HomeMy WebLinkAboutBank of America NA - 1st amendment to Government Banking ServicesQly o
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November 6, 2007
REPORT TO THE CITYCOUNCIL
FROM: KAREN M. BRADLEY, A4ant Controller
Finance Department ��
BY: GREGORY S. WILES, Treasury Office
Accounting Division
AGENDA ITEM NO. 1A
COUNCIL MEETING 11/06/07
APPROVED BY
DEPA TME DIRECTOR
�
CITY MANAG /"L%
SUBJECT: AUTHORIZATION OF THE ASSISTANT CONTROLLER TO NEGOTIATE AND ENTER
AN AMENDMENT TO GOVERNMENT BANKING SERVICES CONTRACT WITH BANK
OF AMERICA NA EXTENDING AND MODIFYING THE CONTRACT
KEY RESULT AREA
Resource/Financial Management, Customer Satisfaction, and Employee Relations
CONCLUSION AND RECOMMENDATION
Staff recommends that Council authorize the Assistant Controller to negotiate and enter an Amendment No. 1
to Contract in substantially the form appearing in the accompanying Amendment to extend the City's
government banking services contract with Bank of America through March 31, 2010, and to modify the
Pricing Schedule in certain regards.
KEY OBJECTIVE BALANCE
The approval of this amendment best balances the Key Objectives of Resource/Financial Management,
Customer Satisfaction, and Employee Relations in that the City will realize additional savings through the
reduction of bank fees, as a result of the implementation of Bank of America proprietary products that aid in
cutting processing costs, and at the same time continuing to provide customer Departments and Employees
with cutting edge, dependable banking services.
BACKGROUND
The City of Fresno's ("City") current contract for government banking services with Bank of America ("Bank")
is due to expire on March 31, 2008. This contract provides the parties with two one year extension options
through March 31, 2010, The City and the Bank desire to extend the Contract through March 31, 2010 and to
reduce certain of the fees payable by the City to the Bank, for the following reasons:
Reduction in fees. The Bank has tendered an offer to reduce its fees by approximately 13 percent,
which will result in savings of approximately $20,000 per year.
Ass" toctfewdl
Date )11&lo7
Disposition
6-
Report to the City Council
Extension of Banking Services Contract
November 6, 2007
Page 2
Electronic payment of accounts payable. The Bank has a new product called ePayables which works
as if the City were to pay its vendors by charging their payment on a credit card. Because of savings
in not having to process a check; earnings due to additional float on the City's payment; and early
payment rebates from the Bank, it is estimated that the City will realize an additional $667,807 per
year in savings. ePayables is a Bank of America proprietary product, currently available exclusively
with Bank of America.
Paymode is a product which enables City customers who bank with other banks to pay their City utility
and other bills by going online with their bank and making the payment. Prior to the implementation of
this product, other banks would send the City a paper check representing the total of all their
customers' payments to the City. The customer's account would then be updated manually and a
manual deposit of the paper check would be prepared. Paymode allows the receipt of funds from other
banks electronically, and the receipt of an electronic file automatically updates the customer's account.
The City recently implemented this product and the customers that are just now reaping its benefits
would be inconvenienced as the City would have to start the implementation over again. In addition
the time and labor expended for its implementation would be lost and have to be duplicated if the City
were to change banks at this point in time.
ACH receipting of business customers' Payments. As with Paymode, the City (as well as the Bank)
has expended a considerable amount of time and effort implementing the capability for businesses to
pay the City with an Automated Clearinghouse ("ACH") payment. This is an electronic payment as
opposed to a paper check. The City has recently implemented this capability at Airports. Once again,
the City would be inconveniencing customers and duplicating the extensive effort, staff time and
limited budget resources expended in enabling this capability were the City to change banks now.
• ACH drafting of customer accounts. The City is poised to begin a program with the Bank to implement
the ability to draft utility payments directly from customer accounts in the same manner that other large
service providers do. PG & E for example has long provided this service to its customers. If the City
were to change banks now, the groundwork for this capability would have to be started all over again.
• Electronic bill presentment. Once again the City is poised with the Bank to be able to implement an
electronic bill presentment capability. Changing banks now would require that the groundwork for this
capability, about to come on line, to have to be initiated all over again.
• "Green" Benefits. The added benefit is that these expanded services, about to go online, also provide
more "green" and clean air options thereby enhancing the City's environmental programs.
• Cost of conversion to a new bank. There is a substantial cost to the City in converting to a new bank.
Every bank has its own operating procedures with respect to how the customer is to utilize the bank's
services. With a new bank, City staff will have to be retrained in the procedures used by a new bank.
Extensive reprogramming of PeopleSoft may be required in order to achieve the state of technology
we currently enjoy with the Bank. In order to effect a transition to a new bank, Finance would require
many of the same ISD resources that are already dedicated to the current upgrade of the PeopleSoft
Payroll and HR systems and the upcoming migration to Microsoft. At this time it might physically be
impossible to change banks with current resources spread to many preexisting projects.
FISCAL IMPACT
Report to the City Council
Extension of Banking Services Contract
November 6, 2007
Page 3
The approval of the Amendment extending the banking contract for two years would result in a decrease in
the cost of banking services amounting to approximately $46,000 over the remaining five months of the
existing contract, and the additional two years under the extension. In addition, with the implementation of
ePayables, over the course of the additional two year extension, the City could potentially realize an additional
$1.5 million in savings and rebates.
Attachment:
AMENDMENT NO. 1 TO GOVERNMENT BANKING SERVICES AGREEMENT
BETWEEN THE CITY OF FRESNO AND BANK OF AMERICA NA
j.
AMENDMENT NO. 1 TO GOVERNMENT BANKING SERVICES AGREEMENT
CITY OF FRESNO BETWEEN
City Clerk's Office (original) THE CITY OF FRESNO AND BANK OF AMERICANA
THIS AMENDMENT NO. 1 TO AGREEMENT, is made and entered into between the
CITY OF FRESNO, a municipal corporation ("CITY"), and BANK OF AMERICA NA, a
national banking association ("BANK").
RECITALS
WHEREAS, CITY and BANK entered into Agreement, effective February 1, 2004
("Agreement'), for professional government banking services; and
WHEREAS, the base term of Agreement will terminate on March 31, 2008; and
WHEREAS, Agreement provides the parties with two 1 year extension options; and
WHEREAS, BANK and CITY are currently implementing and intend to prospectively
implement proprietary BANK products such as ePayables that will result in additional
revenues to CITY; and
WHEREAS, BANK desires to reduce certain of its fees for service pursuant to the
revised Pricing Schedule attached to this Amendment as "Revised Attachment A-1" and
incorporated herein; and
WHEREAS, CITY and BANK desire to extend and modify Agreement, upon the terms
and conditions herein.
NOW THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and valuable
consideration hereby acknowledged, the parties agree as follows:
1. Agreement is hereby extended through March 31, 2010, subject to earlier
termination as provided hereunder.
2. Attachment A-1 to Agreement, Pricing Schedule, is hereby modified with the
pricing terms specified in the Revised Attac ent A-1 to this Amendment No.
1, such revised pricing to be effective as of v�L
3. All capitalized terms not otherwise defined herein shall have the meaning
ascribed to such terms in Agreement.
4. In all other regards, Agreement shall be and remain in full force and effect.
IN WITNESS WHEREOF, the parties authorized agents have executed this
Amendment No. 1 to Agreement at Fresno, California, the day and year first above
written.
CITY OF FRESNO
a Municipal Corporation
By:
Kare". $radley, CPA, ss ant Controller
Date: 4,01
ATTEST:
Rebecca E. Klisch
City Clerk
By:
Date: //121/0'7
APPROVED AS TO FORM:
James C. Sanchez
By:
Robert Coyle, eputy Attorney
Date: I I- . a -
Addresses:
CITY:
City of Fresno
Attention: Greg Wiles
Finance Department
2600 Fresno Street, Room 2156
Fresno, CA 93721-3622
Phone: 559-621-7004
FAX: 559-488-4636
BANK OF AMERICA NA, a national
banking associ"on
By: �oy 5- &-
Name: Robert Lucchese, Vice President
Date: /\� >d 1 b �o-)
an
Date:
7\T.i
Bank of America
California Government Banking
555 Capitol Mail
Sacramento, CA 95814-4503
FAX: 916-321-4822
Bank of America
Documentation Management
P.O. Box 27128
Concord, CA 94527-9904
FAX: 925 675-7131
Attachments:
1. Revised Attachment A-1 Pricing
Schedule
2-
REVISED ATTACHMENT A-1
PRICING SCHEDULE
Banking Services (July 2007 Volumes)
Service Description
Volume Price Total
General Account Services
Price
Total
Account Maintenance
$1200
5192.00
$10.00
$760.00
t0 Sub Account Maintenance
55.00
$170.00
$6.00
$170.00
ZBA De sto Master Maintenance
$0.00
$0.00
$0.00
$0.00
ZBA Subsidiary- Maintenance
Mil
$20.00
$240.00
$1200
$144.00
Debts Posted - Other
$0.00
$0.00
50.00
$0.00
Credits Posted - Other
$0.00
$0.00
$0.00
50.00
Additional PaperStatements
$7.50
$2250
$5.50
$18.50
Fax Transmission
$200
$22.00
$1.00
$11.00
MChecks Paid Report
1
$10.00
$10.00
$5.50
$5.50
pies
18
$200
$36.00
$1.00
$16.00
Total General Account Services
$692.50
5625.00
Services
Ben Center - CA
60
$1.40
$70.00
$1.10
$55.00
QBDiN' D Deposit-CA
13
$1.10
$14.30
21.10
$14.30
CurtlCcn De 100- Bkg Ctr -CA
434
$0.12
552.08
$0.10
$43.40
CurdCom De $100-QBDIND-CA
707
$0.12
$84.84
$0.10
$70.70
Vella -CA
69
$1.101
$75.90
$1.101
$75.90
GurtlCoin 100-V6LA
22,040
$0.09
$1,983.60
$0.09
Coin k- Non Std Bag-CA
41
$1.25
$51.25
$1.00
Coin $-Std B Vk{;A
224
$1.25
$280.00
$1.00$
Curren Su $100-Std-VHLA
92
$0.09
$8.28
$0.09
Cha Order-Vauk-CA
12
$3.00
538.00
5200
Coin Supp/Roll-Box-VII-CA
150
$0.07
$975
$0.05
Com Supplied-Per Roli-Vk-CA
80
$0-09
$5.80
$0.05
Cu Supp/$l00-Nonski-Vit-CA
713
$0.12
$85.56
$0.09
Vault t -Extended Hours-CA
23
$3.00
$89A0
$1.10
Vault k- t
562
$0.55
$309.10
$0.2511
Cash Letter/Item Pmc De
5
$1.1a
$5.50
$1.10
55.50
Checks De sited-On Us-CA
9,459
$0.02
$189.18
$0.02
$189.18
Checks Deposited-Local Clea' s-CA
3,309
$0.03
$99.27
$0.03
$9927
Checks De "ed-Select In DlsfiCt-CA
23,917
$0.04
$956.68
$0.04
$956.68
ChecksDeposited-All Other-CA
3,298
$0.05
$164.80
$0.05
$184.80
ChecksDeposited-CA
16,534
$0.08
$992.04
$0.06
$992.04
Reims-Cha eback-CA
188
$1.50
$249.00
$0.75
$124.50
Returns-Cha backs
58
$3.00
$174.00
$0.75
$43.50
Returns-RecleafLA
27
$0.75
$20.25
$0.75
520.25
Deposit Coneckon-Cash
8
$0.001
$0.00
$0.001
$0.00
Total Depository Services
S5,M.16
.57
Paper Disbursement Services
General Checks Paid Truncated
16,453
$005
$822.65
$0.05
$822.65
Positive Pay Return ItemlOdw
1
$10.00
$10.00
55.00
$5.00
NSF Mems PaidlRetu ned
10
$15.00
$150.00
$70.00
$100.00
Direct Paid Item Inquiry
5
$0.00
$0.00
5000
$0"00
Stop Pay Automated -12 Mwdhs
3
$6.00
$15.00
$5.00
$15.00
Stop Pay Manuak=12 Months
1
$10.72
$10.72
$10.00
$10.ODI
NonRelationship Cust Ck Cashed
5
59.90
$0.00
$000
$9.
VRU Phot Request
2
$2.00
$4.00
$2.00
54.00
CD ROm Maintenance
12
$7.14
$85.68
$5.00
$80.00
CD Rom Per Image16,448
$0.03
$493.44
50.03
$493.44
Ima a Rebieval BA Direct
20
$0.25
$5.00
$0.25
$5.00
CD Rom Disk
6
$0.00
$0.00
$0.00
S0.
Total Paper Disbursement Services
57,688.49
$1,61509
Paper Disbursement Recon Services
Full Recon w/PPay Maintenance -Auto
3
$50.00
$150.00
$50.00
$150.00
FWI Recon w/PPay Maintenance-Oncall
7
565.00
$455.00
$50.00
$350.00
Check Issue Input -Trans Media
5
$20.DO
$120.00
S10.OD
$60.00
Full Way Input Per Item Trans
14,219
$0.05
$710.95
$0.05
$710.95
Additional Reports
2
$10.00
$20.00
52.00
$4.00
Total Paper Disbursement Recon Services
$1,455.95
$1,274.96
ACH Services
ACH Morddv Maintenance
3
$50.00
2150.00
$40.00
$120.00
Consumer On Us Credits
1.069
$O.D5
$52.27
$0.04
$43.56
Consumer OR Us Credits
6,092
$0.05
$292.42
$0.04
$243.66
Consumer Off US Debits
13
$0.10
$1.30
SO.05
$0.65
ACH Account Block
39
$5.00
$195.00
$3.00
$117.00
ACH Debit Received Item
20
$0.07
$1.40
$0.05
$1.00
ACH Credit Received Item
646
$0.07
$15.36
SES
$32.40
ACH Return Item
2
$2.25
$4.50
$0.75
$1.50
ACH Input -Transmission
3
$15.00
$45.00
$10.00
$30.00
ACH Delete/Reversal
1
$20.001
$20.00
$20.001
$20.00
Paymode Concentrator) Transaction Fee
4,357
$0.08
$348.56
$0.081
$346.56
ACH Notification of Cha NOC
4
$1.25
$5.00
$0.75
$3.00
Paymode CON Monthly License Fee
1
$75.00
$75.00
$75.00
$75.00
ACH Optional R - Electronic
4
$1.00
$4.00
$100
$4.00
ACH Standard Reports - Elecboriic
4
$1.00
$4.00
$1.00
$4.00
Totol ACH Services
$1,243111
$1,044.35
wire d Other Furans Transfer Services
Electronic Wire Out -Domestic
27445
$189.00
$8.00
$162.00
Direct Account Transfer
17
$51.00
$3.00
$51.00
Electronic Wire Otd - Book DB
4
522.00
$5.50
$22.00
IncomingDomestic Wee
25
$175.00
$5.00
$125.00
Wee Advice -Mad
6
$12.DO
$2.00
$12.00
Customer Maintained Template S
18
$27.00
$0.75
$13.50
Direct Wire Maintenance -
1
$60.OD
$25.00
$25.00
Totol wire & Otiner Funds Tramder Services
$526.00
$410.50
Information Reporting Services
Direct Previous Day Account Fee
42
$0.00
$0.00
$0.00
$0.00
Direct Previous Day Standard Item
5,720
$0.171
$972.40
$0.121
$888.40
Direct Previous Day Maintenance
t
Sm.001
$50.001
$50.001
$50.00
Total Information Reporting Services
$1,02240
$736.40
Service Fee Totals for Price Points Listed
$72,527.33
$10,883.06
Other Services used will be subject to pricing In effect at the time of use.
AGREEMENT
CITY OF FRESNO, CALIFORNIA
GOVERNMENT BANKING SERVICES
THIS AGREEMENT for Government Banking Services (the "Agreement') is
made and entered into effective the 1St day of February 1, 2004, ("Effective Date") by
and between the CITY OF FRESNO, a municipal corporation (hereinafter referred to as
"CITY" or "CLIENT"), and Bank of America NA, a national banking association,
(hereinafter referred to as 'BANK").
RECITALS
WHEREAS, BANK has provided banking services to CITY pursuant to an
agreement, dated April 1, 1993, as amended from time -to -time, wherein such
agreement expiresd March 31, 2003 (the "Contract'); and
WHEREAS, the City Council of CITY did authorize and grant approval for CITY
Controller to negotiate and finalize all terms and conditions of this Agreement, on March
18, 2003; and
WHEREAS, CITY and BANK agreed to extend the terms of Contract by letter
agreement (the "Letter'), dated March 26, 2003, until such time as all terms and
conditions of this Agreement had been negotiated and finalized; and
WHEREAS, CITY issued a Request for Proposal for professional banking
services, dated June 10, 2002, with addendum, dated July 17, 2002, (collectively, "the
RFP"); and
WHEREAS, BANK responded to the RFP by submitting a proposal, dated
August 8, 2002; supplemental information, dated September 24, 2002, November 8,
2002 and November 12, 2002; and revision, dated October 16, 2002, (collectively, "the
Proposal'); 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 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.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and premises 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, those portions of the Proposal that are
attached hereto as Attachment "A" and incorporated herein by reference are as follows:
the pages of the Proposal binder, dated August 8, 2002, within Tabs A through I, Tab J
(as modified in this Section 1), Tabs K through L, Tab M (as further supplemented as
described in this Section 1), Tabs N through P, Exhibits 3 through 7 of Tab Q, and
within Exhibit 8 of Tab Q (as modified in this Section 1).
(b) For purposes of this Agreement, the portion of the Proposal that is
attached hereto as Attachment "A-1" and incorporated herein by reference is that
submitted by BANK on October 16, 2002 and described thereon as "EXHIBIT J1 -
PRICING SCHEDULE." The pricing in Attachment "A-1" supercedes the pricing
provided in Attachment "A" for the respective services provided in Attachment "A-1,"
and specifically modifies Tab J and Exhibit 8 of Tab Q accordingly. Attachment "A-1"
supercedes references to "CD" (understood in the context as containing pricing) and
"Pricing CD" in Attachment "A."
(c) For purposes of this Agreement, the portion of the Proposal that is
attached hereto as Attachment "A-2" and incorporated herein by reference is the
"Community Development Banking" report, dated September 24, 2002, with attached
electronic mail, respectively dated November 8, 2002 and November 12, 2002, from
Erin Means of BANK to Greg Wiles of CITY. Attachment "A-2" is supplementary to
Tab M of Attachment "A."
(d) For purposes of this Agreement, the portion of the Proposal that is
attached hereto as Attachment "A-3" and incorporated herein by reference is BANK's
"Treasury Services Terms and Conditions" booklet (including user documentation and
set-up forms, and "Excerpt from the Bank of America Corporation Code of Ethics"), as
expressly modified in this Subsection 1(d) as follows:
(1) The last sentence of paragraph 3 (p. 27) of the subsection entitled
"Multibank Service" of the "Wire Transfer and International Electronic Funds
Transfers" section of "Treasury Services" is modified to read as follows: "You
agree that your indemnity of us applies to any claims by another bank based on
our sending a Multibank request containing any error, omission, defect or lack of
clarity."
(2) Paragraph 3 of the "Facsimile Signatures" section (p. 37) of the
2
"General Provisions" is modified to read as follows: "You agree to compensate
us for all losses, claims, damages or expenses, including Legal Expenses, that
result from our payment of a withdrawal bearing a facsimile that reasonably
resembles your facsimile signature."
(3) The subsection entitled "Agreement' (p. 37) of the "General
Matters" section of the "General Provisions" is deleted in its entirety.
(4) Paragraph 1 of the subsection entitled "All Services" (p. 39) of the
"Limitation of Liabilities" section in the "General Provisions" is modified to read
as follows: "Except for any loss, liability, damage, cost or expense arising from a
claim that your use of the Software and/or Materials provided by us to you
infringes any copyright, patent, trade secret, trademark or proprietary 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 loss of business, profits or revenue,
goodwill and anticipated savings, loss of or corruption 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."
(5) The "Protection from Third Parties" section (p. 40) of the "General
Provisions" is deleted in its entirety.
(6) The first bullet of the "Representations and Warranties" section
(p.41) of the "General Provisions" is modified to read 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 provision(s) have not
been modified or superceded in writing by you and us."
(7) The section entitled "Resolution of Disputes" (p. 41) in the "General
Provisions" is deleted in its entirety.
(8) Paragraph 6 (p. 44) of the subsection entitled "Limited
Warranty/Disclaimers" of the "Software License" section of the "General
Provisions" is deleted in its entirety.
(9) Paragraphs 7 and 8 (p. 44) of the subsection entitled "Limited
Warranty/Disclaimers" of the "Software License" section of the "General
Provisions" are modified to read as follows: "Except for any loss, liability,
damage, cost or expense arising from a claim that your use of the Software
and/or Materials provided by us to you infringes any copyright, patent, trade
secret, trademark or proprietary rights of any third party; in no event will we be
c
liable for any indirect, consequential or punitive 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 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. 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 inability to use, the
Software or accompanying documentation."
(10) Paragraph 1 (p. 44) of the subsection entitled "Infringement
Indemnity" (p. 44) of the "Software License" section of the "General Provisions"
is deleted in its entirety.
(11) Paragraph 1 (through the first 6 bullets) of the "Termination"
section(p. 46) of the "General Provisions" is deleted in its entirety.
(e) This Agreement with Attachments "A," "A-1," "A-2" and "A-3" 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 oral. Notwithstanding the preceding
sentence and in addition to the "Conversion Activities" described in Section 2 of this
Agreement, BANK shall continue to render the services currently provided pursuant to
the Contract and the Letter until the effective date of this Agreement. The parties agree
that the Contract and the Letter shall expire January 31, 2004, and by operation will be
superceded in their its entirety by this Agreement. Each party acknowledges that they
have read and fully understand the contents of this Agreement. This Agreement may
be modified only by written instrument duly authorized and executed by both CITY and
BANK.
(f) In the event of any conflict between the body of this Agreement and any
Attachment hereto, the terms and conditions of the body of this Agreement shall control
and take precedence over the terms and conditions expressed within the Attachment.
In the event of any conflict between any Attachments hereto, the terms and conditions
of the Attachment higher in precedence shall control and take precedence over the
terms and conditions of the Attachment lower in precedence in accordance with the
following listing arranged from the highest to the lowest in precedence:
(1) Attachment "A-1."
(2) Attachment "A."
(3) Attachment "A-2."
(4) Attachment "A-3."
The terms and conditions of the body of this Agreement will take precedence over any
4
terms or conditions contained in any of the Attachments or 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.
2. Scope of Services. BANK shall perform to the satisfaction of CITY and in
the manner as described in Attachments "A" and "A-3," all of the services contained in
Attachment "A-1" ("Initial Services)") and the implementation and training services
described in Attachments "A" and "A-3" as "Conversion Activities" ("Conversion
Activities"). This Agreement shall not be a contract for any other service described in
Attachments "A" or "A-3" ("Other Service(s)") until further performance is authorized by
CITY pursuant to Subsections 5(f) or 5(g). It shall, however, remain BANK'S offer to
perform all Other Services for which the fee or charge, if any, is described in
Attachment "A" (including description indicating no cost to CITY, or other similar
description). In the event BANK performs any Other Services without CITY'S prior
written authorization, BANK will not be entitled to compensation for such services.
3. Commencement of Performance. Except as otherwise agreed by the
parties herein, commencement of performance of any 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 forms. BANK shall
continue to perform such service(s) during the term of this Agreement and any
extension unless such service(s) is terminated or modified by CITY in writing in
accordance with Subsections 5(f) or 5(g).
4. Effective Date and Term of Agreement. It is the intent of the parties that
this Agreement be effective upon the Effective Date set forth above. All Conversion
Activities shall be completed prior to February 1, 2004 ("Conversion Date"). Initial
Services are to commence on the Conversion Date and continue until expiration or
termination of this Agreement, or modification or termination of the respective service in
accordance with Subsections 5(f) or 5(g). Following the period for Conversion
Activities, the initial term of this Agreement will be from the Conversion Date and
ending March 31, 2008, unless terminated or extended as provided in this Agreement.
CITY may extend this Agreement, with the same terms and conditions, for two (2)
consecutive 1 -year terms by giving sixty (60) days written notice of its intent to extend to
BANK prior to the end of the respective initial term or first 1 -year term of extension,
provided BANK does not decline the respective 1 -year extension within thirty (30) days
after receiving CITY'S notification.
5. Compensation.
(a) The rates used to calculate the fees and charges to be paid by CITY for
satisfactory performance of all Initial Services required and rendered pursuant to this
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Agreement shall not exceed the "Unit Prices" set forth on Attachment "A-1." The rates
used to calculate the fees and charges to be paid by CITY for satisfactory performance
of all Other Services that are authorized and rendered pursuant to Subsection 5(f) of
this Agreement shall not exceed the rate set forth in Attachment "A" (in the event of any
conflict between a fee or rate expressed in Exhibit 8 of Tab Q and that expressed in any
other Tab of Attachment 'A" the latter shall control and take precedence over Exhibit 8
of Tab Q). Such "Unit Prices" and rates shall remain fixed until March 31, 2006, after
which they shall be subject to annual adjustments based on the percentage increase or
decrease in the California Consumer Price Index ("CPI") for the previous calendar year,
not to exceed 10 percent for any one year. Such "Unit Prices" and rates include all
expenses incurred by BANK in performance of the services.
(b) Bank shall submit to CITY'S Controller (otherwise known as the
"Controller," "Treasurer," or "Finance Director") a monthly analysis of CITY account
activity and fees incurred in the form of that contained in Exhibit 4 of Tab Q of
Attachment "A" (the "Account Analysis Statement"). The Account Analysis Statement
shall be submitted within the first twenty (20) business days of the month following the
period covered by such Statement, and shall be payable in the normal course of CITY
business. For purposes of this subsection, the first monthly period of this Agreement
shall begin February 1, 2004 and end February 29, 2004.
(c) CITY may compensate BANK for services provided, either (i) by issuing a
check in payment of BANK'S Account Analysis Statement for the preceding quarterly
period (the "Direct Fees Method"), (ii) by debit to CITY'S Demand Deposit Account, (iii)
through compensating balances, (iv) through zero percent time deposits, 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.
(d) If CITY selects the Direct Fees Method, the monthly Account Analysis
Statement at the end of each quarterly period of this Agreement shall contain
accumulated summaries for the preceding months within the same quarterly period (i.e.,
the three months immediately preceding the month in which the Account Analysis
Statement is submitted). BANK shall submit four such quarterly Account Analysis
Statements per each calendar year. For purposes of this subsection, the first quarterly
period of this Agreement shall begin on February 1, 2004 and end, March 31, 2004.
Subject to the receipt of an Account Analysis Statement by the Controller within twenty
(20) business days of the month following the quarterly period, payment shall be made
by CITY within forty-five (45) calendar days of the end of the respective quarterly
period. However, if there are any disputed items on the Account Analysis Statement,
payment of the disputed items may be withheld by CITY until the items are resolved to
the satisfaction of the Controller.
(e) During the life of this Agreement, including any extensions, BANK shall
credit CITY'S Account Analysis Statement beginning April 1, 2004, and continuing
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annually each year thereafter, through and including March 31, 2008, with an amount
equal to one month's fees, calculated as the monthly average amount of the gross
amounts of fees and charges assessed during the previous twelve month period. Net
credits, if any, will be carried forward to future billing periods, or, in the case of the final
billing period, returned to the City in the form of a rebate.
(f) Provided an appropriations has been made for any increase in
fees or charges resulting from adding Other Service(s) to, or substituting Other
Service(s) for, Initial Services; the Controller may, in writing, (i) authorize BANK to
perform any Other Service, and (ii) modify or terminate an Initial Service, if substituting
an alternative Other Service. Upon receipt of such authorization, BANK shall provide
the authorized Other Service(s) in a timely manner and at the rates contained in this
Agreement. For purposes of this subsection, "Other Service(s)" shall mean only those
Other Services for which the fee or charge, if any, is described in Attachment "A"
(including a description indicating no cost to CITY, or other similar description).
(g) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not covered by this Agreement
(including Other Service(s) not included within the definition contained in
Subsection 5(f)), which modification shall include an agreed upon increase or decrease
in BANK'S compensation. Any increase or change in the scope of services beyond
those services contemplated by Attachments "A," "A-1" and "A-3" must be made by
written amendment to the Agreement signed by an authorized representative for each
party. BANK shall not be entitled to any additional compensation if such work is
performed prior to a signed written amendment.
6. Termination of Agreement.
(a) CITY may terminate this Agreement without cause 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
contract, default, detrimental reliance or any other basis in law or equity; upon seven (7)
calendar days prior written notice of termination to BANK in the manner provided
herein.
(b) In addition to CITY'S right of termination pursuant to Subsection 6(a), this
Agreement may be terminated immediately by CITY upon seven (7) calendar days prior
written notice should BANK fail 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, if 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) BANK may terminate this agreement for any reason, and without any
liability whatsoever of BANK to CITY for breach of contract, default, detrimental reliance
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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.
(d) BANK may terminate this Agreement upon 45 calendar days prior written
notice to CITY, if any of the following occurs:
(i) CITY breaches any of the terms or conditions of the Agreement;
(ii) 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 become due;
(iv) CITY, voluntarily or involuntarily, becomes the subject of any
bankruptcy, insolvency, reorganization or other similar proceeding;
(v) CITY initiates any composition with its creditors; or
(vi) Any guaranty of CITY's obligations to BANK terminates, is revoked
or its validity is contested by the guarantor, or any of the events set
forth in the above five items attributable to CITY occur to the
guarantor.
(e) 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.
(f) In the event of termination pursuant to Subsection 6(a), or for any other
reason than the material default of BANK, BANK shall be paid compensation for
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.
(g) In the event CITY terminates the Agreement pursuant to Subsection 6(b),
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 material breach of the Agreement.
(h) No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
7. Confidential Information. Any reports, information, or other data prepared
or assembled by BANK pursuant to this Agreement shall not be made available to any
individual or organization by BANK, except in accordance with the "Confidentiality"
section (pp. 35-36) of the "General Provisions" in Attachment "A-3." During the term of
this Agreement, and thereafter, BANK shall not disclose to anyone any Confidential
Information, except in accordance with the "Confidentiality" section (pp. 35-36) of the
"General Provisions" in Attachment "A-3." 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.
8. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as BANK represents to CITY that BANK is
skilled in the profession and shall perform in accordance with the standards of said
profession necessary to 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 good faith
and with reasonable care and BANK agrees to thus perform its services. Acceptance
of its services by CITY shall not operate as a release of BANK from said standard of
care and performance.
9. Indemnification.
(a) Except as otherwise provided in BANK'S indemnity of CITY with respect
to software infringement in Subsection 9(b), BANK shall indemnify, hold harmless and
defend CITY and each of its officers, officials, employees, agents and volunteers from
any and all loss, liability, costs, expenses (including attorney's fees and litigation
expenses) and damages (whether in contract, tort or strict liability, including, but not
limited to personal injury, death and property damage) incurred by CITY, BANK or any
other person, and from any and all claims, demands and actions in law or equity, arising
or alleged to have arisen out of, or attributable to, the negligence, or willful or intentional
misconduct, of BANK or any of its officers, officials, employees, agents or volunteers in
the performance of this Agreement.
If BANK should subcontract all or any portion of the work to be performed under
this Agreement, BANK shall require each subcontractor to 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.
(b) Notwithstanding Subsection 9(a), BANK shall indemnify, hold harmless
and defend CITY and each of its officers, officials, employees, agents and volunteers
from any and all liability for damage, costs, expenses (including attorney's fees and
litigation expenses) or any other loss incurred by CITY in connection with any claim that
the software or materials provided by BANK, or CITY'S use thereof, pursuant to this
Agreement infringes the trade secret, trademark, copyright, patent, or other proprietary
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right of any other party. BANK'S obligation under this subsection is subject to that
contained in Paragraph 2 of the subsection entitled "Infringement Indemnity" (p. 44) of
the "Software License" section of the "General Provisions" of Attachment "A-3."
(c) CITY shall indemnify, hold harmless and defend BANK and each of its
officers, officials, employees, agents and volunteers from any and all loss, liability,
costs, expenses (including attorney's fees and litigation expenses) and damages
(whether in contract, tort or strict liability, including, but not limited to personal injury,
death and property damage) incurred by CITY, BANK or any other person, and from
any and all claims, demands and actions in law or equity, arising or alleged to have
arisen out of, or attributable to, the negligence, or willful or intentional misconduct, of
CITY or any of its officers, officials, employees, agents or volunteers in the performance
of this Agreement.
(d) In the event of concurrent negligence on the part of BANK or any of its
officers, officials, employees, agents or volunteers, and CITY or any of its officers,
officials, employees, agents or volunteers, the liability for any and all such claims,
demands and actions in law or equity for such losses, liability, costs, expenses and
damages shall be apportioned under the State of California's theory of comparative
negligence as presently established or as may be modified hereafter.
(e) This section shall survive termination or expiration of this Agreement.
10. Insurance. Throughout the life 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 the 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 S Risk Manager. Notwithstanding the
preceding sentence, BANK reserves the right to self -insure any and all of its insurance
obligations under this Agreement. BANK agrees to maintain such self-insurance in the
amounts required hereunder. The following insurance is required:
(i) COMMERCIAL GENERAL LIABILITY insurance which shall include
contractual, products and completed operations coverages, bodily injury and
property damage liability insurance with combined single limits of not less than
$1,000,000 per occurrence.
(ii) COMMERCIAL AUTOMOBILE LIABILITY insurance, endorsed for
"any auto" with combined single limits of liability of not less than $1,000,000 per
occurrence.
(iii) PROFESSIONAL LIABILITY insurance (Errors and Omissions) with
a limit of liability of not less than $1,000,000 per claim.
(iv) WORKERS' COMPENSATION insurance as required under the
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California Labor Code.
The BANK will endeavor to provide thirty (30) day written notice in favor of CITY
of policy cancellation, except for the Workers' Compensation policy which shall provide
a ten (10) day written notice of such cancellation. If BANK chooses to self -insure any of
its insurance obligations under this Agreement, BANK shall provide a statement of such
self-insurance to CITY. In the event any policies expire during the term of this
Agreement, BANK shall provide a new certificate evidencing renewal of such
policy(ies). Upon issuance by the insurer, broker, or agent of a notice of cancellation,
BANK shall file with CITY a certified copy of the new or renewal certificates of insurance
evidencing such policy(ies).
The General Liability and Automobile Liability insurance policies shall be written
on an occurrence form and the certificates of insurance evidencing coverage shall name
CITY, its officers, officials, agents, employees and volunteers as an additional
insured, or in the case of self-insurance as an other -covered party. Such policy(ies) of
insurance shall be endorsed so BANK'S insurance shall be primary and no contribution
shall be required of CITY. In the event claims made forms are used for any
Professional Liability coverage, either (i) the policy(ies) shall provide not less than a
two (2) year discovery period, or (ii) the coverage shall be maintained for a minimum of
two (2) years following the termination of this Agreement and the requirements of this
section relating to such coverage shall survive termination or expiration of this
Agreement. If BANK is unable to obtain the insurance coverage described in the
previous sentence, BANK agrees to self -insure up to the limits specified in this
Section 10 as if a commercial insurance policy were in place and name CITY as an
other -covered party as CITY'S interest may appear. BANK shall have furnished
CITY with certificate(s) of insurance or statements of self-insurance for ALL
required insurance prior to CITY'S execution of the Agreement.
If at any time during the life of the Agreement or any extension, BANK fails to
maintain the 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 withheld until notice is received by CITY that the required
insurance has been restored to full force and effect 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.
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 officers, officials, employees, agents and volunteers in
accordance with the terms of each of the preceding paragraphs, except that the
subcontractors' certificates and endorsements shall be on file with BANK and CITY prior
to the commencement of any services by the subcontractor.
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11. 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 CITY'S Controller.
(b) In performing the work or services to be provided hereunder, BANK shall
not, to the best of its knowledge, 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
CITY'S Chief Administrative Officer if no actual or potential conflict is involved.
(c) BANK shall not, to the best of its knowledge, employ an individual to work
on the CITY's account, 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 City Controller or City Council in connection with the selection of, or award
of this Agreement to, BANK.
(d) Records of BANK'S transactions 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 for a period of seven years from the date of the transaction and for any period
required by law. In addition, all books, documents, papers, and records of BANK
pertaining to transactions performed by BANK under this Agreement and the services
performed hereunder shall be available for the purpose of making audits, examinations,
excerpts, and transcriptions for the same period of time. This Subsection 11(d) shall
survive expiration or termination of this Agreement.
12. Conflict of Interest and Non -Solicitation.
(a) BANK shall comply, and require any of its subcontractors to comply, with
all laws and regulations including, without limitation, conflict of interest laws, such as
Government Code 1090 et. seq., the California Political Reform Act (Government Code
Section 87100 et. 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 any 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.
(b) BANK represents and warrants that it has not paid or agreed to pay
any compensation, contingent or otherwise, direct or indirect, to solicit or procure this
Agreement or any rights/benefits hereunder.
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13. 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, marital status, sex, 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
era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity 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, marital 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 are treated during employment, without regard to their 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 era. 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 forms of compensation; and
selection for training, including apprenticeship. BANK agrees to post 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 behalf of BANK, state that all qualified applicants will receive consideration for
employment without regard to 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 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.
14. Independent Contractor and Not a Partnership/Joint Venture.
(a) In the furnishing of the services provided for herein, BANK is acting
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as an independent contractor. Neither BANK, nor any of its officers, associates, agents
or employees shall be deemed an employee, partner or agent of CITY for any purpose.
However, CITY shall retain the right to verify that BANK is performing its respective
obligations in accordance with the terms hereof.
(b) This Agreement does not evidence a partnership or joint venture
between BANK and CITY. BANK shall have no authority to bind CITY absent CITY'S
express written consent. Except to the extent otherwise provided in this Agreement,
BANK shall bear its own costs/expenses in pursuit hereof.
15. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally or when actually received via courier, fax, or the United States
mail, with postage prepaid, 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 notice.
16. Binding. Once this Agreement is signed by all parties, it shall be binding
upon, and shall inure to the benefit of, all parties, and each parties' respective heirs,
successors, assigns, transferees, agents, servants, employees and representatives.
17. Assignment.
(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 CITY, which shall not be unreasonably withheld. Any attempted assignment by
BANK, its successors or assigns, shall be null and void unless approved in writing by
CITY.
(b) BANK hereby agrees not to assign the payment of any monies due BANK
from CITY under the terms of this Agreement to any other individual(s), corporation(s)
or entity(ies). CITY retains the right to pay any and all monies due BANK directly to
BANK.
18. Compliance With Law. BANK shall execute a Contract for Deposit of
Moneys in accordance with Section 53649 of the California Government Code, and
shall further comply with all depository regulations and requirements as set forth in the
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, state, 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.
19. Waiver. The waiver by either party of a breach by the other of any
14
provision 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 writing 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 provision herein.
20. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California. 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 County,
California.
21. Headings. The section headings in this Agreement are for convenience
and reference only and shall not be construed or held in any way to explain, modify or
add to the interpretation or meaning of the provisions of this Agreement.
22. Severability. The provisions of this Agreement are severable. The
invalidity, or unenforceability of any one provision in this Agreement shall not affect the
other provisions.
23. 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.
24. Attorney's Fees. If 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 party in such proceeding or action shall be entitled to recover from the
other party its reasonable attorney's fees and legal expenses.
25. 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.
26. Dispute Resolution. 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 provision will be deleted
by BANK from 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
15
in connection with this Agreement.
27. 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 data, loss of operation
time or loss of contracts, unless any of the aforementioned injuries occurs as the direct
result of CITY'S intentional misconduct in performing its obligations under this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
111
16
CITY OF FRESNO,
a municipal corporation
By: _4'L �2
R F. QuKto, Controller
ATTEST:
REBECCA E. KLISCH
City Clerk
By: Av
Deputy
APPROVED AS TO FORM:
HILDA CANTU MONTOY
7i,A e
Assistant
Addresses:
CITY:
City of Fresno
Attention: Ruth F. Quinto, Controller
2600 Fresno Street, Room 2156
Fresno, CA 93721-3622
Phone: (559) 498-4757
FAX: (559) 488-4636
Attachments:
Bank of America NA,
a national banking association
Nam lizabeth Leonard
Title: Vice President
BANK:
Bank of America
California Government Banking
555 Capital Mall
Sacramento, CA 95814-4503
FAX: 916 321-4822
Bank of America
Documentation Management
P.O. Box 27128
Concord, CA 94527-9904
FAX: 925 675-7131
1. Attachment "A" - Excerpts from Proposal Binder
2. Attachment "A-1" -Exhibit J1 Pricing Schedule
3. Attachment "A-2" - Community Development Banking Report
4. Attachment "A-3" - Terms and Conditions Treasury Services Booklet
17