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HomeMy WebLinkAbout2009-279 MASTER BANKING SERVICES AGREEMENT THIS MASTER BANKING SERVICES AGREEMENT (the "Agreement" ) is made and entered into by and between Indian River County (the County ) , and Wachovia Bank , N . A . , a national banking association (the " Bank " ) , executed on the date ( s ) shown on the signature page hereof. WITNESSETH : WHEREAS , the County issued its Request for Proposals for Banking Services (the " RFP " ) pursuant to state and local law to solicit proposals to serve as the County ' s primary relationship bank ; and WHEREAS , the Bank responded to the RFP by submitting its Proposal for Banking Services dated August 10 , 2009 (the " Proposal " ) , which Proposal was duly accepted by the County without modification as the most favorable proposal submitted ; and WHEREAS , the Bank shall be providing banking services to the County under the RFP and the Proposal ( hereinafter sometimes collectively called the " Contract" ) , WHEREAS , although the RFP and the Proposal address in some detail the banking services to be provided , there are a number of operational issues not addressed by either the RFP or the Proposal which the parties desire to address ; and NOW , THEREFORE , in consideration of the foregoing premises and other good and valuable consideration , the receipt and adequacy of which are hereby acknowledged , the County and the Bank hereby covenant and agree as follows : Section 1 . Purpose and Effect of this Agreement : Delineation of Banking Services The banking services to be provided to the County by the Bank shall consist of: ( a ) each of the specific requirements , terms and conditions set forth in the RFP which is hereby incorporated by reference in its entirety ; and ( b ) each of the services , terms and conditions set forth in the Proposal , which is hereby incorporated by reference in its entirety ; and (c) Unless the context requires otherwise , all references to "this Agreement , " and use of the terms " herein , " " hereby , " " hereof , " " hereto , " " hereunder" and the like shall be deemed to include the RFP , the Proposal , this Agreement and addenda . - 1 - Section 2 , Controlling Provisions Except as otherwise specifically provided in Section 6 hereof, in the event of any conflict between the specific provisions of this Agreement or any of the Exhibits hereto , on the one hand , and the requirements or provisions of the RFP and /or Proposal , on the other hand , the requirements or provisions of the latter documents shall control . Wherever possible , the provisions of all documents shall be construed in such manner as to avoid conflicts between provisions of the various documents . It is the intention of the parties that the Exhibits hereto set forth the day4o -day operational procedures to be complied with in connection with the County ' s ordering of and the Bank' s provision of specific banking services covered by the Proposal . In that connection , the parties hereby acknowledge and agree that , in the event that the County elects to utilize any of the Bank' s services not set forth in the Proposal , or in the event that the Bank , in the normal course of its business , develops specific service agreements in the future for banking services requested by the County in addition to those covered by the Exhibits hereto , the parties will execute specific service agreements with respect thereto in form and substance reasonably acceptable to the parties , and such agreements shall be deemed to be a part of and subject to this Master Banking Services Agreement , whether or not so stated in such service agreement . Section 3 . Services to be Rendered ( a ) The Bank will provide the County with the banking services set forth in the Proposal , as more fully defined herein . With respect to the County ' s depository demand deposit accounts , the County ' s funds collected daily will be deposited in the accounts as described in the Request for Proposal on the same day . Checks deposited will be available as outlined in the Bank' s Proposal if deposited in the Bank before it normally closes its transactions for the day , which is currently 2 : 00 p . m . ( b ) The County will attempt to limit the number of bank accounts maintained with the Bank ; however , where legal requirements dictate , separate bank accounts will be maintained with the Bank . Should the County utilize services not requested in the RFP , the Bank reserves the right to charge for those services in accord with its current published charges for said services . Section 4 . Compensation For Services ( a ) For the services authorized in the Proposal , the County agrees to maintain monies on deposit with the bank in it' s operating accounts , in an amount which will generate earnings enough to cover all of the appropriate charges as outlined in the proposal pricing section . Monthly the Bank will prepare an analysis for services rendered . The analysis will reflect the amount of earnings from the account which were - 2 - used for the purpose of paying the service charges to the Bank as stated in the proposal . ( b ) Should the County elect to pay directly for account service charges , the County will pay the Bank within thirty ( 30 ) days after the Bank invoices the County . The charges will be payable monthly in arrears upon presentation of the earnings credit calculation . The Banking services chargeable are as stated in the proposal . ( c) If at the end of any month the net earnings credit is a negative amount (value of services provided by the Bank has exceeded value of compensating balances maintained by the County) , the County will pay the Bank such amount within thirty ( 30 ) days after the Bank invoices the County . Section 5 . Representations , Warranties and Covenants ( a ) The Bank hereby represents and warrants to the County that it has full power and authority to enter into this Agreement and fully perform its obligations hereunder without the need for any further corporate or governmental consents or approvals , and that the persons executing this Agreement are authorized to execute and deliver it . Assuming the due authorization , execution , delivery , legality and enforceability hereof by or against the County when executed and delivered by the parties , this Agreement will constitute a valid and binding agreement of the Bank , enforceable against it in accordance with its terms , subject only to the application of general principles of equity and limitations arising from bankruptcy , insolvency , moratorium and other similar laws affecting the rights of creditors generally . ( b ) The Bank has not employed or retained any person employed by the County to solicit or secure this Agreement and it has not offered to pay , paid , or agreed to pay any person employed by the County any fee , commission percentage , brokerage fee , or gift of any kind contingent upon or resulting from the award of this Agreement . ( c) The Bank is aware of the conflict of interest laws of the ordinances and regulations of the County , and the State of Florida , and covenants that the Bank will fully comply in all material respects with the terms of said laws . ( d ) The County hereby represents and warrants to the Bank that it has full power and authority to enter into and perform all of its obligations under this Agreement without the need for any further bids , notices or other actions by its Council , Commission , Board or any other governmental authority . When executed and delivered by the parties , this Agreement will constitute a valid and binding agreement of the County , enforceable against it in accordance with its terms , subject only to the application of general law and principles of equity and limitations arising from bankruptcy , insolvency , moratorium and other similar laws affecting the rights of creditors generally . The County further represents and warrants to the Bank that it has - 3 - authorized the County Clerk of the Circuit Court , or persons designated by them in writing , to execute and deliver documents to the Bank as necessary hereunder or reasonably deemed appropriate by such officers to effect the transactions contemplated hereby . The County acknowledges and agrees that the Bank is fully authorized and directed to accept orders , requests and authorizations from such officers or designee on the County ' s behalf in connection with the implementation or provision of any of the banking services covered by the Proposal . Such authorization and direction shall not be deemed to prohibit or preclude the Bank from relying upon actions or requests of other County personnel so long as the Bank reasonably believes , in good faith , that such persons have been authorized in writing to act on behalf of the County or by any of such officials . ( e ) At the request of the Bank , the County agrees to cause its designated officials or their designees to execute such signature cards and other signature and identification verification documents as the Bank deems reasonably necessary for purposes of establishing appropriate security measures in connection with the banking services to be provided hereunder . Section 6 . Indemnification ( a ) The Bank shall indemnify and save harmless the County , its agents and employees from or on account of any losses or damages resulting from any breach of fiduciary duty committed during or on account of any operations connected with this Agreement or by any act of negligence in connection with the same ; or by or on account of any negligent act or omission of the Bank or its subcontractors , agents , servants or employees . The Bank further agrees to indemnify and save harmless the County , its agents or employees against any claims or liability arising from or based upon the violation of any federal , state , county or local laws , by- laws , ordinances or regulations by the Bank , its agents , servants or employees . ( b ) Subject to the limitation on liability contained in Section 768 . 28 , Florida Statutes , as amended , the County shall indemnify and save harmless the Bank , its directors , officers , employees and agents from or on account of any losses or damages resulting from any breach by the County , its agents or employees of this Agreement and from or on account of any actions or omissions of the Bank taken or omitted to be taken at the request of the County , its employees or agents or otherwise arising out of any negligent act or omission or failure to exercise reasonable care by the County , its employees or agents . Subject to the aforesaid limitation , the County further agrees to indemnify and save harmless the Bank , its agents or employees against any claims or liability arising from or based upon the violation of any federal , state , county or city laws , by- laws , ordinances or regulations by the County , its agents , servants or employees . - 4 - ( c) In the event that either party hereto shall desire to invoke the foregoing indemnity provisions (the " Indemnitee ") against the other (the " Indemnitor" ) , the Indemnitee shall provide written notice to the Indemnitor within a reasonable time after discovery of the facts allegedly entitling it to indemnification hereunder , specifying in such notice the relevant facts and circumstances and requesting indemnification as provided herein . The Indemnitor shall defend at its own expense , or at the Indemnitee ' s option provide for such defense of, any and all claims of liability in all suits and actions of every kind and description that may be brought against the Indemnitee which may result from the negligent actions or omissions under this Agreement by the Indemnitor, its employees or agents , as described in subsection ( a ) or ( b ) above , as the case may be . Section 7 . Limitation of Liability Notwithstanding any other term or provision of this Agreement , neither the County nor the Bank shall in any event be liable to the other for any amount in excess of the actual loss sustained by the injured party , and in no event shall either the County or the Bank ever be liable hereunder or in any action in tort arising out of the services or relationship to be provided or established hereunder for any indirect , special , incidental , punitive or consequential loss or damage of any kind , including lost profits or opportunities or damage to reputation (whether or not advised of the possibility thereof) arising or allegedly arising therefrom . Section 8 . Term and Termination ( a ) This Agreement shall have a term of three years , commencing as of January 1 , 2010 and ending at 11 : 59 p . m . on December 31 , 2012 . The County shall give written notice to the Bank prior to the expiration of the then current term of its election not to have this Agreement so renewed . The County shall have the right to exercise a maximum of two additional two-year extensions to the term of this Agreement by providing written notice to the Bank . ( b ) " Upon the expiration of this Agreement or any extension period , the County may , on the day following the expiration of the Agreement or any extension period , withdraw all funds maintained in any of the County ' s Accounts without penalty or fee and close the accounts . The Bank agrees to otherwise maintain the banking relationship with the County in accord with the terms of this Agreement or any extension for a period of six months from the date of expiration of the Agreement or of any extension period or upon written notice by the County to close the County ' s remaining accounts , whichever comes first . During this six month period following the expiration of the Agreement or any extension period , the County shall pay a monthly service charge - 5 - for banking services based upon the pricing for banking services contained in the Proposal or made applicable to any extension period " . ( c) If either party does not comply with terms of this Agreement , the County or the Bank , as the case may be , may give written notice of default to the defaulting party of the specific default . If the default ( s ) is/are not corrected within thirty ( 30 ) days , this Agreement ( including the RFP and Proposal ) may be terminated thirty ( 30 ) days from the written notice of default , by the non - defaulting party . (d ) Right to Audit . The County , from time to time , during Bank business hours and with at least two ( 2 ) business days prior notice to the Bank , shall have the right to audit the Bank' s books and records at the County' s expense with regard to the accounts and services provided to the County hereunder to ensure that all aspects of the Agreement are being met . Section 9 . Changes ( a ) The County may , from time to time , request changes in the scope of services of the Bank to be performed hereunder . Such changes , which are mutually agreed upon by and between the County and the Bank , shall be incorporated in written amendments to this Agreement . ( b ) The fees and charges set forth for the services to be provided to the County will begin on the date the contract is signed , shall not be increased for a period of three ( 3 ) years after commencement of the term of this Agreement . Fees and charges may be renegotiated for any extensions beyond the initial three ( 3 ) year period . Section 10 , Equal Employment Opportunity : Non -discrimination The Bank will not discriminate against any employee or an applicant for employment because of race , color , religion , sex , national origin or handicap . The Bank shall take affirmative action to ensure that applicants are employed and that employees are treated fairly during employment without regard to race , color , religion , sex , natural origin or handicap . Such action shall include , but not be limited , to the following : Employment , upgrading , demotions or transfers , recruitment or recruitment advertising ; layoff or terminations ; rates of pay or other forms of compensation ; selection for training including apprenticeship ; and participation in recreational and educational activities . The Bank shall keep such records and submit such reports concerning racial and ethnic origin of applicants for employment and employees as the Secretary of Labor of the United States requires . The Bank agrees to comply with such rules , regulations and guidelines as the Secretary may issue to implement these requirements . Both Parties - 6 - shall comply with all applicable laws , ordinances and codes of Federal , State and local governments applicable to that Party . Section 11 . Waiver No waiver of a breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing . Section 12 . Severability Should any provisions , paragraphs , sentences , words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid , illegal or otherwise unenforceable under the laws of the State of Florida or the County , such provisions , paragraphs , sentences , words or phrases shall be deemed modified to the extent necessary in order to conform with such laws , and to the extent they cannot be so modified , then same shall be deemed severable , and in either event , the remaining terms and provisions in this Agreement shall remain unmodified and in full force and effect . Section 13 . Governing Law This Agreement shall be construed and enforced according to the Laws of the State of Florida . Section 14 . Exhibits The following documents are attached hereto and incorporated by reference herein : A . RFP B . Proposal C . Addendum — Depository Agreement Additional service agreements may be added from time to time as mutually agreed upon by the parties , and any service agreement may be terminated separately and severally without affecting the continued enforceability of all other provisions of this Agreement as to non -terminated services . - 7 - Section 15 . Notices All written notices , demands and other communications required or provided for under this Agreement shall be sent by certified mail , return receipt requested , postage prepaid , in the case of mailing , or by overnight or same day courier , or by electronic transmission producing a written record , or hand delivered to the following address and person bearing the following title for each party hereto or such other addressee or person as shall be designated by a party in a written notice given in the manner required hereby : For : Indian River County 1801 27th Street Vero Beach , FL 32960 Attn : Finance Department Wachovia Bank , N . A . 450 South Australian Ave . 9th floor West Palm Beach , FL 33401 Attn : W . Dane Sheldon All notices shall be deemed delivered when received . Section 16 , Force Majeure The County agrees the Bank shall have no responsibility or liability for delay in its performance under this master Agreement or any losses arising out of delays and /or interruptions of business due to acts of God , acts of government authority , acts of public enemy or war , riots , civil disturbances , power failure , telecommunications failure , severe adverse weather conditions or other causes beyond the Bank's reasonable control . This time , if any , required for such performance under this Master Agreement shall be automatically extended during the period of such delay or interruption . Section 17 . Assignment - 8 - Neither party shall assign this Agreement or any interest herein , or delegate any of its duties hereunder , without the other party' s prior written consent . Section 18 . Jurisdiction The parties hereto agree that the state or federal courts located in the State of Florida shall have the exclusive jurisdiction over the parties and the subject matter of any litigation between the parties arising hereunder . For purposes of state court action , venue shall lie in Jacksonville , Florida , and for purposes of federal court action , venue shall lie within Jacksonville , Florida . IN WITNESS WHEREOF , the parties have executed this Agreement hereto as of the day and year shown below . Indian River County By : 0>5 Chairman , Indian iver County APPROVED AS TO FORM Board of County Commissioners AND LEGAL SUFFICI IN Approved by BCC November 39 /200 BY e4 GE4ORG A. GLENN Attest : 404�& rope ASSISTANT COUNTY ATTORNEY �? A6RTC 1 WACHOVIA BANK , N . A . By : W . Dane Sheldon Senior Vice President r � PATRICIA ANN THOMAS cs : .pires 9113/2010 I inin Notary A... der 11C - 9 -