorization Form as
executed by CITY.
(c) For purposes of this Agreement, the following document is accepted
and included in its entirety, as executed by CITY and BANK: in Attachment "A;' Tab A.
BANK'S "Contract For Depostt of Moneys'
(d) For purposes of this Agreement, the portion of the Proposal that is
attached hereto as Attachment "A," Tab A and Incorporated herein by reference is BANK'S
"Deposit Account Documentation Signature Card," effective September 1, 2006, as
expressly modified in this Subsection 1(d) as follows:
(1) The word "AGREEMENT' In the title of the section of this form
entitled 'AGREEMENT, TAX INFORMATION CERTIFICATION and
AUTHORIZATION" is hereby deleted. The word! "Agreement" at Me end of the first
sentence In the first paragraph in this section of Me form is hereby deleted and the
word 'Document" Is substituted. The remainder of this that paragraph is hereby
deleted.
(2) In the box hardenetl with a heavy line, wherein there are lines
and spaces for signature by Me "Authorized Signer," the first sentence Is modified to
read: 'By signing below, this organization hereby agrees to be hound to the above
Tax Imonnafion Certification and Authorization." This form shall be completed and
signed by CITY'S "Authorized Signer" subsequent to execution of Me Agreement.
Banking Services Agreement
Between City of Fresno and Book: Of America
March 15, 2010
(e) For purposes of this Agreement, the porton of the Proposal that Is
attached hereto as Attachment "A;' Tab A, and incorporated herein by reference is
BANK'S "Deposit Agreement and Disclosures, Facts about corporate deposit account
Programs- effective December 2006, (the "Disclosures'), submitted to CITY on November
17, 2009, as expressly modified In this Subsection 1(e) as follows:
(1) In the first paragraph under the section entitled 'Deposit
Agreement and Disclosures; 'Facts about corporate deposit account programs,' on
page 2, the second sentence When you open a corporate deposit account with us,
you agree to the terms and conditions discussed in this publication,' is hereby
deleted,
(2) The first sentence of the thtid bulleted paragraph of the
subsection entNed "General matters," in the section entitled "General provisions;
on page 6, is modified to mad as follows: 'We may deduct fees you owe us, after
we have notified you of them and you have agreed to them, and overdrafts, from
your account"
(3) The last sentence of the sixth bulleted paragraph in the
subsection entitled "General matters; on page 6, in the section entitled "General
previsions," is modified to read as follows; "in the event that we incur costs,
including attorney's fees, in the resolution of any such dispute or conflict among the
signers on the account, with mspect to matters such as the ownership of Ne
account or the authority to withdraw funds, we am entitled to charge your account
for costs we incur.'
(4) The subsection entitled "Changes to agreement; on page 7, in
Me section entitled 'General previsions; Is hereby deleted in as entirety.
(5) The first sentence of the subsection entitled "Charging an
account" on page 7, In the section shifted "General previsions," is hereby deleted
in its entirety.
(6) The first sentence In the subsection entitled "Closing an
account," on page 7, in the section entl6ed'General provisions," is hereby deleted
In its entlrey. The following sentences are substituted: "You may generally close
your checking, money market or savings account at any time without advance
notice. We may close any of your accounts at any Ume without advance notice,
when compelled to do so by Federal or State law, rule or regulation by an
authorized regulatory body including, but not limited to, the California State
Commissioner of Financial Institutions, the Office of the Comptroller of the
Currency, the United States Federal Reserve System or the Federal Deposit
Insurance Corporefion.'
(7) The first paragraph under the subsection entitled "Notices," on
page 9, in the section entitled "Genal provisions," Is modified to read as follows:
We inform you of any proposed changes to this Agreement affecting your rights
5
Banking Services Agreement
Between City of Fresno and Bank of America
March 15. 2010
and obligations by mailing a notice to you at the address we currently show for your
statement. We may include a notice with or on your statement. We generally mail
or deliver the notice before the effective date of the change. If you do not object to
the proposed change and do pot contact us within thirty (30) days of receipt of
notice to tender your objection, you will be deemed to have accepted such change,
and this Agreement shall be Considered modified acwrdingly.'
(8) The subsection beginning on page 11 and ending on page 12,
entitled "Resolving disputes or controversies," in the section entitled 'General
provisions; is hereby deleted In its entirely.
(9) The subsection on page 13, entitled "Acwunt conversions," in
the section entified "Checking, money market and savings accounts," Is hereby
deleted In Its entirely.
(10) The subsection on page 14, entitletl "Interest on your funds," in
the section emitted 'Checking, money market and savings accounts," is hereby
deleted in its entirely.
(11) The section 'Time deposit account - All states except
Califomla; beginning on page 16 and ending on page 18, Is hereby deleted in as
entirely.
(12) The third sentence In the second paragraph on page 20, of the
subsection "Interest on your funds," In the section entdled'Time deposit account -
California only," is hereby deleted in its entirely.
(13) The second sentence of the paragraph entitled "Check
coshing:' on page 23, In the section settled 'Additional provisions and related
sendwd" is modified to mad as follows: "If the payee does not have a deposit
relationship with us, we may alw require a fingerprint: before we cash the check."
(14) The clause "the breakdown or failure of our equipment," on
page 26, in the second paragraph of the subsection "Circumstances Beyond our
coni In the section entitled 'Additional previsions and related serviced" is
hereby deleted In its entirely.
(15) The third paragraph under Me subsection on page 26, enfitied
-Client-encoded deposits, under Me section 'Additional provisions and related
services," is modified to read as follows 'if our equipment is unable to mad fifty (50)
of your encoded items, we may Impose additional charges, as described in the list
of charges we give you."
(16) The following sentences are added at the antl of the fourth
paragraph under the subsection on page 26, entitled -Client-ended deposits,'
under the section entitled "Additional provisions and related services." We agree to
notify you as soon as possible, by the most expeditious means possible, upon the
Banking Services Agreement
Between city of Fresno and Bank of America
March 15, 2010
occurrence of such encoding mistake and to cease operations until the rause of the
mistake can be identified and comected. You and we agree that you are liable for
only the costs of the initial mistake attributable to your negligence. If we fail to hall
operations or otherwise take action to limit the amount of damages or losses we
incur, you will not be liable for such additional damages or losses."
(17) The first sentence in the third paragraph on page 29, in the sub
section entitled 'Examining statements and reporting problems," in the section
entitled 'Additional provisions and related services," is modified to read as follows:
"In addition, if you fall to report an unauthorized transaction on your account within
60 days following the closing date of the statement containing information about the
first unauthorized transactions, we are not liable to you for subsequent unauthorized
transactions on your account by the same person."
(18) The last paragraph on page 30, in the subsection entitled
"Examining statements and reporting problems," in the section entitled "Adddional
previsions and related services; is hereby deleted in its entirely.
(19) The fourth paragraph on page 38 In the subsection entitled
'Legal process' in the section entitled 'Additional provisions and related services," is
hereby modified to read as follows: We will notify you as soon as possible, by the
most expeditious means possible, as soon as we are aware that any of your
accounts may be the subject of legal process. We may charge your account a
reasonable process fee for each order. You agree to pay our reasonable fees and
expenses for the research and copying of documents and all other reasonable
expenses, including reasonable administrative expenses, we incur in responding to
any legal process related to any of your accounts. These may include reasonable
womeys' fees. We will notify you that we intend to deduct these fees and
expenses from any of your accounts. Any garnishment, attachment or other levy
against your account is subject to our right of setoff and any security interest we
have in the account."
(20) The subsection on page " emitted "Right of setoff," in the
section entitled 'Additional provisions and related services," is hereby deleted in its
entirety.
M For purposes of this Agreement, the portion of the Proposal that is
attached hereto as Attachment "A.' Tab A, and Incorporatetl herein by reference is
BANK'S'Reasury Services Terms and Conditions Booklet' (me "Booklet"), dated 20042,
as expressly modified in this Subsection 1(f) as follows:
(1) The form entitled "AUTHORIZATION AND AGREEMENT FOR
TREASURY SERVICES," on page 1 of the Booklet, the form entitled
"AUTHORIZATION AND AGREEMENT CERTIFICATION" on page 2 of the Booklet,
and the form entitled "TREASURY SERVICES DELEGATION OF AUTHORITY
FORM." on page 3 of the Booklet, are all hereby deleted in their entirety.
Backing Services Agreement
Between City of Preano and Bank of America
March 15, 2010
(2) The last sentence in paragraph 2, on page 6, in the
'INTRODUCTION" section Is modified to mad as follows: "The terms "you" and
.your refer to Me City of Fresno ("CITY')'.
(3) The second sentence of the third paragraph in the
"INTRODUCTION" section on page 6 is modified to reatl as follows: "It is used in
conjunction with the Disclosures, as modified by this Agreement, which covers
account terms and conditions."
(4) Paragraph 4 in the "INTRODUCTION" section on page 6 Is
hereby deleted, with the exception of the last sentence of the paragraph. Paragraph
5 is modified to read as follows:' Whenever you use any of the Semcos covered by
this Booklet, you agree to be bound by the terms and conditions of the Booklet, that
remain unmodified by Section 1(f) of that certain Agreement for Government
Banking Services effective as of January 4, 2010 between you and us (Me
'Agreement'), as amended and agreed to by you from time to time and to follow the
procedures in the applicable Materials.'
(5) The first sentence of the second Paragraph in the "Account
Reconcilement" subsection, in Me "Treasury Services" section, is modified to read
as follows: Wour use of an Account Reconcilement Senate does not affect any of
your obligations, which are described in the applicable "Disclosures, as modfied by
this Agreement" to discover and report with respect to your accounts (including joint
accounts where permitted): (i) unauthorized signatures, alterations or endorsements
on checks and (ii) unauthorized Requests and other discrepancies.'
(6) The last sentence of the paragraph entitled "Stop Payment
Requests," on page 13, under the subsection "Check Issuance," of the section
entitled "Treasury Semoss," Is modified to mad as follows: "If you wish to stop
payment on a check drawn on an account you maintain with us, you must make
your request as provided in Me applicable Potion of Me Disclosures, as modMed by
this Agreement."
(7) The last sentence of the paragraph entitled "Your
Responsibilities," on page 13, under the subsection "Check Issuance," under the
section Treasury Services," is modified to read as follows: 'In Me case of checks
drawn on accounts designated and owned by you, you will be governed by the
applicable portion of Me Disclosures, as modrtied by this Agreement"
(8) The last sentence of the paragraph entitled 'Stop Payment
Requests." on Page 14, under the subsection 'Client Printed Drafts;' under the
section entltled Treasury Services,' is modified to read as follows: "If you wish to
slop payment on a draft drawn on an account you maintain with us, you must make
your request as provided in the applicable portion of the Disclosures, as modified by
this Agreement."
Banking services Agreement
Between City of Fresno and Bank of America
March 15, 2010
(9) The last sentence of the paragraph entitled "License M Use
Your Marks," on page 19, under the subsection entitled! 'Commercial and Corporate
Card; under the section nodded 'Treasury Services," Is hereby deleted In Its
entirety.
(10) The second sentence of the paragraph entities 'Supplemental
Governing Law and Resolution of Disputes Previsions; on page 20, under the
subsection entitled "Commercial and Corporate Card," under the section emitted
'Treasury Services," is hereby deleted in its entirety.
(11) The last sentence of the paragraph immediately following the
title of the subsection enttlled'Commercial Deposits," on page 21, under the section
entitled "Treasury Services; Is modified to read as follows 'Banking center deposits
that are immediately veered are covered under the Disclosures, as modified by this
Agreement"
(12) The last sentence of the paragraph emitted "Stop Payments,"
on page 25, in the subsection entRled'Cormolled Disbursement; under the section
entitled "Treasury Services,' is motlifietl to read as follows: 'If you use telephone,
mall or facsimile transmission to request a Mop payment, you agree that your stop
payment request is subject to the temps described in the Disclosures, as modified
by this Agreement"
(13) The first paragraph under the sub subsection entitled
"Processing," In the subsection entitled 'Lockbox," under the Menton emitted
"Treasury Services," is modKed to read as follows: 'We will handle checks received
at the Lockbox Address according to the applicable portion of the Disclosures, as
modified by this Agreement, applicable User Documentation and our availability
schedule, as If the checks were delivered by you to us for deposit to your
designated account, except as modified by this Booklet."
(14) The last sentence in the that paragraph immediately following
the tMe of the subsection entitled 'Online Sop Payment," under the section entitled
'Treasury Services; is modifed to read as follows: This is in addition to your ability
to make stop payment requests in person, by telephone or in writing as described in
the Disclosures, as modified by this Agreement."
(15) The last sentence of paragraph 4 on page 40 of the subsection
entitled 'Multibank 'of the 'Wire Transfer and International Electronic Funds
Transfers" section of 'Treasury Services" is modified to read as allows: 'You agree
that your indemnity of us applies o any claims by another bank based on our
sending a Multibank request Containing any error, omission, defect or lack of
clamy."
(16) The subsection entitled "Agreement" page 56 of me 'General
Matters" subsection of the "General Provisions' section is deleted in its entirely.
Banking Services agreement
Between City of Fresno and Sank of America
March 15, 2010
it 7) Paragraph 1 of the subsection entitled 0AIl Services,' on page
58 of the "Lim tabon of Liabilities" subsection In the "General Provisions" Is modified
Is read as follows: 'Except for any loss, liability, damage, mat or expense arising
from a claim that your use of the Software and/or Materials provided by us to you
Infringes any copyright, paten, trade secret, trademark or pmpdetary rights of any
third party; in no event will we be liable for any indirect, consequential or punitive
loss, damage, cost or expense of any nature (even If advised of the possibility of
such loss, damage, cost or expense) including, without limitation, any economic
loss or damage, expense and lass of business, profits or revenue, goodwill and
anticipated savings, loss of or mruption to your data, loss of operation time or loss
of contracts, unless any of the aforementioned injuries occurs as the direct result of
our intentional misconduct in providing a Service."
(18) The last sentence of the subsection entitled 'Overdrafts;' on
page 59 of the 'General Provisions is hereby modified to reatl as follows:
'Additional terms and conditions Contained in the Disclosures may apply."
(19) The last sentence of the first paragraph in the subsection
entitled "Service Charges," on page 59, of the "Payment for Services" subsection, in
the "General Provisions" is hereby deleted In Its entirety.
(20) The "Protection from Third Parties" subsection on page 60 of
the 'General Provisions" section is hereby deleted In its entirety.
(21) The first bullet of the "Representations and Warranties"
subsection on page 60 of the "General Provisions' section is modified to reatl as
follows: "Your agreement to each provision contained In this Booklet is a duly
authorized, legal, valid, binding and enforceable obligation to the extent such
proAsion(s) have not been modified or superseded in writing by you and us."
(22) The third bullet of the "Representations and Warranties'
subsection on page 60 of the "General Provisions" section Is hereby deleted In its
entirety. The following sentence Is hereby substituted: "You shall complete any set-
up fors, modified as necessary in accordance with this Agreement, required by us
to authorize your use of any Other Services. Your completion and tender of such
set-up for, modified as necessary, shall constitute authorization for the
commencement of the Other Service(s).'
(23) The subsection entitled "Resolution of Disputes' beginning on
page 60 and ending on page 61, In the 'General Provisions' section, is hereby
deleted in its entirety.
(24) The first sentence of the subsection emitted! 'Software License,'
on page 61, In the "General Provisions" section, is modified to reatl as follows:'This
section applies to all Software we provide to you unless we provide you a separate
license agreement for specific Software (including a "click -wrap" Software license
you may obtain from us by downloading mon our websfte and including, in the new
10
Ba ing Services Agreement
Between City of Fresno and Bards of America
Rlarch 15, 2010
of the Commercial and Corporate Card Services, the licenses for Visa InfoSpan,
MasterCard, SmartData and any other third party software we provide you in
connection with such Services).'
(25) Paragraph 8, an page 63 of the subsection entitled `Limited
Waranty/Disclalmer4' of the 'Software License' section of the 'General Provisions"
is modfied m read as follows: 'To the extent permitted by applicable law. and
except as otherwise provided in any infringement indemnity provided by us to you,
we will not be liable for damages of any kind arising out of the use of, or inabilRy to
use, the Software or accompanying documentation"
(26) Paragraph 1 on page 64 of the subsection entitled
"Infringement Indemnity" of the 'Software License" subsection of the 'General
Provisions' section is hereby deleted in its entirety.
(27) Paragraph 1 (through the first 7 bullets) of the 'Ternination'
section page 65 of the "General Provisions' Is deleted in its entirety.
(28) The first sentence of the second paragraph on page 66, under
the subsection entitled `Terninatlon," under the 'General Previsions' section, is
madified to mad as follows: 'Termination of a Service you use does not affect your
payment obligations for services we provide to you before the Service is terminated,
and any such termination Is In addition to our other rights under applicable law and
under the terns of this Booklet, as modified by the Agreement.-
(g) This Agreement with Attachments 'A,' with documents included,
excluded, and modified herein, and 'A-1' through 'A-6; represents the entire and
Integrated agreement between CITY and BANK with respect to the subject matter hereof
and supersedes all prior negotiations, representations, statements and agreements,
whether written or Orel. Notwithstanding the preceding sentence and in addition to the
"Conversion Activi les' described in Section 2 of this Agreement, BANK shall continue to
render the services currently provked pursuant to the Contract until the Conversion Date
of this Agreement. The parties agree that the Contrast shall expire March 31, 2010, and
by operation will be superseded In Its entirety by this Agreement. Each party
acknowledges that they have mad and fully understand! the contents of this Agreement.
This Agnnemem may be modified only by written instrument duly authorized and executed
by both CITY and BANK.
(h) In the event of any conflict between the body of this Agreement and
any Attachment herein, the terms and conditions of the body of this Agreement shall
control and take precedence over the terms and conditions expressed within the
Attachment. Furthermore, any temrs or conditions contained within any Attachment hereto
which purport to modify the allocation of risk between the partles. provided for within the
hotly of this Agreement, shall be null and void. In the event of any conflict between any
Attachments hereto, the terms and conditions of the Attachment higher in precedence shall
contrcl and fake precedence over the teams and conditions of the Attachment lower in
precedence in accordance with the following Using arangetl from the highest to the lowest
11
Banking Services Agre meat
Between City of Fresno and Sank of America
March la, 2010
In precedence:
(1) Attachment "A-2" Financial Benefits Statement
(2) Attachment "A" Proposal binder, as modified herein
(3) Attachment"A-1"Additional Pricing Schedule
(4) Attachment 'A-3' Conflict of Interest Disclosure
(5) Attachment 'A4" Banking Services Presentation October 22
(S) Attachmant'A-5' Electronic Mail From Susan Siefkas October 24
(7) Attachment 'A-8" Sample FDIC Assessment Calculation
The terms and Conditions of the body of this integrated Agreement will take precedence
over any terms or conditions contained in any subsequent account agreements (including
BANK'S set-up forms, user documentation and other documents required by BANK
pursuant to this Agreement) which purport to modify the allocation of risk between the
parties.
No CITY official by its signature on any BANK set-up farm, service agreement, signature
card, identifcatlon form, call-back loan wire authorization, ACH Form, or any other
standard form, shall have the authority to cause any provision therein to supersede the
terms and conditions of this Agreement. Any such reference on such forms purporting to
co so is null and void, The terms and conditions of this Agreement shall take precedence
over any such standard form of the BANK.
2. Scope of Services BANK shall Perform to the satisfaction of CITY and in the
manner as described In Attachment "A" all of the Initial Services listed in Table 1, and, in
particular, the implementation and training services described in Attachment 'A',' Tab XXI
as "Conversion Plan.' This Agreement shall not apply to those services shown in Table 1
as Other Services, until further performance Is auBtodzed by CITY pursuant to Subsection
5(c). It shall, however, remain BANK'S offer to Perform all Other Services as approved
and authorized by the Administrator. In the event BANK performs any Other Services
without CITY'S prior written authorization, BANK shall rat be entitled to compensation for
such services. In addition. the following terms and conditions are applicable:
(a) CITY shall have the right to have payment of Its interest on any CO or
time deposit credited to whatever account CITY may select.
(b) BANK may not convert CITY's account to another type of account
without prior written notice by BANK and agreement of CITY. Should BANK fall to notify
CITY of any change bank might make regarding any service used by CIN, continued
usage by CITY shall not constitute an agreement to the change.
(c) CITY may close an account at any time. Unless required by
applicable law, rote and/or regulation BANK may not close CITY'S account without
agreement of CITY.
12
Banking Services Agreement
Between City of Fresno and Bank of America
March 15, 2010
(d) BANK shall honor a CITY check presented for payment over the
counter at BANK by a person who does not have an account with BANK without charging
the person a fee.
(e) Prior to instituting any change to Its collections schedule or funds
availability policy, BANK shall nobly CITY In wrifirg.
(f) Prior to taking any action in regards to CITY accounts, Bank shall
notify City Controller and City Attorney of any legal process BANK believes to be valid.
3. Commencement of Performance. Except as otherwise agreed by the parties
herein, commencement of performance of any Initial Service hereunder shall be preceded
by the Effective Date and delivery to BANK of a fully executed Agreement by the duly
authorized representatives of the parties (BANK having signed prior to CITY), the pertinent
service -level agreement and the related set-up fortes. BANK shall continue to perform
such Initial Service(s) during the tens of this Agreement and any extension unless such
Service(s) Islam) terminated or modified by CITY in writing in accordance with Subsection
5(c).
4. Effective Date Time of Performance and Tenn of Agreement It is the intent
of the parties that this Agreement be effective upon the Effective Date set loan above. All
implementation and training services described In Attachment A, Tab XXI, "Conversion
Plan," shall begin no later than the Effective Date and be completed prior to April 1, 2010
("Conversion Date'). The Inmal Services are to commence on the Conversion Date and
continue until expiration or termination of this Agreement. The initial term of this
Agreement will be for 5 years beginning on the Conversion Date and ending March 31,
2015, unless terminated or extended as provided In this Agreement. CITY shall have the
option to. extend this Agreement on the same terms and conditions for two consecutive 1 -
year terms or one consecutive 2 -year term by providing 60 days notice to BANK prior to
the end of the respective initial term or term of extension.
5. Compensation
(a) The rates used to calculate the fees and charges to be paid by CITY
for satisfactory performance of Initial SeMces enumerated in Attachment "A," Tab XX and
Attachment "A-1" and 'A-2" shall not exceed the 'Ung" (Prices) set forth such in
Attachment "A; Tab XX, and Attachment -A-1; and Attachment "A-2:' All "Ung" (Prices)
and rates shall remain fixed until March 31, 2017. Such 'Unit" (Prices) and rales include
any and all expenses incurred by BANK in performance of the services.
(b) Detailed Account Analysis Statements. in the form exhibited In Tab C.
"Account Analysis," of Attachment "A; shall be mMemd monthly. with payment due
quarterly, for services performed In the preceding quarter, and will be due and payable
within the first fifteen (15) days of the first month following the end of the quarter. It is
expected that any disputed items with respect M the first two months of the quarter shall
be resolved prior to payment. If there are any disputed items with respect fo the third
month of the quarter, these shall be resolved to CITY'S satisfaction either prior to or after
13
Banking Services Agreement
Between City of Fresno and Bank of America
March 15, 2010
payment of BANK'S fees, but not later than the end of the month following the end of the
quarter, else CITY may withhold payment for a succeeding quarter. The Account Analysis
Statement shall be submitted within the first twenty (20) business days of the month
following the period covered by such Statement. For purposes of this subsection, the first
monthly period of this Agreement shall begin April 1, 2010 and end April 30, 2010. Account
Analyses shall be submitted to:
ATTENTION: Greg Wiles
City of Fresno
Finance Department
2600 Fresm Street, Room 2156
Fresno, CA 93721
(c) BANK may not add or delete an Initial Service, unless it obtains a prior
written amendment to this Agreement by CITY. BANK shall not be emitted to any
additional compensation If work Is performed prior to a signed written amendment.
Provided an appropriation has been made for any increase in fees or charges resulting
from adding Other Service(s) (including Other Services) not Included within the Other
Services shown in Table 1), to, or substituting Other Servica(s) for, Ini ial Services, the
Administrator may, in writing, (i) authorize BANK to perform any Other Service, and fit
modify or terminate an Initial Service, if substituting an alternative Other Service. The rates
and terms of Compensation shall be negotiated at the time Other Servioe(s) shall
commence.
(d) CITY may compensate BANK for services provided, either (1) by
Issuing a check in payment of amounts due for the preceding quarterly period (the 'Direct
Fees Method'), (II) by debit to CITY'S Demand Deposit Account, (iii) through Compensating
balances, ('rv) through zere percent time depos0s, or (v) by some combination thereof.
CITY shall notify BANK on or before the Conversion Date of the method of compensation
selected by CITY from the preceding.
(e) In accordance with Attachment "A-2,' Financial Benefits Statement,
BANK shall reduce amounts owed by CITY for services rendered by BANK during the
previous quarter, in the amount of a maximum of $10,000 per month, for the first three
months of each of the first Nm contract years, beginning on May 1, 2010, for a total
reduction of $30;000 per year.
6. Termination of Agreement
(a) CITY may temlinate this Agreement without rouse or for any reason
(Including, without limitation, if CITY determines there Is insufficient funding available for
the services), and without any liability whatsoever of CITY to BANK for breach of contact,
default, detrimental reliance or any other basis in law or equity; upon seven (7) calendar
days poor written notice of termination to BANK in the manner provided herein.
14
Backing Services Agreement
Between City of Fresno and Bank of America
March is, 2010
(b) In addition to CITYS right of termination pursuant to Subsection 6(a),
this Agreement may be terminated immediately by CITY upon seven (7) calendar rate
prior written notice should BANK fall substantially to observe, fulfill or perform any
obligation, covenant, term or condition in accordance with this Agreement. BANK will
have failed substantially to observe, fulfill or perform any obligation, covenant, term or
condition of this Agreement, ff such failure is not cured within such seven (7) calendar
days prior written notice and this shall constitute a material default and breach of this
Agreement.
(c) In the event of termination pursuant to Section 6(a) or not due to the
material default of BANK, BANK shall be paid compensation far services satisfactorily
performed prior to the effective date of the notice of termination. In the event of termination
due to the material default of BANK. CITY may withhold an amount that would otherwise
be payable as an offset to, but not in excess of, CITY'S damages caused by such failure.
(d) Upon the breach of this Agreement by BANK, CITY may exercise any
right, remedy (in law or equity), or privilege which may be available to it under applicable
laws of the State of California or any other applicable law, or proceed by appropriate court
action to enforce the terms of the Agreement, or to recover direct damages for the breach
of this Agreement. If it is determined that CITY improperly terminated this Agreement for
default, such termination shall be deemed a termination for convenience. Notvnthstanding
the foregoing, in an event will BANK be liable for any indirect, special, wnsequential or
punitive damages far the breach of this Agreement.
(a) No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible. be cumulative with all other remedies at law or In equity.
(f) BANK may terminate this agreement for any reason, and without any
liability whatsoever of BANK to CITY for breach of contract, default, detrimental reliance or
any other basis In law or equity, upon one -hundred eighty (180) calendar days prior written
notice of termination to CITY in the manner provided herein.
(g) BANK may terminate this Agreement effective immediately, 'd any of
the following occurs:
(i) CITY breaches any of the terms or conditions of the
Agreement;
(il) CITY terminates, liquidates, or dissolves its business or
disposes of a substantial portion of its assets;
(iii) CITY fails generally to pay its debts as they became tlue;
IN) CITY, voluntarily or Involuntarily, becomes the subject of any
bankruptcy, insolvency, reoganization or other similar
proceeding;
is
Backing services Agreement
Between City of Fresno and BarJc of America
March 15, 2010
(v) CITY Initiates any tomos ion with its creditors; or
(vi) Any guaranty of CITY'S obligations to BANK terminates, is
revoked or its validity Is Consisted by the guarantor, or any of
the events set forth In the above five Hems attributable to CITY
occur to the guarantor.
If any of the foregoing events shall occur, BANK may exemise the
right to setoff, that is, the right to use funds in CITY'S account to pay any debts CITY owes
BANK, either before or after any default. BANK may recover funds CITY owes BANK from
any of CITy'S accounts with BANK or BANK'S (i) parent corporation, (it) wholly or minority
owned subsidiaries of BANK's parent corporation or wholly owned or minority owned
subsidiaries of BANK (collectively, 'affiliates'). If BANK uses funds from a time deposit
account, the funds withdrawn are subject to the early withdrawal penalty. After BANK
exercises this right, BANK shall mall a nodose to CITY at the address CITY gave BANK for
CITY'S account.
(h) In the event of termination by either party, BANK shall process all
CITY checks that have been issued by CITY prior to the effective date of termination. In
this instance, CITY shall ensure there is on deposit with BANK an amount of funds
sufficient to pay outstanding checks issued by CITY prior to termination of this Agreement.
7. Confidential Information. To the extent pennifted by applicable law, rule
and/or regulation, any reports. information, or other data prepared or assembled by BANK
pursuant W this Agreement shall not be made available to any individual or organization by
BANK without the prior written approval of the Administrator, except in accordance with the
'Confidentiality' section (pages 52-54) of the 'General Provisions" in the Booklet,
Attachment "A." Tab 'A.' The term "Confidential Information," for the purposes of this
Agreement, shall include all proprietary and confidential Information of CITY, including but
not limited to business plans, marketing plans, financial information, compilations,
documents, instruments, models, source or object codes and other information disclosed
or submitted, orally, in writing, or by any other medium or media. All Confidential
I nfornation shall be and remain confidential and proprietary in CITY.
To the extent permitted by applicable law, rule and/or regulation, BANK shall notify CITY In
advance of Its intention W disclose informatlon concerning CITY'S account and the
reason(s), in the event that BANK concludes that such disclosure Is necessary to protect
CITY. CITY'S account, or the Interests of the BANK.
This section shall survive expiration or termini of this Agreement.
8. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto Mat Inasmuch as BANK represents W CITY that BANK is
skilled in Me profession of banking and shall perform in accordance with the standards of
said pretension necessary W perform the services agreed to be done by it under this
Agreement, CITY relies upon the skill of BANK to do and perform its work in a skillful
manner, in good faith and with reasonable care, and BANK agrees to thus perform Its
16
Banking Servicea Agreement
Between City of Fresno and Bri of America
March 15, 2010
services. Acceptance of Its services by CITY shall not operate as a release of BANK from
said standard of care and performance.
9. Indemnification. BANK shall Indemnify, hold harmless and defend CITY and
each of its officers, officials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether In moment, tort or sold
liability, including but act limited to personal injury, death at any time and properly
damage), and from any and alt claims, demands and scheme in law or equity (including
reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to
the negligence, recklessness or willful misconduct of BANK, its principals, officers,
employees, agents, subcontractors or volunteers in the performance of this Agreement. In
no event will BANK be liable for any special, Indirect, consequential or punitive damages,
costs, losses, fines, penalties, forfeitures or liabilities under this Section 9.
If BANK should subcontract all or any portion of the ser ices to be performed under this
Agreement, BANK shall indemnify, hold harmless and defend CITY and each of Its
officers, officials, employees, agents and volunteers in accordance with the terms of the
preceding paragraph.
This section shall survive lamination or expiration of this Agreement.
10. Insumnce. Throughout the fife of this Agreement, BANK shall pay for and
maintain In full force and effect all policies of Insurance required hereunder with an
insurance company(ies) either (i) admitted by Me California Insurance Commissioner to do
business In the State of California and rated not less than 'A- VII' in Best's Insurance
Rating Guide, or (ii) authorized by CITY§ Risk Manager or his/her designee at any time
and in hisrher seta dwretion. The following policies of insurance are required:
(1) COMMERCIAL GENERAL LIABILITY Insurance which shall be
at least as broad as the most current version of Insurance Services Office
(ISO) Commercial General Liability Coverage Form CG 00 01 and include
Insurance for "bodily injury;-pmperty damage" and "personal and
adwrlising injury" with coverage for premises and operations, products and
completed operations, and contractual liability with limits of liability of not less
Man the following:
$1,000,000 per occurrence for bodily Injury and property damage
$1,000,000 per occurrence for personal and advertising injury
$2,000,000 aggregate for product; and completed operations
$2,000,000 general aggregate applying separately ro Me services
performed underthe Agreement
(li) WORKERS' COMPENSATION Insurance as required under the
California Labor Code.
(iii) EMPLOYERS' LIABILITY insurance with limits of liability of not
less than $1,000,000 each accident, $1,000,000 disease policy limit and
17
Baracing services Agreement
Between City of Fresno and Bardc of America
March 15, 2010
$1,000,000 disease each employee.
IN) PROFESSIONAL LIABILITY (Emirs and Omissions) Insurance
appropriate to banking Industry with limits of liability of not less than
$1,000,000 per claim and $2,000.000 policy aggregate.
(a) In the event BANK purchases an Umbrella or Excess Insurance
pollcyies) to meet the minimum limits of Insurance set forth above, this insurance
policy(les) shall 'follow form" and afford no less Coverage than the primary insurance
policy(les).
(b) BANK shall be responsible for payment of any deductibles contained
In any Insurance policies required hereunder and BANK shall also be responsible for
payment of any seg -Insured retentions. Any sett -insured retentions must be declared to,
and approved by, the CITY's Risk Manager or his/her designee. BANK shall provide a
financial guarantee, satisfactory to CITY's Risk Manager or his/her designee, guaranteeing
payment of losses and related Investigations, claim administration and defense expenses.
At no time shall CITY be responsible for the payment of any deductibles or sett -Insured
retentions.
(c) All policies of insurance required hereunder shall be endorsed and the
bank shall endeavor to provide that the coverage shall not be cancelled, reduced In
coverage or In limits except after 30 calendar day written notice hasbeen given to CITY.
Upon issuance by to insurer, broker, or agent of a notice of cancellation, non -renewal, or
reduction in coverage or In limits, BANK shall furnish CITY with a new certificate and
applicable endorsements for soar policy(les). In the event any policy Is due to expire
during the services to be performed for CITY, BANK shall endeavor to provide a new
certificate, and applicable endorsements, evidencing renewal of such policy not less than
15 calendar days pdorto the expiration date of the expiring policy.
(d) The General Liability insurance policy(ies) shall be written on an
occurrence farm and shall name CITY, its officers, officials, agents, employees and
volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so
BANK's insurance shall I e primary and no contribution shall be required of CITY. The
coverage shall contain no special limitations on the scope of protection afforded to CITY,
Its officers, officials, employees, agents and volunteers.
(e) If the Professional Liability (Errors and Omissions) Insurance policy Is
written on a claims -made is"
(i) The 'Retro Date' must be shown, and must be before the
effective date of the Agreement or the commencement of work
by BANK.
(it) Insurance must be maintained and evidence of insurance must
be provided for at least five (5) years after any expiration or
termination of the Agreement. This requirement shall survive
expiration or termination of the Agreement.
is
Seeking Services Agreement
Between City of Fresno and Bank of America
March 15, 2010
(iii) If coverage is canceled or non -renewed, and not replaced with
another claims -made policy form with a'Reho Date" prior to the
effective date of the Agreement, BANK must purchase
'extended reportingcoverage for a minimum of 5 years
following the expiration or termination of the Agreement.
(iv) A copy of the claims reporting requirements must be submitted
to CITY for review.
(v) These requirements shall survive expiration or termination of
the Agreement.
(f) BANK shall furnish CITY with all certificate(s) and applicable
endorsements effecting coverage required hereunder. All certificates and applicable
endorsements are to be received and approved by the CITYs Risk Manager or
his/her designee prior to ClWs execution of the Agreement and before work
commences.
(g) If at any time during the Ilfe of the Agreement or any extension, BANK
or any of its subcontractors fail to maintain any required insurance in full force and effect,
all services under this Agreement shall be discontinued immediately, and all payments due
or that become due to BANK shall be whhhed until notice Is recelved by CITY that Me
required Insurance has been restored to full force and offset and that the premiums
therefore have been paid for a period satisfactory to CITY. Any failure to maintain the
required insurance shall be sufficient cause for CITY to terminate this Agreement. No
action taken by CITY hereunder shall in any way relieve BANK of its responsibilities under
this Agreement. The phrese "fail to maintain any required insurance" shall include, without
limitation, ratification received by CITY that an insurer has commenced proceedings, or
has had proceedings commenced against It, Indicating that the insurer is insolvent.
(h) The fact that insurance is obtained by BANK shall not be deemed to
release or diminish the liability of BANK, including, without limitation, liability under the
Indemnity previsions of this Agreement. The duty to indemnify CITY shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon Me amount of indemnification to be provided by
BANK. Approval or purchase of any Insurance contracts or policies shall In no way relieve
from liability nor limit the liability of BANK, its principals, officers, agents, employees,
persons under the supervision of BANK, vendors, suppliers, invitees, consultants, suG
consultants, subcontractors, or anyone employed directly or Indirectly by any of them.
(1) If BANK should subcontract all or any portion of the services to be
performed under this Agreement BANK shall require each subcontractor to provide
insurance protection in favor of CITY, its officars, officials, employees, agents and
volunteers In accordance with the terms of each of the preceding paragraphs, except that
the subcontractors' cartificates and endorsements shall be on fila with BANK and CITY
prior to the commencement of any %xi by the subcontractor.
B) All Coverages — BANK reserves the right to obtain all insurance
required in this Agreement through a program of self insurance.
19
Banking Services Agreement
Between City of Fresno earl aeons of America
March 15, 2010
11. Limitation of Liability. In no event will CITY be liable for any Indirect,
consequential or punitive loss, damage, cost or expense of any nature (even If advised of
the possibility of such loss, damage, cost or expense) including, without limitation, any
economic loss or damage, expense and loss of business, profits or revenue, goodwill and
anticipated savings, loss of or corruption to BANK'S cats, loss of operation time or Mss of
contracts, unless any of the aforementioned injuries occurs as the direct result of CITY'S
Intentional misconduct in periorming Its obligations under this Agreement.
12. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of
CITY within the body of this Agreement, and not otherwise specifically provided for, shall
be effective only If signed by Administrator.
(b) Records of BANK'S expenses pertaining to the services performed
hereunder shall be kept on a generally recognized accounting basis and shall be available
to CITY or its authorized representatives upon request during regular business hours Mr a
period of seven (T) years after any such record has been made. In addhion, all books,
documents, papers, and records of BANK pertaining to this agreement and the services
performed hereunder shall be available for the purpose of mi audits, examinations,
excerpts, and transcriptions for the same period of time. This Section 12(b) shall survive
expiration or termination of this Agreement.
13. Recycling Program. In the event BANK maintains an office or operates a
facilfty(ies), or is required herein to maintain or operate same, within the Incorporated limits
of the CM of Fresno, BANK at its sole cast and expense shall:
(1) For each office or facility BANK directly controls immediately
establish and maintain a viable and ongoing recycling program,
approvetl by CITY'S Solid Waste Management Division, for each
office and facility. Literature describing CITY recycling programs is
available farm CIT^S Solid Waste Management Division and by
calling City of Fresno Recycling Hotline at (559) 621-1111.
(ii) For each office or facility BANK directly controls Immediately
contact CITY'S Solid Waste Management Division at
(559) 621-1952 and schadule a free waste audit, and cooperate with
such Division in their conduct of the audit for each office and facility.
(til) For each office or facility BANK directly controls cooperate with
and demonstrate to the satisfaction of CITY'S Solid Waste
Management Division the establishment of the recycling program in
paragraph (1) above and the ongoing maintenance thereof.
010
Bari Services Agreement
Between City of Fresno and Bank of America
March 15, 2010
14. Conflict of Interest and Nonsolicitation
(a) Prior to Cli execution of this Agreement, BANK shall complete a
City of Fresno conflict of interest disclosure statement In the form as set forth in
Attachment A-3. During the term of this Agreement, BANK shall have the obligation and
duty to Immediately notify CITY in writing of any change to the information provided by
BANK in such statement.
(b) BANK shall comply, and require Its subcontractors to comply, with all
applicable (I) professional canons and requirements goveming avoidance of impermissible
client conflicts; and (it) federal, state and local conflict of Interest laws and regulations
Including, without limitation, California Government Code Section 1000 at. seq., the
California Political Reform Act (California Government Code Section 87100 at. seq.) and
the regulations of the Fair Political Practices Commission concerning disclosure and
disqualification (2 California Code of Regulations Section 18700 et. seq.). BANK shall
take, and require its subcontractors to take, reasonable steps to avoid any appearance of
a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict
of Interest, BANK shall immediately notify CITY of these facts in writing.
(c) In performing thework or services to be provided hereunder, BANK
shall not knowingly employ or retain the services of any person while such person either is
employed by CITY or is a member of any CITY council, commission, board, committee, or
similar CITY body. This requirement may be waived in writing by the City Manager, A iw
actual or potential conflict is involved.
(d) BANK shall not knowingly employ an individual who, within twelve (12)
months immediately preceding such employment did, in the individual's capacity as a CITY
official, officer or employee, participate in, negotiate with or otherwise have an influence on
the recommendation made to the Administrator or City Council in connection with the
selection of, or award of this Agreement to, BANK.
(e) BANK represents and warrants Nat it has not paid or agreed to pay
any compensation, contingent or otherwise, direct or indirect, to solicit or procure this
Agreement or any righbslbeneflls hereunder.
(f) Neither BANK, nor any of BANK'S subcontractors performing any
services on this Project, shall bid for, assist anyone in the preparation of a bid for, or
pedorrn any services pursuant to, any other contract In connection with this Project unless
fully disclosed to and approved by the City Manager, in advance and in writing. BANK and
any of its subcontractors shall have no Interest, direct of Indirect, In any other contract with
a third party in connection with this Project unless such interest is in accordance with all
applicable law and fulty disclosed to and approved by the City Manager, in advance and in
writing. Notwithstanding any approval given by the City Manager under this provision,
BANK shall remain responsible for complying with Section 14(b), above.
(g) This Section 14 shall survive expiration or termination of this
Agreement.
21
Bam]cing services Agreement
Between City of Fresno and Bank of America
March 15, 2010
15. Nondiscrimination. BANK shall not employ discriminatory practices in the
provision of services, employment of personnel, or in any other respect on the basis of
race, religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, mental status, sax. age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era. During the performance of this Agreement,
BANK agrees as follows:
(a) BANK will comply with all laws and regulations, as applicable. No
person in the United States shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam ere be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or advity made possible by or resulting from this
Agreement.
(b) BANK will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, mental status, sex, age, sexual orientation,
ethnicity, status as a disabled veteran or veteran of the Vietnam era. BANK shall take
affirmative action to ensure that applicants are employed, and the employees am treaterl
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, mental status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam ere.
Such action shall Include, but not be limited to, the following; employment, upgrading,
demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of
pay or other fors of compensation; and selection for training, including apprenticeship.
BANK agrees to We in conspicuous places, available to employees and applicants for
employment. notices setting forth the provision of this nondiscrimination clause.
(c) BANK will, in all solicitations or advertisements for employees placed
by or on behaff of BANK, stale Nat all qualified applicants will receive consideration for
employment without regartl to race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, mental status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) BANK will send to each labor union or representative of workers with
which it has a collective bargaining agreement or other contract or understanding, a notice
advising such labor union or workers' representatives of BANK'S commitment under this
section and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
16. Independent Contractor.
(a) In the furnishing of the services provided for herein, BANK is acting
solely as an independent contractor. Neither BANK, nor any of its officers, agents or
employees shall be deemed an officer, agent, employee, joint venturer, partner or
22
Banking Services Agreement
Between City of Fresno and Book of America
March 15, 2010
associate of CITU for any purpose. CITY shall have no right to control or supervise or
direct the manner or method by which BANK shall perform its work and functions.
However, CITY shall retain the right to administer this Agreement so as to verify that BANK
is performing its obligations in accordance with the terns and con fitions thereof.
(b) This Agreement does not evidence a padnership or joint venture
between BANK and CITY. BANK shall have no authority to bind CITY absent CITYS
express written consent. Except to the extent otherwise provided in this Agreement. BANK
shall bear its own costs and expenses in pursuit thereof.
(c) Because of Its status as an independent contractor, BANK and its
offers, agents and employees shall have absolutely no right to employment rights and
benefits available to CITY employees. BANK shall be solely liable and responsible for all
payroll and tax withholding and for providing to, or on behalf of, its employees all employee
benefits including, without limitation, health, welfare and retirement benefits. In addition,
together with its other obligations underthls Agreement, BANK shall be solely responsible,
indemnify, defend and save CITY harmless from all matters relating to employment and
tax withholding for and payment of BANK'S employees, including, without limitation, (I)
compliance with Social Security and unemployment insurance withholding, payment of
workers compensation benefits, and all other laws and regulations governing matters of
employee withholding, taxes and payment and (ii) any claim of right or interest in CITY
employment benefits, entfements, programs anti funds offered employees of CITY
whether arising by reason of any common law, de facto, leased, or co�rnpioyee rights or
other theory. It is acknowledged that during Ne term of this Agreement, BANK may be
providing services to others unrelated to CITY or to this Agreement.
17. Notices. Any notice required or intended to be given to either parry under the
terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as the
parties may from time to time designate by written police. Notices served by United States
mail in the manner above described shall be deemetl sufficiently served or given at the
time of the mailing thereof.
18. Binding. Subject to Section 19, below, once this Agreement is signed by all
parties, it shall be billing upon, and shall Inure to Ne benefit of, all parties, and each
parties' respective heirs, successors, assigns, transferees, agents, servants, employees
and representatives.
23
Banking Services Agreement
Between city of Fresno and Bank of America
March 15, 2010
19. Assionment.
(a) This Agreement is personal to BANK and there shall be no
assignment by BANK of Its rights or obligations under this Agreement without the prior
written approval of the City Manager or his/her designee. Any attempted assignment by
BANK, its successors or assigns, shall be null and wid unless approved in writing by the
City Manager or his/her designee.
(b) BANK hereby agrees not to assign the payment of any monies due
BANK form CITY under the terms of this Agreement to any other individual(s),
corporation(s) or entity(les). CITY retains the right to pay any and all monies. due BANK
directly to BANK.
(c) Notwithstanding provisions (a) and (b) of this Section 19, BANK shall
be permitted to assign this Agreement, its rights and/or obligations under this Agreement
to an affiliate.
20. Compliance With Law. BANK shall post collateral in accordance with
Sections 53849 through 53880 of the California Government Code, and shall further
comply with all depository regulations and requirements as set form in Me City of Fresno
Charter and Municipal Code, California Government Code, and other applicable state and
federal laws. In providing the services required under this Agreement, BANK shall at all
times comply with all applicable laws of the United! States, the State of California and
CITY, and with all applicable regulations promulgated by federal, slate, regional, or local
administrative and regulatory agencies, now In force and as they may be enacted, issued,
or amended during the term of this Agreement.
21. Wa=ver. The waiver by either party of a breach by the other of any prevision
of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in wdting and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
prevision herein.
22.
Governing Law and Venue. This Agreement shall be govemed by, and
consonant antl enforcetl in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue
for purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno Counry, CalHomla.
23. Heading s. The section hews ings In this Agreement are for convenience and
reference only and shall not be construed or held in any way b explain, modify or add to
the interpretation or meaning of the provisions of this Agreement.
24. Severability. The provisions of this Agreement are severable. The Invalidity,
or unerorceability of any one provision in this Agreement shall not affect the other
provisions.
24
Banking services Agreement
Between City of Fresno and Bank of America
March 15, 2010
25. Interpretation. The parties acknowledge that this Agreement in its final form
is the result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by
construing this Agreement In favor of or against either party, but rather by construing the
terms in accordance with their generally accepted meaning.
26. Attorney's Fees. H either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing parry In such proceeding or action shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
27. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
reference. Incorporated into and made a part of this Agreement.
28. No Third Party Beneficiaries. The rights, interests, duties and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. It Is not intended that any rights or interests in this
Agreement benefit or flow to the interest of any third parties.
29. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
30. Dispute Resolution and Right to Setoff.
(a) The parties may agree in writing to mediation or arbitration (binding or
non-binding), In the event of a dispute between the parties related to this Agreement.
BANK acknowledges that CITY expressly does not agree to binding arbitration for the
resolution of disputes between the parties related to this Agreement and BANK shall not
require CITY's signature on BANK'S set-up forms, user documentation or other documents
required by BANK pursuant to this Agreement that may contain such a requirement.
BANK agrees that any such pmvision will he related by BANK tram such forms and
documents prior to presentation to CITY. CITY expressly reserves its right to a trial by jury
in any action or proceeding which may arise In connection with this Agreement.
(b) BANK shall have the right to a setoff If BANK incurs any costs of a
type referenced in paragraph 1.(e)(3) of this Agreement, R BANK must close any CITY
account in accordance with paragraph 1.(ej(6) of this Agreement, if BANK incurs any costs
as referenced in paragraphs 1.(e)(16), or 1.(e)(20) of this Agreement, or R BANK must
close any of CITY'S accounts in accordance with paragraph 6 of this Agreement, and CITY
does not otherwise reimburse BANK for its costs or approved fees.
25
Banking Services Agreement
Between City of Fresno and Bank of America
March 15, 2010
31. Extent of Agreement. Each parry acknowledges that they have mad and fully
understand the contents of this Agreement. This Agreement represents the entire and
integrated agreement between the parties with respect W the subject matter hereof and
supersedes all prior negotiations, representations or agreements, either written or oral.
This Agreement may be mcc ified only by written instrument duly authorized and executed
by both CITY and BANK.
I/
/it
/ F)
NI
Ill
Ill
/I
111
I/
Ill
/l
26
Banking Services Agreement
Between City of Fresno and Bank of America
March 15, 2010
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written,
CITY OF FRESNO,
Bank of America tylerrill Lynch
a California municipal corporation
N A., Be
king S44vices
q
1
By:By,
e y, Cantreller
«HE SE
NameLa
ATTEST:
P
REBECCA E. KLISCH
Title: SV
City Clerk
By:
Deputy
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By:
De Date
Addresses
CITY: BANK:
City of Fresno Bank of America
Attention: Greg Wiles, Treasury Officer Robert Lucchese
2600 Fresno Street, Room 2156 CA5-704-13-11
Fresno, CA 93721-3622 315 Montgomery St
Phone: (559) 621-7004 San Francisco, CA 94104
FAX: (559) 488463 Phone (415)913-2849
FAX(415)622-5032
robed.lucchese
@baml.com
Attachments:
(1) Attachment "A-2" Financial Benefits Statement
(2) Attachment "A" Proposal binder, as modified herein
(3) Attachment "A-1"Additional Pricing Schedule
(4) Attachment "A-3" Conflict of Interest Disclosure
(5) Attachment "A4" Banking Services Presentation October 22, 2009
(6) Attachment "A-5" Electronic Mail From Susan Siefkas October 24, 2009
(7) AHachment "A-6' Sample FDIC Assessment Calculation
27
Banking services Agreement
nassCity of Fresno and sent of I erica
, 2810
ATTACHMENT A3
DISCLOSURE OF CONFLICT OF INTEREST
Banking Semites
sacking services Agreement
Actress,
city of Fr o and Bank of America
March15, 2010
VES
NO
I
Are. year airentyJn IlSup fwn wAM1 the City of Front or any of Its
away
❑
2
Co you repnaenlany fioR organot or pres0n are ien
Ilugabon with tln City of carries? wbne_ilk._ rCinjr�j1lLl
gxggSdart furs iM1ai ,,IJ manumi a "tie_ twee w is,
❑
❑
obistran of letters nss Iryyyo od, o_whom it
on111
pmr tlp gPkin oaf wFum vhe xIT
he Cs of lresn Iherrhdr—thiy ..Iiy0_.ennot haen.wsired
di.
3
Do you wnenlly represent or perform work any tlknts who do
buai0ess with too City of Fresnel W li Iv J e r Iasi nal's
thatcold n endal5 I ' o Mis
,him tho ii 151o
g�i90 Bulk oftAm w l to towhom it
❑
❑
g.
Dodds bank'nyC� o'whom mnv Jobw en wiN M1e
mhis
C yof Sone' thert(oTo 4�inncan t en.we_M_
C�BP11i5:JY
4
Are yet or any of your princyisls, mmsgets or honest
or investors; In a buNness which Baas War er Wlh Na
City of Fresh, or In a business which be In IN udion WM NA Cihy of
From? NKc the anleri I, set aware of my fes M1u
❑
❑
menace ayes, arN n5��gisro Bmd of An
e lame and d'veri and bank td' Amerin 4PM.'imm
0 d 'ta subi E'or ,.whipii—inekudc rhe Bunk M1aJ pro
243W0 full Iln jlaI=m_mnntcsica n ofRaw
maneya5j , of Aeember 31 2009 and air 11 eo W
soon
Nom fm m amoral 1006 x1dN fiW
591O5��YG+fliAcdmJlm-03�il-is not br her«Ifie BIo
pett9.mi_.1ue_id, le le 'Il III df book-remeryl
tortiont, the [l,,W,.. ,Mi to lXis o iW
inaN[ing S,,,ices Agreement
a re
n city of Fe, asheaf6aN[ of America
Month 15, 2010
5
Art you o any of your Veterans, managers of prdMebnys.
Camara by alowd or marriage arty Cny of Fresno employee who
has any eigmribm role in me sngeo metra of me; real xmJa
E]
L.
me . dusfirred is ,f v f fp5tq �y w, ld ,menu
r ey nn ea Ia
^Yes , th, , e„k Art , Ife9o,,I
er. ria- t'ir'e Mm,w ¢f
aur t.111,1 n
341K)dJs Il a Fe lurk ad waf'W9,Ma
amx`000
of n sob
.Mbff iae
with a tea
o LV4p of Ne_rt_J I_Lyn<h
e%RJ
order an hernialmit
is my a fgol 1SLs
�pLflign
CR;yA
, 11
names The Nll�fgp oh' ,'Bank -rely N en!'ef
a names The h
ma miliernev
L_ k's oaM1lYou
B
Do you or any of yourewtmnlregare Cave or expect W Arve, any
name, affair or indlree, in any over mmred In ciamrhas wM
mis"firm while he ndersend'sCan eif fire f¢4 tFe
LI
11
oudmaMAm"Yg . _ _b_ dw n
nsvfBanY of Amer'fgts
wl
and We,imvov
Disk\r ericamf`,, 1,s
deep anemone, n wfinectiurn win • L t mh,,Wan me 'n 'el
¢ nvl 'crtx,gant)_> ss Fe o answer th9 S9
ate_
nmaamweraa any ,Catw reKeplree upleln in m pww.
Fxplanapon Hank,r Amemw .AA.Ladct dhfid amireanf,In ofdebrndvna In' In rmrW
II plwme man d_: ,Ary of
Euv n ny v, fof Appeal A. B'A r'f Amryca
Comas tem d'el hi hdlyl]'_QIfdn 1v`fy`-^III
SIBn—W
Rapid Licenses
tname)
R
(Compaq)
]ts Mon ovary Sil 13th Fm
(seeress)
AeeM,al pagene attxhed San Frans ern CA 941 M
6Hy same Can
30
t Attachment'A-2' Pages 1 through 3
Financial Benefits Statement
Financial Benefits Statement
In our response to your RFP Bid File N0. 9086, we have outlined the many bdefits to
maintaining your current relationship with Bank of America, and the financial highlights
amsummarizedbelow. Uponreview, we are confident you will End that our scattered
offers a compeliingjustificabon for wntinnng your pemembip with Ban: ofAme m.
➢ Cost reduction of approximately 24% firm current charges representing
approximately $33,000 per annum in savings
Construct commitment securing the proposed pricing for a perlad of 9 years
sr Loyalty Credit of up to $60.000 to offset my net warrant analysis charges over the
Most 3 months of Me contract in Year I and the first 3 months of Me contract in Year 2,
and help offset the cost of any new services we implement under the new contract
w Avoidance of time and effort required by your Treasury, Funded, and IT staffto a)
Implement and team Ne banking Mason, platforms, add sofierare of dither bank,
and 2) develop a working relationship with a new banking coverage team - this time
en be better focused on implementing new technologies that will make yam currant
mission critical operations mine efficient
➢ An enhanced ECR above. standard derail rates, or a rate pegged to a Treasury Bill
index. This bank-detemriaed ECR, subject to change, is currently on at 60 bps per
annum, and we are providing fill flexibility to shift back to an indexed rate such as Ne
91- Day Treasury bill rate as market conditions term to more historical pattens
Y Quarterly bating to continue to help smooth revenue and expense anomalies
Revenue generndng capability through the implemrnbitirn MBank of America
ePayables(fdlyouflumdin Section F). Based on the data p no provided, we project
that ynu can earn an annual cash rebate of $189,0110 tho ough the process of
soul cring year paper cheeks In electronic vendor payments. This essentinlly
means that your net banking charges will effectivey be eliminated. You will
actually recdve a net payment from Bank of America at the end of each year
The bible below highlights the approximate impact on yew annual NET BANKING
FEES by implementing a rayables, over the life of the contend;
varI Year Your Yev4 YearS
Pppmx. Bankltq Fas'
$lM.DM
5104.000
$1001500
$104,050
$lulma
tannery careen•
Wrote
$30,000
0
0
a
savories Rebate•
$93.Wo
$140,250
$181.000
$197.000
$181.000
Net Banking Cna s
$ell
nil
NI
nil
ell
record nor annatudeaddo coni ten peAn MMtP VTYn x4WlNBee Mll vary In atWalny) Loyany
code is the mapmum concerns paidular operations tenan bad an current volumes and pancreas
Inklmatbnptev lyprasenke:Internal swirea through chdie narrowed and Mal antra are eaaword
form lhaee calculations.
"the Isstimate of 'nil games doer not mor W ezy_dep court cranny amount d account ana"s
orange. mayor W us oveall not wish egeMlNla far bankkp fees by are Gry for rant woad year.
Greo Wiles
From:
Luccheee, Roben [mberl.lucclrese®bankmame m core]
Sar R:
Wednesday, November04,200910:40AM
To:
Greo Wiles
Subjaph
Re: Loyalty Credit
I'm OR with the information being made Public it required
Moen Lucchesi
Government Markets
(415)91321349
From: Grey Wiles <Greg.Wilg@ftesno,9w>
To: LUNtae, Rphet
Cc: Corona BarbadR <Cortlna.BarbaMed$fresno.9ov>
S M: Wed Nova M 10:35:33 2009
subject RE: loyalty Credit
Robert,
this information was marked proprietary. However, It directly impacts the decision making process, and the justification
for ultimate selected. If B of A were to be selected, we would want to (have lob White this information in our Report to
Council, for example. In that event, it would become public Information.
Also, to be proprietary, the Information would have to be a business or trade secret. BMerwise, as I understand it, it
Would be subject to the Public Records Act. I personally wouldn't interpret the bank's' Financial Benefits Statement' as
a business or trade secret, but I'm not an attorney and would therefore have to defer this to the City Attorney for an
Interpretation and ruling as to whether it Is. In fact, a business or trade secret.
So, with these fans in mind, do you think this document would x011 be proprletary, or do I have your Permission to
Include It as pan of the rest of the bank's proposal (which would be subjett to the Public Records Attl.
Thanks, Robert
Greg
FMm: Lucchese, Robert [mall W:mbert.lucMse�i[ bankofamerim.com]
sent: Weab day, Noemter 0q, 2009 9:5s PM
To: GRg WIkd
CX: Corona Borbadte
Subject Re: Loyalty Credit
The coach Is based on charges for services provided am me intention is that we would waive fees tot your don't Pay
anything) in the 1st 3 months of contact years t and 2. Based on me volumes am per Item antes it's about $t Ok per
month. If for some reazon you unexpectedly load up on seraces In those months, the cap comes inter play.
Fobmt Lucchese
Government Markets
(415)9132049
Grea Wiles
From:
Lucohess, Robert lrobed,lummese@bankofamerica.mm)
Sent:
Wednesday. November 09.20099:50 AM
To:
Greg Wiles
Cc:
Comes Barbande
Subject:
Ra: Loyalty Credit
The credit is based on charges for semvkms provided. am the intention is that we would valve has (so you cont pay
anything) In the tat 3 months M co coact years t and 2. Based on the volumes and per Item prices It's about $10k par
month, IF for some reason you unexpectedly load up on services in those months, the cap comes Into play.
Robed Luccbese
Goverment Markets
(015)813280.9
From: Greg Wiles <Gmeg.WllesQJkeao.gov>
TO: Lucchese, Robert
Cc: Coh mla sarberee <Cwdru.earbameWtresno.9ov.>
Sent Wed Nine 09 OB: 5 2120M
Subject: Loyalty Credit
Hi, Robert
Can you elaborate a bit on the "Loyalty aedb" of up to $3GI100In each of years 1 add 2 of the commct? The asterisk
says "based on annualized banking has per Attachment A Pricing Matrixt these will vary In actualhy)¢ayalty credit is the
maximum amount possible. "
It appears Nat this has nothingto do with ePayames, sat advice describe how this credit would be calculated?
Thanks much.
Greg
Attachment"A"
Proposal Binder
Page 1 of 1
Attachment "A" Proposal Binder available for reviewthe City Clerk's Off'
Attachment "A" consists of the Response to the City of Fresno Request for
Proposal for Banking Services— Bid File No. 9086.
Attachment -A-1- Pages 1 through 3
Additional Pacing Schedule
E%ISTINGARRITIONAL SOFA CRY OF FRESNO SE.RVICFS
WL ILnV 20091
1Nff McICE
EST, TOTAL
GENERAL ACCOUNT SERVICES
DebBs Posted - Other
181
002 $
3.82
Coati Posted -Othm
788
0,02 $
15.78
GICS - yamp Pal Fee Called Into Customer Sanal
5
100 $
5.00
DEFOSITORYSERVICES
C9m De a STD Ba vaun •
380
100 S
woo
Ocin De sit -NOM BMVai
10
335 $
33.50
Branch QBDIHI ht m M N st-vFMled Ii -CA
30
0.75 5
22.50
Canaan 4;oln Dethantycluti Branch gS0-saMOro^OA
1,009
008 S
80.32
Check$sited Rejects - CA
88
0.0 $
2.07
Checks De ileal Re Ms>A%-CA
32
004 $
128
DeIcasitCnrrecton-Cash
2
1,00 $
zoo
Deposit Comeartlon Non -Cash
T
1.00 $
2.00
PAPER DISBURSEMENT SERVICES
DIRECT Paid Ilam Inquiry "a is roma ht BA Direct
0
0.00 $
Batch StW Pa ante
4
Boil $
WOO
Check I'mr0ray5upoleas
At Coat
poilthafts
At Cost
CD ROM Disk
7
2,50 IS
1]50
Image Maintenance DIRECT this hthrough BA Dlood
1
10.0 $
1000
INFORMATION SERVICES
DIRECT Previous Day Account Fee
41
500 $
205.0
In our proposal on ABachmant A Pricing Manna, ver provided are palm dolma the City requested. Per a neo -w GByIN
Fresno's reaeah this schedule lists a few specific Ilrte Items for services mat have appeared on Bae acetum
analysis that "or not included on Attachment A
The coin bag services are provided by the bank under the
hent contract The City has mostly converted to Standard bags
(nonstandard hags are more costly to concede). The hag Mass
Ilstedepplytoane4omnhact Vcume'mestimacedhommonths
In 208
" These services apprer on the adi analysis and are priced
more mmpetively than the normal Banking Canter Deposits or
Guarani Depose per $10 -Branch for wfieh the City listed
volumes an Attachment A Pricing Matra. We believe me volume
all is basically duplicative b the volumes that yacre listed and
priced on Attachment A.
Paces for any nlfw services will he negotiated at tlme of said
Page 1 car
Gran Wiles
Frim: Carina BaTarite
Sent: Wednesday. 0clki 28, 2009808 AM
To: Greg Wiles
Subject: FA': Analysis Fees Quote
Attachments: Final draft Banking BerAces separate Addition to Abashment A requested W City of
Foranods
I'll get the pricing sheet updated later this morning but thought 1'd let you know that we received the additional
quote.
From: Siefkas,Susan[melte:siaan.skfkas@bankofamerka.cgn]
Seed: Wednesday, October 28, 20D912:23 AM
To: Contra Bark rte
Cc: Lee, Malta A: Licensee, Nabert
Subject: RE: Analysis Fscs Quem
Hl, Corrina,
Thanks for your kind note. I did enjoy my trip to Fresno last week and your weather was wonderful
We are on the "same wave length" sines I wanted to produce the attached and send it to you author tadayll I
highlighted the entry for the bags of min (the volumes would obviously vary and I think I probably show a volume on the
higher side).
I also made a notation about the branch deposie. In the Attachment A Pricing Matrix in the proposal, there are line
items and volumes for Banking Center Deposits and CurrencyCsln Depositsi Banking Center. There were no line
Items for Quick Banking Deposit (QBq ight Drop deposit and Coiccureenry/$100 OSOJI Drop at the Banking
Center which I have seen on your account analysis. According to the Malidgbt Drop service, the deposit Is brought In
all preps red but you have agreed to migration at a later time. I have priced these latter services a bit cheaper than the
normal Banking Center deposit activity shown on Attachment A.
Although you see some items listed that have a price which were zero -pricing before (I did leave one such line Item),
erall, we have reduced your banking fees significantly. We did this based on considering the entire relationship.
Please let me know if you have any other questions.
Best regards,
Susan
P5. I believe Greg would have shared this with youlust in ase, here Istne"widget" we spoke about in the
presentation. When you click on It, It has a little video of a senior manager discussing CashPm On line, and a video
(approa. 15 minutes) of the components of Caddo On line. In first quarter 2010, your Spite Direct Service will be
enhanced to Include the new very user-friendly portal as we discussed at the presentation aM you will continue to use
BA Direct in Its many ways as you have always donemere would be other enhancements overtime.
From: Comma Embattle[malaa:Cgmna.earbarhe�frano.gov]
Iii Tuesday, O ber 22, 20M 1:30 pM
Ta: Slefkas, Susan
Subject Matysis Fees Quate
Hi Susan
Thank you for making the trip out here last Thursday, I hope you had a goad trip back up to the Bay Area.
Upon patting on Thursday, we were discussing how Bank of America monomial the fact that we were receiving
services, for which we did not ask m recave a quote. The lams stated that they reserve the right to charge for
those services in the fumarm. You gave the example of a per bag charge far coins for which we should have been
getting charged for under our cannot contact. Please provide the quote for that item, and any other existing
services which were not quoted, but for which we would be charged under a new eontraet. 1 understand that
this could tete some time for you to go through our accounts, so if you could give me an appmxima a time W
which 1 could expect a response, I'd appreciate it.
Thank You, and have a wonderful day?
Corrina Remains, Senior Accountant Auditor
26aa Fresno St, am 2156
Fresno, CA 93721
15591621-0005
Attachment°A-C Pages 1 through 54
8anking Services Presentation
October 22, 2009
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Attachment 'A-5'
Electronic Mal from Susan Sieflan
Greg Wiles October 24, 2009
From: Siefil Susan [ susansufkasDibereeramencencon)
Sent: Saturday, October 24, MOS 11:" PM
To: Greg Wiles
Cc: Lucchese, aotren
subject: FW: Lossof City Funds
H,. Greg,
Thank you very much for Inviting us to present last week- We enjoyed the discussion on ways we can help you
opliMae your cash management operations We really want to remain the Chy's banking partner and know
YOU all Will benefit from our serVlces and resources
Related to your question, the following Is what I gathered
Bank of America works diligently to ensure the security of our systems, and we encourage our clients to Work
just as diligently to protect their systems as well Should a hacker break through a clients systems. we would
not necessarily guarantee any losses that might occur. A vast majority of (muds are perpetrated against
commercial clients either because they did not have adequate an invirus software or because an Insider used
known passwords
Below is an external Web page that speaks in depth to online fraud and the measures clients can take to
Protect themselves.
bhup cor . ank nla.coml / dlc. ada1P label=lantli tltr Ire n
I hope this help.
Records,
Susan
FDIC Assessment - Calculation Sample (APX Ox
• Assumptions:
- Average positive ledger be.)ance = $1,000,000
- End of period ledger balance =$1,000,000
- Analysis platform= APX(Assessed quarterly)
- DDA with HCR =non-interest bearing demand deposit account
• FDIC Calculation:
- Factor (FDIC = FICO & DIF) = 0.3268
- $1,000,000/1.000=$1,000
- $1,000 a 0.3268 = $326,80
• Surcharge Calcnrlatiom
- Factor (Surcharge only) = 0.2409
- $1,000,000-260,000/1,000=$760
- $760 x 0.2499 = $187.43
TOTAL CLiENTASSESSMENT=$51383 gnatYmlypa minion
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Attachment W6"
04 Nov 20091125
AR BANK
OF
AMERICA
9^B-326.3,76
Sample FDIC Assessment Calculation
FDIC Assessment - Calculation Sample (APX Ox
• Assumptions:
- Average positive ledger be.)ance = $1,000,000
- End of period ledger balance =$1,000,000
- Analysis platform= APX(Assessed quarterly)
- DDA with HCR =non-interest bearing demand deposit account
• FDIC Calculation:
- Factor (FDIC = FICO & DIF) = 0.3268
- $1,000,000/1.000=$1,000
- $1,000 a 0.3268 = $326,80
• Surcharge Calcnrlatiom
- Factor (Surcharge only) = 0.2409
- $1,000,000-260,000/1,000=$760
- $760 x 0.2499 = $187.43
TOTAL CLiENTASSESSMENT=$51383 gnatYmlypa minion
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REPORT TO THE CITVCOUNCIL AGENDA ITEM NO. 9:3Oem (�
COUNCIL MEETING 3f0410
L RQNIEO BY
March a, 2010
FROM: JOE GRAY, City CodTrdlled Finance Director
Finance Department
BY: GREGORY S. WILES, Treasury Office
Finance Department TTT
SUBJECT: APPROVE AGREEMENT BETWEEN THE CITY OF FRESNO AND BANK OF
AMERICA MERRILL LYNCH N.A. FOR BANKING SERVICES IN THE ANNUAL
AMOUNT OF $109,601
CORNERSTONES rmrawmcqupoa
Dam izyllc
Effective arta Responsive Government nlseov
RECOMMENDATION
Staff recommend& Nat the City of Fresno (the "City-) enter Into a five year Agreement with Bank of America
Merrill Lynch N.A. (ft 'Bank") for currently provided banking services in the amount of $109,601 annually,
with the option to extend the Agreement for one additional two-year period, or two additional one year periods,
for the same annual fixed amount. In addition, the Bank shall emend a loyalty credit against the Cil fees In
the amount of $30,00 annually for the first Na years of Me Agreement.
EXECUTIVE SUMMARY
The City currently has an Agreement with Bank of America for banking services, scheduled b expire on
March 31. 2010. A Request For Proposal (Me "RFP") was issued for banking services to all twenty-five banks
having a branch in Fresrw on August 14, 2009, and It was published on Me City's website as wall. Seven
banks submitted Proposals. A Review Committee was formed consisting of France staff and staff from the
Personnel Department. Each Proposal was examined for conformity wth Me cents published in Me RFP
consisting primanly of Me bank's quality of services provrded, its conMbutlons to Fresno's economy, and Its
charges for services. Three of Me seven responding firms were selected for live interviews and formal
presentattons. Based upon Me results of the RFP process and Me live interviews. Me Review Committees has
selected Bank of Amence to provide Me City with banking services for the five year period hum April 1, 2010
W March 31. 2015, with Me option to attend the Agreement for an additional two years.
BACKGROUND
As a large government entity, the City of Fresno (Me *City) has extensive and complex banking service
requirements. The City uses its bank to process deposits of coin firm parking meters, currency from FAX
r the City Council
Services Agreement
2010
0g
operations, checks from utility and ether Customer, credit and debit card paymords from develepem B
other customers, wires from corporate customers and Automated Clearing House ("ACM") electronic crec
from Me Federal and other govemmarde The City processes approximately forty -thous uid paper wink
checks par year, sixteen�thousan l flue -hundred paper payroll checks, and numerous Fox ire Minsters a
ACH debits. All of these operations are spread across seventeen Departments, two third pato adminishae
and one private contractor.
The City maintains approximately sixty bank accounts, each essential for a specific Wrpoee, through why
hundreds of millions of dollars flow every year. The monthly bank reconciliation alone is a full-fime fundi
that could not be performed timely without a specialized computer program, custamized through the jc
efforts of Treasury Stam and Bank of America for his purpose. This slam position Is also charged with I
responsibility of detecting fraudulent disbursement checks, a constant threat In today's environment.
addition b normal daily banking services, however, the City looks to As bank for expertise and assistance
developing business process enhancements. These can be operational in nature such as cash managemi
improvements or technologically based such as assistance with developing Internet based processes
enhance customer service and streamline City processes. The City's bank is not only a provider of Maditoi
banking services, it must have the expertise as well to ad as the City's consultant with respect to its comp)
business processes and have tools available not only to expedite these functions but to add protection a
safeguards as more functions are exposed to Internet Oak_
The City's Warrant contract for banking services with Bank of America McMII Lynch N.A. expires an Manor:
2010. Because of the extensive amount of used time requiratl to conduct a Request For Proposal ("RFI
process, negotiate and excqum a contract, and then implement that contract, with a possible convemron M
new bank as an additional step, staff issued an RFP for banking services an August 14, 2009. The RFP w
sent to all twenty-five banks that have a presence in Fresno. A pre-bid conference was held on August;
2009, and representatives from eleven banks emended. Ninety -Mo questions were submitted prior to and
the pre-bid conference, with one addendum and amachmant to the RFP issued as a result. Seven bar
ultimately submitted proposals, inducting Bank of America, Bank of the West, JP Morgan Chase Bei
Rabobank. Union Bank, Wells Fargo, and West America Bank.
A committee was formed to review the proposals inducing staff from Treasury, Payroll, Collections a
additional staff from Me Personnel Department Personnel slam was selected because of their extensi
experience using the ECHO system and other funding draw systems (for such funds as CDBG, HOME a
ARRA) that must interact with our bank. The RFP called for the banks to respond in mmyone are
representing banking products and seMces Mat the City wnantly uses, as well as others carat Me City mit
potentially use. The respondents also were asked to protide various documents as exhlbits to their Propos
In addition, Me respondents were asked to discuss their contributions to the Citys bkal economy. Final
they were asked to review and redline if necessary a Sample Contract containing the City's standard a
preferred terms and conditions.
The committee evaluated each Proposal by reviewing all of the material presented. As stated In the RFP, t
committee based Mair evaluations on the Mlowing criteria: (i) Proper Submission of Proposal
Comprehensiveness of Services Proviced (iii) Public Sector Experience and Resources (iv) SvargM a
Stability of Financial Institution (v) Assigned Relationship Manger/ earn (A) Charges for SeMces (
Service Enhancements (viii) Community Involvement and (i) Other Factors. In auction, in accordance w
Fresno Municipal Code Section 3-109.1, a local preference was extended to any firm that met t
requirements under his Code Section.
As noted, wet of services was only one of the factor induced in the committee's evaluation. As each of t
banks submitted a proposal for banking sernces, as requested, rather Man a formal bid, Me City is r
Repprt to the City Council
Banking Services Agreement
March 0, 2010
Page 3
M select the lowest proposed cast. Further, the selection may bas made on this basis of the most
and efficient mix of servces provided at the lowest cast.
'.sonally. Me casts associated with a conversion M a new bank were considered. Conversion would
tie not only stag time for both the Finance and Information Services Departrnenta, but would also include
and costs Incurred by doer City staff in addition to the Cltys third providers. These costs and Me costs
dated with new banking supplies and other related items is substantial. Conversion rusts ware also
idered as coman of the banks included offers of compensation for these costs as part of their proposal,
The committee selected Mme respondents M demonstrate their products and services and clarify a
questions about their Proposals. The demonstrations were conducted on October 22. 2009. Bank of Amer
was selected for former negotiations on November 5, 2009. Staff worked with Risk Management and the C
ABomay'a Office to ensure Mat the negodatlons with the bank not only resulted In a contract Mat provided I
City with the banking products and services it needed, but also included Me terms and conditions essential
protect the City's Interests.
BASIS OF FINAL SELECTION
Each of the banks was asked to discuss Nair products and services. Bank of Amenca has a portfolio
products and services Mat is exceptional. While all of the banks can provide a wide array of banking sterno
none were more attractive Man Bank of America's services. All of the first tier banks continue to Inco
substantial sums of money in new products and services, and Bank of America has done the came. Bank
Amenca can provide all of the products and seMces Mat Ura City currently utilizes, as well as a robI
caledidn of service enhancements Mat will permit Me qty to convert more of its business processes to
electronic environment. This will enable the City to control costs and enhance efficiencies, while at Me ser
time avoid having to start from scratch with a new bank.
Bank of America has a dedicated public sector division. While all of the top tier banks have public sec
experience and personnel dedicated to the public cedar. Bank of America's public sector division has sery
the City well and staff is confident Mat May will continue to do an
In terms of strength and stability, Bank of America is a $25 trillion organizadon, and Is the largest bank in I
country, in terms of asset size. Many banks across Me nafion have had difficulty over the last year and Ba
of America was among them. Bank of America la liberally conskamd to he too big to fall. It too, Ilke many
the top tier banks, recahe0 Federal assistance. Hawaver, on December 2, 2009, Bank of America repaid M
government assistance of approximately $45 billion. Should Me Bank need assistance In the future. new
no doubt that it would receive it.
In addition to the pollodic of services provided and Me strength of the bank, the RFP made it dear it
community Involvement on the part of Me Cllys bank was an important consideration for Me Cil. OI t
three finalists, all had an'Outstanding' Community Reinvestment Act (CRA-) rating. Enforced by the Offs
of the CampVallar of Me Currency, this law requires Mat banks must stove to most Me banking needs of I
entire community, not simply its meet affluent segment An'Outstanding' atirg is a prestigious award, a
one for which the top tier banks sMve.
Bank of Amenca has a substantial commitment to and presence In the City of Freund. With approximat
hwanl-five percent of local deposits, Me Bank is an Important pad of Me tical economy. Bank of America h
more than twenty banking centers in Fresno, the most of any other bank, including two downtown branchi
Report to the City Council
Banking Services Agreement
March 4, 2010
Page 4
FM locations serving the community, and has more than one -thousand four -hundred
Fresno Counties. The downymvn cash vault employs seventeen.
same highlights of Bank of Amence's community Involvement activities In Fmsi
• From 2005 l0 2008, Bank of Amenca Warned $635.8 million In Affordable Housing Loans, $432.3
million in Small Business Loans, $293.6 million in Consumer Loans, and $34.6 million in Economic
Development Loans in Fresno County.
• In 2008, Bank of America made a $6 million construdbn loan to the Housing Autlwdty of the City of
Fresno for development of to Yosemite Village HOPE M project This Is a fig unit development
Project between the City and the Housing Authority.
• In June 20(1 the Bank made a commitment to the City of Fresno Housing Authority for $21 million in
construction financing and $9.9 million in permanent financing for Pam Gmve Commons. This project
will have 215 new affordable rental housing units and will leverage $4] million in Federal stimulus
funs.
• Bank of America partners with individuals and organizations throughout Fresno to focus on Affordable
Housing, Education and Workforce development and job training. They also Wanner wth other heatih
and human service organizations such as United Way and March of Dimas. From 2005 to 2W6, the
Bank made cenMbutions in MaderalFresrw amounting to $80,000. In 2009 and 2008, the total was
$362,000.
In 2006 7, Bank of America associates in Fresno and Madere volunteered more than 5,000 hours
• through Team Bank of America.
• Bank of Amen has opened 151 new accounts through July 31, 2009 through the Bank on Fresno
Program.
• In 2006, Bank of America spent $6,000,000 with diverse and numerous suppliers In Me CIry of Fresno
• Attached is a copy of a write-up on Bank of Amences $250.000 coni ibution to the construction of
Terry's House, a hotel like facility where bum and trauma patientsfamilies can stay while their family
members receive critical care at Community Regional Medical Center.
Finally, the evaluation committee considered cost. With respect to Its fees, Bank of America was the lowest
bidder. The RFP included a listing of Me City's anent services and each of the respondents wes asked to
price Nese services accordingly. Without considering any other factor. Bank of America "a Me lowest
bidder. As previously noted, there is a cost associated with changing banks. For example, simply obtaining
new check stock and other banking supplies would cause Me Cly to Incur additional costs Met it would not
otherwise incur by conlmc8n9 with Bank M America. During the City's current budgetarylfnancial deecalties,
the avoidance of mase unnecessary costs is crucial particularly wren the addition of those cosh would place
the City in no better position than it currently Is and would provide no enhanced customer services for Me
cit¢ens of Fral
The largest cast in changing banks, however, is the opportunity cost Nat me City would incur H staff were
engaged In reprogramming and reerglneenng Its financial system to accommodate a new banking
relationship. Among a core team of approximately six staff members, d is estimated that it word take a
t Me City Counal
Services Agreement
2010
Page 5
minimum of approximately 1,00 hours to reestablish new bank accounts, and reengineer the City's system,
In order to simply remain status -quo. While there is rw addit'mnal ham cosh as staff is paid the same,
regamless of how these hours would be spent, Me cast incurred is the lost opportunity to exparM or enhance
services, focus on efficiencies and spend Nose already limited dollars and hours on system improvements,
security and the much requested customer advancement. In conducting an informal surrey of other cities
Mat have gone through a change in banking service provider, It was estimated that it could take as King as a
year and ane hall to resolve all transition issues and $59,000 to $70,00 In staff time without adding any new
enhancements or new customer sernras.
Many of the banks themselves recognized this cost, and offered an additional incentive such as $8,000 or
810,000 or no fees for Me first month, In order to offset some of the cost of conversion. Bank of America,
however, offered the City a loyalty credit in the amount of $60,011 This Incentive was offered to the City In
addrtbn to offenrg me lowest bid of any of the banks. With Bank of America, therefore, the City would pay Me
least cast Kir banking services, even before considering Me Bank's byaity credit of $80.000. In addition, by
remaining with Bank of America, the City would avoid the time and cost spent in recreating the City's exisfing
banking functionality. Instead, these resources can be devoted to fuller streamlining services, increasing
efficiencies, end creating additional customer service enhancements
Based upon an in-depth review of all RFP responses, interviews and formal presentations by finalists and
evaluations of the key cdtena, including: (i) Proper Submission of Proposal (ii) Comprehensiveness of
Services Provided (iii) Public Sector EaPivience and Resources (iv) Strength and Stability of Financial
Institution (v) Assigned Relationship ManagerfTesm (vi) Charges for Services (vii) Service Enhancements
(viii) Community Involvement and (i) Other Factors, the evaluation committee recommends mat Council awed
a five year contract for banking services to Bank of America Merrill Lynch N.A.
The approval of the banking agreement between the City of Fresno and Bank of America Merrill Lynch N.
balances the key priorities of Streamlining City Services and Protecting Resources by providing for a
banking services at a materially reduced cost, avoids the unnecessary use of limited sten resources
maintain Me status quo and provides for the better Winton of colors and staff hours by focusing Mem
creating system enhancements, efficiencies and security upgrades Mat Wil enable the Implementation
much requested customer functionality.
FISCAL IMPACT
The City currently pays approximately $190,520 annually for banking services. The pricing of the new Bank of
America Proposed Agreement Is for $109,1300 annually, a 22 percent decrease, generating an annual savings
of approximately $31,000. The new pricing will remain fixed for five years until March 31, 2015. Should Me
City wish to emend MIS contact, it has the option to do so, and prices would remain fixed at today's levels.
Over the course of Five years, the City's projected savings would amount to approximately $155,000, which is
before giving consideration to the byalry credit offered by Me Bank. Including this credit would bong Me Citya
overall savings to $21500.
Attachments: ARTICLE ON BANK OF AMERICA'S CONTRIBUTION OF $250.000 TO TERRY'S HOUSE
AGREEMENT FOR GOVERNMENT BANKING SERVICES
QeakofAmerica awards grant to Terry's House.Prim Page 1 of I
COMMUNITY
MEDICAL CENTERS
Bank of America awards grant to Terry's House
Dank of America Chantable Foundation became the first
corporate donor -Investor to Terry's House with a $250,000 gift
to Community Medical Foundation just before Consumes. The
money will be used to help build a hotel -like fertility where
burn and trauma patients' females can stay while their loved
ones receive ainral care at Community Regiarwl Medical
Cancer.
While Dank of America Charitable Foundation's past '
controutloas have gone toward affordable housing, workform development and education In the fresno area,
Rudy Machine, market president for Hank of America, Bald this project fit Me bank's goals. Not only does It help
accelerate Community Medical Centers' downtown redevelopment of trts In Fresno, but It also helps position Me
Valley's largest health care provider In a league with other major medical center: who have similar extended living
f ndlitles for patients' families.
Bank of America has been In Fresno for go years, our asettlates live here, and we trvly pre about
this communityMedina said "A traumatic experience, whether It's from an accident or Hre, does
not discriminate - it can touch anymore at anytime. When it does, we want them to have the best
possible care."
The 17,1300 square had, two -s ory house with 10 guest rooms will be built across Fresno Street from
Me Table Mountain Rantlreria Trauma Center and Me Leon S. Peters Bum Center at Community
easy asset, Regional. Groundbreaking Is planned for February.
mawat
k ooer
ti
e The hospital has the only bum and Level I trauma centers between Sacramento and Los Angeles and
wxmu treats patients ham a nine -county region. Nearly half of Community Regional's burn patients are.
Mlitlren whose parerds often must travel long distances and find motel roams during bum
treatments.
I'm Jandin, Community's Olaf executive officer, thanked Bank of America. "Thls Is no small gesnlre. Bank of
Ameri® has a history of supporting high -Impact projects and arganlzanons hall said. "ThIs gift will make a
slgnlhcant difference for our parents and their famlllea.'
Ton Richards, Mlef executive officer of Penstar Group, said his own family experienced the hardsblp and
emotional toll of having a loved one In Intensive care miles away when his brother was hurt In an accident s a
child. Richards started! the Terry's House project with an Initial $500,000 gift and a pledge to give his time as
developer and construction manager. The foundation Is working to came $3 million for construction and $3 million
for an endowment to operate. and sustain Me home.
'We are hoped! to have a small part In WIPbg to build Terry's Houu; Machine said, urging aMers In the
community to follow Me banking comoration's lead. -We will continue to evaluate our opportunities to help this
worthwhile cause. -
n,5 sbry wes,pmrtM by Erin ream le, She un ere ,aced f at e4enM0v@RmmunrNmNrrel.pry.
Matter. Lxuere air 20M
Copyright 01030 Community Medical Centers
http://www.medwawhM y.mm/PrinVi 115.hhn mtQ010