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01/17/2017 (2)
BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY FLORIDA COMMISSION AGENDA TUESDAY, JANUARY 17, 2017 - 9:00 AM Commission Chambers Indian River County Administration Complex 1801 27th Street, Building A Vero Beach, Florida, 32960-3388 www.ircgov.com COUNTY COMMISSIONERS Joseph E. Flescher,, Chairman, District 2 Peter D. O'Bryan, Vice Chairman, District 4 Susan Adams, District 1 Bob Solari, District 5 Tim Zorc, District 3 Jason E. Brown, County Administrator Dylan Reingold, County Attorney Jeffrey R. Smith, Clerk of the Circuit Court and Comptroller 1. CALL TO ORDER 2. INVOCATION Reverend Benny Rhyant, New Mount Sanai Baptist Church 3. PLEDGE OF ALLEGIANCE Commissioner Susan Adams 4. ADDITIONS/DELETIONS TO THE AGENDA / EMERGENCY ITEMS 5. PROCLAMATIONS and PRESENTATIONS 5.A Presentation of Florida Commission for the Transportation Disadvantaged 2016 Urban Community Transportation Coordinator of the Year Award Recognizing the Senior Resource Association operating as the Indian River County Community Transportation Coordinator 5.B Quarterly Recycling Update - January 2017 6. APPROVAL OF MINUTES 6.A Regular Meeting of December 13, 2016 7. INFORMATION ITEMS FROM STAFF OR COMMISSIONERS NOT REQUIRING BOARD ACTION 7.A Indian River County Hospital District Meeting Schedule 2017 January 17, 2017 Page 1 of 4 7.B The next Wabasso community meeting for the Wabasso Corridor Plan Update has been scheduled for February 6, 2017, at 6:00 p.m. at the Allen Chapel AME church located in Wabasso at 6245 85th Street (SW corner of CR 510 and 64th Avenue). 7.0 Update All Aboard FloridaNero Electric Expenses 7.D Update on GoLine Beachside Circulator (Route 16) 7.E Continuation Certificate for Surety Bond - Jeffrey R. Smith 7.F Final TD Banking Contract Documents 8. CONSENT AGENDA 8.A Approval of Checks and Electronic Payments December 30, 2016 to January 5, 2017 8.B Application for Nomination to Serve on the Metropolitan Planning Organization Citizens Advisory Comittee (MPO CAC) 8.0 Miscellaneous Budget Amendment 005 8.D Recommendation of Award - Bid 2017014 - Self -Contained Breathing Apparatus 8.E Award of Bid No: 2017013 43rd Avenue Sidewalk Improvements from Aviation Boulevard to Airport Drive West 8.F Private Community Requests to Use County Beach Park Access for Emergency Dune Repair Projects - Post Hurricane Matthew 8.G Irrigation System Pump Station Replacement at Sandridge Golf Club - Lakes Golf Course 9. CONSTITUTIONAL OFFICERS and GOVERNMENTAL AGENCIES 9.A Indian River County Sheriff Deryl Loar - Request for $80,821.45 from the Law Enforcement Trust Fund to be used for the purchase of active shooter kits, SWAT armor, and tactical assault vests. 9.B Indian River County Sheriff Deryl Loar - Authorization for Proceeds from Auction of Surplus Property in Amount of $105,174.00 to be used in Current Fiscal Year for Purchase of like -kind Property 10. PUBLIC ITEMS A. PUBLIC HEARINGS B. PUBLIC DISCUSSION ITEMS 10.B.1 Request to Speak from Phyllis Frey, the American Coalition 4 Property Rights, Regarding HUD's Affirmatively Furthering Fair Housing Rule C. PUBLIC NOTICE ITEMS 10.C.1 Public Notice of Public Hearing Scheduled for January 24, 2017 to Consider Codifying the Code of Indian River County - LEGISLATIVE January 17, 2017 Page 2 of 4 11. COUNTY ADMINISTRATOR MATTERS 12. DEPARTMENTAL MATTERS A. Community Development B. Emergency Services C. General Services 1. Human Services 2. Sandridge Golf Club 3. Recreation D. Human Resources E. Office of Management and Budget F. Public Works G. Utilities Services 12.G.1 West Wabasso Phase II Sewer and the East Gifford Drainage Project Bidding Status: Bid No. 2017021 13. COUNTY ATTORNEY MATTERS 14. COMMISSIONERS MATTERS A. Commissioner Joseph E. Flescher, Chairman B. Commissioner Peter D. O'Brvan, Vice, Chairman C. Commissioner Susan Adams D. Commissioner Bob Solari E. Commissioner Tim Zorc 14.E.1 HUD and the Affirmatively Furthering Fair Housing (AFFH) Rule 15. SPECIAL DISTRICTS AND BOARDS A. Emergency Services District B. Solid Waste Disposal District C. Environmental Control Board 16. ADJOURNMENT January 17, 2017 Page 3 of 4 Except for those matters specifically exempted under the State Statute and Local Ordinance, the Board shall provide an opportunity for public comment prior to the undertaking by the Board of any action on the agenda, including those matters on the Consent Agenda. Public comment shall also be heard on any proposition which the Board is to take action which was either not on the Board agenda or distributed to the public prior to the commencement of the meeting. Anyone who may wish to appeal any decision which may be made at this meeting will need to ensure that a verbatim record of the proceedings is made which includes the testimony and evidence upon which the appeal will be based. Anyone who needs a special accommodation for this meeting may contact the County's Americans with Disabilities Act (ADA) Coordinator at (772) 226-1223 at least 48 hours in advance of meeting. Anyone who needs special accommodation with a hearing aid for this meeting may contact the Board of County Commission Office at 772-226-1490 at least 20 hours in advance of the meeting. The full agenda is available on line at the Indian River County Website at www.ircgov.com The full agenda is also available for review in the Board of County Commission Office, the Indian River County Main Library, and the North County Library. Commission Meetings are broadcast live on Comcast Cable Channel 27 Rebroadcasts continuously with the following proposed schedule: Tuesday at 6:00 p.m. until Wednesday at 6:00 a.m., Wednesday at 9:00 a.m. until 5:00 p.m., Thursday at 1:00 p.m. through Friday Morning, and Saturday at 12:00 Noon to 5:00 p.m. January 17, 2017 Page 4 of 4 Ea INDIAN RIVER COUNTY SOLID WASTE DISPOSAL DISTRICT BOARD MEMORANDUM Date: To: From: Thru: Prepared By: Subject: January 6, 2017 Jason E. Brown, County Administrator Vincent Burke, P.E., Director of Utility Services Himanshu H. Mehta, P.E., Managing Director, Solid Waste Disposal District Stephanie C. Fonvielle, Recycling Education and Marketing Coordinator, Solid Waste Disposal District Quarterly Recycling Update - January 2017 PUBUC PRESENTATION: When the single stream recycling program began in October 2015, the month-to-month recycling tonnages were 32.0% — 76.4% higher than those the previous year under dual stream recycling. Now, Indian River County has entered the second year of single stream recycling and tonnages are comparable or greater than those in FY15/16. The quarterly summary is as follows: Month FY2015/16 Tonnages FY2016/17 Tonnages % Change October 1,278 1,554 21.5% November 1,309 1,861 42.2% December 1,851 1,786 -3.5% SWDD staff continues to encourage participation in the recycling program using print and radio advertising campaigns, presentations, landfill tours and one on one interactions with county residents. We have also finished filming a 30 - second video advertisement that will air on Comcast Cable beginning in February 2017. On January 21, 2017, SWDD and Waste Management will co -host a joint Electronics (e -waste) and Household Hazardous Waste (HHW) recycling event, which will be open to all residents of Indian River County. The event will take place from 9 am to 12 pm at the North County Pool Parking lot at 9450 CR 512 in Sebastian. Residents who attend the event can enter a raffle for a laptop that has been generously donated by the e -waste vendor, NWI Recycling. @BCL@7405E69E Page —1 — P1 Recycling Update: 15t Quarter FY 2016/17 Solid Waste Disposal District Stephanie Fonvielle Recycling Education and Marketing Coordinator January 17th, 2017 Recycling Tonnages for the 1st Quarter 2,000 1,800 cn 1,600 c H 1,400 bi3 c 1,200 a) 1,000 800 'O 600 O 400 200 0 21.5% 42.2% -3.5 1,554 October 1,861 November 1,851 1,786 December • FY 15-'16 • FY 16-'17 Intergenerational Recreation Center SWDD partnered with Waste Management and the Recreation Department to improve recycling at the Intergenerational Recreation Center. lar01401Wutilew Aga Y•:'• ,,'; ur a 9ramlo:12 North County, Pool 9450 CR 512 • Sebastian „.RECYCL.E. Enter the Raffle to Win a Free Laptop courtesy of NWI Recycling • ',",,74 Continued Recycling Outreach Paper Shredding EventApril&th - • Southeast Secure Shredding • 3910 US 1 • Presentations/Landfill Tours • Ongoing Recycling Education • Poster at AMC Theater • 30 sec. Video Ad on Comcast • Vero Voice Media Package ;Shredding Event redd d'papergiMpiperecycicd i»';iruc,hlur' Actinic Earrh. I)av by bringing y'onr document tu.. the shreil<ic�d ind recycled Free of Charge' r Saturday, April 2nd From Mist 9 am to 2 pm. Smdhc 4t Secure Shredding 3910 US 1 . Vero Beach • Maximum 3 bore JMg<per vehicle U(05 IAS each) • Staple,' and paperclips arc acceptable. but please remove binders and hanging folder< • Fre-shredded paper is acceptable (up to 3 bags) lion to Recycled into 'this: nO Noses or Corda NO Shredded Paper 71 IRCHD Indian River County 1.411.4111.41 Hospital .rn...t>•.rrt� District January 3, 2017 Mr. Jeffrey R. Smith Clerk of the Circuit Court 2000 16th Ave. Vero Beach, FL 32960 Re: Indian River County Hospital District Meeting Schedule 2017 Dear Mr. Smith: Please be advised, that the Indian River County Hospital District Board of Trustees Regular Monthly meetings will continue to be on the third Thursday of each month, at 4:30pm. The meetings will be held at the Indian River County Administration Building, County Commissioner's Chambers, 1801 27th Street, Building A, Vero Beach, Florida, 32960. Should you have any other questions or concerns, please contact me directly at 772-770- 0935. AMS/kav cc: Jennifer Peshke, Esq. Board of Trustees County Attorney's Office County Commission Office YESDESK@TCPALM.com attachments: none Respectfully, Od.t 14-4 Kate Voss, Executive Assistant \ \ DISTRICSVR1 \ District Share \Indian River County Commissioners \BOT Regular Meeting Schedule Letter 12.28.16.docx BOARD OF TRUSTEES Eugene P. Feinour, Chairman Marybeth Cunningham, Vice Chairman Allen Jones • Thomas J. Spackman, M.D. • Dr. Michael Weiss • Ann Marie McCrystal • John Vaidis Zudans, M.D 3730 Seventh Terrace, Suite #204-B, Vero Beach, Florida 32960 (772) 770-0935 Fax (772) 770-1974 P2 i8 INDIAN RIVER COUNTY COMMUNITY DEVELOPMENT DEPARTMENT 1801 27th Street, Vero Beach FL 32960 772-226-1237 / 772-978-1806 fax www.irccdd.com Save th e Dage Third Community Meethi for the Wabasso Corridor Plan Update Will be held on On February 6, 2017, at 6:00 p.m. At Allen Chapel AME Church located at 6245 85'h Street Vero Beach, Fl. 32967 (SW corner of CR510 and 64th Avenue) "2:111.1'.V17 Location Map Prior to and at the meeting agenda and back-up information will be distributed • Current Wabasso Corridor Plan is available on the County website: http://www.irccdd.com/Planning_Division/wabasso.pdf P3 7a INFORMATIONAL INDIAN RIVER COUNTY INTER -OFFICE MEMORANDUM OFFICE OF MANAGEMENT AND BUDGET TO: Members of the Board of County Commissioners DATE: January 9, 2017 FROM: Michael Smykowski Director, Office of Management & Budget SUBJECT: UPDATE ON ALL ABOARD FL/VERO ELECTRIC EXPENSES DESCRIPTION Staff is providing an update to the Board of County Commissioners on actual expenses for All Aboard Florida and Vero Electric/FMPA issues. Please see the attached documents for expenses incurred as of 1/9/17. ATTACHED: • All Aboard Fl. expenses through 1/9/17 spreadsheet. • Vero Beach Electric/FPL/FMPA expenses through 1/9/17 spreadsheet. P4 All Aboard Florida Expenses Indian River County Board approved expenses of $186,921 prior to 3/24/15 autorization 3/24/15 Litigation- Board Approved a total of $2.7 million FY 14/15 - 16/17 in addition to prior authorizations Acctfl00110214-033110-15023 Date Vendor 12/1/2016 Bryan Cave LLP 12/1/2016 Bryan Cave LLP 12/1/2016 Shubin & Bass PAS Legal Services Amount Note $1,722.50 Fees for Legal Services -Oct 2016 $16,457.70 Fees for Legal Services -Oct 2016 -private activity bonds $9,387.20 Fees for Legal Services -Oct 2016 Subtotal Expenses FY 16/17 $27,567.40 9/30/2016 Bryan Cave LLP 9/30/2016 Bryan Cave LLP 9/30/2016 Bryan Cave LLP 9/30/2016 Bryan Cave LLP 9/30/2016 Shubin & Bass PAS 9/28/2016 Shubin & Bass PAS 9/28/2016 Shubin & Bass PAS 9/14/2016 Bryan Cave LLP 9/14/2016 Bryan Cave LLP 8/16/2016 Bryan Cave LLP 8/16/2016 Bryan Cave LLP 7/27/2016 Shubin &Bass PAS 7/19/2016 Bryan Cave LLP 7/19/2016 Bryan Cave LLP 6/21/2016 Shubin & Bass PAS 6/14/2016 Bryan Cave LLP 6/14/2016 Bryan Cave LLP 5/24/2016 Shubin & Bass PAS 5/3/2016 Shubin & Bass PAS 4/19/2016 Bryan Cave LLP 4/19/2016 Bryan Cave LLP 4/6/2016 Bryan Cave LLP 4/6/2016 Nabors & Giblin 3/30/2016 Shubin & Bass PAS 3/16/2016 Bryan Cave LLP 3/16/2016 Bryan Cave LLP 2/9/2016 Bryan Cave LLP 2/9/2016 Bryan Cave LLP 1/20/2016 Bryan Cave LLP 1/20/2016 Bryan Cave LLP 12/8/2015 Bryan Cave LLP 12/8/2015 Bryan Cave LLP $5,060.15 $46,369.62 520,358.95 $8,496.08 $28,277.00 $22,949.40 $15,581.00 514,149.70 53,457.13 Fees for Legal Services -Sept 2016 Fees for Legal Services -Sept 2016 -private activity bonds Fees for Legal Services -Aug 2016 Fees for Legal Services -Aug 2016 -private activity bonds Fees for Legal Services -Sept 2016 Fees for Legal Services -Aug 2016 Fees for Legal Services -July 2016 Fees for Legal Services -July 2016 Fees for Legal Services -July 2016- private activity bonds 572,430.59 Fees for Legal $1,754.00 Fees for Legal $17,550.50 Fees for Legal $3,561.50 Fees for Legal $9,255.65 Fees for Legal 511,591.49 Fees for Legal 527,804.30 Fees for Legal 5386.10 Fees for Legal $29,983.35 Fees for Legal $21,968.25 Fees for Legal 519,845.75 Fees for Legal $128,696.58 Fees for Legal $112,572.86 Fees for Legal $150.00 Fees for Legal $7,575.75 Fees for Legal 531,795.61 Fees for Legal $22,207.65 Fees for Legal $16,410.09 Fees for Legal $6,767.90 Fees for Legal $50,663.10 Fees for Legal $20,948.09 Fees for Legal $27,303.95 Fees for Legal 51,245.06 Fees for Legal Subtotal Expenses FY 15/16 $807,167.15 9/30/2015 9/30/2015 9/30/2015 9/30/2015 8/28/2015 8/28/2015 8/12/2015 8/12/2015 7/1/2015 7/1/2015 7/2/2015 7/1/2015 6/18/2015 5/20/2015 05/12/15 05/12/15 04/20/15 3/24/15 2/24/15 12/22/14 12/10/14 Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Nabors Giblin & Nickerson PA Nabors Giblin & Nickerson PA Bryan Cave LLP Bryan Cave LLP Bryan Cave LLP Nabors Giblin & Nickerson PA* Nabors Giblin & Nickerson PA* Bryan Cave LLP Bryan Cave LLP Services -June 2016- private activity bonds Services -June 2016 Services -June 2016 Services -May 2016 Services -May 2016 -private activity bonds Services -May 2016 Services -April 2016 Services -April 2016 -private activity bonds Services -April 2016 Services -March 2016 Services -March 2016 Services -March 2016 -private activity bonds Services -Feb 2016 -private activity bonds Services -August 2015 Services -Feb 2016 Service -Jan 2016 -private activity bonds Services -Jan 2016 Service -Dec 2015 private activity bonds Service -Dec 2015 Service -Nov 2015 private activity bonds Services. Nov 2015 Services Oct 2015 Services -Oct 2015 private activity bonds $54,812.80 Fees for Legal Services Sept 2015 57,113.36 Fees for Legal Services -Sept 2015 private activity bonds $81,436.99 Fees for Legal Services -Aug 2015 $55,354.02 Fees for Legal Services -Aug 2015 private activity bonds 551,636.09 Fees for Legal Services -July 2015 private activity bonds $6,307.05 Fees for Legal Services -July 2015 $50,710.86 Fees for Legal Services -June 2015 private activity bonds $37,687.25 Fees for Legal Services -June 2015 5178,503.50 Fees for Legal Services -May 2015 private activity bonds 537,048.25 Fees for Legal Services -May 2015 $177,071.70 Fees for Legal Services -April 2015 $28,871.78 Fees for Legal Services -April 2015 private activity bonds ($250.00) Martin county paid 1/2 $500.00 Fees for Legal Services $28,877.05 Fees for Legal Services 5145,105.00 Fees for Legal Services $4,107.50 Fees for Legal Services $617.49 IRC 1/3 Portion of Legal Fees 55,593.56 IRC 1/3 Portion of Legal Fees $33,252.60 Fees for Legal Services $79,962.30 Fees for Legal Services Subtotal Expenses FY 14/15 51,064,319.15 F:\Budget\All Aboard FL Expenses P5 All Aboard Florida Expenses Indian River County 9/30/14 Bryan Cave LLP 9/30/14 Bryan Cave LLP 9/17/14 Bryan Cave LLP $26,975.60 Fees for Legal Services $638.70 Fees for Legal Services $937.50 Fees for Legal Services Subtotal Expenses FY 13/14 $28,551:80 *Split between St.Lucie, Indian River, and Martin Counties Acct#00110214-033190-15023 12/22/2016 Triad Railroad Consulants (Requisition) 12/1/2016 VB Court Reporters 12/1/2016 Scripps Other Professional Services $32,800.00 $300.00 St Johns Admin Hearing $95.70 Legal Advertising Subtotal Expenses FY 16/17 $33,195.70 9/30/2016 GK Environmental 9/30/2016 Triad Railroad Consulants 9/30/2016 Atkins North America,Inc. 9/30/2016 Federal Express 8/5/2016 GK Environmental 7/12/2016 Dylan Reingold-travel to Wash DC 6/1/2016 US Legal Support Inc. 5/23/2016 Federal Express 5/11/2016 GK Environmental 4/19/16 GK Environmental 1/26/2016 Federal Express 1/25/2016 VB Court Reporting $5,580.00 $24,758.59 Review AAF 90% & plans $20,782.50 Drainage Reports & calculations $8.18 $2,040.00 $928.37 AAF Hearing $160.80 AAF Hearing Certified Transcriber $6.10 Shipping $6,000.00 Prelim wetland determination $1,875.00 Prelim wetland determination $6.85 Shipping $417.50 IRC vs Rogoff Subtotal Expenses FY 15/16 $62,563.89 9/30/2015 Dyland Reingold 9/16/2015 Federal Express 8/25/2015 Railroad Consultant Group 8/25/2015 Railroad Consultant Group 7/14/2015 Federal Express 7/2/2015 William M Sampson 6/16/2015 Federal Express 6/10/2015 Dylan Reingoid-travel to Wash DC 5/12/2015 Treasury of the United States $412.00 Reimburse for case filing $3.92 Shipping $36,053.97 Rail Safety Study $435.00 Rail Safety Study $6.31 Shipping $6,875.00 Rail Crossing Analysis $7.84 Shipping $446.11 Preliminary Hearing $570.00 Public Records Subtotal Expenses FY 14/15 $44,810.15 Acct#00110214-034020-15023 4/20/2016 Dylan Reingold 4/6/2016 Aloft Hotel 12/16/2015 Kimberely Graham 12/2/2015 Kate Cotner -FAC Legislative Conference All Travel $106.26 Hearing $109.00 MHG Tallahasse AL P -Dylan Reingold $901.76 Fed Railway Assoc. Mtg-Washington DC $19.44 Subtotal Expenses FY 15/16 $1,136.46 9/8/2015 Doubletree Orlando 8/26/2015 Dylan Reingold 8/26/2015 Kate Cotner $271.36 Orlando -Travel -FI. Dev. Finance Corp $75.26 ($5.36) Orlando -Tavel -FI Dev. Finance Corp Subtotal Expenses FY 14/15 $341.26 F:\Budget\AII Aboard FL Expenses P6 All Aboard Florida Expenses Indian River County Acct#11124319-033190 7/02/15 CDM Smith Inc 1/02/15 CDM Smith Inc 1/02/15 CDM Smith Inc 11/26/14 CDM Smith Inc 11/21/14 CDM Smith Inc Other Professional Services $23,454.00 Work Order 10 EIS $6,973:40 Work Order 13 Noise Monitoring $2,122.50 Work Order 10 EIS $5,605:00 Work Order 10 EIS $6,585.80 Work Order 13 Noise Monitoring Subtotal Expenses FY 14/15 $44,740.70 9/30/14 CDM Smith Inc 9/30/14 CDM Smith Inc 8/29/14 CDM Smith Inc 8/08/14 CDM Smith Inc 51,937.00 Work Order 13 Noise Monitoring 58,077.00 Work Order 10 EIS $4,135:00 Work Order 10 EIS 53,125:00 Work Order 10 EIS Subtotal:Expenses FY 13/14 $17,274.00 Total Expenses 16/17 Total Expenses 15/16 Total Expenses 14/15 Total Expenses 13/14 560,763.10 5870,867.50 51,154,211.26 $45,825.80 Total expenses processed as of 1/9/17 $2,131,667.66 Total Board authorized budget for FY 16/17 Total Board authorized budget for FY 15/16 Total Board authorized budget for FY 14/15 Total Board aifthorized budget.for'FY 13/14 $816,015.00 $870,868.00 $1,154,212.00 $45,826.00 Total budgeted 13/14-16/17 $2,886,921:00 Remaining Balance $755,253.34 F:\Budget\All Aboard FL Expenses P7 Indian River County Vero Beach Electric/Florida Power & Light/FMPA expenses Acct# 00410214-033110-15024 Legal Services 9/30/2016 Berger Singerman 9/20/2016 Berger Singerman 8/16/2016 Berger Singerman 7/19/2016 Berger Singerman 6/14/2016 Berger Singerman 5/24/2016 Berger Singerman 5/4/2016 Berger Singerman 2/9/2016 Berger Singerman 1/20/2016 Berger Singerman 12/22/2015 Berger Singerman 12/8/2015 King Reporting & Video 11/17/2015 Berger Singerman $1,072.50 $632.50 $275.00 $275.00 $605.00 $495.00 $1,650.00 $1,265.00 $11,722.50 $15,090.00 $457.75 $2,172.50 Subtotal Expenses FY 15/16 $35,712.75 $5,462.50 $25,370.00 $10,150.00 $7,855.00 $29,622.50 $312.50 $1,878.10 $10,582.50 $26,713.48 $10,312.50 $4,161.72 $22,882.98 $16,610.00 $8,824.24 $7,821.90 $30,144.31 $12,292.50 $8,415.00 9/30/2015 Berger Singerman 9/21/2015 Berger Singerman 8/18/2015 Berger Singerman 7/22/2015 Berger Singerman 7/1/2015 Berger Singerman 6/3/2015 Nabors Giblin & Nickerson 5/20/2015 Carolos Alvarez,Esq 4/20/2015 Gonzalez Saggio & Harlan 4/2/2015 Gonzalez Saggio & Harlan 3/23/2015 Gonzalez Saggio & Harlan 3/23/2015 Nabors Giblin & Nickerson 2/2/2015 Gonzalez Saggio & Harlan 1/16/2015 Gonzalez Saggio & Harlan 12/3/2014 Gonzalez Saggio & Harlan Subtotal Expenses FY 14/15 9/30/2014 Gonzalez Saggio & Harlan 9/30/2014 Gonzalez Saggio & Harlan 8/15/2014 Gonzalez Saggio & Harlan 7/22/2014 Gonzalez Saggio & Harlan $180,738.02 Subtotal Expenses FY 13/14 $58,673.71 Other Prof. Services /Legal Advertising 5/27/2016 RW Wilson & Assoc 4/22/2016 RW Wilson & Assoc 4/8/2016 RW Wilson & Assoc 3/24/2016 RW Wilson & Assoc 3/24/2016 RW Wilson & Assoc 2/9/2016 Federal Express 1/20/2016 RW Wilson & Assoc 1/8/2016 RW Wilson & Assoc 12/22/2015 RW Wilson & Assoc Subtotal Expenses FY 15/16 $4,090.00 $4,090.00 $4,090.00 $4,090.00 $4,090.00 $4.85 $4,090.00 $4,090.00 $4,090.00 $32,724.85 P8 Indian River County Vero Beach Electric/Florida Power & Light/FMPA expenses Acct# 00410214-033110-15024 Legal Services 9/30/2015 RW Wilson & Assoc 9/11/2015 RW Wilson & Assoc 8/14/2015 RW Wilson & Assoc 7/21/2015 Kate Cotner Reimbursement 7/10/2015 RW Wilson & Assoc 5/26/2015 RW Wilson & Assoc 5/21/2015 Scripps Treasure Coast 3/4/2015 RB Oppenheim Assoc 2/13/2015 FMPA-copy of audio 1/16/2015 Scripps Treasure Coast 11/19/2014 Scripps Treasure Coast Subtotal Expenses FY 14/15 9/30/2014 Scripps Treasure Coast 9/10/2014 Scripps Treasure Coast $4,090.00 $4,090.00 $4,090.00 $50.00 $4,090.00 $4,090.00 $71.76 $4,625.00 $119.13 $70.98 $63.96 $87.36 $88.92 $25,450.83 Subtotal Expenses FY 13/14 $176.28 Travel 3/16/2016 Dylan Reingold-FL Senate Committ 3/8/2016 Courtyard by Mariott 1/20/2016 Dylan Reingold-FMPA mtg/Tallahas 1/6/2016 Dylan Reingold-FMPA mtg/Tallahas 10/12/2015 Dylan Reingold-Joint Legislative mti $394.25 $98.00 $372.39 $149.00 $437.53 Subtotal Expenses FY 15/16 $1,451.17 8/26/2015 Dylan Reingold-FMPA .mtg/Tallahas 8/26/2015 Kate Cotner-FMPA mtg/Tallahassee $75.26 $36.00 Subtotal Expenses FY 14/15 $111.26 Total expenses FY 16/17 Total expenses FY 15/16 Total expenses FY 14/15 Total expenses FY 13/14 $0.00 $69,888.77 $206,300.11 $58,849.99 Total expenses processed as of 1/9/17 $335,038.87 Budget Authorization 10/1/2016 FY 16/17 Budget 10/1/2015 FY 15/16 Budget 9/15/2015 Legal Services 3/18/2015 Legal Services 5/5/2014 Legal Services Budget $69,789.00 $69,889.00 $35,150.00 $130,000.00 $100,000.00 Total Board Authorized Budget $404,828.00 Remaining Balance $69,789.13 P9 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Jason E. Brown; County Administrator THROUGH: Stan Boling, AICP Community Development Director FROM: Phil Matson, AICP MPO Staff Director DATE: January 10, 2017 SUBJECT: Update on GoLine Beachside Circulator (Route 16) It is requested that the data herein presented be given formal consideration by the Board of County Commissioners at its regular meeting of January 17, 2017. DESCRIPTION & CONDITIONS The Senior Resource Association (SRA), a private, non-profit organization, serves as Indian River County's Transit Coordinator and Service Provider. In response to a much -publicized parking problem in the Central Vero Beach business district that affected workers and visitors alike, the SRA in 2015 sought and obtained funding for a new bus route, the Route 16. That route expanded transit offerings to the public and connected major attractions in the area to several parking locations. The new route also connected to GoLine Route 1, enabling riders to access Miracle Mile and the Main Transit Hub with a single transfer. The new "Beach Circulator" route was paid for by a grant from FDOT covering 80% of the total cost. To obtain the remaining local match, the SRA issued an RFP and received a 20% local match from an area business, Heaton Companies, owners of the Vero Beach Hotel and Spa. Despite local efforts to promote the new route, including a restructuring that was completed in November of 2016, ridership on the route has been disappointing and, with fewer than 30passengers/day,has not met the Pp g minimal standard established in the MPO's Transit Development Plan (TDP). Given the lack of ridership, and in the interest of being responsible stewards of public funding, the SRA has decided to discontinue service on Route 16 effective January 20, 2017. Indian River County, the SRA and Heaton properties have agreed to dissolve their agreement covering the local match, and the SRA will be refunding the pro -rated balance of local sponsorship money to Heaton. The MPO has been in contact with FDOT regarding the remaining grant balance and the MPO and SRA are working to identify alternative uses for the grant funding. It is possible that the Beach Circulator grant funding may be directed toward .new stops that can be added to C:\Users\GRANIC-1\AppData\Loca1\Temp\BCL TeclmologiesleasyPDF 7 \@BCL@F80407AA\@BCLa) '80407AA.docx 1 P10 existing routes, as the MPO and SRA are planning to restructure several routes in the Spring of 2017 in conjunction with the opening of the new transit hub. If the grant funds cannot be reprogrammed to eligible service, they will be returned to FDOT. Regardless of whether any other service can be identified in the corridor, FDOT has assured staff that it will continue to partner with Indian River County on future grant opportunities to promote transit service throughout the county. FUNDING Funds for Route 16 were provided by FDOT and Heaton Companies. There is no impact to County funds resulting from this action. RECOMMENDATION This is an informational item. C:\Users\GRANIC- 1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL4F80407AA\@BCL@F80407AA.docx 2 P11 7E CLERK OF CIRCUIT COURT INTEROFFICE MEMORANDUM To: Honorable Board of County Commissioners Date: January 9, 2017 Subject: Continuation Certificate for Jeffrey R. Smith, Indian River County Clerk of Circuit Court & Comptroller From: Terri Collins -Lister, Supervisor Clerk to the Board and VAB Attached is the Continuation Certificate for Jeffrey R. Smith, Indian River County Clerk of Circuit Court & Comptroller for Surety Bond Number 32S372367 issued by American States Insurance Company. The Said Bond is continued in full force and effect until January 17th, 2021. Attachments P12 Liberty Mut-uat SURETY CONTINUATION CERTIFICATE 350 E. 96th Street Indianapolis, IN 46240 To be attached to and form a part of surety bond number 32S372367 (the "Bond.), cross reference bond number for Clerk of the Circuit Court and Comptroller for Indian River County. Florida dated the 1st day of July, 2012 in the penal sum of $ 100,000 00 issued by AMERICAN STATES INSURANCE COMPANY as surety (the "Surety'), on behalf of JEFFREY R SMITH as principal (the "Principal"), in favor of Governor of the State of Florida, as obligee (the "Obligee"). The Surety hereby certifies that this Bond is continued in full force and effect until the 17th day of January, 2021 subject to all covenants and conditions of said Bond Said Bond has been continued in force upon the express condition that the full extent of the Surety's liability under said Bond, and this and all continuations thereof, for any loss or series of losses occurring during the entire time the Surety remains on said Bond, shall in no event, either individually"or in the aggregate, exceed the penal sum of the Bond. IN WITNESS WHEREOF, the Surety has set its hand and seal this 19th day of October, 2016 AMERICAN STATES INSURANCE COMPANY By LMIC - 3300 (Surety) Timothy A. Mikolajewski Assistant Secretary - Liberty Mutual Surety SCHLITT INS SERVICES INC 1717 INDIAN RIVER BLVD STE 300 VERO BEACH , "FL 32960-0805 P13 7, JEFFREY R. SMITH, CPA, CGFO, CGMA Clerk, of Circuit Court & Comptroller P.O. Box 1028 Vero Beath, FL 32961-1028 Telephone: (772) 770-5185 TO: Board of County Commissioners FROM: Diane Bernardo, Finance Director THROUGH: Jeffrey R. Smith, Clerk of Circuit Court and Comptroller DATE: January 9, 2017 SUBJECT: Final TD Banking Contract Documents On October 18, 2016, the Board awarded the banking services for the Board of County Commissioners to TD Bank and authorized staffto work with TD Bank on a contract to bring back to the Board at a later date. On November 1'5, 2016 the Board approved the initial contract documents pending final review and approval by the County Attorney. Review has been completed and the final contract documents are attached. P14 Bank CASH MANAGEMENT MASTER AGREEMENT Customer: INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS Date: ID Bank, N.A. ("Bank") provides a broad range of non -consumer cash management products and services to its customers. The customer identified above ("Customer") wishes to use, and Bank is willing to provide to Customer, those services that have been checked below: 1. TD eTreasury Services (Appendix I) 2. TD ACH Origination Services (Appendix II) El 3. TD Wire Transfer Services (Appendix III) 4 TD Sweep Services (Appendix IV) 0 5. TD Positive Pay Services (Appendix V) 6. TD Controlled Disbursement Services (Appendix VI)... ❑ 7 TD Lockbox Services (Appendix VII) 0 8. TD Digital Express Services (Appendix VIII) El 9. TD Account Reconcilement Services - Full (Appendix IX) 10. TD Account Reconcilement Services — Partial (Appendix X) 0 11 TD Deposit Reconcilement Services (Appendix XI) 0 12. TD Check Imaging Services (Appendix XII) 0 13. ID Zero Balance Account Services (Appendix XIII) El 14. TD Currency Services (Appendix XIV) .❑ 15 TD EscrowDirect Services (Appendix XV) ❑ 16. TD Information Reporting File Transmission Services (Appendix XVI) ❑ 17. TD Data Exchange Services (Appendix XVII) ... - 0 18. TD ACH Third Party Sender Services (Appendix XVIII)?❑ 19. TD Image Cash Letter Services (Appendix XIX). 0 20. TD Healthcare Remittance Management Services (Appendix XX) ❑ 21. TD Data Transmission Services (Appendix XXI) 22. ID ACH Positive Pay Services (Appendix XXII) .0 23. ID Currency Services for Smartsafe (Appendix XXIII) 0 1 of 58 0916 P15 24. TD Electromc Bill Payment Presentment & Payment Services (Appendix XXIV) .... ❑ 25. TD Integrated Payables Processing Services (Appendix XXV) 25. TD Electronic Lockbox (Bill Payment Aggregation) Services (Appendix XXVI) The "Cash Management Service(s) " or "Service(s) " shall hereafter mean the cash management service(s) identified above and provided by Bank (and/or Bank's third -party service providers) to Customer pursuant to this Agreement, the Appendices, including Amended Appendices, as defined below, exhibits, Setup Form(s), and any service guides or manuals made available to Customer by Bank. Agreement This Cash Management Master Agreement shall be and is hereby incorporated by reference into and forms part of the "Contract" between the parties, the terms of which include: (1) the Indian River County Request for Proposal for Banking and Lockbox Services dated September 7, 2016 (the "RFP"), (2) TD Bank's Response to Request for Proposals (RFP) for Banking and Lockbox Services dated September 7, 2016 (the "Proposal"), and (3) this Agreement. The parties agree that any ambiguity, conflict or inconsistency in the foregoing documents that together constitute the Contract shall be resolved in the following order: (1) the Agreement; (2) the RFP; and (3) the Proposal. The following terms and conditions are applicable to all Cash Management Services provided to Customer hereunder. 1. Definitions. Capitalized terms used in this Agreement and in any Appendix, unless otherwise defined herein or therein, shall have the meanings set forth below. "Access Devices" means collectively all security, identification and authentication mechanisms, including, without limitation, security codes or tokens, PINs, electronic identities or signatures, encryption keys and/or individual passwords associated with or necessary for Customer's access to and use of any Cash Management Services. "Account" means an Account, as such term is defined in the Account Agreement, used in connection with any Cash Management Services. "Account Agreement" means the Business Deposit Account Agreement issued by Bank and governing Customer's deposit relationship with Bank, as the same may be amended from time to time. "Affiliate(s)" means, with respect to any party, any company controlled by, under the control of, or under common control with such party "Amended Appendix" means an amendment to an Appendix that supplements or revises, but does not revoke in its entirety, a prior Appendix for a particular Service. "Appendix" means a description of the rules and procedures applicable to a particular Service to be provided by Bank to Customer. Each such Appendix, including any Amended Appendix, is incorporated herem by reference and made a part hereof, and all references herein to Agreement shall be deemed to include all Appendices unless otherwise expressly provided. If there is any conflict between the provisions of this Agreement and any Appendix or Amended Appendix, the Appendix or Amended Appendix shall govem, but only to the extent reasonably necessary to resolve such conflict. "Authorized Representative" means a person designated by Customer as an individual authorized to act on behalf of Customer with respect to certain matters and/or authorized to access and use the Services, as evidenced by certified copies of resolutions from Customer's board of directors or other governing body, if any, or other certificate or evidence of authority satisfactory to Bank, including, without limitation, any Customer enrollment or Setup Form(s) completed by Customer "Bank Internet System" means Bank's Internet - based electronic information delivery and transaction initiation system, as may be offered by Bank from time to time, including but not limited to Bank's eTreasury Services. 2 of 58 0916 P16 "Bank Internet System Appendix" means the agreement issued by Bank that govems Customer's use of the Bank Internet System. "Business Day" has the meaning given to it in the Account Agreement. "Calendar Day" has the meaning given to it in the Account Agreement. "Primary Account" means the Account designated by Customer to which any direct Service fees due Bank may be charged in accordance with this Agreement. Unless otherwise agreed upon in wnting by Bank, the address for Customer associated with the Primary Account shall be the address to which all notices and other communications concerning the Services may be sent by Bank. "Substitute Check" has the meaning given to it in Section 3(16) of the Check Clearing for the 213' Century Act ("Check 21"), P.L. 108-100, 12 U.S.G. § 5002(16). 2. The Services. 2.1 Bank shall provide to Customer, subject to this Agreement and the applicable Appendix, all Cash Management Services that Customer may request and that Bank may approve from time to time. Bank shall not be required to provide any Services specified in an Appendix unless Customer also provides all information reasonably required by Bank to provide to Customer the Service(s) specified therein. 2.2 Customer, through its Authonzed Representative, may use the Services solely in accordance with the terms and conditions of this Agreement and the related Appendices. 2.3 With the exception of scheduled off- peak downtime periods, Bank shall make all reasonable efforts to make the Services available to Customer each Business Day. 2.4 Access to on-line or Internet -based Services may be denied for various reasons, including if invalid Access Devices are used or if the user exceeds the number of invalid attempts allowed by Bank. 2.5 Customer is authorized Services only for the purposes and in contemplated by this Agreement. to use the the manner 2.6 Customer agrees to cooperate with Bank, as Bank may reasonably request, in conjunction with the performance of the Services. 2.7 Customer agrees to comply with the Rules, as they may be amended from time to time by Bank. 2.8 A number of Bank's Services are subject to processing cut-off times on a Business Day. 3 of 58 Customer can obtain infonnation on Bank's current cut-off time(s) for Service(s) by reviewing the relevant Service's Setup Form(s), as applicable, or by calling Treasury Management Services Support at 1-866-475-7262, or by contactmg Customer's Treasury Management Services Representative. Instructions received after a cut-off time or on a day other than a Business Day will generally be deemed received as of the next Business Day 2.9 Except for the Service Fees (as further defined in Section 4.2 of this Agreement) and scope of included Services applicable to the Term of the Contract as further described in Section 14 of this Agreement, Bank may make changes to this Agreement and any Appendix at any time by providing notice to Customer in accordance with the terms of this Agreement or as may be required by applicable law. Notwithstanding anything to the contrary herein, any Appendix that provides for an alternative form and method for making changes to such Appendix and for providing notice of the same shall govern for that Service. Further, notwithstanding anything to the contrary m the Contract or in any Appendix, if Bank believes immediate action is necessary for the security of Bank or Customer funds, Bank may immediately initiate changes to any security procedures associated with the Services and provide prompt subsequent notice thereof to Customer. 2.10 In connection with this Agreement and the Services, Customer agrees that it shall present, and Bank shall have a duty to process, only Substitute Checks that are created by financial institutions; provided however, that this limitation shall not apply to Substitute Checks created with data from Customer pursuant to any Appendix for Services involving the creation of electronic check images using check conversion technology. 3. Covenants, Representations and Warranties. 3.1 Customer represents and warrants that the individual(s) executing this Agreement and any other agreements or documents associated with the Services has/have been authorized by all necessary Customer action to do so, to issue such instructions as may be necessary to carry out the purposes and intent of this Agreement and to enable Customer to receive each selected Service. Each Authorized Representative whom Customer permits to access and use the Services is duly authorized by all necessary action on the part of Customer to (i) access the Account(s) and use the Services; (ii) access any information related to any Account(s) to which the Authorized Representative has access; and (iii) engage in any transaction relating to any Account(s) to which the Authorized Representative has access. 3.2 Bank may unconditionally rely on the validity and accuracy of any communication or transaction made, or purported to be made, by an Authorized Representative and in accordance with the terms of this Agreement. 3.3 Customer shall take all reasonable measures and exercise all reasonable precautions to prevent the unauthorized disclosure or use of all Access Devices associated with or necessary for Customer's use of the 0916 P17 Services.3.4 Customer is not a "consumer" as such tern is defined rn the regulations promulgated pursuant to the Gramm -Leach -Bliley Act, 15 U.S.C. § 6801 et seq., nor a legal representative of a "consumer." 3.5 Customer shall use the Services only for its own lawful business purposes. Customer shall not use the Services for or on behalf of any third party, except as may otherwise be approved by Bank in its sole and exclusive discretion, and as further described in Section 33. Customer shall take all reasonable measures and exercise reasonable precautions to ensure that Customer's officers, employees and Authorized Representatives do.not use the Services for personal, family or household purposes, or for any other purpose not contemplated by this Agreement. 3.6 Customer agrees not to use or attempt to use the Services (a) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulation, (b) to breach any contract or agreement by which Customer is bound, or (c) to engage in any Internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, or (d) to engage in any transaction or activity that is not specifically authonzed and permitted by this Agreement. Customer acknowledges and agrees that Bank has no obligation to monitor Customer's use of the Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of this Agreement. 3.7 Customer and Bank shall comply with (i) all applicable federal, state and local laws, regulations, rules and orders; (ii) the Account Agreement; (iii) all applicable National Automated Clearing House Association ("NACHA") rules, regulations, and policies; (iv) the Uniform Commercial Code; (v) Office of Foreign Asset Control ("OFAC") requirements; and (vi) all applicable laws, regulations and orders administered by the U.S. Department of the Treasury's Financial Crimes Enforcement Network ("FinCEN") (collectively (i) through (vi), "Compliance Laws"). 4. Account Agreement; Service Fees. 4.1 Bank and Customer agree that any Account established by Customer in connection with Services offered by Bank shall be governed by the Account Agreement, including one or more fee schedules issued by Bank for the Account. If there is any conflict between the terms and provisions of this Agreement and the Account Agreement, the terms and provisions of this Agreement shall govern, but only to the extent reasonably necessary to resolve such conflict. 4.2 During the Term of the Agreement, as described in Section 1 4 , Custorner agrees to compensate Bank for all Accounts and Services that Bank provides pursuant to this Agreement, any Appendices, in accordance with the Proposal (the "Service Fees"). Any fees and charges associated with Accounts or Services that are not specified in the Contract shall be governed by Bank's standard schedule of fees and charges applicable to Accounts or Services generally. By signing below, Customer acknowledges receipt of the Account Agreement and acceptance of the Service Fees, and agrees to be bound by their terms, 4.3 Customer authonzes Bank to charge the Pnmary Account for all applicable charges and fees to the extent that such charges and fees are not offset by earnings credits or other allowances for Customer's Account(s). If the balance of available funds in the Primary Account is not sufficient to cover such fees, Bank may charge such fees to any other deposit Account maintained on Bank's records in Customer's name. Customer also agrees to pay all sales, use or other taxes (other than taxes based upon Bank's net income) that may be applicable to the Services provided by Bank hereunder. 4.4 During the Tenn of this Agreement, as described in Section 14, Bank may not amend Service Fees(s) associated with those Services provided by Bank in accordance with the Contract, unless by mutual written agreement of the parties. Bank acknowledges and agrees that the fees reflected in the Proposal, shall control and be in effect for the Term of this Agreement. Notwithstanding, the forgoing, Bank may charge or amend Service Fee(s) associated with new or additional Services that Customer may request that are not included Services under the Contract. 5. Customer Information. Customer agrees to provide .to Bank, before Bank begins providing any Services to Customer, any and all information required to comply with applicable law and Bank's policies and procedures relating to customer identification and authority. Such information may include, without limitation, official certificates of customer existence, copies of Customer formation agreements, business resolutions or equivalent documents, in a form acceptable to Bank authorizing Customer to enter into this Agreement and to receive Services from Bank pursuant hereto, and designating certain individuals as Customer's Authorized Representatives. 6. Software. 6.1 Bank may supply Customer with certain software owned by or licensed to Bank to be used by Customer in connection with the Services ("Software"). Customer agrees that all such Software is and shall remain the sole property of Bank and/or the vendor of such Software. Customer agrees to comply with all of the terms and conditions of all license and other agreements which are provided to Customer by Bank and/or the Software vendor and/or which govern Customer's use of Software associated with the Services. Unless otherwise agreed in wntmg between Bank and Customer, Customer shall be responsible for the payment of all costs of mstallation of any Software provided to Customer m connection with the Services, as well as for selection, installation, maintenance and repair of all hardware required on Customer's premises for the successful operation of the Software. 6.2 Except as otherwise expressly prohibited or limited by applicable law, Customer shall indemnify, defend and hold harmless Bank, its successors 4of" 53 0916 P18 and assigns, from and against any loss, damage or other claim or liability attributable to Customer's unauthorized distribution or disclosure of any Software provided with the Services or any other breach by Customer of any Software license. Notwithstanding the foregomg, Bank shall have no right to be indemnified as otherwise limited or prohibited by applicable law, including without limitation, Section 768.28 of the Florida Statutes, as applicable and as the same may be amended from time to time. The provisions of this paragraph shall survive termination of this Agreement. 6.3 Any breach or threatened breach of this Section will cause immediate irreparable injury to Bank, and Customer agrees that injunctive relief, including preliminary injunctive relief and specific performance, should be awarded as appropriate to remedy such breach, without limiting Bank's right to other remedies available in the case of such a breach. Bank may apply to a court for preliminary injunctive relief, permanent injunctive relief and specific performance, but such application shall not abrogate Bank's right to proceed with an action in a court of competent jurisdiction in order to resolve the underlying dispute. 7. Computer Requirements. For certain Cash Management Services, Customer will need to provide, at Customer's own expense, a computer or similar Internet - enabled device, software and Internet or other connections and equipment as needed to access the Services (collectively, the "Computer"). Customer's Internet or other web browser software must support a minimum 128 - bit SSL encryption or other security measures as Bank may specify from time to time. Customer's browser must be one that is certified and supported by Bank for optimal performance. Customer is responsible for the installation, maintenance and operation of the Computer and all related charges, including without limitation all Internet service provider, telephone and other similar charges incurred in connecting to the Services. Customer is responsible for installing and maintaining appropriate virus protection software on Customer's Computer Bank recommends that Customer routinely scan the Computer using reliable virus protection products, and to remove any viruses found using such products. Bank is not responsible for any errors or failures caused by any malfunction of the Computer. Bank is not responsible for any Computer virus or related problems that may be associated with access to or use of the Services, any Software, the Computer or other Internet access, including but not limited to any virus, Trojan horse, worm, keystroke logger, rootkit, spyware, dishonest adware, crimeware or other malicious or unwanted software or related problems that may be associated with access to or use of the Services, any Software or the Computer. Bank also is not responsible for any losses or delays in transmission of information Customer provides to Bank or otherwise arising out of or incurred in connection with the use of any Internet or other service provider providing Customer's connection to the Internet or any browser software. From time to time, Bank may require that Customer upgrade or install software to the Computer to ensure the proper operation of the Services. Customer agrees to promptly load any such upgrades or additional installations upon Bank's notice to Customer 8. Bank Third Parties. 8.1 Customer acknowledges that certain third parties, agents or independent service providers (hereinafter "Third Parties") may, from time to time, provide services ("Third Party Services") to Bank in connection with Bank's provision of the Services to Customer and that accordingly, Bank's ability to provide the Services hereunder may be contingent upon the continuing availability of certain services from such Third Parties. Third Party Services may involve the processing and/or transmission of Customer's data, instructions (oral or written) and funds. In addition, Customer agrees that Bank may disclose Customer's financial information to such Third Parties (i) where it is necessary to provide the Services requested; (ii) in order to comply with laws, government agency rules or orders, court orders, subpoenas or other legal process or in order to give information to any government agency or official having legal authority to request such information; or (iii) when Customer gives its written permission. 8:2 Bank will be responsible for the acts and omissions of its Third Parties in the same manner as if Bank had performed that portion of the Services itself, and no claim may be brought by Customer against such Third Parties. Notwithstanding the foregoing, any claims against Bank (with respect to the acts or omissions of its Third Parties) or its Third Parties shall be subject to the limitations of liability set forth herein to the same extent as if Bank had performed that portion of the Services itself. However, Bank will not be deemed to be the agent of, or responsible for, the acts or omissions of any person (other than its Third Parties), and no such person shall be deemed Bank's agent. 9. Customer Procedures. Communications; Security 9.1 In providing the Services, Bank shall be entitled to rely upon the accuracy of all information and authorizations received from Customer or an Authorized Representative and, where applicable, the authenticity of any signatures purporting to be of Customer or an Authorized Representative. Customer agrees promptly to notify Bank of any changes to any information or authorizations provided to Bank in connection with the Services, and further agrees to promptly execute any new or additional documentation Bank reasonably deems necessary from time to time in order to continue to provide the Services to Customer. 9.2 Customer agrees that it shall be solely responsible for ensunng its compliance with any commercially reasonable security procedures established by Bank in connection with the Services, as such may be amended from time to time, and that Bank shall have no liability for any losses sustained by Customer as a result of a breach of security procedures if Bank has complied with the security procedures. .5 of 58 0916 P19 9.3 Bank shall be entitled to rely on any written list of Authorized Representatives provided to Bank by Customer until revoked or modified by Customer in writing. Customer agrees that Bank may refuse to comply with requests from any individual until Bank receives documentation reasonably satisfactory to it confirming the individual's authority. Bank shall be entitled to rely on any notice or other wnting believed by it in good faith to be genuine and correct and to have been signed by an Authonzed Representative. Bank may also accept verbal instructions from persons identifying themselves as an Authorized Representative, and Bank's only obligation to verify the identity of such person as an Authorized Representative shall be to call back such person at a telephone number(s) previously provided to Bank by Customer as part of the Account or Services' Setup Form(s). Bank may, but shall have no obligation to, call back an Authonzed Representative other than the Authonzed Representative from whom Bank purportedly received an instruction. Bank may, but shall have no obligation to, request additional confirmation, written or verbal, of an mstruction received from an Authorized Representative via telephone at any time or for any reason whatsoever prior to executing the instruction. Bank may also in its discretion require the use of security codes for Authorized Representatives and/or for receiving instructions or items from Customer. Customer understands and agrees, and Customer shall advise each Authonzed Representative that, Bank may, at Bank's option, record telephone conversations regarding instructions received from an Authorized Representative. 9.4 Any security procedures maintained by Bank are not intended to detect errors in the content of an instruction received from Customer or Customer's Authorized Representative. Any errors in an instruction from Customer or Customer's Authorized Representative shall be Customer's sole responsibility. Customer agrees that all security procedures described in this Agreement and applicable Appendix are commercially reasonable and that Bank may charge Customer's Account for any instruction that Bank executed in good faith and in conformity with the security procedures, whether or not the transfer is in fact authorized. 9.5 Customer agrees to adopt and implement its own commercially reasonable internal policies, procedures and systems to provide security to information being transmitted and to receive, store, transmit and destroy data or information in a secure manner to prevent loss, theft or unauthorized access to data or information ("Data Breaches"). Customer also agrees that it will promptly investigate any suspected Data Breaches and monitor its systems regularly for unauthorized intrusions. Customer will provide timely and accurate notification to Bank of any Data Breaches when known or reasonably suspected by Customer and will take all reasonable measures, which may include, without limitation, retaimng and/or utilizing competent forensic experts, to determine the scope of and data or transactions affected by any Data Breaches, and promptly providing all such infonnation to Bank, subject to any limitation imposed on Customer by law enforcement or applicable law 9.6 BANK'S SECURITY PROCEDURES ARE STRICTLY CONFIDENTIAL AND SHOULD BE DISCLOSED ONLY TO THOSE INDIVIDUALS WHO ARE REQUIRED TO KNOW THEM OR AS OTHERWISE PROVIDED BY LAW. IF A SECURITY PROCEDURE INVOLVES THE USE OF ACCESS DEVICES, THE CUSTOMER SHALL BE RESPONSIBLE TO SAFEGUARD THESE ACCESS DEVICES AND MAKE THEM AVAILABLE ONLY TO DESIGNATED INDIVIDUALS CUSTOMER HAS THE SOLE RESPONSIBILITY TO INSTRUCT THOSE INDIVIDUALS THAT THEY MUST NOT DISCLOSE OR OTHERWISE MAKE AVAILABLE TO UNAUTHORIZED PERSONS THE SECURITY PROCEDURE OR ACCESS DEVICES. CUSTOMER HAS THE SOLE RESPONSIBILITY TO ESTABLISH AND MAINTAIN ITS OWN PROCEDURES TO ASSURE THE CONFIDENTIALITY OF ANY PROTECTED ACCESS TO THE SECURITY PROCEDURE. 10. Fraud Detection / Deterrence; Positive Pay. Bank offers certain products and services such as Positive Pay (with or without payee validation), ACH Positive Pay, and Account blocks and filters that are designed to detect and/or deter check, automated clearing house ("ACH") or other payment system fraud. While no product or service will be completely effective, Bank believes that the products and services it offers will reduce the likelihood that certain types of fraudulent items or transactions will be paid against Customer's Account. Failure to use such products or services could substantially increase the likelihood of fraud. Customer agrees that if, after being informed by Bank or after Bank otherwise makes information about such products or services available to Customer consistent with Section 27 of this Agreement, Customer declines or fails to implement and use any of these products or services, or fails to follow these and other Bank -identified or recommended precautions reasonable for Customer's particular circumstances, Customer will be precluded from asserting any claims against Bank for paying any unauthorized, altered, counterfeit or other fraudulent item that such product, service, or precaution was designed to detect or deter, and Bank will not be required to re -credit Customer's Account or otherwise have any liability for paying such items, except to the extent that Bank has failed to exercise the required standard of care under the Uniform Commercial Code. 11. Duty to Inspect. Customer is responsible for monitoring all Services provided by Bank, including each individual transaction processed by Bank, and notifying Bank of any errors or other problems within ten (10) Calendar Days (or such longer period as may be required by applicable law) after Bank has made available to Customer any report, statement or other material containing or reflecting the error, including an Account analysis statement or on-line Account access. Except to the extent 6 of 58 0916 P20 otherwise required by law, failure to notify Bank of an error or problem within such time will relieve Bank of any and all liability for interest upon correction of the error or problem (and for any loss from any subsequent transaction involving the same enor or problem). In the event Customer fails to report such error or problem within thirty (30) Calendar Days after Bank made available such report, statement or on-line Account access, the transaction shall be deemed to have been properly authorized and executed, and Bank shall have no liability with respect to any error or problem. Customer agrees that its sole remedy in the event of an error in implementing any selection with the Services shall be to have Bank correct the error within a reasonable period of time after discovering or receiving notice of the error from Customer 12. Overdrafts; Set-off. Bank may, but shall not be obligated to, complete any transaction m connection with providing the Services if there are insufficient available funds in Customer's Account(s) to complete the transaction. In the event any actions by Customer result in an overdraft in any of Customer's Accounts, including but not limited to Customer's failure to maintain sufficient balances in any of Customer's Accounts, Customer shall be responsible for repaying the overdraft immediately, without notice or demand. Bank has the right, in addition to all other rights and remedies available to it, to set off the unpaid balance of any amount owed it in connection with the Services against any debt owing to Customer by Bank, including, without limitation, any obligation under a repurchase agreement or any funds held at any time by Bank, whether collected or in the process of collection, or in any other Account maintained by Customer at, or evidenced by any certificate of deposit issued by, Bank. Except as otherwise expressly prohibited or limited by law, if any of Customer's Accounts become overdrawn, under- funded or for any reason contain a negative balance, then Bank shall have the right of set-off against all of Customer's Accounts and other property or deposit Accounts maintained at Bank, and Bank shall have the right to enforce its interests in collateral held by it to secure debts of Customer to Bank arising from notes or other indebtedness now or hereafter owing or existing under this Agreement, whether or not matured or liquidated. 13. Transaction Limits. 13.1 In the event that providing the Services to Customer results in unacceptable credit exposure or other nsk to Bank, or will cause Bank to violate any law, regulation, rule or order to which it is subject, Bank may, in Bank's sole and exclusive discretion, without prior notice, limit Customer's transaction volume or dollar amount and refuse to execute transactions that exceed any such limit, or Bank may terminate any Service then being provided to Customer Bank will provide notice of such limits to Customer in accordance with the terns of this Agreement. 13.2 Customer shall, upon request by Bank from time to time, provide Bank with such financial information and statements and such other documentation as Bank reasonably determines to be necessary or 7 of 58 appropriate showing Customer's fmancial condition, assets, liabilities, stockholder's equity, current income and surplus, and such other information regarding the financial condition of Customer as Bank may reasonably request to enable Bank to evaluate its exposure or risk. Any limits established by Bank hereunder shall be made in Bank's sole discretion and shall be commumcated promptly to Customer. 14. Term and Termination. 14.1 This Agreement shall be effective when (i) signed by an Authorized Representative of Customer and accepted by Bank, and (ii) Customer delivers to Bank all documents and information, including any Setup Form(s) and electronic data, reasonably required by Bank prior to commencing to provide the Services or otherwise in accordance with the Contract, and shall terminate three (3) years thereafter (The "Initial Service Term"). The parties may renew this Agreement by mutual written agreement for an additional two (2) year terns (each an Extended Service Term"). Bank will determine the adequacy of such documentation and information in its sole discretion and may refuse to provide the Services to Customer until adequate documentation and information are provided. 14.2 This Agreement shall continue in effect as described in Section 14.1 unless and until terminated by either party with thirty (30) Calendar Days' prior written notice to the other. Either party may terminate an Appendix in accordance with the provisions of this Section without terminating either this Agreement or any other Appendix. Upon termination of this Agreement or any Appendix, Customer shall, at its expense, return to Bank, in the same condition as when delivered to Customer, normal wear and tear excepted, all property belonging to Bank and all proprietary material delivered to Customer m connection with the terminated Service(s). 14.3 If an Appendix is tenninated in accordance with this Agreement, Customer must contact Treasury Management Services Support for instructions regarding the cancellation of all future dated payments and transfers. Bank may continue to make payments and transfers and to perform other Services that Customer has previously authorized or may subsequently authorize; however, Bank is not under any obligation to do so. Bank will not be liable if it chooses to make any payment or transfer or to perform any other Services that Customer has previously authonzed or subsequently authorizes after an Appendix had terminated. 14 4 Notwithstanding the foregoing, Bank may, without prior notice, terminate this Agreement and/or terminate or suspend any Service(s) provided to Customer pursuant hereto (i) if Customer or Bank closes any Account established in connection with the Service(s) that is necessary for the ongoing use of the Service(s) or necessary for Bank to charge Service Fees, including, but not limited to, closure of the Primary Account, (ii) if Bank determines that Customer has failed to maintain a financial condition deemed reasonably satisfactory to Bank to minimize any credit or other risks to Bank in providing Services to Customer, including the commencement of a voluntary or involuntary proceeding under the United States Bankruptcy 0916 P21 Code or other statute or regulation relating to bankruptcy or relief of debtors, (iii) in the event of a material breach, default in the performance or observance of any term, or material breach of any representation or warranty by Customer, (iv) in the event of default by Customer in the payment of any sum owed by Customer to Bank hereunder or under any note or other agreement, as may be defined therein, (v) if there has been a seizure, attachment, or garnishment of Customer's Accounts, assets or properties, (vi) if Bank believes immediate action is necessary for the security of Bank or Customer funds or (vii) if Bank reasonably believes that the continued provision of Services in accordance with the terms of this Agreement or any Appendix would violate federal, state or local laws or regulations, or would subject Bank to unacceptable nsk of loss. In the event of any termination hereunder, all fees due Bank under this Agreement as of the time of termination shall become immediately due and payable. Notwithstanding any termination, this Agreement shall remain in full force and effect with respect to all transactions initiated prior to such termination. 15. Limitation of Liability; Disclaimer of Warranties. 151 Customer acknowledges that Bank's fees and charges for the Services are very small in relation to the amounts of transfers initiated through the Services and, as a result, Bank's willingness to provide the Services is based on the limitations and allocations of liability contained in this Agreement. Unless expressly prohibited or otherwise restricted by applicable law, the liability of Bank in connection with the Services will be limited to actual damages sustained by Customer and only to the extent such damages are a direct result of Bank's gross negligence, willful misconduct, or bad faith. In no event shall Bank be liable for any consequential, special, incidental, indirect, punitive or similar loss or damage that Customer may suffer or incur in connection with the Services, including, without limitation, attomeys' fees, lost earnings or profits and loss or damage from subsequent wrongful dishonor resulting from Bank's acts, regardless of whether the likelihood of such loss or damage was known by Bank and regardless of the basis, theory or nature of the action on which a claim is asserted. Unless expressly prohibited by or otherwise restncted by applicable law, and without limiting the foregoing, Bank's aggregate liability to Customer for all losses, damages, and expenses incurred in connection with any single claim shall not exceed an amount equal to the monthly billing paid by, charged to or otherwise assessed against Customer for Services over the three (3) month -period immediately preceding the date on which the damage or injury giving rise to such claim is alleged to have occurred or such fewer number of preceding months as this Agreement has been in effect. Notwithstanding any of the foregoing, for transactions which are subject to Article 4A of the UCC, Bank shall be liable for such damages as may be required or provided under Article 4A or the Fedwire Regulations, as applicable, except as otherwise agreed in this Agreement. This Agreement is only between Bank and Customer, and Bank shall have no liability hereunder to any third party 15.2 Except as otherwise expressly provided in Section 8 of this Agreement, Bank shall not be liable for any loss, damage or injury caused by any act or omission of any third party; for any charges imposed by any third party; or for any loss, damage or injury caused by any failure of the hardware or software utilized by a third party to provide Services to Customer. 15.3 Bank shall not be liable or responsible for damages incurred as a result of data supplied by Customer that is inaccurate, mcomplete, not current, or lost in transmission. It is understood that Bank assumes no liability or responsibility for the inaccuracy, incompleteness or incorrectness of data as a result of such data having been supplied to Customer through data transmission. 15.4 Bank is not liable for failing to act sooner than required by any Appendix or applicable law. Bank also has no liability for failing to take action if Bank had discretion not to act. 15.5 Bank shall not be responsible for Customer's acts or omissions (including, without limitation, the amount, accuracy, timeliness of transmittal or due authorization of any entry, funds transfer order, or other instruction received from Customer) or the acts or omissions of any other person, including, without limitation, any Automated Clearing House processor, any Federal Reserve Bank, any financial institution or bank, any transmission or communication facility, any receiver or receiving depository financial institution, including, without limitation, the return of an entry or rejection of a funds transfer order by such receiver or receiving depository financial institutions, and no such person shall be deemed Bank's agent. Bank shall be excused from failing to transmit or delay in transmitting an entry or funds transfer order if such transmittal would result in Bank's having exceeded any limitation upon its intra -day net funds position established pursuant to Federal Reserve guidelines or otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority. In no event shall Bank be liable for any damages resulting from Bank's action or inaction which is consistent with regulations issued by the Board of Governors of the Federal Reserve System, operating circulars issued by a Federal Reserve Bank or general banking customs and usage. To the extent required by applicable laws, Bank will compensate Customer for loss of interest on funds as a direct result of Bank's failure to comply with such laws in executing electronic transfers of funds, if such failure was within Bank's control. Bank shall not be liable for Customer's attorney's fees in connection with any such claim. 15.6 EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT CUSTOMER'S SOLE RISK, AND THE SERVICE IS PROVIDED "AS IS," AND BANK AND ITS SERVICE PROVIDERS AND AGENTS DO NOT MAKE, AND EXPRESSLY DISCLAIM ANY, 8 of 58 0916 P22 WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON - INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WITHOUT BREACHES OF SECURITY OR WITHOUT DELAYS. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIABILITY OF BANK AND ITS SERVICE PROVIDERS AND AGENTS IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW 15.7 The provisions of this Section 15 shall survive termination of this Agreement. 16. Indemnification. 16.1 Customer shall indemnify and hold Bank harmless from any and all liabilities, losses, damages, costs, and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel in connection with any investigative, administrative or judicial proceedings, whether or not Bank shall be designated a party thereto) which may be incurred by Bank due to any claim or action by any person, entity or other third -party against Bank to the extent such claim or action relates to or arises out of: (i) any claim of any person that (a) Bank is responsible for any act or omission of Customer or (b) a Customer payment order contravenes or compromises the rights, title or interest of any third party, or contravenes any law, rule, regulation, ordinance, court order or other mandate or prohibition with the force or effect of law; (ii) any failure by Customer to observe and perform properly all of its obligations hereunder or any wrongful act of Customer or any of its Affiliates; (iii) any breach by Customer of any of its warranties, representations or agreements; (iv) any action taken by Bank in reasonable reliance upon information provided to Bank by Customer or any Affiliate or subsidiary of Customer; and (v) any legal action that Bank responds to or initiates, including any interpleader action Bank commences, involving Customer or Customer's Account(s), including without limitation, any state or federal legal process, writ of attachment, execution, garnishment, tax levy or subpoena. This provision shall be only to the extent allowed by and within the limits of liability provided by section 768.28, Florida Statutes, and shall not otherwise be deemed a waiver of Customers sovereign immunity. 16.2 The provision of this Section 16 shall 9 oJ58 survive termination of this Agreement. 17. RESERVED. 18. Force Majeure. Neither party shall bear responsibility for non-performance of this Agreement to the extent that such non-performance is caused by an event beyond that party's control, including, but not necessarily limited to, fire, casualty, breakdown in equipment or failure of telecommunications or data processing services, lockout, strike, unavoidable accident, act of God, riot, war or the enactment, issuance or operation of any adverse governmental law, ruling, regulation, order or decree, or an emergency that prevents Bank or Customer from operating normally 19. Documentation. The parties acknowledge and agree that all documents evidencing, relating to or arising from the parties' relationship may be scanned or otherwise imaged and electronically stored and the originals (including manually signed originals) destroyed. The parties agree to treat such imaged documents as original documents and further agree that such reproductions and copies may be used and introduced as evidence at any legal proceedings including, without limitation, trials and arbitrations, relating to or arising under this Agreement. 20. Entire Agreement. Bank and Customer acknowledge and agree that the Contract and any amendments hereto, all other documents incorporated by reference therein, constitute the complete and exclusive statement of the agreement between them with respect to the Services, and supersede any pnor oral or written understandings, representations, and agreements between the parties relating to the Services. 21. Amendments. Except for the Service Fees (as further defined in Section 4.2 of this Agreement) and scope of included Services applicable to the Term of the Contract . Bank may, at any time, amend this Agreement, the Services or Appendices in its sole discretion and from time to time. Except as expressly provided otherwise in this Agreement, any such changes generally will be effective as provided in the notice to Customer as described below Customer will be deemed to accept any such changes if Customer accesses or uses any of the Services after the date on which the change becomes effective. Customer will remain obligated under this Agreement and any Appendices, including without limitation, being obligated to pay all amounts owing thereunder, even if Bank amends this Agreement or any Appendices. Notwithstanding anything to the contrary in this Agreement, in any Appendix or the Contract, if Bank believes immediate action is necessary for the security of Bank or Customer funds, Bank may immediately initiate changes to any security procedures and provide prompt subsequent notice thereof to Customer. As set forth in Section 14.2, Customer may terminate tlus Agreement or any Appendix upon its receipt of any notice of change that is not acceptable to Customer. 22. Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be unenforceable as written, that provision shall be 0916 P23 interpreted so as to achieve, to the extent permitted by applicable law, the purposes intended by the onginal provision, and the remaining provisions of this Agreement shall continue intact. In the event that any statute, regulation or government policy to which Bank is subject and that governs or affects the transactions contemplated by this Agreement, would invalidate or modify any portion of this Agreement, then this Agreement or any part thereof shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and Bank shall incur no liability to Customer as a result of Bank's compliance with such statute, regulation or policy 23. Assignment and Delegation. Bank may assign any of its nghts or delegate any of its responsibilities m whole or in part without notice to or consent from Customer. Customer may not assign, delegate or otherwise transfer its rights or responsibilities under this Agreement without Bank's prior written consent, which consent Bank may grant or withhold in its sole discretion. 24. Successors. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. 25. Non -Waiver. No deviation from any of the terns and conditions set forth or incorporated in this Agreement shall constitute a waiver of any right or duty of either party, and the failure of either party to exercise any of its rights hereunder on any occasion shall not be deemed to be a waiver of such rights on any future occasion. 26. Governing Law. Any claim, controversy or dispute arising under or related to this Agreement shall be governed by and interpreted in accordance with federal law and, to the extent not preempted or inconsistent therewith, by the laws of the State of New Jersey. 27. Notices. 27.1 Except as otherwise expressly provided in this Agreement, all notices that are required or permitted to be given by Customer (including all documents incorporated herein by reference) shall be sent by first class mail, postage prepaid, and addressed to Bank at the address provided to Customer in writing for that purpose. All such notices shall be effective upon receipt. 27.2 Customer authorizes Bank to, and Customer agrees that Bank may, send any notice or communication that Bank is required or permitted to give to Customer under this Agreement, including but not limited to notice of any change to the Services, this Agreement or any Appendix, to Customer's business mailing address or Customer's business e-mail address as it appears on Bank's records, or electronically by posting the notice on Bank's website, on an Account statement or via facsimile, and that any such notice or communication will be effective and deemed delivered when provided to Customer in such a manner Customer agrees to notify Bank promptly about any change in Customer's business mailing or Customer's business e-mail address and acknowledges and agrees that no such change will be effective until Bank has had a reasonable opportunity to act upon such notice. Customer agrees that Bank may consider any such notice or communication as being given to all Account owners when such notice or communication is given to any one Account owner. 28. Jury Trial Waiver. BANK AND CUSTOMER EACH AGREE THAT NEITHER BANK NOR CUSTOMER SHALL (I) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER ACTION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY ACCOUNT OR THE DEALINGS OF THE RELATIONSHIP BETWEEN BANK AND CUSTOMER, OR (II) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANOTHER IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION SHALL BE SUBJECT TO NO EXCEPTIONS NEITHER BANK NOR CUSTOMER HAS AGREED WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES. BANK AND CUSTOMER EACH ACKNOWLEDGE THAT THIS WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE. The provisions of this Section 28 shall survive termination of this Agreement. 29. Beneficiaries. This Agreement is for the benefit only of the undersigned parties hereto and is not intended to and shall not be construed as granting any rights to or otherwise benefiting any other person. 30. Recording of Communications. Customer and Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with this Agreement and related to the Services may be recorded and retained by either party by use of any reasonable means, except as otherwise expressly prohibited or limited by applicable law 31. Facsimile Signature. The parties acknowledge and agree that this Agreement and any Appendix or Amended Appendices may be executed and delivered by facsimile, and that a facsimile signature shall be treated as and have the same force and effect as an onginal signature. Notwithstanding the foregoing, Bank may, in its sole and exclusive discretion, also require Customer to deliver this Agreement and any Appendix or Amended Appendices with an original signature for its records. 32. Relationship. Custonier and Bank are not, and Customer and Bank's licensors are not, partners, joint venturers or agents of each other as a result of this Agreement. 33. Third -Party Service Provider Activities. 33.1 Customer As a Third -Party Service Provider. Subject to Bank's prior approval and in its sole and exclusive discretion, Customer may be permitted to use one or more of the Services provided hereunder on behalf of and in conjunction with Accounts that belong to Customer's clients, who may or may not otherwise be 10 of 58 0916 P24 customers of Bank, as well as on Customer's own behalf (hereinafter, when acting in such capacity, referred to as "Customer As Service Provider"). Customer shall execute any such other agreement(s) or documents as deemed necessary or appropriate by Bank prior to the initiation or continuation by Customer of any Services in such capacity Customer agrees that Bank retains the nght to reject any request by Customer to engage in Customer As Service Provider activities as well as any transactions initiated by Customer in such capacity, m Bank's sole discretion. In the event Bank approves Customer's use of the Services in the capacity of Customer As Service Provider, then the following shall also apply- (a) pply (a) Customer represents and warrants to Bank that each Customer client has given Customer authority to access and conduct transactions with respect to its Accounts through use of any of the Services to the same extent as if Customer owned them, including m the capacity of a "third party service provider;" (b) each reference to "Customer" in the Agreement will be deemed to be a collective reference to Customer and each Customer client whose Accounts are included in Bank's implementation of Customer's set-up for the Services; (c) all of the provisions set forth in the Agreement will apply to Customer client's Account(s) as if Customer owned them; (d) each person who is authorized to act on Customer's behalf with respect to a Service is also authorized to act on Customer's behalf to the same extent with respect to the Accounts of each Customer client whose Accounts are included in Bank's implementation of Customer's set-up for that Service; and (e) Customer shall be liable for all monetary, confidentiality and other obligations to Bank under this Agreement as they relate to Customer's use of the Services for itself as well as each such Customer client. Bank may require written confirmation from each Customer client that it has authorized Customer to include its Accounts in Bank's implementation of Customer's set-up for the Services, and Customer agrees to notify Bank immediately if that authority is revoked or changed. 33.2 Customer Engaging a Third -Party Service Provider. Subject to Bank's pnor approval and in its sole and exclusive discretion, Customer may appoint a third -party service provider to act as Customer's agent to use one or more of the Services (hereinafter such third - party to be referred to as "Customer's Third -Party Service Provider"). In such event, all transactions received by Bank from Customer's Third -Party Service Provider are hereby authorized by Customer. All acts and omissions of Customer's Third -Party Service Provider shall be the acts, omissions and responsibility of Customer and shall be governed by the provisions of this Agreement. Customer agrees, jomtly and severally with Customer's Third -Party Service Provider, to indemnify and hold Bank harmless from any and all liabilities, losses, damages, costs and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel in connection with any investigative, administrative or judicial proceedings, whether or not Bank shall be designated a party thereto) which may be incurred by Bank relating to or ansing out of the acts or omissions of Customer's Third - Party Service Provider on behalf of Customer. Customer and Customer's Third -Party Service Provider shall execute any such other agreement(s) or documents as deemed necessary or appropriate by Bank prior to the initiation or any continuation by Customer's Third -Party Service Provider of any Services on Customer's behalf. Notice of any termination of Customer's Third -Party Service Provider's authonty to use one or more of the Services on Customer's behalf shall be given to Bank in writing. The effective date of such termination shall be ten (10) Business Days after Bank receives written notice of such termination. Customer agrees that Bank retains the right to reject any transactions initiated by Customer's Third -Party Service Provider in its sole discretion. 34. Section Headings. The section headings used in this Agreement are only meant to organize this Agreement, and do not in any way limit or define Customer's or Bank's rights or obligations. 35. Confidentiality. In further consideration of the terms of this Agreement, Customer expressly covenants and agrees that, effective as of its execution of this Agreement, Customer will not disclose, nor authorize its agents or attorneys to disclose, directly or indirectly, orally or in writing, spontaneously or in response to inquiries from any entity or person, the terms of this Agreement, and any other document or agreement to which reference is made herein, except pursuant to any order, summons or other legal process issued by any state or federal court, or any state, federal, municipal or other governmental agency, or as reasonably necessary to tax advisors, attorneys, accountants, and other professionals, or as necessary to fulfill any contractual undertakings hereunder. Customer expressly recognizes that any unauthorized disclosure of information specified herein, or any threatened disclosure, would cause irreparable injury to Bank which may not be adequately compensated by damages. Accordingly, in the event of a breach or threatened breach of the provisions of Section 35 of this Agreement by Customer, Bank shall be entitled to an injunction restraining and prohibiting Customer from doing so or continuing to do so. Nothing herein shall be construed as prohibiting Bank from pursuing any other remedies available for such breach or threatened breach, mcluding the recovery of damages. The restrictions set forth m this Section 35 shall not apply to information which (i) was, is or becomes public knowledge not in violation of this Section 35; (ii) is acquired by Customers from a third party lawfully possessing such information, (iii) is disclosed in testimony, pleadings or papers filed by Bank in any judicial proceeding; or (iv) is disclosed pursuant to state law. Customer understands and agrees that this Section 35 is a material provision of this Agreement, that Bank would not have entered into this Agreement without such confidentiality obligations, and that any breach of this Section 35 shall be a material breach of this Agreement. 11 of 58 0916 P25 IA WITNESS WHEREOF..Customer and I3ank have duly caused this Agreement. including all applicable Appendices, to be executed by an Authorized Representative. INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS (Customer) 1800 27`h Street Vero Beach. FL 32960 (Address) nt rse ignat e o Authori Representative) nt Name: Joseph E. Flescher Title: Chairman Governmental TD BANK, N.A. ATTEST: Jeffrey R. Smith, Clerk of Court and Ctroller BY: IutY ted: December 7, 2016 13v: h4.7 Printed: Name:. 0 Title: V Ce. 'P/� 51 PtCht APPROVED AS TO FORM AND LEGAL SUFFICIENCY DYLAN REINGOLD COUNTY ATTORNEY P26 Bank EXHIBIT TO CASH MANAGEMENT MASTER AGREEMENT: GOVERNMENTAL ENTITY SERVICES This Exhibit is incorporated by reference into the parties' Cash Management Master Agreement (the "Agreement") and applies to all Cash Management Services made available by Bank to Customer, as a governmental entity or unit. All capitalized terms used herein without definition shall have the meanings given to them in the Agreement. Bank and Customer agree that, notwithstanding anything to the contrary contained in the Agreement, the following terms and provisions shall apply to the Agreement: TERMS AND CONDITIONS 1. Section 26, "Governing Law," of the Agreement is hereby deleted in its entirety and replaced with the following: 26. Governing Law. Any claim, controversy or dispute arising under or related to this Agreement shall be governed by and interpreted in accordance with the laws of the jurisdiction pursuant to which Customer was incorporated or otherwise organized, except where applicable federal law is controlling. In the event of a conflict between the provisions of this Agreement and any applicable law or regulation, this Agreement shall be deemed modified to the extent necessary to comply with such law or regulation. 2. The following new Section 34 is hereby added immediately after Section 33 34. Additional Representations and Warranties. For purposes of this Section, "Governmental Unit" means: (A) any town, city, county or similar local governmental unit, mcluding without limitation any school district or school administrative unit of any nature, water district, sewer district, sanitary district, housing authority, hospital district, municipal electric district or other political subdivision, agency, bureau, department or other instrumentality thereof, or similar quasi - governmental corporation or entity defined by applicable law, and (B) any state government or any agency, department, bureau, office or other instrumentality thereof. (a) If Customer is a Govemmental Unit of the type included in (A) above, Customer and the individual signing below represent, warrant and agree: (i) that this Agreement has been duly executed by the Treasurer, Finance Director, or other officer authorized by law with signatory authority to enter into banking services agreements; (ii) that this (b) Agreement has been duly authonzed and approved by the governing body of Customer in accordance with applicable law, and, at Bank's request, as evidenced by the certification of the Secretary or other legal authority of the governing body and provided with this Agreement; (iii) that only persons authorized to disburse Customer funds from any Account will be enrolled as Authorized Users having access to wire transfer, ACH or Account transfer functions; (iv) that if this Agreement remains in effect for more than one budget year, upon request of Bank, Customer will ratify and provide evidence of the renewal of this Agreement in subsequent years; and (v) that this Agreement is the valid and binding obligation of Customer, enforceable against Customer in accordance with its temm. If Customer is a Governmental Unit of the type included in (B) above, Customer and the individual signing below represent, warrant and agree: (i) that this Agreement has been duly executed by a financial or other officer authorized by law with signatory authority to enter into banking services agreements on behalf of Customer; (ii) that this Agreement has been duly authorized by a senior or similar officer of Customer; (iii) that Customer has complied with all state laws and regulations, including any regulations or policies adopted by Customer with respect to electronic commerce in entering into and performing this Agreement and any related ACH or wire transfer service agreement; (iv) that only persons authonzed to disburse Customer funds from any Account will be enrolled as Authorized Users having access to wire transfer, ACH or Account transfer functions; and (v) that this Agreement is the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms. (c) For a Customer of the type included in either (A) or (B) above, Customer and the individual signing below further represent, warrant and agree. (i) that upon Bank's request, Customer shall provide HCS 4818-2426-3481 El 13 of 58 0916 P27 evidence of those persons authorized to disburse Customer funds as described in (axiu) and (b)(iv) above; (ii) that upon Bank's request, Customer will certify its compliance with (a) or (b), as applicable, on an aminal or other periodic basis; and (iii) that Customer will provide notice to Bank if any person authorized to disburse Customer funds as described in .(a)(iii) and (b)(iv) is no longer so authorized or his/her position of such authority is terminated for any reason. 3. Effectiveness. Customer agrees to all the terms arid conditions of this Exhibit. The liability of Bank under this Exhibit shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Exhibit shall remain in full force and effect until such time as a different or amended Exhibit is accepted in writing by Bank or the Cash Management Master Agreement is terminated. Remainder of page intentionally left blank. HCS 4818-1416-3481 v.1 14 of 58 0916 P28 Bank APPENDIX I TD eTREASURY SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and governs Customer's use of the Bank Internet System (the "Services" or "eTreasury"). All capitalized terns used herein without definition shall have the meanings given to them in the parties' Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. delivery and transaction rmtiation services that Bank makes available using the Bank Internet System. TERMS AND CONDITIONS 1. Definitions. "Account(s) " means, with respect to eTreasury, a checking, regular statement savings, money market deposit, certificate of deposit, investment or commercial loan or line of credit account(s) Customer maintains with Bank for business or non -consumer purposes that is designated by Customer for use with the Services, as described below. "Account Agreement" means, in addition to the meaning contained in the parties' Cash Management Master Agreement, any and all agreements between Customer and Bank which govern Customer Accounts (as defined above) and which were provided to Customer when Customer opened its Account(s), or any other documents governing Customer's Account(s), each as may be amended from time to time. "Administrator" or `Account Administrator" means Customer's employee(s) or other person(s) that Customer (or any Administrator designated by Customer) designates on the Services' Setup Form(s) (or by on-line changes to such designations as described below) as being its Authorized Representative, or as authorized to act on Customer's behalf, with respect to the Services. "Authorized User" means any person Customer's Administrator designates as being authorized to access or use any of the Services on Customer's behalf. "Login ID" means the electronic identification, in letters and numerals, assigned to Customer by Bank or to any additional Authorized Users designated by Customer's Account Administrator. "Payment" means a transfer of funds to or from Customer's Account(s). 2. Services. 2 I This Appendix describes the terms and conditions under which Bank will provide Customer with access to and use of any of the electronic information 2.2 By accessing the Services with the Access Devices (as defined in the Cash Management Master Agreement), Customer may perform any or all of the Services described in this Appendix and selected for use in the Services' Setup Form(s) and that Bank has approved for Customer's use. Bank reserves the nght to reject Customer's Services' Setup Form(s), schedules and other required documents and to refuse Customer access to or use of the Services for any reason and in Bank's sole discretion. Bank may, in its sole and exclusive discretion, introduce new features of the Services from time to time but is not required to notify Customer of the availability of any such new features. 2.3 By subscribing to the Services, Customer will have access to the Services' basic features, which include but may not be limited to, in Bank's sole and exclusive discretion, the following: 2.3.1 Previous -Day Balance Reporting. Previous -Day Balance Reporting allows Customer to review the balances and transaction history in Customer's checking, savings, money market deposit and loan Account(s) for such period of time as described in the Services' Setup Form(s). Customer may also view images of deposit tickets, deposit items, paid checks and return deposited items. This information may be viewed upon implementation of the Services. The scope of the time periods for which transactional history and check images may be viewed (including pre -implementation penods) may vary and depend upon various factors, such as when Account(s) were opened and when the Services were first implemented and set-up. 2.3.2 Real -Time Balance Reporting. Real -Time Balance Reporting allows Customer to review current Account balance(s) and transaction activity in real-time. 2.3.3 Book Transfers. Book Transfers allows Customer to make intra -Bank fund transfers between Customer's checking, savings and loan Accounts. HC6 4616.6674.0154 v.1 15 of .5S 1016 P29 2.3.31 General. Book Transfers may be made as one-time or recurring, same-day or in the future. Book Transfers may also be initiated from (i) one -Account -to -one -Account, (ii) one -Account -to - many -Accounts, or (iii) many -Accounts -to -one -Account. Recurring Book Transfers may utilize one of several repeating frequency options (weekly, monthly, etc.), as set forth in the Services. Book Transfer templates may be created and saved for frequently executed transfers. Pending Book Transfers and templates may be edited or deleted (cancelled) through the Services by Authonzed Users at any time prior to the Business Day on which the associated transfer is scheduled to occur. Book Transfer amounts and the order in which such transfers occur are limited to the available balance in the Account(s) on the effective date of the transfer. For same-day transactions, Customer will need to have a sufficient available balance in the Account from which funds are to be transferred to cover the amount of the Book Transfer. For future or recurring Book Transfers, Customer will need to have sufficient available funds on the day the transaction is to occur The number of Book Transfers from interest bearing checking and savings Accounts are subject to the terms of the Account Agreement and federal regulations. Book Transfers that Customer transmits by Bank's cut-off time as set forth on the Services' designated website or the Services' Setup Form(s) on a Business Day will be posted to the Account as of that Business Day; however, a request (whether a same-day funds transfer or a future -dated transfer) may not result in an immediate transfer of funds or immediate availability because of the time required to process the transaction. Customer is solely responsible for the review of the previous day's transaction report and the status of the Book Transfer request within the Services to ensure that the transaction was processed. Only Book Transfers initiated through the Services will be displayed on the Services' "Transfer" reports tab. All transfers are subject to the Account Agreement. 2.3.3.2 Future -Dated Book Transfer. In conjunction with Book Transfers, a request to transfer funds between Customer's Accounts may be initiated and approved for a future date. The future transfer date may be scheduled for such date in advance as may be permitted from time to time by Bank and as set forth within the Bank Internet System. Future -dated transfers may be scheduled as a one-time request or a recurring request in a pre -determined amount, based on the instructions entered by Customer with the request. Future - dated Book Transfers will be initiated on the Business Day requested by Customer, not on the date Customer entered the transaction using the Services. 2.3.4 Stop Payment. Stop payments of checks drawn on Customer's Account(s) are subject to the terms and conditions of the Account Agreement. Notwithstanding anything in the Account Agreement to the contrary, Customer may use the Services to initiate stop payment orders for an individual check or a range of checks. Bank shall have no responsibility for losses resulting from any delay in Bank's receipt of stop payment orders transmitted by means of the Bank Internet System or for Customer not taking additional actions when a response message from the Bank Internet System indicates a response other than a successful confirmation. Customer must provide Bank with the EXACT CHECK NUMBER OR RANGE OF CHECK NUMBERS. When known, Customer should also provide the EXACT AMOUNT OF THE CHECK. If the check number is incorrect in any way or the amount of the check is inaccurate by one cent or more in the stop payment order, payment will not be stopped and Bank will not be responsible for resulting losses. All other information must be reasonably accurate. Requests are generally effective when successfully entered and submitted by Customer via the Services. Notwithstanding the foregoing, Customer understands that if the stop payment request comes too late for Bank to have a reasonable time to act on it prior to paying, settling for, posting or becoming accountable for the check described in the request, then Customer's stop payment request shall be of no effect. Stop payments requested using the Bank Internet System are effective for three hundred sixty-five (365) Calendar Days unless renewed before the end of the 365 -day period. Customer is solely responsible for confirming the status of a stop payment order Except as otherwise provided by Compliance Laws or the terms of the Cash Management Master Agreement, Customer shall not have the right to stop payment on or recall any electronic fund transfers or similar payment order or transfer request given hereunder after it has been transmitted to Bank. Only stop payment orders initiated or recalled through the Bank Internet System will be displayed on the Bank Internet System's Stop Payments" screen. Stop payment orders that are not initiated through the Bank Internet System may also be cancelled through the Bank Internet System. 2.3.5 E -Learning. E -Learning is a self -paced, interactive educational tool available via the Services that Customer may use to learn more about the various features or modules related to the Services, as well as how to use them. 2.3.6 Customizable Dashboard. Using this feature, Customer can configure and save Account balance views, as well as command one -click access to detailed information, balance and payment reports, and high -Ilse transaction initiation features. It is Customer's responsibility to view the "Dashboard" for Bank notices when designating another section of the Bank Internet System as the desired landing page. 2.4 In addition to the Services as described in this Appendix and/or in the Services' Setup Form(s), additional features, modules or other Cash Management Services related to eTreasury may be offered from time to time by Bank, in its sole and exclusive discretion, including but not limited to the following: 2.4 1 Wire Transfers. Wire transfers are subject to the terms and conditions of the TD Wire Transfer Services Appendix. Once approved by Bank for use by Customer, this Service allows Customer to transfer funds electronically using the Fedwire or similar funds transfer system, typically from Customer's Account(s) to other account(s) with Bank or to account(s) HC0 4816-8874-0154 v.1 16 of 58 1016 P30 at other banks. Domestic or foreign wire transfers entered through the Services will be processed as set forth in the TD Wire Transfer Services Appendix. 2.4.2 ACH Originations. ACH originations are subject to the terms and conditions of the TD Automated Clearing House (ACH) Origination Appendix, the TD Third -Party Sender Services Appendix or the TD ACH Third Party Service Provider Agreement, as applicable. Once approved by Bank for use by Customer, this Service allows Customer to initiate and approve ACH transactions that Customer desires Bank to enter mto the ACH network on Customer's behalf. ACH transactions entered through the Services will be processed and settled) as set forth in the TD Automated Clearing House (ACH) Origination Appendix, the TD Third -Party Sender Services Appendix or the TD ACH Third Party Service Provider Agreement, as applicable. 2.4.3 File Transfers. File transfers is a method for Customer and Bank to send and receive reports and files (including, but not limited to, ACH, Reconciliation, Lockbox, and BAI files) to each other through the Internet and are subject to the terms and conditions of applicable Appendices. Such reports and files may also be auto -generated and auto -delivered. 3. Hours of Access. Customer generally may access the Services 24 hours a day, seven (7) days a week. Customer may not be able to access some or all of the Services from time to time, however, during any special or other scheduled maintenance periods, or during emergencies, interruptions or delays due to causes beyond Bank's control. 4. Account Designation. 4.1 Customer may designate any of Customer's Accounts maintained with Bank for business or non -consumer purposes for use with the Services. Generally, the taxpayer identification number for each Account must be the same, and each Account is subject to the other conditions set forth in this Appendix, except as Bank, in its sole discretion, may otherwise permit. Bank reserves the right to deny any Account designation for use with the Services in its sole discretion. 4.2 Customer may at any time add or delete any Account that Customer has designated for use with any of the Services, or change the Services associated with any Account, by notifying Bank in wnting. 5. Administrator(s) and Authorized Users. 51 Customer shall designate Admmistrator(s) with Bank as set forth m the Services' Setup Form(s). Customer is solely responsible for designating its Administrator(s). 5.2 The Administrator(s) may designate other Adrmnistrators and/or Authorized Users. Customer accepts as its sole responsibility the Administrator's designation of other Administrators and Authorized Users. Customer understands that the Administrator(s) will control, and Customer authorizes the Administrator(s) to control, access by other Administrators and Authorized Users of the Services through the issuance of Access Devices. The Administrator(s) may add, change or terminate Customer's Authonzed User(s) from time to time and in his/her sole discretion. Bank does not control access by any of Customer's Authorized Users to any of the Services. If Customer designates more than one (1) Administrator, Bank recommends that Customer manage its use of the Services and its Administrators by requiring dual control to set up new Authorized Users. Bank also recommends that Customer review and assign limits for Authorized Users that create and/or approve wire transfers and ACH transactions, as established on the Services' Setup Form(s). In the event that Bank, in its sole and exclusive discretion, assists Customer in any way with the establishment, addition or general set-up of Authorized Users, Customer understands and agrees that the Administrator(s) shall remain responsible for verifying the accuracy thereof and shall otherwise control access by any of Customer's Authorized Users to any of the Services. 5.3 Customer will require each Administrator and each Authorized User to comply with all provisions of this Appendix and all other applicable agreements. Customer acknowledges and agrees that it is fully responsible for the failure of any Administrator or any Authorized User to so comply Customer is responsible for any Payment, transfer and other use of the Services and charges incurred by any Administrator and any Authorized User, even if such Administrator or Authorized User exceeds his/her authorization. Bank recommends that Customer require its Administrator(s) to review all entitlement reports available through the Services with respect to Customer's Authorized User(s). 5.4 Customer acknowledges and agrees that an Authorized User is not permitted to authorize other persons/entities to use its Access Devices. Notwithstanding the foregoing, if an Authorized User does authorize other persons/entities to use the Authorized User's Access Devices in any manner, such authorization will be considered by Bank as unlimited in amount and manner, and Customer is responsible for any transactions made by such persons/entities, until Customer's Administrator has deactivated the subject Authorized User's Access Devices. Bank will not be liable for and will not reimburse Customer for any losses that may occur as a result of this authorized use of an Authorized User's Access Devices. 5.5 Whenever any Authorized User leaves Customer's employ or Customer otherwise revokes the authority of any Authorized User to access or use the Services, the Adrmnistrator(s) are solely responsible for de- activating such Authorized User's Access Devices. Customer shall notify Bank in writing whenever a sole Customer Administrator leaves Customer's employ or Customer otherwise revokes a sole Administrator's authonty to access or use the Services. HC# 4816-8874-0154 v.1 17 of 58 1016 P31 6. Access Devices; Security Procedures. 6.1 Upon successful enrollment, Customer can access the Services from Bank's designated website by using Customer's Computer or, as may be permitted by Bank from time to time in its sole discretion and in accordance with Bank's terms and conditions for such access, using mobile or other Internet -enabled system(s) or device(s), along with the Services' security procedures as described from time to time. A company ID assigned to Customer by Bank, a unique Login ID and an individual password will be used for log -in by Customer's Administrator(s) and Authorized User(s). The Administrator(s) and Authorized User(s) must change his or her individual password from time to time for security purposes, as prompted by the Bank Internet System or more frequently (subject to the additional secunty procedures described below). 6.2 Customer acknowledges that the Administrator(s) will, and Customer authorizes the Administrator(s) to, select other Administrators and Authorized Users by issuing to any person a unique Login ID and password (subject to the additional secunty procedures described below). Customer further acknowledges that the Administrator(s) may, and Customer authorizes the Administrator(s) to, change or de -activate the unique Login ID and/or password from time to time and in his or her sole discretion (subject to the additional security procedures described below). 6.3 Customer acknowledges that, in addition to the above individual passwords, access to the Services includes, as part of the Access Devices, additional security procedures, including as described below: 6.3.1 Additional secunty procedures include a risk-based authentication security procedure for Customer, including Customer's Administrator and Authorized Users. This additional security procedure involves an additional credential for each user that is in addition to Login IDs and individual password security (hereinafter "Enhanced Authentication Security," and/or "Enhanced Log -in Security"). With Enhanced Authentication Security, additional information regarding each Authorized User's Computer and method of website access will be collected and validated automatically with the set-up process. An electronic access identity will be created for each Authorized User by combimng a number of key identification points, such as IP address, Internet service provider, PC and browser settings, time of day and geographic location. These access identities are used by Bank to authenticate Authorized Users. Further authentication may occur automatically due to the detection of unusual source occurrences in relation to that access identity 6.3.2 An additional security procedure incorporates use of a physical security device or token ("Token") for, by way of example only, initial log -in and/or certain transactional or administrative functionality. A Token may be issued to any Authonzed User(s), for example, for use in initiating and/or approving ACH transactions and wire transfers, to log in to the Services, as well as with certain administrative functionality, and/or for the creation of ACH and wire templates. Physical security of each Token is Customer's sole responsibility With the Token, each Authorized User will receive a PIN number that the Authorized User must keep in a secure place. When an Authorized User (or Administrator) leaves Customer's employ, his or her Login ID must be deleted by Customer (or by Bank upon Customer's request) and, if a Token had been issued to such Authorized User (or Administrator), Bank must be promptly notified so that Bank may deactivate such Authorized User's (or Administrator's) Token. Any additional Authonzed User requiring a Token must be authorized, in writing by Customer to Bank, for Token creation or re-creation and deployment. If applicable, fees may be assessed for additional Tokens. 6.4 Customer further acknowledges and agrees that all wire transfers and ACH transactions initiated through the Services require "dual control" or separation of duties. With this additional security feature, one Authorized User will create, edit, cancel, delete and restore ACH batches or wire transfer orders under his/her unique Login ID, password and Token; a second different Authorized User with his/her own unique Login ID, password and Token will be required to approve, release or delete ACH batches or wire transfer orders. 6.5 Customer accepts as its sole responsibility the selection, use, protection and maintenance of confidentiality of, and access to, the Access Devices. Customer agrees to take reasonable precautions to safeguard the Access Devices and keep them confidential. Customer agrees not to reveal the Access Devices to any unauthorized person. Customer further agrees to notify Treasury Management Services Support immediately at 1-866-475-7262 if Customer believes that the confidentiality of the Access Devices has been compromised in any manner. 6.6 The Access Devices identify and authenticate Customer (including the Administrator and Authonzed Users) to Bank when Customer accesses or uses the Services. Customer authorizes Bank to rely on the Access Devices to identify Customer when Customer accesses or uses any of the Services, and as signature authorization for any Payment, transfer or other use of the Services. Customer acknowledges and agrees that Bank is authonzed to act on any and all communications or instructions received using the Access Devices, where such communications were provided to Bank m accordance with the security procedures and other terms as set forth in the Cash Management Master Agreement, regardless of whether the communications or instructions are authorized. Bank owns the Access Devices, and Customer may not transfer them to any other person or entity. 6.7 Customer acknowledges and agrees that the Access Devices and other security procedures applicable to Customer's use of the Services and set forth in this Appendix, as well as such security best practices as described by Bank from time to time and made available on the Bank Internet System, are a commercially reasonable method for the purpose of verifying whether any Payment, HC# 4816-8874-0154 v.J 18 of 58 1016 P32 transfer or other use of the Services was initiated by Customer. Customer also agrees that any election Customer may make to change or waive any optional secunty procedures recommended by Bank is at Customer's risk and that any loss resulting in whole or in part from such change or waiver will be Customer's responsibility Customer further acknowledges and agrees that the Access Devices are not intended, and that it is commercially reasonable that the Access Devices are not intended, to detect any errors relating to or arising out of a Payment, transfer or any other use of the Services. 6.8 If Customer has reason to believe that any Access Devices have been lost, stolen or used (or may be used) or that a Payment or other use of the Services has been or may be made with any Access Devices without Customer's permission, Customer must contact its Administrator and Bank. In no event will Bank be liable for any unauthonzed transaction(s) that occurs with any Access Devices, where such communications or instructions were provided to Bank in accordance with the security procedures and other terms as set forth in the Cash Management Master Agreement. 6.9 Bank may, from time to time, propose additional or enhanced security procedures to Customer. Customer understands and agrees that if it declines to use any such additional or enhanced procedures, it will be liable for any losses that would have been prevented by such procedures. Notwithstanding anything else contained in this Appendix, if Bank believes immediate action is required for the security of Bank or Customer funds, Bank may initiate additional security procedures immediately and provide prompt subsequent notice thereof to Customer. 7. Debiting Customer's Account(s). Customer authorizes Bank to charge and automatically deduct the amount of any Payment from Customer's Account(s) (or any other Account that Customer maintains with Bank, if necessary), in accordance with the Cash Management Master Agreement and the Account Agreement. 8. Electronic Statements. 8.1 As an eTreasury user, and subject to Bank's approval and applicable set-up and enrollment requirements, Customer may elect to stop or resume the mailing of paper statements for eligible Accounts by requesting this feature from Bank. 8.2 Only Accounts accessible via the Services may be enrolled for electronic statement delivery. Eligible Accounts are displayed on the "Statements" page of the Services. If Customer currently receives a consolidated periodic statement that includes multiple Accounts and Customer selects electronic statement delivery, all Accounts shown on the consolidated statement will be automatically enrolled for electromc statement delivery For point Accounts, only one Account owner need enroll for electronic statement delivery; provided, that each Account owner must separately enroll if that Account owner wishes to receive and have access to its Account statements electronically. 8.3 Customer's electronic statement will generallybe available within 24 hours after the statement cut-off date. The statement cut-off date for Customer's electromc statement is the same as Customer's paper statement. Once made available as described herein, the information contained in Customer's electronic statement shall be deemed to have been delivered to Customer personally, whether actually received or not. Customer may view, prmt and download current statements and such period of statement history as set forth on the Bank Internet System. To view or print an electronic statement, Customer must have an appropriate version of Adobe Acrobat software installed on Customer's Computer sufficient to support access to a PDF file. 8.4 At Customer's request, Bank will send Customer a paper copy of Customer's electronic statement previously delivered through the Services at any time. Bank's standard fee then in effect and charged for paper delivery of copies of Account statements will apply. A request for a paper copy does not cause a termination of the electronic statement feature. A paper copy can be obtained until the copy is no longer required to be maintained by Bank as a record for the designated Account under applicable law or regulation. 8.5 Customer may revoke consent for the electronic statement feature for Customer's Accounts at any time by contacting Customer's Relationship Manager. Electronic posting of Customer's electronic statement on the Services' site and transmission of related email notices will continue until: (i) termination of the electronic statement feature; (ii) termination of Customer's designated Accounts with Bank; or (iii) termination of this Appendix, the Cash Management Master Agreement or Customer's use of the Services. 8.6 Bank may discontinue the electronic statements feature at any time in Bank's discretion and resume mailing paper statements to Customer Bank may also add, modify or delete any feature of the electronic statements feature in Bank's discretion. Bank will provide Customer with notice of any change or termination in the electronic statement feature in accordance with the terms of the parties' Cash Management Master Agreement. 9. Alerts. 9.1 The Services allow Customer to voluntarily choose alert messages regarding Customer's Account(s), including but not limited to messages to alert Customer about high or low Account balance thresholds, debit or credit transactions cleared, and payment status for ACH and wire transactions. Bank may add new alerts from time to time, or cancel existing alerts. If Customer has opted to receive an alert that is being canceled, Bank will notify Customer in accordance with the terms of the parties' Cash Management Master Agreement. Each alert has different options available, and Customer will be asked to select from among these options upon activation of Customer's alerts service. HCV 4816-8874-0150 v.1 19 o/ 58 1016 P33 9.2 Voluntary Alerts. 9.2.1 Electronic alerts will be sent to the email address Customer has provided as Customer's primary email address for the Services or via the Services' secure messaging feature. If Customer's email address changes, Customer is responsible for informing Bank of the change. Customer can also choose to have alerts sent to a secondary email address. Changes to Customer's primary and secondary email addresses will apply to all of Customer's alerts. 9.2.2 Customer understands and agrees that Customer's alerts may be delayed or prevented by a variety of factors. Bank will use commercially reasonable efforts to provide alerts in .a timely manner with accurate information. Bank neither guarantees the delivery nor the accuracy of the contents of any alert. Customer also agrees that Bank shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by Customer or any third party in reliance on an alert. Customer agrees that Bank is not responsible for any costs or fees incurred as a result of alerts sent to email addresses or phone numbers connected with mobile or similar devices. 9.2.3 Alerts are not encrypted and will never include Customer's Access Devices or full Account number(s). However, alerts may include Customer's name and some information about Customer's Accounts, depending upon which alert(s) Customer selects. Anyone with access to Customer's email address will be able to view the contents of these alerts. 9.2.4 Customer may, at its option, customize the subject line of Customer's alerts for easier identification by Customer. Customer acknowledges and agrees that Customer should not include full Account number(s) or other sensitive Customer or Account information in any customized subject line. 10. Use of Financial Management (FM) Software. Use of the Services may be supplemented by use of certain FM software. Compatibility and functionality of the FM software with the Services may vary depending upon the FM software Customer is using, and Bank makes no representations or guarantees regarding use of the Services with Customer's FM software. Customer is responsible for obtaining and maintaining the FM software. Customer's use of the FM software is governed by the software license agreement(s) included with each software application. Customer must agree to the terms and conditions of the software license agreement(s) during the installation of the FM software on Customer's Computer. Customer is responsible for the correct set-up and installation of the FM software, as well as maintenance, updates and upgrades to the FM software and/or Customer's Computer. Bank will provide Customer with reasonable assistance, when requested, to enable Customer's use of the Services with FM software. Bank is not responsible for any problems related to the FM software itself, Customer's Computer or Customer's ability to connect using the FM software as described in this Appendix. Customer should verify all Account data obtained and any transactions that may be executed on Customer's Accounts using FM software, as applicable. Bank's records of transactions, instructions and communications regarding Customer's Accounts and use of the Services supersede any records stored or created on Customer's Computer through the use of FM software. Customer is responsible for any and all obligations to any software vendor arising from Customer's use of that vendor's FM software. Customer acknowledges and agrees that the FM software versions supported by Bank for purposes of use with the Services shall be in accordance with the sunset policy of the FM software provider. 11. Additional Security Terms. In addition to the other terms of this Appendix and of the parties' Cash Management Master Agreement, Customer agrees not to disclose any propnetary information regarding the Services to any third party (except to Customer's Administrator(s) and Authorized User(s)). Customer acknowledges that there can be no guarantee of secure transmissions over the Internet and agrees to comply with any operating and commercially reasonable security procedures Bank may establish from time to time with respect to the Services. Customer will be denied access to the Services if Customer fails to comply with any of these procedures. Customer is responsible for reviewing the transaction reports Bank provides on-line and in Customer's monthly statements to detect unauthorized or suspicious transactions. In addition to any other provision hereof regarding authorization of transactions using the Services or in the parties' Cash Management Master Agreement, all transactions will be deemed to be authorized by Customer and to be correctly executed thirty (30) Calendar Days after Bank first provides Customer with a statement or online transaction report showing that transaction, unless Customer has provided written notice that the transaction was unauthorized or erroneously executed within that period. In order to minimize nsk of loss, Customer agrees to cause its Administrator or designated Authorized User(s) to review the transaction audit log available with the Services to detect unauthorized or erroneous transactions not less frequently than once every five (5) Calendar Days. 12. Terminating this Appendix; Liability. 12.1 This Appendix may be terminated in accordance with the terms and conditions of the Cash Management Master Agreement. 12.2 The provisions of this Appendix relating to Customer's and Bank's liability and the disclaimer of warranties set forth in the Cash Management Master Agreement and incorporated herein by reference shall survive the termination of this Appendix. 13. Changes to the Services and this Appendix. Bank may change the Services and this Appendix (including any amendments hereto) m accordance with the terms and conditions of the Cash Management Master Agreement. HC# 4816-88744154 v.1 10 of 58 1016 P34 14. Notices. Notices required by this Appendix shall be provided in accordance with the terms and conditions of the Cash Management Master Agreement. 15. Effectiveness. Custoiner agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until tennination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. HC114816-8874-0154v.1 21 Of 58 1016 P35 ID Bank APPENDIX II TD ACH ORIGINATION SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and the parties' Bank Internet System Agreement, as applicable. This Appendix applies to all automated clearing house ("ACH") Services made available to Customer, in Customer's capacity as an Originator by Bank, as an Originating Depository Financial Institution ("ODFI"). All capitalized terms used herein without definition shall have the meanmgs given to them in either the Cash Management Master Agreement or the NACHA Rules (as defined below), as applicable. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The ACH network is a funds transfer system which provides for the interbank clearing of electronic credit and debit Entries for participating financial institutions. The ACH system is governed by the National Automated Clearing House Association's ("NACHA") Operating Rules and Operating Guidelines (collectively the `NACHA Rules"). 2. Customer Obligations. 2.1 Customer will comply and shall cause its employees, officers, directors, agents and its Authorized Representative(s) and Admimstrator(s) to comply with (i) the NACHA Rules as amended from time to time and (ii) any specifications, advisories, interim policies, or instructions related to ACH transactions issued, from time to time, by Bank, NACHA or any federal or state regulatory authorities. The duties of Customer set forth in this Appendix in no way limit the requirement that Customer comply with the NACHA Rules. Customer specifically adopts and makes to Bank all representations and warranties of an Originator under the NACHA Rules, including that Customer will not initiate Entries in violation of the laws of the United States. Customer has access to a copy of the NACHA Rules and acknowledges receipt of a copy (The NACHA Rules may be obtained at NACHA's website at www.NACHA.org or by contacting NACHA directly at 703-561-1100.) Customer agrees to subscribe to receive revisions to the NACHA Rules directly from NACHA. 2.2 Customer will maintain a checking Account ("Settlement Account") at Bank with available balances as of the Effective Entry Date sufficient to offset any Entries subtmtted and against which any rejected or returned Entries may be credited or debited. Bank reserves the nght, m its sole and exclusive discretion and at any time, to require ACH pre -funding of credit Entries requested by Customer, in accordance with the terms and conditions of any agreement between Bank and Customer relating to pre -funding of such Entries, including as otherwise set forth in this Appendix. Bank also reserves the right, in its sole and exclusive discretion and at any time, to delayed settlement of debit Entries requested by Customer, in accordance with the terms and conditions of any agreement between Bank and Customer relating thereto. 2.3 Customer agrees from time to time, upon Bank's request and in accordance with this Appendix and the parties' Cash Management Master Agreement, to promptly provide Bank with information pertammg to Customer's financial condition as Bank may request, including without limitation, the name(s) of other financial institutions that Customer is using to originate Entries. 2.4 Nothing in this Appendix or any course of dealing between Customer and Bank (i) constitutes a commitment or obligation of Bank .to lend money to Customer, (ii) obligates Bank to extend any credit to Customer, to make a loan to Customer or otherwise to advance funds to Customer to pay for any payment order contrary to Bank's published availability schedules and the settlement timing as reflected herein, and in such other documents and materials as may be provided to Customer by Bank with regard to the Services from time to time, (iii) constitutes a modification of this Appendix, the NACHA Rules, or the Security Procedures, or (iv) otherwise constitutes an agreement between Bank and Customer regardless of whatever practices and procedures Bank and Customer may use. 2.5 Customer is responsible for all tariffs, duties or taxes (excluding U.S. federal, state and local taxation of the income of Bank) that may be imposed by any government or governmental agency in connection with any payment order executed pursuant to this Appendix, including without limitation any international tariffs, duties or taxes related to international ACH Entries as further described in Section 6 below. 2.6 Customer shall be liable for all fines including without limitation any international fines related to international ACH Entries as further described in Section 6 below, that may be incurred by Bank that are attributable to Customer's failure to comply with (i) the NACHA Rules, or (ii) the laws, regulations and orders administered by the U.S., including without limitation, the U.S. Department of HC 4814-6754-1549 22 of 58 022016 P36 the Treasury's Office of Foreign Assets Control ("OFAC") and the U.S. Department of the Treasury's Financial Crimes Enforcement Network ("FinCEN"). 3. Risk Exposure Limits. 3.1 Bank will establish for Customer, in Bank's sole and exclusive discretion, a transactional "Credit Exposure Limit" and a "Debit Exposure Limit" ("Exposure •Limit(s)"). Each Exposure Limit will be established as an aggregate limit over multiple Settlement Dates with other not -yet -settled transactions issued by Customer through any ACH application with Bank. The Exposure Limits are based on Customer's financial condition and anticipated or histoncal level(s) of Entry instructions with Bank. Bank will notify Customer of Customer's Exposure Limits prior to implementation of the Services. 3.2 Customer shall promptly notify Bank if Customer anticipates a significant increase or decrease in the dollar amount of any of its ACH transactions. Bank may, from time to time, in its sole discretion, change the amount of Customer's Exposure Limits. Bank may, on an annual or more frequent basis, in Bank's sole discretion, review Customer's Exposure Limits and make any adjustments to Customer's Exposure Limits that Bank may deem appropriate. 3.3 Bank monitors all Exposure Limits for every customer that originates ACH transactions. Bank may suspend or reject processing of any Entry instructions if such Entry exceeds Customer's Exposure Limit(s). Bank may, rn its sole and exclusive discretion, but shall have no obligation, to elect to process occasional Entry instructions that would exceed Customer's Exposure Limit(s). If Customer's Entry instructions exceed its Exposure Limit(s), Bank may elect to process such instructions subject to there being sufficient available funds in the Settlement Account, or in any other Customer Account(s) authorized by Bank for ACH transaction purposes, for the total amount of all credit Entnes submitted to Bank for processing. In such event, Bank may elect to reduce available funds in the Settlement Account, as well as place a hold on available funds in any other Customer Account(s) authorized by Bank for ACH transaction purposes to the extent necessary to cover the total amount of the ACH credit Entries, on the Business Day that Bank begins processing Customer's ACH file. Customer's Settlement Account will be debited on the effective Settlement Date of the file, simultaneously with removal of the hold on funds in the other Customer Account(s). Alternatively, if Customer's Entry instructions exceed Customer's Exposure Limit(s), Bank may elect to process such instructions and release a file against insufficient collected funds, subject to Customer promptly depositing collected funds m the Settlement Account in the form of a cash deposit, wire transfer, intra -bank fund transfer or loan advance to cover Customer's funding obligation. 4. File Transmission Methods; Addenda. 4.1 Customer may elect, in accordance with the Services' Setup Form(s), to transnut a NACHA-formatted file to Bank via the following methods, or via such other methods as Bank may permit from time to time in its sole and exclusive discretion: 4.11 Bank Internet System Transmission. Customer may transmit a NACHA- formatted file to Bank via the service described in the Bank Internet System Appendix. Customer agrees to the terms of the Bank Internet System Appendix and its related security procedures when initiating Entries as described therein. 4.1.2 Direct Electronic Transmission. Customer may transmit a NACHA-formatted file directly to Bank, as described in or as otherwise permitted by Bank's Appendix for Data Transrnrssron Services. Connectivity between Bank and Customer must be established and successfully tested prior to live transactions. 4.2 Electronic Data Interchange ("EDI"). EDI consists of the electronic movement of data between Customer and Bank in a structured, computer - retrievable data format that permits information to be transferred between a computer program at Customer's location and a computer program at Bank's location without re -keying. Customer and Bank may transmit between each other an ACH file that contains ACH Addenda which conform to the NACHA Rules via EDI, and as described in or as otherwise permitted by Bank's Appendix for Data Transmission Services. Bank will process and forward Addenda information along with financial transactions through the ACH network. Bank will, upon Customer's request, forward Addenda information to Customer within two (2) Business Days of Bank's receipt of such information. 5. Transmittal of Entries by Customer. 5.1 Customer will send file(s) of credit and debit Entries to Bank (i) with computer readable information; (ii) with an ACH file and format consistent with current NACHA file and Bank specifications; and (iii) on the medium as agreed by the parties and in accordance with the security procedures associated with that transmission medium. Customer agrees to initiate Entries described herein in accordance with the requirements of, and in compliance with its responsibilities, representations and warranties as an Onginator under, the NACHA Rules. 5.2 With respect to any credit and debit Entries initiated and transmitted by Customer that involve consumers, Customer will comply with, each as may be amended from time to time: (i) all authorization, disclosure and other requirements of the NACHA Rules and (ii) all applicable federal and state laws and regulations, including, without limitation, any applicable requirements of Regulation E of the Consumer Financial Protection Bureau (or any successor entity who administers Regulation E) (hereinafter "Regulation E") and the Federal Electronic Funds Transfer Act. HC 48144754-1549 23 of 58 022016 P37 5.3 Customer acknowledges the right of a consumer Receiver of an unauthorized debit Entry, as applicable and as described in the NACHA Rules, to obtain a refund of the funds debited from Receiver's account by such Receiver sending a written notice to Receiver's Receiving Depository Financial Institution ("RDFr') in accordance with the NACHA Rules (i.e., a Written Statement of Unauthorized Debit), and where such notification is received in time and in a manner that reasonably allows the RDFI to meet the deadline for transmitting a Return Entry as provided in the NACHA Rules. Customer also acknowledges the right of a corporate Receiver of a debit Entry, as applicable and as described in the NACHA Rules, to obtain a refund of the funds debited from such Receiver's account by such Receiver sending a notice to Receiver's RDFI within two (2) Business Days following the Settlement Date of the original Entry Customer indemnifies Bank against any such claim for a refund by any Receiver 5 4 In accordance with this Appendix, Customer may use the Services to initiate and transnut credit and debit Entries with certain Standard Entry Class ("SEC") Codes. Authorized SEC Codes include PPD, PPD+, CCD, CCD+ and CTX. All other SEC Codes may be used with proper designation on the Services' Setup Form(s) and in accordance with additional instructions from and requirements by Bank, as applicable. Bank may also suspend or terminate Customer's use of one or more SEC Codes at any time m Bank's sole and exclusive discretion. 6. International ACH Transactions ("IAT Entries"). 6.1 An IAT Entry is a debit or credit Entry that is part of a payment transaction involving a Financial Agency located outside of the territorial borders of the United States, which is processed through the domestic ACH network, pursuant to the NACHA Rules, including the rules pertaining to International ACH Transactions. IAT Entries also include those that are funded directly by an incoming international wire or similar funding source. The NACHA Rules establish SEC Code "IAT" for all International ACH Transactions. Customer agrees to be bound by the NACHA Rules and all other statutes and regulations pertaining to IAT Entries, including all applicable OFAC and FinCEN rules and regulations associated with IAT Entries. Customer acknowledges that 1AT Entries require additional mandatory information, according to special formatting requirements, in the computer record for such Entries within an ACH batch file. Customer expressly agrees to identify and properly initiate all IAT Entries. Bank will facilitate IAT Entries to Receivers located in foreign countries approved by Bank and facilitated by the ACH or the Gateway Operator (hereinafter in this Section, collectively, "ACH Operator"). Bank will process each IAT Entry in accordance with (a) the laws and payment system rules and requirements of the receiving foreign country ("Foreign Country Rules"), (b) any agreement governing IAT Entries between Bank and the ACH Operator through which Bank processes the IAT Entry, the terms of which Bank communicates to Customer prior to Customer's use of the Services or from to time thereafter, and (c) the NACHA Rules 6.2 Customer acknowledges and agrees that IAT Entrees may be subject to laws, regulations and restrictions of U.S. and foreign governments relating to foreign exchange transactions. Before initiating an IAT Entry, Customer agrees to understand and accept the Foreign Country Rules. An IAT Entry must be authorized by the Receiver. The form and content of the Receiver's authorization, including whether such authorization is oral, electronic or written, is governed by Foreign Country Rules. Customer assumes the risk of rejection of its Entrees according to Foreign Country Rules, Bank and the ACH Operator Customer expressly acknowledges and agrees that Outbound IAT Entries, once transmitted, are irrevocable and are subject to the Foreign Country Rules; furthermore, the time frames for return of an Entry are determined by the Foreign Country Rules and may exceed the sixty (60) day return window for consumer Entries defined by the U.S. ACH system and the NACHA Rules, as well as the return window for non -consumer Entnes. Customer also agrees that IAT Entries may not be dishonored, reversed or settled upon a specific date, and that pre -notifications are not permitted with respect to IAT Entries involving certain foreign countries. To the extent not otherwise prohibited by law, in connection with IAT Entries, (1) Customer assumes the risk of all fluctuations in foreign exchange rates or availability, and (2) Customer assumes the nsk of loss for creating any and all erroneous IAT Entries. Customer acknowledges and agrees that the processing, settlement and/or availability of such Entries may be delayed or suspended in the event that Bank determines that enhanced scrutiny or verification of such Entries is necessary under the NACHA Rules and/or applicable U.S. law The ACH Operator through which Bank processes the IAT Entry, in its sole discretion, may also refuse to handle IAT Entries. Customer acknowledges that Bank shall have no liability for such delay or refusal. 6.3 In addition to the provisions of Section 22 of this Appendix, Customer makes the following additional representations and warranties with respect to any IAT Entry submitted by Customer or on Customer's behalf: 6.3 1 Customer is in compliance with U.S. law, including, but not limited to, Customer's obligations under programs administered by OFAC and FinCEN, and 6.3.2 The origination of an Outbound IAT Entry is in compliance with the Foreign Country Rules, including any requirements regarding authorization with respect to an IAT Entry. 6.4 Bank will not be liable for (a) any failure or delay by the ACH Operator, any intermediary financial institution, or the financial institution designated to receive the IAT Entry in the receiving country in processing or failing to process any IAT Entry that is transmitted to the receiving country, or (b) the acts or omissions by a third party, including without limitation, the delay or failure of any third party to process, credit or debit any IAT Entry Bank is also not responsible for the transmission or HC 4814-6754-1549 24 of 58 022016 P38 settlement of IAT Entries on foreign holidays or other days on which foreign countries may not process Entries. 6.5 With respect to credit IAT Entries that Customer wishes to originate in the currency of a designated foreign government or intergovemmental organization ("Foreign Currency"), Bank will originate the IAT Entries in U.S dollars ("USD") only. Once the Entry is transmitted by Bank to the ACH Operator, the ACH Operator will convert the amount to be transferred from USD to the Foreign Currency. If the financial institution designated to receive the funds does not pay the Receiver specified in the Entry, or if the Entry is subsequently detennined to be erroneous, the ACH Operator will convert the amount to be retumed from the Foreign Currency to USD. Bank will not be liable for any difference in the amount of the original Entry after it has been converted from the Foreign Currency to USD. Further, if Customer designates the currency to arrive at the receiving financial institution in Foreign Currency, and the designated Receiver account at the receiving financial institution is a USD account, Customer acknowledges that the receiving financial institution may: (1) elect to convert the currency back to USD and post the transfer to the Receiver's account accordingly, or (2) return the Entry, in which case the amount transferred is converted from Foreign Currency back to USD to post back to Customer's account. Customer assumes all foreign exchange risk associated with any of the foregoing. 7. Security Procedures. 7.1 Customer and Bank shall comply with the security procedures set forth or incorporated by reference in this Appendix, the Cash Management Master Agreement, the Bank Internet System Appendix, Data Transmission Services Appendix and/or associated documents provided by Bank, including without limitation the Services' Setup Form(s) (collectively the "Security Procedures"), with respect to Entries transmitted by Customer to Bank. Customer acknowledges and agrees the Secunty Procedures are a commercially reasonable method for the purpose of verifying the authenticity of Entnes (or any request for cancellation or amendment thereof). Customer further acknowledges that the purpose of the Security Procedures is not to detect an error in the transmission or content of an Entry. No security procedures have been agreed upon between Bank and Customer for the detection of any such error. 7.2 Customer is strictly responsible for establishing, implementing, maintaining and (as appropriate) updating its own security procedures (a) to safeguard against unauthorized transmissions, and (b) relating to the initiation, processing and storage of Entries. As required by the NACHA Rules with respect to the protection of ACH infonnation (non- public information, including financial information of Receivers and Customer's customers, used to create, or contained within, an ACH Entry and any related addenda record), Customer shall ensure that its security policies, procedures and systems: Protect the confidentiality and integrity of the protected information, Protect against anticipated threats or hazards to the security or integrity of protected information until its destruction, and Protect against unauthorized use of protected information that could result in substantial hann to the Receiver/customer. Customer warrants to Bank that no individual will be allowed to initiate transfers in the absence of proper supervision and safeguards, and Customer agrees to take reasonable steps to maintain the confidentiality of the Security Procedures and any passwords, codes, security devices and related instructions Bank provides in connection with the Security Procedures. If Customer believes or suspects that any such information or instructions have been known or accessed by an unauthorized person, Customer agrees to notify Bank immediately by calling 1-866-475-7262, followed by written confimiation to TD Bank, N.A., Attn: Treasury Management Services Support, 6000 Atrium Way, Mt. Laurel, New Jersey, 08054. The occurrence of unauthorized access will not affect any transfers Bank makes in good faith pnor to, and within a reasonable tune period after, its receipt of such notification. 7.3 Bank may, from time to time, propose additional or enhanced security procedures to Customer. Customer understands and agrees that if it declines to use any such enhanced procedures, it will be liable for any losses that would have been prevented by such procedures. Notwithstanding anythmg else contained m this Appendix, if Bank believes immediate action is required for the security of Bank or Customer funds, Bank may initiate additional security procedures immediately and provide prompt subsequent notice thereof to Customer. 8. Compliance with Security Procedures. 8.1 If an Entry (or a request for cancellation or amendment of an Entry) received by Bank purports to have been transmitted or authorized by Customer, it will be deemed effective as Customer's Entry (or request), and Customer shall be obligated to pay Bank the amount of such Entry (or request) even though the Entry (or request) was not authorized by Customer, provided Bank acted in compliance with the Security Procedures. To the extent that signature comparison is to be used as part of any applicable Security Procedures, Bank shall be deemed to have complied with that part of such Security Procedures if it compares the signature accompanying a file of Entries (or request) with the signature of an Authorized Representative of Customer and, on the basis of such comparison, believes the signature to be that of such Authorized Representative. 8.2 If an Entry (or a request for cancellation or amendment of an Entry) received by Bank was transmitted or authorized by Customer, Customer shall be obligated to pay the amount of the Entry as provided herein, whether or not Bank complied with the Security Procedures and whether or not that Entry was erroneous in any respect or that error would have been detected if Bank had complied with the Security Procedures. HC 48144754-1549 25 of 58 022016 P39 9. Recording and Use of Communications. Customer and Bank agree that all telephone conversations or data transmissions between thein or their agents made in connection with this Appendix may be electronically recorded and retained by either party by use of any reasonable means. 10. Processing, Transmittal and Settlement of Entries by Bank. 10.1 Bank will process, transmit and settle for credit and debit Entries initiated by Customer as provided in the NACHA Rules as in effect from time to time, and pursuant to this Appendix. Exclusive of "Same Day ACH Entries," which are described in Section 23 below, Bank will transmit such Entries as an ODFI to the ACH Operator by the deadlme of the ACH Operator, provided such Entries are received by Bank prior to 8:00 p.m. Eastern Time ("ET") and the ACH Operator is open for business on such Business Day. Entries received after 8:00 p.m. ET will be deemed received the following Business Day. If the Effective Entry Date falls on a non -Business Day, final settlement will occur on the next Busmess Day. Customer may submit a NACHA-formatted file up to the time limit in advance of the Effective Entry Date as the Services permit, or as may otherwise be permitted by Bank under the teens of this Appendix. Customer will hold Bank harmless from all charges and liabilities that may be incurred as a result of the delivery of late Entnes. 10.2 If the file of Entries is received other than in specified NACHA and Bank format, Customer will be required to provide Bank with a corrected file. If a corrected file of Entries is received later than 8.00 p.m. ET on the delivery date with an intended Effective Entry Date of next -Business Day, Customer will hold Bank harmless from all charges and liabilities that may be incurred as a result of the processing of late Entries. 10.3 For purposes of this Appendix, Entries shall be deemed received by Bank, in the case of electronic file transmission, when the transmission is completed as set forth in Bank's Appendix for Data Transmission Services and/or the Services' Setup Form(s). 10.4 If any of the requirements of this Section 10 (or of Section 23 with respect to Same Day ACH Entnes) are not met, Bank shall use reasonable efforts to transmit such Entries to the ACH Operator by the next deposit deadline on which the ACH Operator is open for business. 11. On -Us Entries. Except as otherwise provided herein, in the case of an Entry received for credit or debit to an account maintained by Bank (an "On -Us Entry"), Bank will credit or debit the Receiver's account in the amount of such Entry on the Effective Entry Date, provided the requirements set forth herein are otherwise met. If those requirements are not met, by reason of stale or same-day Effective Entry Dates on such Entries, Bank will credit or debit the Receiver's account in the amount of such Entry on the date the Entry was received by Bank, or if the Entry was received on a non -Business Day, Bank will credit or debit the Receiver's account in the amount of such Entry on the next Banking Day following the date the Entry was received by Bank. Bank will have the right to reject an On - Us Entry as described in Section 12, Returned or Rejected Entries. In the case of an On -Us Entry, Bank will have all nghts of an RDFI including, without limitation, the rights set forth in NACHA Rules. 12. Returned or Rejected Entries. 12.1 In the event any Entry is returned or rejected by the ACH Operator or any RDFI or Intermediary Depository Financial Institution for any reason whatsoever, it shall be the responsibility of Customer to remake and resubmit such Entry or otherwise resolve the returned Entry in accordance with the NACHA Rules. 12.2 Bank shall remake such Entry in any case where rejection by the ACH Operator was due to mishandling of such Entry by Bank and sufficient data is available to Bank to permit it to remake such Entry In all other instances, Bank's responsibility will be to receive rejected or retumed Entries from the ACH Operator, perforin necessary processing, control and settlement functions, and to forward such Entries to Customer. Except for an Entry retransmitted by Customer in accordance with the requirements of Section 5, Transmittal of Entries by Customer, Bank shall have no obligation to retransmit a returned Entry to the ACH Operator if Bank complied with the terms of this Appendix with respect to the original Entry 12.3 Bank may reject any Entry which does not comply with the requirements of Section 5, Transmittal of Entries by Customer, or Section 7, Security Procedures. Bank may also reject any Entry which contains a future Settlement Date that exceeds the limits set forth within the Services. Bank may reject an On -Us Entry for any reason for which an Entry may be returned under the NACHA Rules. Bank may reject any Entry or file if Customer has failed to comply with its Settlement Account balance obligations under Section 2, Customer Obligations, or Customer's Exposure Limit under Section 3, Risk Exposure Limits. Notices of rejection shall be effective when given. Bank shall have no liability to Customer by reasons of the rejection of any such Entry or the fact that such notice is not given at an earlier time than that provided for herein. Bank may monitor Customer's rejected or retumed Entries. Bank reserves the right, in its sole and exclusive discretion, to require Customer to establish a reserve Account in the event that an excessive number of Customer's debit Entnes are rejected or returned. 12.4 In accordance with NACHA Rules, Bank may monitor returned Entries, and in its sole discretion, may: (1) require Customer to lower its retum rates, (2) invoke premium penalty fees for unauthorized or excessive retum rates, and/or (3) mvoke termination or suspension of the Services and/or this Appendix in conjunction with Section 31 of this Appendix. 13. Cancellation or Amendment by Customer. Customer shall have no right to cancel or amend any Entry or file after its receipt by Bank. However, if such request complies with the Security Procedures applicable to the HC 4814-6754-1149 26 of 58 022016 P40 cancellation of data, Bank shall use reasonable efforts to act on a request by Customer for cancellation of an Entry prior to transmitting it to the ACH Operator, or in the case of an On -Us Entry, prior to crediting or debiting a Receiver's account, but Bank shall have no liability if such cancellation is not effected. Customer shall reimburse Bank for any expenses, losses, or damages Bank may incur in effecting or attempting to effect the cancellation or amendment of an Entry. 14. Reversing Entries/Files. If Customer discovers that any Entry or file Customer has initiated was in error, it may use the Services to correct the Entry or file by initiating a reversal or adjustment, or Customer may notify Bank of such error and Bank will utilize reasonable efforts on behalf of Customer, consistent with the NACHA Rules, to correct the Entry or file by initiating a reversal or adjustment of such Entry or file. In all such cases, it shall be the responsibility of Customer to notify the affected Receiver that an Entry or file has been made which is at variance with the authorization or is otherwise erroneous. Customer indemnifies Bank against any claim by any Receiver that a reversing Entry or file requested by Customer is wrongful. Customer understands and acknowledges that certain RDFIs may not or cannot comply with such reversal and that, in such an event, Bank will debit Customer's Settlement Account in the amount of the provisional credit applied to the Settlement Account for such Entry or file. 15. Notice of Returned Entries. Bank will use reasonable efforts to notify Customer by phone or electronic transmission of the receipt of a returned Entry from the ACH Operator no later than one (1) Business Day after the Business Day of such receipt. Except for an Entry re -transmitted by Customer in accordance with the requirements of Section 5, Transmittal of Entries by Customer, Bank shall have no obligation to re -transmit a returned Entry to the ACH Operator if Bank complied with the terms of this Appendix with respect to the original Entry. 16. Notifications of Change. Bank will use reasonable efforts to notify Customer of each Notification of Change ("NOC") or Corrected Notification of Change ("Corrected NOC") received by Bank related to Entries transmitted by Customer within two (2) Business Days after receipt thereof. Customer shall ensure that changes requested by the NOC or Corrected NOC are made within six (6) Business Days of Customer's receipt of the NOC or Corrected NOC information from Bank or prior to initiating another Entry to the Receiver's account, whichever is later. 17. Pre -Notification and Rejection of Pre - Notification. Bank recommends that, as permitted by the NACHA Rules or applicable law, Customer send pre - notifications at least three (3) Business Days prior to initiating an authorized Entry to a particular account in a format and medium approved by the NACHA Rules. Customer may also initiate a new pre -notification (i) when any changes are made to an account number, financial institution, or individual identification number or (ii) as otherwise stated in the NACHA Rules. If Customer receives notice that any such pre -notification has been rejected by an RDFI, Customer will not initiate any related Entry until the cause for rejection is resolved as provided in the NACHA Rules. If Customer receives notice that an RDFI will not receive Entries without having first received a copy of the authorization signed by its customer, Customer will not initiate any Entry to such customer(s) until it has provided the RDFI with such authorization within the time limits provided in the NACHA Rules. Customer understands and acknowledges that once a pre -notification has been initiated using the Services, Customer will be restricted from initiating any Entry to such customer(s) for three (3) Business Days. 18. Participant Authorization for Entries. 18 1 To the extent required by the NACHA Rules or applicable law, Customer will obtain all consents and written authorizations for all Entries in accordance therewith. Such authorizations and any related disclosures shall be in a form that complies with (i) all requirements of the NACHA Rules and (ii) all applicable federal and state laws and regulations, as the same may be amended from time to time, including, without limitation, any applicable requirements of Regulation E, the Federal Electronic Funds Transfer Act, and sanctions enforced by OFAC Customer shall obtain and maintain current information regarding OFAC enforced sanctions. (This information may be obtained directly from the OFAC Compliance Hotline at (800) 540-OFAC or by visiting the OFAC website at www.ustreas.gov/ofac.) Each Entry will be made according to such authorization and shall comply with the NACHA Rules. No Entry will be initiated by Customer after such authorization has been revoked or the arrangement between Customer and such Receiver or other party has terminated. 18.2 Customer shall retain all consents and authorizations for the period required by the NACHA Rules. Customer will furnish to Receiver, or to Bank upon its request, an original or a copy of an authorization as required under or for any purpose required by the NACHA Rules. No investigation or verification procedure undertaken by Bank shall be deemed to limit or waive Customer's obligations under this Section. 19. Re-initiation of Entries. Customer may not re- initiate Entries except as prescribed by the NACHA Rules. 20. Payment by Customer for Entries; Payment by Bank for Entries. 20 1 Except as may otherwise be agreed by Bank in its sole and exclusive discretion, Customer shall pay Bank the amount of each credit Entry transmitted by Bank pursuant to tlus Appendix at such time on the date of transmittal by Bank of such credit Entry as Bank, in its discretion, may determine. 20.2 Customer shall promptly pay Bank the amount of each debit Entry returned by an RDFI pursuant to this Appendix. HC 48)4-6754-1549 27 of 58 022016 P41 20.3 Bank will pay Customer the amount of each debit Entry transmitted by Bank pursuant to this Appendix at such time on the Settlement Date with respect to such debit Entry as Bank, in its discretion, may detemune, and the amount of each On -Us Entry at such time on the Effective Entry Date as Bank, in its discretion, may determine. 20.4 Bank will use reasonable efforts to promptly pay Customer the amount of each credit Entry returned by an RDFI that was transmitted by Bank pursuant to this Appendix. 20.5 Customer acknowledges and agrees that any failure of Customer to make payment to Bank as described in this Section may constitute an event of default under any other agreement for credit that Customer or any of Customer's Affiliates has with Bank or any Affiliate of Bank. Customer further acknowledges and agrees to execute and deliver any further documents and instruments as Bank may require to effectuate the cross -default contemplated hereby. 21. Third -Party Service Provider; Third -Party Sender Activities. 21.1 Subject to Bank's prior approval and in its sole and exclusive discretion, Customer may appoint a third party to act as Customer's agent to process Entries on Customer's behalf and for purposes of the services provided hereunder ("Third -Party Service Provider"), as set forth in the Services' Setup Form(s). All data received by Bank from Third -Party Service Provider, including Entries and instructions (and corrections or adjustments thereto), are hereby authorized by Customer. All acts and omissions of Third -Party Service Provider shall be the acts, omissions and responsibility of Customer and shall be governed by the provisions of this Appendix. Customer agrees, jointly and severally with Third -Party Service Provider, to indemnify and hold Bank harmless from any and all liabilities, losses, damages, costs and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel in connection with any investigative, administrative or judicial proceedings, whether or not Bank shall be designated a party thereto) which may be incurred by Bank relating to or arising out of the acts or omissions of Third -Party Service Provider on behalf of Customer. Customer and Third -Party Service Provider shall execute any such other agreement(s) or documents as deemed necessary or appropriate by Bank prior to the initiation or continuation by Third -Party Service Provider of any services on Customer's behalf, including without limitation Bank's Third -Party Service Provider Agreement, as the same may be modified by Bank from time to time. Notice of any termination of Third - Party Service Provider's authority to transmit data and instructions to Bank on Customer's behalf shall be given to Bank in writing. The effective date of such termination shall be ten (10) Business Days after Bank receives written notice of such termination. Customer agrees that Bank retains the right to reject any Third -Party Service Provider and any Entries initiated by Customer's Third -Party Service Provider in its sole discretion. 21.2 Customer may not use the services provided hereunder to process Entries on behalf of Customer's clients (defined as a "Third -Party Sender" under the NACHA Rules), except where Customer has formally requested to engage in such activity in advance and where Bank has provided its prior approval, which Bank may grant or withhold in 'its sole and exclusive discretion. In the event Bank approves of such use, Customer shall execute such other agreement(s) or documents as deemed necessary or appropriate by Bank prior to the initiation or continuation by Customer of any ACH services in the capacity of a Third -Party Sender Customer agrees that Bank retains the right to reject any request by Customer to engage in Third -Party Sender activities as well as any Entries initiated by Customer in such capacity, in Bank's sole discretion. 22. Customer Representations and Agreements; Indemnity. In addition to Customer representations, agreements and warranties otherwise described in this Appendix, Customer further represents and warrants to Bank and agrees, with respect to each and every Entry transmitted by Customer or any Third -Party Service Provider on Customer's behalf, that: (i) Each person shown as the Receiver of an Entry received by Bank from Customer has authorized the initiation of such Entry and the crediting or debiting of its account in the amount and on the Effective Entry Date shown on such Entry; (ii) Such authorization is operative at the time of transmittal or crediting or debiting by Bank as provided herein; (iii) Entries transmitted to Bank by Customer are limited as set forth in Sections 3 and 5; (iv) Customer shall perform its obligations under this Appendix in accordance with the laws of the United States and all other applicable laws, regulations and orders, including, but not limited to, the transaction screening and sanctions laws, regulations and orders administered by OFAC; laws, regulations and orders administered by FinCEN; and any state laws, regulations or orders applicable to the providers of ACH payment services; (v) Customer shall be bound by and comply with the provisions of the NACHA Rules (among other provisions of the NACHA Rules) that make payments of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Entry; (vi) Customer specifically acknowledges that it has received notice of the rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount of the Entry; (vii) with respect to each International ACH Transaction ("IAT") that Customer may be permitted by Bank to initiate, Customer shall (a) classify and format payments transmitted to or received from a financial HC 4814-6754-1549 28 of 58 022016 P42 agency outside the U.S. as an IAT in accordance with the NACHA Rules, (b) provide data necessary to accompany the transaction in compliance with the Bank Secrecy Act's "Travel Rule," (c) screen the IAT prior to transmitting any file(s) of Entries to the Bank in accordance with the requirements of OFAC and comply with OFAC sanctions, and (d) otherwise comply with and be subject to all other requirements of U.S. law, the NACHA Rules, OFAC and FinCEN, as well as the Foreign Country Rules; (viii) with respect to each Internet- mitiated/mobile ("WEB") (as defined under the NACHA Rules) ACH Entry that Customer may be permitted by Bank to initiate, (a) Customer employs (1) commercially reasonable detection systems to minimize nsk of fraud related to Intemet-initiated payments, (2) commercially reasonable procedures to venfy validity of routing numbers, (3) commercially reasonable methods of authentication to verify the identity of the Receiver, and (4) a commercially reasonable level of encryption technology, and (b) where required by the NACHA Rules and/or Bank, Customer conducts annual audits as to its security practices and procedures that include, at a minimum, verification of adequate levels of (1) physical security to protect against theft, tampering, or damage, (2) personnel and access controls to protect against unauthorized access and use and (3) network security to ensure secure capture, storage, and distribution, and will provide proof of such audits to Bank upon request; (ix) with respect to each Telephone - Initiated ("TEL") Entry that Customer may be permitted by Bank to initiate, Customer has (a) employed commercially reasonable procedures to venfy the identity of the Receiver, and (b) utilized commercially reasonable procedures to venfy that routing numbers are valid; (x) with respect to each Accounts Receivable ("ARC") Entry that Customer may be permitted by Bank to initiate, (a) the amount of the Entry, the routing number, the account number and the check serial number are in accordance with the source document, (b) Customer will retain a reproducible, legible image, microfilm or copy of the front of the Receiver's source document for each ARC Entry for two (2) years from the Settlement Date of the ARC Entry, (c) Customer has einployed commercially reasonable procedures to securely store (1) all source documents until destruction and (2) all banking information relating to ARC Entries, (d) Customer has established reasonable procedures under which the Receiver may notify Customer that receipt of Receiver's checks does not constitute authorization for ARC Entries to the Receiver's account and that Customer will allow the Receiver to opt - out of check conversion activity, and (e) the source document to which each ARC Entry relates may not be presented or returned such that any person will be required to make payment based on the source document unless the ARC Entry is returned; (xi) with respect to each Back Office Conversion ("BOC") Entry that Customer may be permitted by Bank to initiate, (a) Customer has employed conunercially reasonable procedures to verify the identity of the Receiver, (b) Customer has established and maintains a working telephone number for Receiver inquiries regarding the transaction that is answered during normal business hours and that such number is displayed on the notice required by the NACHA Rules for BOC Entries, (c) the amount of the Entry, the routing number, the account number and the check serial number are in accordance with the source document, (d) Customer will retain a reproducible, legible image, microfilm or copy of the front of the Receiver's source document for each BOC Entry for two (2) years from the Settlement Date of the BOC Entry, (e) Customer has employed commercially reasonable procedures to securely store (1) all source documents until destruction and (2) all banking information relating to BOC Entries, and (f) the source document to which each BOC Entry relates will not be presented or returned such that any person will be required to make payment based on the source document unless the BOC Entry is retumed, (xii) with respect to each Point -of -Purchase ("POP") Entry that Customer may be permitted by Bank to initiate, the source document provided to Customer for use in obtaining the Receiver's routing number, account number, and check serial number for the initiation of the POP Entry (a) is returned voided to the Receiver after use by Customer and (b) has not been provided to the Receiver for use in any prior POP Entry; and (xiii) with respect to each Returned Check ("RCK") Entry that Customer may be permitted by Bank to initiate, (a) all signatures on the item are authentic and authorized, (b) the item has not been altered, (c) the item is not subject to a defense or claim, (d) the Entry accurately reflects the item, (e) the item will not be presented unless the related Entry has been returned by the RDFI, (f) the information encoded after issue in magnetic inlc on the item is correct, and (g) any restrictive endorsement placed on the item is void or ineffective. Customer shall indemnify and hold Bank harmless from any loss, liability or expense (including reasonable attorneys' fees and costs) resulting from or ansmg out of any breach of the foregoing warranties, representations or agreements. Customer shall also indemnify and hold Bank harmless from any claim of any person that Bank is responsible for any acts or omissions of Customer regarding any Entry received from Customer, or those of any other person related thereto, including, without limitation, any Federal Reserve Bank, ACH Operator or transmission or communications facility, any Receiver or RDFT. 23. Same Day ACH ("SDA"). Upon the effective date of the changes to the NACHA Rules enabling the same- day processing of certain ACH payments (the "SDA Rule"), Customer may be permitted, in Bank's sole and exclusive discretion, to. initiate SDA Entries. In the event Bank approves Customer's initiation of SDA Entries, either on a one time or other periodic basis, Customer agrees as follows: 211 Customer shall be solely responsible for transmitting its SDA Entries with the appropriate NC 4814-6754-1549 19 0.1'58 022016 P43 intended Effective Entry Date to qualify as an SDA Entry under the NACHA Rules. 23.2 Customer shall only initiate individual Entries that comply with the $25,000 or less transaction limit per SDA Entry, as large -dollar transactions (over $25,000) are not eligible for same-day processing under the NACHA Rules. 23.3 Customer will not -initiate an SDA Entry as an IAT, as IATs are not eligible for same-day processing under the NACHA Rules. 23 4 Customer will transmit its SDA Entries to Bank in accordance with Bank's SDA Entry processing deadlines, as established by Bank from time to time and disclosed to Customer. 23.5 Customer acknowledges and agrees that if Customer sends an Entry with a stale or invalid Effective Entry Date, such Entry may be deemed and processed by Bank as an SDA Entry if transmitted in accordance with Bank's SDA Entry processing deadlines. 23.6 Customer acknowledges and agrees that if any of the requirements of this Section 23 are not met, including without limitation a failure by Customer to meet Bank's or the ACH Operator's deadline for SDA, Bank shall use reasonable efforts to transmit such Entries to the ACH Operator by the next available processing deadline on which the ACH Operator is open for business. 23.7 Customer further acknowledges that Bank will not consider the content of the Company Descriptive Date indicator when detenninmg Customer's intent for processing and settlement of SDA Entries. 23.8 Customer will not initiate SDA Entries that are otherwise ineligible for SDA Entry processing and settlement in accordance with the NACHA Rules. 23.9 Customer otherwise agrees to and will comply with all other requirements under the NACHA Rules and by Bank with respect to SDA Entries, including as the sante may be amended from time to time. 23.10 Customer will indemnify and hold Bank harmless from any SDA Entry processing and settlement that is performed by Bank as described herein and in accordance with the NACHA Rules, notwithstanding Customer's intent. 23.11 Customer will indemnify and hold Bank harmless from any intended SDA Entry not meeting the ACH Operator deadline due to Customer delays, or due to Bank processing delays that are beyond Bank's reasonable control. 24. Inconsistency of Name and Account Number. Customer acknowledges and agrees that if an Entry describes a Receiver inconsistently by naive and account number, then (i) payment of such Entry transmitted to an RDFI may be made by the RDFI (or by Bank for an On -Us Entry) on the basis of the account number, even if it identifies a person different from the named Receiver and (ii) Customer's obligation to pay the amount of Entry to Bank is not excused in such circumstances. Similarly, if an Entry describes an RDFI inconsistently by name and routing number, payment of such Entry may be made based on the routing number, and Customer shall be liable to pay that Entry. 25. Banks Unable to Accept ACH Transactions. If Customer submits an Entry to Bank relating to an RDFI which is not a participant in the ACH, then (i) Bank may reject such Entry and use reasonable efforts to notify Customer of such rejection or (ii) if Bank does not reject such Entry, upon receiving a return transaction related to the Entry from the ACH Operator, Bank may offset the Settlement Account and notify Customer of such transaction. 26. Notices, Instructions, Etc. 26.1 Except as otherwise expressly provided herein, Bank shall not be required to act upon any notice or instruction received from Customer or any other person, or to provide any notice or advice to Customer or any other person with respect to any matter. 26.2 Bank shall be entitled to rely on any written notice or other written communication believed by it in good faith to be genuine and to have been provided in accordance with the provisions of the parties' Cash Management Master Agreement. 27. Data Retention. Customer shall retain data on file adequate to permit remaking of Entries for five (5) Business Days following the date of their transmittal by Bank as provided herein and shall provide such data to Bank upon request. Without limiting the generality of the foregomg provision, Customer specifically agrees to be bound by and comply with all applicable provisions of the NACHA Rules regarding the retention of documents or any record, including, without limitation, Customer's responsibilities to retain all items, source documents and records of authorization, in accordance with the NACHA Rules. 28. Data Breaches. 28.1 Customer agrees that it will adopt and implement commercially reasonable policies, procedures and systems to provide secunty as to the information being transmitted and to receive, store, transmit and destroy data or information in a secure manner to prevent loss, theft, or unauthonzed access to data or information ("Data Breaches"), including but not limited to, Consumer -Level ACH Data. 28.2 Customer agrees that it will promptly investigate any suspected Data Breaches and monitor its systems regularly for unauthorized intrusions. 28.3 Customer will provide timely and accurate notification to Bank by calling 1-866-475-7262 HC 4814-6754-1549 30 of 58 022016 P44 with regard to any Data Breaches when known or reasonably suspected by Customer, including but not limited to, Data Breaches to Consumer -Level ACH Data, and will take all reasonable measures, including, without limitation, retaining computer forensic experts, to determine the scope of any data or transactions affected by any Data Breaches, providing all such determinations to Bank. 29. Audit. Bank has the nght to periodically audit Customer's compliance with the NACHA Rules, U.S law and Bank policies, including, but not limited to, this Appendix. 30. Records. All electronic or other files, Entnes, Security Procedures and related records used by Bank for transactions contemplated by this Appendix shall be and remain Bank's property Bank may, in its sole discretion, make available such information upon Customer's request. Any expenses incurred by Bank in making such information available to Customer shall be paid by Customer. 31. Termination. The parties may terminate this Appendix in accordance with the terms and conditions of the parties' Cash Management Master Agreement. In addition, if Customer breaches the NACHA Rules or causes Bank to breach the NACHA Rules, this Appendix may be terminated or suspended by Bank upon ten (10) Business Days' notice, or such shorter period as may be provided in the parties' Cash Management Master Agreement. Any termination of this Appendix shall not affect any of Bank's rights and Customer's obligations with respect to Entries initiated by Customer pnor to termination, the payment obligations of Customer with respect to services performed by Bank prior to termination, or any other obligations or provisions that by the nature of their terms survive termination of this Appendix, including without limitation Sections 2, 5, 10, 12, 13, 14, 18, 20, 21, 22, 27, 32, 33 and 34 32. Cooperation in Loss Recovery Efforts. In the event of any damages for which Customer or Bank may be liable to the other or to a third party relative to the Services, both parties shall undertake reasonable efforts to cooperate with the other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that Customer or Bank may be obligated to defend or elects to pursue against a third party 33. Governing Law In addition to the terms and conditions of the parties' Cash Management Master Agreement, the parties agree that if any payment order governed by this Appendix is part of a funds transfer subject to the federal Electronic Funds Transfer Act, then all actions and disputes as between Customer, or any Third - Party Service Provider acting on Customer's behalf, and Bank shall be governed by Article 4-A of the Uniform Commercial Code, as varied by this Appendix. 34 Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provision of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the services described herein and shall remain in full force and effect until temunation or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. HC 4814-6754-1549 31 oJ58 022016 P45 1D Bank APPENDIX III TD WIRE TRANSFER SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement, and the parties' Bank Internet System Agreement, and applies to all TD Wire Transfer Services ("Services") made available to Customer by Bank via the Bank Internet System. All capitalized teens used herein without definition shall have the meanings given to them in the Cash Management Master Agreement or the Bank Internet System Agreement, as applicable. To the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, or with the terms and conditions of the Bank Internet System Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS correspondent bank that Bank reasonably selects to transfer funds from time to time. 1. Description of the Services. 1.1 The Services described in this Appendix provide Customer with the capability to transfer funds from specific Account(s) to other accounts (the "Recipient Account(s)") as directed via the Bank Internet System. The Recipient Account(s) may be Customer accounts or third -party accounts, and may be with Bank or with domestic or foreign third -party financial institutions. Customer may use the Services to initiate one-time wire transfers, or to create templates for wire transfers made on a repetitive basis which involve the same Customer Account and Recipient Account ("Repetitive Transfer(s)"). All wire transfers must be initiated by an Authorized Representative of Customer. 1.2 Prior to Customer's use of the Services, Customer must first agree to and transmit all instructions in accordance with all of the terms, conditions and security procedures associated with the Bank Internet System, as further set forth in the Cash Management Master Agreement. 2. Execution of Wire Transfers. 2.1 By submitting a wire transfer, Customer authorizes Bank to withdraw the amount of any requested wire transfer which Customer may authorize and instruct via the Bank Internet System, plus any applicable fees and charges, from Customer's designated Account. Subject to the terms of this Appendix, Bank will accept and execute a wire transfer received from Customer that has been authenticated by Bank and that is in conformity with the Security Procedure (as further described below), cut-off times and other requirements as described in this Appendix and associated Bank setup form(s) and other documentation. 2.2 All wire transfers to accounts at other depository institutions are transmitted using the Fedwire funds transfer system owned and operated by the Federal Reserve Bank, or a similar wire transfer system used pnmarily for funds transfers between financial institutions. Notwithstanding the foregoing or anything to the contrary in this Appendix, Bank may use any means of transmission, funds transfer system, clearing house, intermediary or HC4 4851-0801-1554 2.3 Each wire transfer must include the following information in addition to any information which Bank may require for proper identification and security purposes: (i) account number from which the funds are to be withdrawn, (ii) amount to be transferred, (iii) Customer's address, (iv) name and ABA routing number of the payee's bank, and (v) account name, address and account number of the payee. In the event a wire transfer describes an account number for the payee that is in a name other than the designated payee, Bank may execute the wire transfer to the account number so designated notwithstanding such inconsistency. 2.4 Templates created by Customer for Repetitive Transfers are the sole and exclusive responsibility of Customer. Customer agrees to release and hold Bank harmless from any loss or liability which Customer may incur after Bank has executed a Repetitive Transfer, including without limitation, any loss due to Customer error in creating the Repetitive Transfer template. 3. Time of Execution. 3.1 Bank will execute each authenticated wire transfer that is in conformity with all security procedures, cut-off times and other requirements set forth herein. Bank may require additional authentication of any wire transfer request. Bank reserves the right to reject a wire transfer request that cannot be properly authenticated. Cut-off times may be established and changed by Bank from time to time. Instructions for wire transfers received after such cut-off times may be treated by Bank for all purposes as having been received on the following Business Day. 3.2 Except for future -dated wire transfers, domestic wire transfers (U.S.-based receivers) initiated and approved by Bank's cut-off time on a Business Day will be processed that same day if that day is also a Business Day for Bank's correspondent facility and the recipient bank; wire transfers initiated and approved after Bank's cut-off time for domestic wire transfers will be processed the next Business Day if that day is also a Busmess Day for Bank's correspondent facility and the recipient bank. Future -dated domestic wire transfers will be initiated on the effective 31 6.1'58 0614 P46 date requested by Customer, not on the date Customer entered the transaction using the Services. 3.3 Bank may handle wire received from Customer in any order convenient regardless of the order in which they are received. 4. International Wires. transfers to Bank, 4.1 International wire transfers (non -U.S. receivers) of foreign currency initiated and approved by Bank's cut-off time for international wire transfers of foreign currency on a Business Day, and an intemational wire transfer of U.S. currency initiated and approved by Bank's cut-off time for international wire transfers of U.S. currency on a Business Day will be processed within the industry standard delivery time (in most, but not all cases, two (2) Business Days). Foreign wire transfers may be subject to delays based on time -zone issues; the remote location of the recipient bank; cultural differences with respect to holidays and times of observation, etc., and incorrect or incomplete information being supplied by Customer. 4.2 Bank shall send Customer's authorized and authenticated wire transfers to foreign banks through any bank which is a member of Bank's correspondent network. Neither Bank nor any of Bank's correspondents shall be liable for any errors, delays or defaults in the transfer of any messages in connection with such a foreign wire transfer by any means of transmission. If the wire transfer is of currency other than that of the country to which it is being transferred, it shall be payable in the currency of the country of the recipient financial institution, unless the payee arranges otherwise. If the wire transfer is received by Bank prior to any cut-off time established from time to time, the currency exchange shall be made at the rate quoted by' Bank at the time of the wire transfer. 4.3 Bank makes no guarantee or representation as to the availability of funds at the foreign destination. Bank makes no express or implied warranty as to the time or date the wire transfer will arrive at the receiving bank, the amount of any fees to be charged by the receiving bank or the time or date the beneficiary will receive credit for funds. 4.4 Customer understands and acknowledges that if the named beneficiary does not match the account at the receiving bank, there is a risk the beneficiary may not receive the wired funds. If the transfer is not received or credited in a timely manner, Bank will follow normal and customary procedures to complete the wire transfer, determine the location of the wired funds and/or return the funds to Customer If Bank is unable to determine that the funds have been credited to the beneficiary's account or have the funds returned, Customer assumes all financial liability or risk of loss for the amount of the wire transfer. 4.5 International wire transfers are subject to any and all applicable regulations and restrictions of U.S. and foreign governments relating to foreign exchange transactions. Bank has no obligation to accept any international wire transfer(s) directed to or through persons, entities or countnes restricted by government regulation or prior Bank experience with particular countries. To the extent not otherwise prohibited by law, in connection with any international wire transfer(s) mvolvmg a transfer to or from any country outside of the U.S., Customer agrees to release and hold Bank harmless from any loss or liability which Customer may incur after Bank has executed the international wire transfer(s), including without limitation, any loss due to failure of a foreign bank or intermediary to deliver the funds to a beneficiary. 5. Cancellation and Amendment of a Wire. An Authorized Representative may request that Bank attempt to cancel or amend a wire transfer previously received from Customer. If a cancellation or amendment request is received by Bank before the wire transfer is executed and with sufficient time to afford Bank an opportunity to act upon Customer's request, Bank may, on its own initiative but without obligation, make a good faith effort to act upon such request. In the event Customer's cancellation or amendment request is received after execution of Customer's wire transfer request, Bank will attempt to have the wire transfer returned. Notwithstanding the foregoing, Bank shall have no liability for the failure to effect a cancellation or amendment, and Bank makes no representation or warranty regarding Bank's ability to amend or cancel a wire transfer. Customer agrees to indemnify Bank against any loss, liability or expense which Bank incurs as a result of the request to cancel or amend a wire transfer and the actions Bank takes pursuant to such request. 6. Notice of Rejection or Return. Bank shall have no liability for wire transfers sent by Bank as directed by Customer which cannot be completed or which are returned due to incorrect information furnished by Customer. Customer is required to fully complete beneficiary name, and address, as beneficiary bank may elect to return an otherwise valid wire transfer for incomplete beneficiary information. Bank may reject or impose conditions that must be satisfied before it will accept Customer's instructions for any wire transfer, in its sole discretion, including without limitation Customer's violation of this Appendix, Customer's failure to maintain a sufficient Account balance, or Bank's belief that the wire transfer may not have in fact been authorized. A wire transfer may also be rejected by an intermediary or beneficiary bank other than Bank, or by operation of law. If a wire transfer is rejected by Bank, Bank will notify Customer by telephone, by electronic means, by facsimile or by mail, depending on the method of origination. Upon rejection or retum, Bank shall have no further obligation to act upon a wire transfer, nor shall Bank have any liability to Customer due to rejection by another person in the wire transfer process, or the fact that notice was not given or was not given at an earlier time, or within any specified time of receipt, acceptance, execution or payment of any wire transfer. 7. Security Procedure. 7.1 Customer agrees that the security procedures used by Customer and set forth or incorporated by reference in this Appendix and/or associated documents, including but not limited to the Bank Internet System Appendix, are a commercially reasonable method of 1108 48.52-0802-2554 33 of 58 0614 P47 providing security against unauthorized wire transfers and for all other instructions from Customer to Bank (hereinafter the "Secunty Procedure"). Any wire transfer by Customer shall bind Customer, whether or not authorized, if transmitted in Customer's name and accepted by Bank in compliance with the Security Procedure. Customer also agrees that any election Customer may make to change or refuse the Secunty Procedure is at Customer's risk and that any loss resulting in whole or in part from such change or refusal will be Customer's responsibility. 7.2 Bank may, from time to time, modify the Security Procedure. Except as expressly provided otherwise in this Appendix or in the parties' Cash Management Master Agreement, any such changes generally will be effective immediately upon notice to Customer as described in the parties' Cash Management Master Agreement. •Customer will be deemed to accept any such changes if Customer accesses or uses any of the Services after the date on which the change becomes effective. 7.3 Bank may, from time to time, propose additional or enhanced security procedures to Customer. Customer understands and agrees that if it declines to use any such enhanced procedures, it will be liable for any losses that would have been prevented by such procedures. Notwithstanding anything else contained in this Appendix, if Bank believes immediate action is required for security of Bank or Customer funds, Bank may initiate additional security procedures immediately and provide prompt subsequent notice thereof to Customer 7.4 Customer hereby acknowledges that the Security Procedure is neither designed nor intended to detect errors in the content or verify the contents of a wire transfer by Customer. Accordingly, any errors contained in wire transfers from Customer shall be Customer's responsibility, and Customer shall be obligated to pay or repay (as the case may be) the amount of any such wire transfer No security procedure for the detection of any such Customer error has been agreed upon between Bank and Customer. 7.5 Customer is strictly responsible for establishing and maintaining procedures to safeguard against unauthonzed wire transfers. Customer covenants that no employee or other individual will be allowed to initiate wire transfers in the absence of proper authority, supervision and safeguards, and agrees to take reasonable steps to maintain the confidentiality of the Security Procedure and any Access Devices and related instructions provided by Bank in connection with any Security Procedure utilized by Bank and/or Customer If Customer believes or suspects that any such Access Devices, Secunty Procedure, information or instructions have been disclosed to or accessed by unauthonzed persons, Customer agrees to notify Bank immediately by calling 1-866-475-7262, followed by written confirmation to TD Bank, N.A., Attn: Cash Management Customer Care, 6000 Atrium Way, Mt. Laurel, New Jersey, 08054. The occurrence of unauthorized access will not affect any transfers made in good faith by Bank prior to receipt of such notification and within a reasonable time period thereafter. 8. Inconsistency of Receiving Beneficiary Name and Account Number. Customer acknowledges and agrees that, in accordance with Article 4A of the Uniform Commercial Code, Bank shall be entitled to rely upon the numbers supplied by Customer to identify banks, beneficiaries and other parties to the wire transfer, even if those numbers disagree or are inconsistent with the names of those parties as provided by Customer. 9. Payment; Authorization to Charge Account. Customer agrees to pay Bank the amount of each wire transfer received from Customer on the Business Day Bank executes said wire transfer or at such other time as Bank may determine. Bank will validate that sufficient funds are available in Customer's Account prior to a wire transfer being executed. Generally, if sufficient funds are not available in Customer's Account, the wire transfer will not be executed by Bank. Bank may, without prior notice or demand, obtain payment of the amount of each wire transfer by debiting the Account designated. In the event there are not sufficient funds available in the Account, Bank also reserves the right to debit any other Account that Customer maintains with Bank. 10. Wire Confirmation; Account Reconciliation. Customer may confirm the execution of a wire transfer via the Bank Internet System. Completed wire transfers will also be reflected in Customer's periodic Account statement. Customer acknowledges and agrees that Bank is not obligated to provide Customer with a separate advice or notice for each completed wire transfer. If Customer requests that Bank provide a special notice and Bank agrees to do so, Bank reserves the right to impose a Service Fee for such notice in accordance with the Cash Management Master Agreement. 11. Service Providers. Bank may use a service provider to perform, as Bank's agent, all or any portion of Bank's obligations under this Appendix. Customer may be required to direct wire transfers and other requests to said provider. 12. Bank Reliance; Authentication. 12.1 Bank shall be entitled to rely in good faith on communications it receives as being given or sent by an Authorized Representative and as being genuine and correct. Bank shall not be liable to Customer for the consequences of such reliance. 12.2 BANK MAY TAKE SUCH ADDITIONAL STEPS AND IMPLEMENT SUCH PROCEDURES AS IT MAY DEEM APPROPRIATE TO VERIFY THE AUTHENTICITY OF ANY WIRE TRANSFER. BANK MAY DELAY THE EXECUTION OF ANY WIRE TRANSFER PENDING COMPLETION OF A CALL-BACK, OR RECEIPT OF ANOTHER FORM OF VERIFICATION WHICH IS SATISFACTORY TO BANK. IF BANK IS UNABLE TO OBTAIN SATISFACTORY VERIFICATION, BANK, IN ITS SOLE DISCRETION, MAY REFUSE TO EXECUTE ANY WIRE TRANSFER. In no event shall Bank be liable for any delay in executing a wire transfer or for failure to execute a wire transfer due to the absence of satisfactory verification. HC# 46.52-0802-2554 34 of 58 0614 P48 12.3 Bank may electronically record any telephone 'conversations between Bank personnel and Customer. 12.4 Wire transfer transactions are subject to all the foregoing and all regulations governing electronic transactions, including but not limited to Article 4A of the Uniform Commercial Code. 13. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. HC# 4852-0802-2554 35 61'58 0614 P49 Bank APPENDIX V TD POSITIVE PAY SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Positive Pay Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. In the event of inconsistency between a provision of this Appendix and the Uniform Commercial Code ("U.C.C.," as further defined below), the parties intend to modify the effect of the applicable U.C.C. provisions to the maximum extent permitted by law. TERMS AND CONDITIONS 1. Definitions. 1.1 Statutory Definitions. Unless otherwise defined in this Appendix, words or phrases shall have the meanings set forth in the U.C.C. in effect from time to time under the laws of the State specified in the governing law provision of the parties' Cash Management Master Agreement. 1.2 Definitions. "Authorized Account' means the Account(s) of Customer, maintained at Bank, to which the Services described herein will apply "Available Funds" means funds on deposit in an Authorized Account and available for withdrawal pursuant to Federal Reserve Board Regulation CC and Bank's applicable funds availability schedule and policies. "Check Issue File" means a record describing checks drawn by Customer on an Authorized Account and provided by Customer to Bank in accordance with Section 2.2. "Exception Check" means a Presented Check or a Systematic Override Check (described in Section 2.2.2 below) that does not match data included in a Check Issue File. `Exception Check Report' means a record describing Exception Checks which is provided by Bank to Customer in accordance with Section 2.3 "Pay Decision(s)" means the instructions of Customer to Bank instructing Bank to pay an Exception Check. "Presented Check" means a check, substitute check, or electronically -presented check drawn on an Authorized Account and presented to Bank for payment through the check collection system or over-the-counter at one of Bank's branch teller stations. "Return Decision(s)" means the instructions of Customer to Bank instructing Bank not to pay an Exception Check. "U. C. C." means the Uniform Commercial Code as in effect under the laws of the State specified in the parties' Cash Management Master Agreement, as it may be amended from time to time. 2. Services. 2.1 Description. 2.1 1 The Services described in this Appendix will provide Customer with a means to either affirmatively approve the payment of a particular check upon presentment or to object to its payment. Customer acknowledges that the Services have been identified by Bank as reducing the risk of fraudulent items being paid against Customer's Account(s) when such Services are adopted and properly utilized by Customer. By conforming to the terms and conditions of this Appendix, Customer agrees and acknowledges that Customer may significantly reduce the possibility that fraudulent items will post to Customer's Account(s). 2.1.2 Customer acknowledges and agrees that the Services apply only to magnetic ink character recognition (MICR) encoded paper checks and documents. Therefore, the Services and this Appendix shall not apply to any electronic funds transfer (EFT), Automated Clearing House (ACH) transaction, or check that has been converted to an ACH transaction that does not contain a senal number. Accordingly, this Appendix shall have no effect with respect to any such transactions on Bank or Customer's respective rights, obligations, duties or responsibilities under any other agreement between the parties or applicable law or regulation. 2.2 Check Issue File. 2.2.1 Customer shall submit a Check Issue File to Bank. The Check Issue File shall accurately state the check number and the exact amount of each check drawn on each Authorized Account since the last Check Issue File was submitted (and the payee name, if Customer elects to receive payee verification services HC# 4836-1579-3465 v.1 36 of 58 0916 P50 described below). Each Check Issue File shall also identify any checks that have been cancelled by Customer prior to issuance. 2.2.2 Payee Verification Services. If Customer elects to receive payee venfication services in conjunction with the Services, the following additional terms shall also apply Bank's payee verification services require the payee name to match against Customer's Check Issue File at a minimum threshold or matching score. The payee name in the Check Issue File will be electronically compared to the payee name on Presented Checks. Other information related to the payee name may also be electronically compared as part of the automated verification process to establish a matching score. Such comparisons that result in a minimum threshold or matching score will be deemed to be a matching check. Customer is responsible for complying with the payee verification services' check specifications as specified by Bank from time to time in order to ensure the highest level of performance from the payee venfication services. If Customer is unable or unwilling to comply with the payee verification services' check specifications as specified by Bank, Bank may, in its sole and exclusive discretion: (a) terminate or suspend Customer's use of the payee verification services as provided in the Cash Management Master Agreement, or (b) at Customer's request, re- configure the software associated with the payee verification services to systematically process Presented Checks in reliance solely on the payee name provided by Customer to Bank in the Check Issue File and without regard to any other information related to the payee name that may appear on the Presented Checks (hereinafter "Systematic Ovemde Checks"). Any Presented Check or Systematic Ovemde Check that does not result in a minimum threshold or matching score shall be deemed an Exception Check and reported as such in accordance with the terns of this Appendix. Except as may otherwise be provided m this Appendix and in the Cash Management Master Agreement, Bank shall have no liability for Systematic Override Checks. 2.2.3 Customer shall send the Check Issue File to Bank in the format and medium, by the deadlme(s), at scheduled day(s), at the place(s) specified by Bank and agreed to by Customer, as set forth in Services' Setup Form(s). The deadline for transmissions of the Check Issue File to Bank shall be set forth in the Services' Setup Fonn(s). 2.3 Payment of Presented Checks and Reporting of Exception Checks. 2.3.1 Bank shall compare each Presented Check by check number, check amount and payee name (if Customer elects to receive payee verification services) against each Check Issue File received by Bank. Bank may satisfy its obligation hereunder by comparing check number, amount and payee name (if applicable) set forth in Substitute Checks, checks presented over-the-counter at one of Bank's teller stations and/or electronic presentment of checks. On each Business Day, Bank: (a) may pay and charge to the Authorized Account each Presented Check that matches, by check number, amount and payee name (if applicable), a check shown in any Check Issue File; (b) may pay and charge to the Authorized Account all Systematic Override Checks that match, by check number, amount and payee name (if applicable and as described herein), a check shown on any Check Issue File; and (c) shall provide to Customer an Exception Check Report that indicates whether Bank has received any Exception Checks and, if so, provide the image of the Exception Check(s) by the deadline set forth in the Services' Setup Form(s) via the Bank Internet System. Customer must provide check payment approval or return instructions to Bank -on each Exception Check reported by the deadline set forth in the Services' Setup Form(s) via the Bank Internet System ("Pay or Return Decisions"). 2.3.2 Bank shall not pay any Presented Check for which Bank has received from Customer a stop payment request consistent with the terms and conditions of the parties' eTreasury Services Appendix or the Account Agreement. 2.4 Payment and Dishonor of Exception Checks. Except as provided in Section 2.4.4 below, Bank will pay or return Exception Checks in accordance with Customer's Pay or Retum Decisions. 2.4.1 Pay Decisions. Bank shall finally pay and charge to the Authorized Account, to the extent there are sufficient Available Funds in the Authonzed Account, any Exception Check that Customer directs Bank to pay 2.4.2 Return Requests. Bank shall return to the depositary bank any Exception Check drawn on an Authorized Account that Customer directs Bank to return. 2.4.3 Default Options. If Customer fails to provide Pay or Return Decisions to Bank in accordance with these requirements, Exception Checks will be handled in accordance with the default option as set forth in the Services' Setup Form(s) for each Authorized Account, in accordance with the following: (a) Return Default. Where Customer has selected the return default option, Bank shall return to the depositary bank any Exception Check drawn on that Authorized Account. (b) Pay Default. Where Customer has selected the pay default option, Bank may finally pay and charge to the Authorized Account any Exception Check drawn on that Authorized Account. 2.4 4 Checks Presented for Payment at Bank Teller Stations. 2.4 4.1 Notwithstanding anything in this Appendix to the contrary, Bank may, in its sole and absolute discretion, retum to the person presenting HCYt 4536-1579-3465 v.1 37 of 58 0916 P51 a check drawn on an Authorized Account for payment over-the-counter at one of Bank's teller stations any such check that does not appear on a Check Issue File (i.e., an Exception Check). Customer acknowledges and agrees that Bank shall have no obligation to inform Customer that any such check has been presented for payment at a Bank teller station. Bank shall have no liability to Customer for wrongful dishonor with respect to any such check. 2.4.4.2 If a check drawn on an Authorized Account is presented for payment over-the- counter during such time the Bank is experiencing an interruption or failure of communications or data processing facilities or systems, emergency conditions, or any other difficulties beyond the control of Bank, then, notwithstanding any other provision of this Appendix, Customer authorizes Bank to pay the Presented Check, even if the Presented Check is an Exception Check. Additionally, Bank shall have no obligation to notify Customer of any such Presented Check. 2.5 Customer Communications. and Bank 2.5.1 Customer or Bank, at its discretion, may each submit to the other party a revision of any communication provided for under this Appendix (e.g., the revision of Check Issue Files, Exception Check Reports, Pay Decisions, Retum Decisions). The revised communication must (i) be sent in its entirety and not in the form of a partial amendment to the communication originally sent, (ii) identify the original communication, and (iii) be sent in the format and medium, by the deadline(s), and at the place(s) established by the receiving party. A properly submitted revised communication serves to revoke the original communication. 2.5.2 Bank shall use only Check Issue Files that comply with Section 2.2 and have not been revoked in accordance with Section 2.5.1 in the preparation of Exception Check Reports under this Appendix. 2.5.3 Customer shall use only Exception Check Reports that comply with Section 2.3 and have not been revoked in accordance with Section 2.5 1 in the preparation of Pay Decisions and Return Decisions. Bank shall not be obligated to comply with any Pay Decision or Return Decision received in a format or medium, after a deadline, or at a place not permitted under this Appendix and Services' Setup Form(s), but may instead treat such a Pay Decision or Retum Decision in accordance with the default option selected by Customer in the Services' Setup Form(s). 2.5.4 Bank is not responsible for detecting any Customer error contained in any Check Issue File, Pay Decision or Retum Decision sent by Customer to Bank. 2.6 Submission of Data Prior to Implementation of Services. Customer shall submit to Bank a current, reconciled list of all outstanding checks issued on each Authorized Account one (1) week prior to the implementation of the Services hereunder. Depending on the frequency with which Customer issues checks, Bank reserves the right to require Customer to submit one or more additional such lists so that all outstanding, unpaid checks issued on any Authorized Account have been reported to Bank prior to the implementation of the Services. 3. Remedies. 3 1 U.C.C. Liability. To the extent applicable, the liability provisions of U.C.C. Articles 3 and 4 shall govern this Appendix, except as modified below To the extent permitted by U.C.C. Articles 3 and 4, the liability of Bank under this Appendix shall in all cases be subject to the provisions of the parties' Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. 3.2 Wrongful Honor. It shall constitute wrongful honor by Bank if Bank pays an Exception Check listed in a timely Exception Check Report unless: (i) Customer issued a Pay Decision, or (ii) Customer selected the pay default option and did not issue a Return Decision by the deadline set forth in the Services' Setup Form(s). In the event that there is wrongful honor, the following shall apply: 3.2.1 Bank shall be liable to Customer for the lesser of the amount of the wrongfully paid Exception Check or Customer's actual damages resulting from Bank's payment of the Exception Check. 3.2.2 Bank expressly waives any right it may have to assert that Customer is liable for the amount of the wrongfully honored Exception Check on the grounds that the Exception Check was properly payable under U C.C. Section 4-401. 3.2.3 Bank retains the right to assert Customer's failure to exercise reasonable care under U.C.C. Sections 3-406 and 4406. 3.2.4 Bank retains the right to assert the defense that Customer has sustained no actual damages because Bank's honor of the Exception Check discharged for value an indebtedness of Customer. 3.3 Wrongful Dishonor. Except as provided below, it shall constitute wrongful dishonor by Bank if Bank dishonors an Exception Check: (i) that Bank has been ordered to pay pursuant to a Pay Decision, or (ii) for which Customer has not issued a Return Decision under the pay default option by the deadline set forth in the Services' Setup Form(s). 3.3.1 Bank's liability for wrongful dishonor of an Exception Check shall be limited to the damages for wrongful dishonor recoverable under U C.C. Articles 3 and 4. 3.3.2 Notwithstanding Section 3.3.1, Bank shall have no liability to Customer for wrongful dishonor when Bank, acting in good faith, returns an Exception Check: (a) that it reasonably believed was not properly payable; or HC8 4836-1579-3465 v.1 38 of 38 0916 P52 (b) if there are insufficient Available Funds on deposit in the Authorized Account; or (c) if required to do so by the service of legal process on Bank or the instructions of regulatory or government authorities or courts. 3.4 Rightful Payment and Dishonor. Except as provided in Section 3.5, the following shall apply - 3 4 1 If Bank honors an Exception Check in accordance with the pay default option selected by Customer or in accordance with a Pay Decision issued by Customer, such honor shall be rightful, and Customer waives any right it may have to assert that the Exception Check was not properly payable under U C.C. section 4- 401. 3 4.2 If Bank dishonors an Exception Check in accordance with the return default option selected by Customer or in accordance with a Return Decision issued by Customer, the dishonor shall be rightful, and Customer waives any right it may have to assert that the dishonor was wrongful under the U.C.C. section 4-402. 3.4.3 Customer agrees that Bank exercises ordinary care whenever it rightfully pays or returns an Exception Check consistent with the provisions of this Appendix. 3.5 Faulty Information. Subject to the terms and conditions of the Cash Management Master Agreement, Bank shall be liable for losses, other than incidental or consequential damages, proximately caused by its honor of a check that was not properly payable, or its dishonor of a check that was properly payable, if the honor or dishonor occurred because Bank, in accordance with the provisions of Section 2 of this Appendix: (a) should have shown the check on an Exception Check Report but failed to do so due to Bank error, unless Bank provided Customer with timely information that disclosed the error; or (b) showed the check on an Exception Check Report but referenced the wrong check number due to Bank error, unless Bank provided Customer with timely information that disclosed the error 3.6 Assignment. To the extent that Customer suffers a loss under this Appendix, Bank assigns to Customer any claim that Bank would have against a depositary or collecting bank to recover the loss, including any claim of breach of warranty under U.C.C. Sections 4- 207, 4-208, and 4-209. 4. Stop Payment and Return Decisions. The Services will not be used as a substitute for Bank's stop payment services. Customer will follow Bank's standard stop payment procedures if it desires to return a check that matches the data included in a Check Issue File or other check that was validly issued. Nothing in this Appendix will limit Customer's right to stop payment on any check that matches the data included in a Check Issue File or other check, or Bank's right to return any check that matches the data included in a Check Issue File or other check that Customer has authorized Bank to pay in accordance with this Appendix if Bank determines in its sole discretion that the check is not properly payable for any reason (without Bank's agreeing to, or being required to, make such determination in any circumstance) or that there are insufficient collected or Available Funds in the Authorized Account to pay it. 5. Governing Law. Except where expressly required by contrary provisions of the U C.C., any claim, controversy or dispute arising under or related to this Appendix shall be governed by and interpreted rn accordance with the governing law provision of the parties' Cash Management Master Agreement. 6. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the parties' Cash Management Master Agreement is terminated. In the event of termination, all sums owed to Bank hereunder shall be unmediately due and payable. HC# 4836-1579-3465 v.1 39 of 58 0916 P53 Bank APPENDIX VIII TD DIGITAL EXPRESS SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Digital Express Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The Services provide Customer with an Internet -based system designed to expedite check depositing services by enabling Customer to use check conversion technology to submit to Bank, for deposit to Customer's Account(s), electronic check images and associated information ("Check Images") in lieu of the original checks from which such Check Images were obtained. These Services are provided in accordance with the Check Clearing for the 21° Century Act ("Check 21"). 2. Hardware Requirements. 2.1 In order to use the Services, Customer must utilize certain Bank -approved image/scanner hardware (the "Hardware"). Customer must either (a) have or obtain the Hardware, as approved by Bank ("Customer Hardware"), or (b) utilize Hardware provided by Bank ("Bank Hardware"). Customer must also have a Computer as outlmed in the Cash Management Master Agreement, as Bank may specify and approve from time to time. 2.2 If Customer elects option (a), Customer Hardware, Customer is solely responsible for the purchase, maintenance, performance and adequacy of Customer Hardware. Bank makes no representations or warranties concerning, and has no responsibility or liability for, Customer Hardware or its use with the Services. Bank shall have no liability or responsibility whatsoever for errors, including but not limited to processing or transmission errors, resulting from any Check Images transmitted by Customer using Customer Hardware. 2.3 If Customer elects option (b), Bank Hardware, Customer agrees as follows: (i) Bank will retain ownership of Bank Hardware provided by Bank for use with the Services. (ii) Customer will not use Bank Hardware in connection with any remote check deposit service offered by any other financial institution other than Bank. (iii) Customer acknowledges that Bank did not manufacture Bank Hardware and has provided the same to Customer on an "AS IS" basis, and warrants only that, upon delivery, Bank Hardware will conform to Bank's then current applicable standards for use of the Services. Bank Hardware is provided to Customer with a standard manufacturer's warranty Customer shall thereafter be responsible for purchasing any and all additional manufacturer warranty period(s) beyond the standard warranty, as may be made available by the manufacturer, for complying with all manufacturer recommendations for preventive maintenance, or for repairing or replacing Bank Hardware. (iv) Customer shall bear the entire risk of loss, theft, damage or destruction of Bank Hardware from the date of receipt until return shipment to a Bank branch or shipped postage -paid to Bank. Such loss, damage or destruction of Bank Hardware shall not relieve Customer of the obligation to make payments or to comply with any other obligation under this Appendix. (v) Upon termination of this Appendix by either party for any reason, Customer shall return Bank Hardware in the same condition as when originally provided to Customer, except for ordinary wear and tear resulting from proper use. Bank Hardware shall be packed for proper return shipment to such place as Bank shall specify In the event Bank Hardware has not been returned within fifteen (15) Business Days of termination of this Appendix, Customer shall make payment to Bank in an amount equivalent to the depreciated value for Bank Hardware. Where agreed to by Bank in its sole discretion, Customer may purchase Bank Hardware from Bank, subject to the terms and conditions of Bank's bill of sale or similar agreement. 3. Check Images; Image Replacement Documents. 3.1 Customer inay use the Services to deposit original paper checks using the Hardware to scan, capture and submit Check Images to Bank through the Services' Internet site ("Services Site"). Eligible items for deposit include original checks that Customer has received for payment or deposit, and obligations of financial institutions (travelers' checks, cashier checks, official checks, and money orders). 3 1.1 The following check types are not eligible for use with and may not be processed using the Services: HC 4814-6754-1549 40 of 58 022016 P54 (i) Checks drawn on banking institutions outside the U.S. or in currencies other than U.S. Dollars; (ii) Irregular checks (e.g., where the numerical and written amounts are different); (iii) Previously -returned checks; (iv) Checks payable to or in cash; (v) Checks exceeding any Customer transaction or file limits as Bank may establish from time to time; and (vi) Checks that are postdated or more than six (6) months old. 3.1.2 The following check types are restricted for use with and may only be processed using the Services with prior approval by Bank (as further described below): (i) Checks payable to a third party (rather than to Customer) (hereinafter "Third Party Checks"); and (ii) Remotely -created checks (or remotely created payment orders deposited into or cleared through the check clearing system) (hereinafter, collectively referred to simply as "remotely -created checks" unless otherwise expressly specified). Notwithstanding the foregoing, under no circumstances may Customer use the Services to deposit any check types that Customer is banned or prohibited from using or accepting under applicable law, including, by way of example only, the use or acceptance by sellers and telemarketers of remotely created payment orders (which include remotely -created checks) as defined and described in the Federal Trade Commission's Telemarketing Sales Rule. 3.2 Third Party Checks. Customer shall request approval from Bank prior to any use of the Services to process Third Party Checks, which permission Bank may grant or refuse in its sole and exclusive discretion. Such use of the Services and the scope of permitted Third Party Checks may be limited or restricted by Bank in its sole and exclusive discretion, including without limitation to those Third Party Checks that have been properly endorsed over to Customer as further described below. 3.2.1 If approved to use the Services to process Third Party Checks, Customer shall make the following additional representations and warranties upon each delivery to Bank of an Electronic File (as defined below) containing Third Party Checks: (i) All endorsement(s) on the original Third Party Checks are legible, genuine and accurate; Customer has instituted procedures to ensure that each original Third Party Check was authonzed by the drawer in the amount stated on the original Third Party Check and to the payee(s) stated on the original Third Party Check; Each Third Party Check contains all endorsements applied by the prior payee(s) stated on the original Third Party Check and has been properly endorsed by such payee(s) for payment over to Customer; Customer is authorized to enforce each Third Party Check that is transmitted to Bank using the Services, and Customer is authonzed to obtain payment of and each Third Party Check is properly payable to and enforceable by Customer; Consistent with the terms of this Appendix as well as the Account Agreement, if a Third Party Check is returned, Customer owes Bank the amount of the Third Party Check, regardless of when the Third Party Check is returned. Bank may withdraw funds from Customer's Account to pay the amount owed to Bank, and if there are insufficient funds in Customer's Account, Customer will owe the remaining balance; and Except where otherwise provided, all other provisions of this Appendix shall apply to Third Party Checks and to Customer's use of the Services in conjunction with Third Party Checks. 3.3 Remotely -Created Checks. A remotely -created check, unlike a typical check or draft, is not created by the paying or drawer bank and does not contain the signature of the account -holder (or a signature purporting to be the signature of the account -holder). In place of a signature, the check generally has a statement that the account -holder authonzed the check or has the account -holder's name typed or printed on the signature line. Customer shall request approval from Bank prior to any use of the Services to process remotely -created checks, which permission Bank may grant or refuse in its sole and exclusive discretion. Such use of the Services and the scope of permitted remotely -created checks may be limited or restricted by Bank in its sole and exclusive discretion, and/or by applicable law 3.3.1 If approved to use the Services to process remotely -created checks, Customer shall be deemed to make the following additional representations and warranties upon each delivery to Bank of an Electronic File containing remotely -created checks: (i) Customer has received express and verifiable authorization to create the check in the amount and to the payee that appears on the check; (ii) Customer will maintain proof of the authorization for at least two (2) years from the date of the authorization, and supply Bank with such proof, if Bank requests it, within five (5) Business Days of the request; and (iii) Consistent with the terms of this Appendix as well as the Account Agreement, if a remotely -created check is returned, Customer owes Bank the amount of the check, regardless of when the check is returned. Bank may withdraw funds from Customer's Account to pay the amount owed to Bank, and if there are insufficient funds in Customer's Account, Customer will owe the remaining balance. NC 4814.6754-1549 41 of 58 022016 P55 (iv) All other provisions of this Appendix shall apply to remotely -created checks and to Customer's use of the Services in conjunction with remotely -created checks. 3.3.2 Customer agrees to operate in accordance with applicable laws and regulations regarding remotely -created checks, including but not limited to, Regulation CC and applicable warranties, the Uniform Commercial Code and applicable warranties, the Bank Secrecy Act, USA Patriot Act, and the Federal Trade Commission Telemarketing Sales Rule, as the same may be amended from time to time. Without limiting the foregoing, Customer represents, warrants and covenants that it will not use the Services to deposit any check types that Customer is banned or prohibited from using or accepting under applicable law. 3.4 If at any time Bank believes that Customer's use of the Services to deposit Third Party Checks and/or remotely -created checks may create a risk of financial loss or otherwise result in unacceptable exposure to Bank, including but not limited to unacceptable rates of returned items, or may be subject to or otherwise involve irregular, unauthonzed, fraudulent or illegal activity, Bank may, at its sole discretion, immediately and without prior notice to Customer, suspend or terminate Customer's use of the Services, and/or Customer's use in conjunction with Third Party Checks and/or remotely -created checks, in addition to but not m lieu of all other rights and remedies available to Bank under this Appendix and the Agreement. 3.5 Customer shall enter check information into the Services Site, imaging the front and the back of each paper check and capturing the information contained in the MICR line of the paper check. Customer shall review each Check Image for clarity to ensure that the item is legible and can be reproduced as an Image Replacement Document ("IRD(s)" or "Substitute Check(s)"). Using the Services, an electronic file will be created ("Electronic File") that contains electronic information relating to and converted from the paper checks that have otherwise been truncated or removed from the forward collection and payment process (each an "Electronic Item"). To ensure accuracy, Customer shall balance the dollar total of each deposit to the sum of the Electronic Items prior to transmitting the Electronic File to Bank. 3.6 Customer authorizes and agrees that Bank may, in conjunction with and via the Services, add the image of an endorsement, an electronic endorsement or a `virtual endorsement" for Customer to the Check Image of any check or item deposited under the terms of this Appendix, and that such endorsement shall be legally enforceable against Customer even though the endorsement did not appear and was not placed on the original paper check or item. In the event Bank does supply a virtual or similar endorsement, Bank may instruct Customer not to otherwise endorse the check or item so as to minimize any conflict with the legibility of the virtual endorsement. 3.7 Customer shall determine that the Electronic File has been received based on the confirmation page of the Services Site. Bank will indicate acceptance of the transactions and any transactions rejected by the Services on the Services Site. Customer shall process any rejected transactions as paper checks through the normal paper check deposit process. 3.8 Customer shall enter the dollar amount of a paper check(s), along with any other optional information that Customer would like retained by the Services Site. The Services Site provides for reports and exporting of the information that has been entered. 3.9 Bank shall electronically deliver to Customer, through the Services Site, a confirmation of receipt for each deposit submitted, and the deposit shall be considered received by Bank when such confirmation is delivered to Customer. Deposits received via the Service by 9:00 p.m. Eastern Time on any Business Day or at any time on any Calendar Day that is not a Business Day will be posted to Customer's Account on the same Business Day, with next Business Day availability of deposits based on Bank's Account Agreement. Bank reserves the right to reject any single Check Image or group of Check Images for any reason, before or after delivery of confirmation of receipt. 3.10 Customer acknowledges and agrees that in the event any deposited item converted to a Check Image is returned for any reason (for example, non - sufficient funds), Bank may return the item to Customer by delivery of either a Substitute Check or the Check Image, including all retum information. Return items will be handled in the same manner as check deposits in accordance with the Account Agreement. 4. Customer Responsibilities and Obligations. 4.1 Customer represents, warrants and covenants that after truncation of an original check, Customer shall safeguard the Electronic Items and onginal checks identified in any Electronic File previously sent to Bank in order to ensure that such original checks and Electronic Items: (i) shall not be submitted for deposit with Bank or any other financial institution, except in accordance with the terms and conditions of this Appendix related to un-processable Electronic Items and (ii) shall not be transferred for value to any other person or other entity. As an additional secunty control, Customer shall ensure that the front of each original check is properly marked with wording or other marking in order to reflect that the deposit has been sent for processing. 4.2 Upon receipt of any transmitted Electronic File, Bank shall be the lawful owner of such Electronic File and each Electronic Item with respect to original checks imaged in that Electronic File. Customer shall retain all original checks truncated pursuant to this Appendix for a period of thirty (30) Calendar Days in a manner that is mutually agreed upon between the parties hereto. However, for accounting, auditing and other legal purposes, Customer may keep electronic records regarding its receipt and deposit of such checks, provided such internal electronic records cannot be used to generate duplicate Electronic Files for purposes of depositing and presenting such checks for payment. 11C 4814-6754-1549 42 n/.58 022016 P56 4.3 Customer shall deliver promptly to Bank, upon its request, the original check if a request is made within the retention period provided above, or Substitute Check or Sufficient Copy thereof; for each Electronic Item created by Customer The term "Sufficient Copy" means a copy of an onginal check that accurately represents all of the information on the front and back of the original check as of the time the original check was truncated or is otherwise sufficient to determine whether or not a claim is valid. 4.4 Customer shall not create at any time an Electronic File under this Appendix or otherwise use the Services to capture or mamtain tax identification numbers or non-public personal information of any third -party from whom Customer has received an original check for payment or deposit or which Customer has selected for truncation. 4.5 Customer agrees to abide by all federal and state laws, and roles and regulations applicable to banking transactions. 4.6 If Bank receives a returned item for a check deposited by Customer after Customer has terminated this Appendix, then Customer agrees that Bank may debit Customer's Account, or if such Account has been closed by Customer, Bank will send a request for payment to Customer, and Customer agrees to pay Bank within a commercially reasonable period of time. 4.7 Customer agrees to have controls in place to ensure that the Services, including the Hardware and checks processed through the Hardware, are properly safeguarded and stored in accordance with the timeframe set forth in Section 4.2 above and in a secure location, under effective control, in order to safeguard against unauthorized access and use. Customer shall ensure that all such checks are thereafter destroyed by a cross -shredder, and/or pulped or otherwise destroyed in such a manner that does not permit recovery, reconstruction or future use of the checks. Customer agrees that it will not simply throw out such paper checks with other classes of records or with miscellaneous trash. Customer agrees to be responsible for all damages resulting from lack of proper controls over processed checks. 4.8 Customer shall notify Bank of any interruptions in, delay or unavailability of, or errors caused by the Services immediately upon discovery thereof. Notwithstanding the foregoing, in the case of any error caused by the Services and subject to Section 11 of the parties' Cash Management Master Agreement, Customer shall provide such notice within thirty (30) Calendar Days of the date of the earliest notice to Customer which reflects the error. Failure of Customer to provide such notice to Bank shall relieve Bank of any liability or responsibility for such error, omission or discrepancy 5. Customer Warranties, Covenants. Customer makes the following representations, warranties and covenants as of the effective date of this Appendix and upon each delivery of an Electronic File to Bank: 5 1 An Electronic File may include an electronic representation of a Substitute Check. Customer shall redeposit a retumed original check or a returned Electronic Item by delivering the same to any Bank branch location. A retumed original check or retumed Electronic Item may not be re -submitted by Customer using the Services. Customer may only use the Services to re -submit an IRD or Substitute Check that has been returned to Customer for non -sufficient funds. 5.2 With respect to each Electronic Item m any Electromc File delivered to Bank, the Electronic Item accurately represents all of the information on the front and back of the original check as of the time that the original check was created by the payor; contains all required and valid endorsements; replicates the MICR line of the ongmal check; and meets all FRB standards of and technical requirements for sending Electronic Items to any as set forth in the applicable FRB operating circular, or as established by the American National Standards Institute ("ANSI") or any other regulatory agency, clearing house or association. Specifically, each Electronic Item of each original check shall be of such quality that the following information can clearly be read and understood by sight review of such Electronic Item: (i) the amount of the check; (ii) the payee of the check; (iii) the signature of the payor of the check; (iv) the date of the check; (v) the check number; (vi) the information identifying the payor and the paying bank that is preprinted on the check, including the MICR line; and (vii) all other information placed on the original check pnor to the time an image of the original check is captured, such as any required identification written on the front of the check and any endorsements applied to the back of the check. 5.3 Customer shall also ensure that the following information is captured from the MICR line of each original check: (i) the American Bankers Association routing transit number ("RTN"); (ii) the number of the account on which the check is drawn; (iii) when encoded, the amount of the check; and (iv) when encoded, the auxiliary on -us field (serial number) and the process control field of the check. 5 4 The Electronic Item bears all endorsements, if any, applied by previous parties that handled the check in any form (including the original check. as Substitute Check, or another paper or electronic representation of such original check or Substitute Check) for transfer, forward collection or return. HC 4814-6754-1549 43 of 58 022016 P57 5.5 Customer is entitled to enforce the original check, or Customer is authorized to obtain payment of the original check on behalf of a person who is either entitled to enforce the original check or is authorized to obtain payment on behalf of a person entitled to enforce the original check. 5.6 Customer will submit financial and/or other additional information to Bank upon request in order for Bank to establish or amend Customer's deposit and file limits as further described in Section 6 and as established by Bank and communicated to Customer, or to otherwise monitor or audit Customer's use of the Services and compliance with this Appendix. Customer will also notify Bank of any change in transaction volumes or financial condition that may have an effect on this Appendix or Customer's use of the Services. 5.7 Customer shall also request permission from Bank in advance of any change in locations at which the Services are used or change in the physical location or address of any Hardware from its original Bank -approved location or address, which permission Bank may grant or refuse in its sole and exclusive discretion. In addition to but not in lieu of the foregoing, Customer shall request advance pemvssion from Bank prior to using the Services and/or any Hardware outside the continental United States and/or outside of those states (including the District of Columbia) in which Bank operates from time to time. Bank may grant or decline such request in its sole and exclusive discretion and in consideration of applicable law 5.8 Both Customer and the clients with whom it does business are reputable and are not using Bank as a conduit for money laundering or other illicit purposes. 5.9 None of Customer's transactions to be processed by Bank are prohibited by any applicable law, regulation, order, rule or judgment. 5.10 Customer Electronic Files will not contain viruses that originate from Customer's Computer, in accordance with the requirements of Section 7 of the Cash Management Master Agreement. 5 11 None of Customer's employees are a national of a designated blocked country or "Specially Designated National", `Blocked Entity", "Specially Designated Terronst", "Specially Designated Narcotics Trafficker", or "Foreign Terrorist Organizations" as defined by the United States Office of Foreign Assets Control. 512 Customer is responsible for implementing operational controls and risk -monitoring processes, as well as conducting periodic self -assessments of the security of the Services and its processes and practices with regard to use of the Services. 6. Deposit and File Limits. Customer's use of the Services is limited as more particularly described in the Services' Setup Form(s), and as the parties may otherwise agree froin time to time. Such limits may include but are not limited to, e.g., maximum total daily dollar amounts; maximum per item dollar amounts; maximum percentage of monthly transactions returned, and maximum number of items to be deposited per day. 7. Administrator(s) and Authorized Users. 7.1 Customer may designate Administrator(s) relative to the Services, as set forth in the Services' Setup Form(s). Customer is solely responsible for designating its Admtnistrator(s). Customer agrees to provide Bank, upon Bank's request, with any certificate or documentation that is acceptable to Bank specifying the name of the person who is authorized to be designated as Administrator(s) from time to time. 7.2 The Administrator(s) may designate other Administrators and/or Authorized Users. Customer accepts as its sole responsibility an Administrator's designation of other Administrators and Authorized Users. Customer understands that the Administrator(s) will control, and Customer authorizes the Administrator(s) to control, access by other Administrator(s) and Authorized Users of the Services through the issuance of passwords. The Administrator(s) may add, change or terminate Customer's Authorized Users from time to time and in his/her sole discretion. Bank does not control access by any of Customer's Authorized Users to any of the Services. 7.3 Customer will require each Administrator and each Authorized User to comply with all .provisions of this Appendix and all other applicable agreements. Customer acknowledges and agrees that it is fully responsible for the failure of any Administrator or any Authorized User to so comply. 7.4 Whenever any Authorized User leaves Customer's employ or Customer otherwise revokes the authority of any Authorized User to access or use the Services, Customer must notify the Administrator immediately, and the Administrator is solely responsible for de -activating such Authorized User's password. Whenever an Administrator leaves Customer's employ or Customer otherwise revoke an Administrator's authority to access or use the Services, Customer remains fully responsible for all use of the passwords and the Services. 8. Security Procedures. 8.1 Upon successful enrollment, Customer can access the Services via the Services Site, or any website that Bank may designate from tiine to time, using the security procedures as described from time to time. Bank will provide Customer with an organizational or User ID that is the electronic identification, in letters and numerals, assigned to Customer by Batik that will be used for log -in by Customer's Administrator(s) and Authorized User(s). Bank will also provide the Adnumstrator(s) initially designated by Customer with an initial individual password to gain access to the Services. The Administrator(s) and Authorized User(s) must change his or her individual password from time to time for secunty purposes, as prompted by the Services Site, or more frequently XC 4874-6754.1549 44 0.1.58 022016 P58 8.2 Administrator(s) Administrator(s) Authorized Users password. Administrator(s) Customer acknowledges that will, and Customer authorizes to, select other Administrators and by issuing to any person an individual Customer further acknowledges that may, and Customer authorizes Administrator(s) to, change or de -activate the individual password and/or any individual password from time to time and in his or her sole discretion. 8.3 Customer acknowledges that, in addition to the above individual passwords, access to the Services includes, as part of the Access Devices, a multi- factor authentication security procedure at log -in for Customer, including Administrator(s) and Authonzed Users. This additional security procedure involves an additional access code and Computer registration that is in addition to User ID and individual password security (hereinafter "Enhanced Log -in Security"). 8.4 Bank does recommend as a commercially reasonable security procedure that Customer implement dual control of the Services, whereby one Authorized User creates, edits, cancels, deletes and restores an Electronic File, and a second different Authorized User reviews the Electronic File prior to it being released. 8.5 Customer accepts as its sole responsibility the selection, use, protection and maintenance of confidentiality of, and access to, the Access Devices. Customer agrees to take reasonable precautions to safeguard the Access Devices and keep them confidential. Customer agrees not to reveal the Access Devices to any unauthorized person. Customer further agrees to notify Bank immediately if Customer believes that the confidentiality of the Access Devices has been compromised in any manner. 8.6 The Access Devices identify and authenticate Customer (including Administrator(s) and Authorized Users) to Bank when Customer accesses or uses the Services. Customer authorizes Bank to rely on the Access Devices to identify Customer when Customer accesses or uses any of the Services, and as signature authorization for any transaction, transfer or other use of the Services. Customer acknowledges and agrees that Bank is authonzed to act on any and all communications or instructions received using the Access Devices, regardless of whether the communications or instructions are authorized. Bank owns the Access Devices, and Customer may not transfer them to any other person or entity. If this Appendix is terminated, Customer's access to the Services will be immediately terminated. 8.7 Customer acknowledges and agrees that the Access Devices and other security procedures applicable to Customer's use of the Services are a commercially reasonable method for the purpose of verifying whether any transaction, transfer or other use of the Services was initiated by Customer Customer agrees to be responsible for any transmission Bank receives through the Services that is processed by Bank in accordance with the security procedures, even if such transmission is not authonzed by Customer, including any fraudulent transmission by Customer's employees or agents. Customer agrees that any election Customer may make to change or waive any optional security procedures recommended by Bank is at Customer's nsk and that any loss resulting in whole or in part from such change or waiver will be Customer's responsibility. Customer further acknowledges and agrees that the Access Devices are not intended, and that it is commercially reasonable that the Access Devices are not intended, to detect any errors relatmg to or arising out of a transaction, transfer or any other use of the Services. 8.8 If Customer has reason to believe that any Access Devices have been lost, stolen or used (or may be used) or that a transaction, transfer or other use of the Services has been or may be made with any Access Devices without Customer's permission, Customer must contact its Administrator Customer also agrees to provide Bank with immediate notice of any actual or suspected breach in the security of or other unauthorized access to the Services through use of Customer's Computer. Such notice shall include a description of the incident in general terms; a description of the type of information or data related thereto that was the subject of unauthorized access or use; a description of what Customer has done to protect the information or data from further unauthorized access; and a telephone number or other contact information so that Bank can call for further information or inquiry. In no event will Bank be liable for any unauthorized transaction(s) that occurs with any Access Devices. 9. Limitation of Liability. In addition to but not in lieu of the limitations of liability and related provisions contained in the parties' Cash Management Master Agreement, Bank shall have no liability for any error or delay in performing the Services and shall have no liability for not affecting a Check Image, if: (i) Bank receives actual notice or has reason to believe that Customer has filed or commenced a petition or proceeding for relief under any bankruptcy or similar law; (ii) The ownership of funds involving a Check Image or Customer's authorized representative's authority to transmit a Check Image is in question, (iii) Bank suspects a breach of the security procedures; (iv) Bank suspects that Customer's Account has been used for illegal or fraudulent purposes; or (v) Bank reasonably believes that a Check Image is prohibited by federal law or regulation, or otherwise so provided in the Appendix. Further, Bank will not be liable to Customer for any unauthorized actions or fraud initiated or caused by Customer or its employees or agents. Bank will also be excused from failing to transmit or delay in transmitting a HC 4814-6754-1549 45 of 58 022016 P59 Check Image if such transmittal would result in it exceeding any limitation imposed on it by any governmental or regulatory body. 10. Audit Rights and Site Visits; Internal Controls. Bank, its accountants, auditors or agents shall have the right to conduct site visits of Customer, as well as review, inspect and audit, at Bank's expense and with reasonable notice, and at any time as Bank may in good faith deem necessary or reasonable during or after the term of this Appendix, Customer's compliance with the terms of this Appendix, including but not limited to Customer's use of the Services, its Computer and security infrastructure, and the books and records of Customer related to: (i) Customer's activities hereunder andlor (ii) conformance with Customer's obligations hereunder. In addition, Bank reserves the nght, in its sole and exclusive discretion, to require Customer to implement additional internal controls at Customer location(s) where use of the Services occurs and to request information from Customer relative to Customer's security infrastructure. My review, inspection or audit to be performed by or for Bank pursuant to this Section 10 shall be conducted only during normal business hours, using reasonable care not to cause damage and not to interrupt the normal business operations of Customer. 11. Survival. The provisions of Section 9, as well as Customer's obligation to produce the original of, or a Sufficient Copy of, any item accepted within any deposit upon Bank's request in accordance with Section 4 hereof, and Customer's liability for breach of any representation and/or warranty made in Sections 3, 4 and 5 hereof shall survive termination of this Appendix and/or the Cash Management Master Agreement. 12. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all pnor agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management HC 4814.6754-1549 46 of 58 022016 P60 Bank APPENDIX IX TD ACCOUNT RECONCILEMENT SERVICES - FULL This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Account Reconcilement Services — Full (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The Services described in this Appendix will assist Customer in reconciling and managing the check and deposit activity in Customer's designated checking Account(s) ("Authorized Accounts"). Use of the Services does not affect any of Customer's obligations, which are described in the Account Agreement, to discover and report unauthorized or missing signatures and endorsements, or alterations on checks drawn on Customer's Accounts. 2. Submission of Data. 2.1 Customer shall have its checks prepared in accordance with Bank specifications, and will supply Bank with twenty-five (25) voided checks to be used for testing. The checks will be tested to ensure the paper stock is of a minimum weight and is encoded with Bank's ABA (routing and transit) number, account number and check number to ensure the readability of the MICR line on Bank's equipment. 2.2 Customer shall send a file to Bank containing information regarding checks that have been issued by Customer ("Check Issue File") in the format and medium, by the scheduled day(s) and to the place(s) specified by Bank and agreed to by Customer as set forth in the Services' Setup Form(s). The Check Issue File shall include check issue date, check issue amount, payee, stop payments, and voided or cancelled checks, if applicable. 2.3 Pnor to implementation of the Services, Customer shall submit to Bank a current, reconciled list of all outstanding checks issued on each Authorized Account one (1) week prior to the implementation of the Services hereunder. Depending on the frequency with which Customer issues checks, Bank reserves the right to require Customer to submit one or more additional lists so that all outstandmg, unpaid checks issued on any Authorized Account have been reported to Bank prior to the implementation of the Services hereunder. 2.4 Customer will send to Bank a test file in the format and medium as identified in the Services' Setup Form(s) to ensure the readability of the Check Issue File on Bank's equipment. 2.5 Customer agrees to receive its paid check data ("Paid Check Data") from Bank in the specified format and medium, on the scheduled day(s) and at the place(s) specified by Bank and as set forth in the Services' Setup Form(s). 2.6 Pnor to receiving a file from Bank containing Customer's Paid Check Data, Customer will be provided with a test file by Bank to ensure the readability of the Paid Check Data, on Customer's equipment. Customer agrees to report any test file failures. 2.7 Bank shall compare each of Customer's paid checks by check number and amount against each Check Issue File received by Bank. Bank does not, and shall not be obligated to, compare any other data (such as payee names) on a presented check with a Check Issue File, even if a Check Issue File contams such other data. Bank may satisfy its obligation hereunder by comparing check numbers and amounts received in Substitute Checks (as defined in the Cash Management Master Agreement) and/or via electronic presentment of checks. 3. Statement of Transactions. Within five (5) Business Days following the scheduled date for reconcilement, as set forth in the Services' Setup Form(s), or receipt of the final Check Issue File for the current reconcilement period as set forth in the Services' Setup Form(s), Bank will forward to the U.S. mailing address provided by Customer a fully reconciled report including a listing in check number sequence of all outstanding paid, issued, voided, stopped and cancelled items from the statement schedule. Customer shall review the listing and report any errors as set forth in the Cash Management Master Agreement between Bank and Customer. Customer's use of the Services or Bank's receipt of information associated with the Services does not increase Bank's duties or obligations with respect to Customer's Accounts. 4. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. Bank's liability under this Appendix shall in all cases be subject to the provisions of (57913778.1) 47 of 58 0909 P61 the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties .made by, damages payable by or remedies available from Bank. This Appendix replaces and 'supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Full Reconcilement Services Appendix is accepted in writing by Bank or the Cash Management Master Agreement is terminated. Remainder of page intentionally left blank. [W1913778.1) 48 of 58 0509 P62 Bank APPENDIX XIII TD ZERO BALANCE ACCOUNT SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Zero Balance Account Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. 11 Customer will designate a primary checking Account (the "ZBA Parent Account"), and one or more secondary Accounts (the "ZBA Sub -Accounts"). 1.2 Through the Services, Customer authorizes Bank to transfer funds between the ZBA Parent Account and ZBA Sub -Accounts in order to bring the respective balances of the ZBA Sub-Account(s) to the pre- selected target balance(s), as set forth in the Services' Setup Form(s). 1.3 Customer may select a target balance for each Sub -Account in the amount of 50 or a pre -defined collected or ledger balance amount. 1.4 Each ZBA Sub -Account's daily balance in excess of the target balance, including both collected and uncollected balances, will be transferred automatically to the ZBA Parent Account, unless Customer elects to transfer daily collected balances only. 1.5 In the event the daily balance in any ZBA Sub -Account is less than the target balance, sufficient funds from the ZBA Parent Account will, to the extent available, be transferred to the ZBA Sub -Account to reach the target balance. 1.6 Bank is under no obligation to transfer funds to any one or more ZBA Sub -Accounts to the extent that such transfer(s) would cause an overdraft of collected balances in the ZBA Parent Account. Bank may, in its sole discretion, determine the priority in which funds from the ZBA Parent Account are applied to ZBA Sub-Account(s). 1.7 Customer agrees that Bank is not acting as a fiduciary with respect to funds in either the ZBA Parent Account or in any ZBA Sub -Account. 1.8 If any of the ZBA Sub -Accounts are owned by an Affiliate of Customer, then (1) Customer represents and warrants it has all necessary power and authonty to transfer funds into and out of such ZBA Sub- Account(s), and (2) Customer will indemnify Bank from any claim by any owner(s) of such ZBA Sub-Account(s) or any third party with respect to a transfer into or out of such ZBA Sub-Account(s). 2. Effectiveness. Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable to or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the Cash Management Master Agreement is tenninated. Remainder of page intentionally left blank. {W1040745.1) 49 of .58 P63 Bank APPENDIX XXI TD DATA TRANSMISSION SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to TD Data Transmission Services made available to Customer by Bank or Bank's third -party service provider. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Services. The Data Transmission Services (the "Services") provide Customer with the ability to exchange information files with Bank's (or its third -party service provider's) information systems for a variety of needs and functions. This Service allows Customer to send and/or receive its Bank files using File Transfer Protocol ("FTP"), Hypertext Transfer Protocol Secure ("Secure Web"), Secure File Transfer Protocol ("SFTP"), SWIFT Transmission, or via such other method as the parties may agree upon from time to time, as may be set forth in a Services' Setup Form(s), and as further described below. 2. FTP Transmission. 2.1 This method of data transmission permits Customer to deliver and/or receive encrypted files to a Bank -maintained FTP server. Bank will create a drop - box directory on the server where Customer may upload and deliver data files. To send data to Bank, Customer will either push the data files to Bank's directory, or Customer will give Bank a unique user name, password and Customer service address, and Bank will deliver the file. For data Bank sends Customer, Customer will pull the data files from its outbound directory on the server 2.2 The technical requirements for FTP over the Internet include an Internet connection, FTP client capabilities, and Pretty Good Privacy ("PGP") or equivalent software for file encryption and decryption. 2.3 Files for transmission by FTP must be encrypted using PGP Version 4.0 or higher PGP provides encryption technology including encryption, decryption, key management, encrypted email, digital signatures, key generation, certified keys and key revocation. Bank will generate a public key/private key pair for Customer The public part of the key will be sent to Customer via Customer's assigned mailbox on Bank's transmission platforni. The private part of the key will be securely kept within Bank. Customer will also generate a key pair for files that it sends to Bank. The public part of this key pair will be sent to Bank, also via the mailbox, while only Customer will know the private key. 2.4 To begin transmission by FTP, Bank will establish Customer's access to Bank's FTP server. Bank will provide Customer with the domain name required for the FTP connection. Customer will be provided a User ID and password that is unique to Customer and will be required each time Customer wishes to connect to Bank's transmission platform to send or receive files. PGP public keys for encryption will be exchanged. Bank and Customer will perform, to their mutual satisfaction, connectivity testing between platforms and encryption testing on transmitted files prior to Customer's use of the Service via FTP transmission. 3. Secure Web Transmission. 3.1 This method of data transmission permits Customer to deliver and/or receive files using an Internet connection, User ID and password. Bank will provide Customer with the domain name of a website that will display a web page with Customer's root directory. Customer can upload data files to this directory by clicking the Browse button and selecting the file from Customer's local network. Data files sent by Bank will be displayed in Customer's outbound directory and may be downloaded by Customer to its local network. 3.2 The technical requirements for Secure Web include an Internet connection and browser supporting 128 -bit Secure Sockets Layer ("SSL") encryption. 3.3 Files for transmission through Secure Web are encrypted using SSL. SSL is an open protocol for securing data communication across computer networks that provides a secure channel for data transmission through its encryption capabilities. SSL allows for the transfer of digitally -signed certificates for authentication procedures and provides message integrity to protect against data being altered en route. Bank and Customer will perfonn, to their mutual satisfaction, connectivity testing between platforms and encryption testing on transmitted files prior to Customer's use of the Service via Secure Web. HC# 4846-4388-3571 v.1 page SO of 58 0716 P64 4. Secure FTP (SFTP) Transmission. 4.1 This method of data transmission permits Customer to deliver to and/or receive files from a Bank -maintained SFTP server Files transfers through SFTP communications are encrypted using Secure Shell ("SSH"). SSH is an open protocol for securing data communication across computer networks providing a secure channel for data transmission. The encryption used by SSH is intended to provide confidentiality and integrity of data over an unsecured network, such as the Internet. SSH uses public -key cryptography to authenticate the remote computer and allow the remote computer to authenticate the user, if necessary 4.2 Customer has the option to push files to Bank's SFTP server or have Bank pull Customer's files. For Customer push, Bank will create a drop -box directory on the SFTP server and provide Customer with a user name, password, and URL/domain name. Customer must provide an external IP address of the location sending files so that Customer's IP address can be added to access control lists within Bank's firewalls. For Bank to pull Customer's files, Bank will need a user name, password, URL/domain name, and directory from Customer so that Bank can pull files from Customer's SFTP servers. Bank and Customer will perform, to their mutual satisfaction, connectivity testing between platforms prior to Customer's use of the Services. 4.3 Customer also has the option for Bank to push Customer files (recommended by Bank) or Customer can pull the files from Bank's SFTP server For Bank to push Customer's file, Bank needs Customer's URL/domain name, unique user name, password, and directory For Customer to pull files from Bank's SFTP server, Customer must provide the external IP address of the location pulling the files so that Customer's IP address can be added to access control lists within Bank's firewalls. If Customer chooses to pull files from Bank's SFTP server, then files must be PGP encrypted, since files will reside on an SFTP server within Bank's DMZ. Bank will need Customer's public PGP key so that Bank can encrypt files. Bank and Customer will perforin, to their mutual satisfaction, connectivity testing between platforms and encryption testing (if necessary) on transmitted files prior to Customer's use of the Services. 4.4 Customer will need an FTP client capable of using the SSH protocol. If Customer decides to pull files from Bank, Customer will need an application/utility capable of creating a PGP key pair and decrypting PGP files. 5. Secure Software. 5.1 This method of data transmission involves the use of a Java® -based program that serves as a secure access channel through which information may be exchanged between Customer's Computer and Bank. This software is provided by Bank and must be installed on a Customer's Computer or network. Secure Software facilitates the secure transfer of files both to and from Customer's network location. 5.2 The technical requirements for Secure Software include an Internet connection. 5.3 Files for transmission through Secure Software are encrypted using SSL. SSL is an open protocol for securing data communication across computer networks that provides a secure channel for data transmission through its encryption capabilities. SSL allows for the transfer of digitally -signed certificates for authentication procedures and provides message integrity to protect against data being altered en route. Bank and Customer will perform, to their mutual satisfaction, connectivity testing between platforms and encryption testing on transmitted files pnor to Customer's use of the Services via Secure Software. 6. SWIFT Transmission. 6.1 This method of transmission provides Customer with the ability to use Society of Worldwide Interbank Financial Telecommunications operating as S.W.I.F.T. SCRL, Limited Liability Cooperative Society ("SWIFT") messaging services as described in this Section to engage in certain electronic communications with Bank (hereinafter the "SWIFT Services"). With the SWIFT Services, Customer may (1) transmit certain SWIFT messages and documents to Bank and receive certain SWIFT messages and documents from Bank and other financial institutions, using SWIFT FIN and/or SWIFTNet FileAct, the latter of which is a file transfer service that allows the transmission of messages and documents over the SWIFT network in all formats agreed upon by Bank, and (2) transmit and receive SWIFT Instructions (as further described below) from Bank and other fmancial institutions in connection with certain Cash Management Services as agreed by the parties from time to time. Bank is a participating depository financial institution in SWIFT. 6.2 SWIFT Rules. The "SWIFT Rules" are the documents and other publications as amended by SWIFT from time to time that Customer may access at www.swift.com whether in paper or electronic format, providing specific terms and conditions and other details relating to the provision and use of the SWIFT Services, including without limitation the SWIFT Contractual Arrangements; the SWIFT General Terms and Conditions; the SWIFT Service Bureau Policy and the SWIFT Data Retrieval Policy; the SWIFT MA-CUG, SCORE and TRCO Service Descriptions and any other SWIFT Service Descriptions applicable to the SWIFT Services; and the SWIFT On-line Support Service information. This Appendix, the SWIFT Services provided hereunder and the rights and obligations of the parties hereto shall be subject to the SWIFT Rules, as they may be amended from time to time. The parties agree to comply with the SWIFT Rules and to be aware of and comply with changes or updates to the SWIFT Rules. 6.3 SWIFT Instructions. 6.3.1 Bank may honor and act upon any authenticated SWIFT message, comfnunication or instruction, including any Payment Order (hereinafter a "SWIFT Instruction") received in Customer's name or BCS 4846-43833572 v.1 Page 51 of 58 0716 P65 under any SWIFT Business Identifier Code (BIC) that: (1) is unique to Customer, (2) is owned by a parent company or other affiliate of Customer, or (3) is owned by an unrelated third party and/or that is otherwise operating by agreement with Customer as Customer's agent for purposes of Customer's use of the SWIFT Services. Each such BIC(s) shall be identified by or through Customer in the Services' Setup Form(s) (hereinafter, collectively, "Customer's BIC(s)"). Customer acknowledges that the Services' Setup Form(s) shall also set out the key features and requirements that shall apply to Customer's use of the SWIFT Services, which may include but are not limited to the following: i. the SWIFT messaging services to be used to transmit SWIFT Instructions to Bank (e.g., SWIFT FIN and/or SWIFTNet FileAct); ii. the SWIFT message types and file formats that are supported by Bank under the SWIFT Services, including the types of Payment Orders that Customer may transmit; iii. the technical parameters associated with and required for SWIFTNet FileAct (e.g., file transfer mode options and file transfer fields, etc.); iv. the type of information that Bank shall provide in conjunction with any SWIFT message sent by Bank to Customer within the SWIFT Services, including any account status or other information made available by Bank v. the Customer Account(s) to be used in connection with the SWIFT Services; and vi. the SWIFT access model (e.g., SCORE, MA-CUG, etc.) and connectivity (e.g., direct access, Alliance Lite, member, service bureau, etc.) associated with Customer's use of the SWIFT Services. 6.3.2 SWIFT Instructions made in accordance with this Appendix and the SWIFT Rules shall be deemed to have been given by an individual authonzed to act on behalf of Customer. Bank will act in reliance on the accuracy and completeness of the SWIFT Instruction received by Bank in Customer's name or via Customer's BIC(s). Customer shall ensure that any SWIFT Instruction sent to Bank fully and accurately reflects the advice, request, instruction or communication intended to be provided to Bank by Customer and is duly authorized. Customer irrevocably authorizes Bank to (a) treat as accurate, authentic and properly authorized, rely upon and implement any SWIFT Instruction received by Bank which originates (or appears to originate) from Customer (including, in the case of a Payment Order, debiting the Account as specified in the SWIFT Instruction), and (b) to process each such SWIFT Instruction as described in this Section 6. 6.3.3 Notwithstanding the foregoing, Bank is not obligated to act on a SWIFT Instruction or treat a SWIFT Instruction as accurate, authentic or authorized, if: the SWIFT Instruction does not meet the requirements of the SWIFT Rules or otherwise appears not to have been nrenared or sent in accordance with this Section: Bank considers that the execution of that SWIFT Instruction may place Bank in breach of any law or regulation; or Bank reasonably suspects that the SWIFT Instruction received by Bank (a) may not fully and accurately reflect an advice. request, instruction or communication that Customer intended to give to Bank; or (b) may not have been given in accordance with Customer's authorization procedures. Except to the extent prevented by applicable law or regulation, Bank shall notify Customer if, under this Section 6.3, it does not act on a SWIFT Instruction. 6.4 Secure Communications Channel. 6.4.1 SWIFT offers SWIFT messaging services as a secure communications channel. SWIFT has established procedures and requirements for controlling access to SWIFT messaging services (each, an "Access Control") that may include, without limitation, access codes, message authentication codes, secure card readers, digital signatures, and hardware security modules. In addition, SWIFT authenticates certain messages based on SWIFT message type prior to accepting thein for routing as SWIFT Instructions (each, an "Authenticated Message"). This authentication may include confirming that the sender and recipient of the message have exchanged bilateral keys ("BICE"), entered into a relationship management application ("RMA") agreement, or taken other steps to secure the transmission of SWIFT Instructions between them as SWIFT requires from time to time (each, an "Authentication Procedure"). Collectively, the Access Controls and Authentication Procedures shall be referred to herein as the "SWIFT Security Procedures." 6 4.2 Bank and Customer rely on SWIFT's Access Controls and, in the case of an Authenticated Message, the Authentication Procedures, if any, that SWIFT requires to secure the transmission of Customer's SWIFT Instructions. Bank does not undertake and will have no obligation to Customer to separately authenticate any SWIFT Instruction that Bank receives in Customer's name or under Customer's BIC, whether or not Customer actually issued the SWIFT Instruction. Bank may, at Bank's sole election and option, contact Customer with respect to any SWIFT Instruction that Bank receives in Customer's name or under Customer's BIC, but Bank's election to contact Customer with respect to one or more SWIFT Instruction will not obligate Bank to contact Customer with respect to subsequent SWIFT Instructions that Bank receives in Customer's name or under Customer's BIC 11C# 4846-4388-3571 v.1 page 52 of 58 0716 P66 6.5 Customer Representations and Warranties. Customer represents and warrants with respect to itself and the Customer's BIC(s) identified by or through Customer in the Services' Setup Form(s) that it: • is registered with SWIFT as either a "Member Admimstered Closed User Group" and/or "Closed User Group" and/or "SCORE (Standardized Corporate Environment)" member; • is in compliance with applicable SWIFT Rules; • is not in violation of any federal, state or local laws with respect to the SWIFT Services; • is a duly incorporated and validly existing legal entity; • is in good standing financially and in compliance with all laws and regulations applicable to Customer; and • is subject to regular audits in accordance with intemationally recognized accounting standards by independent auditors. 6.6 Third -Party Service Providers; Third Partv-Service Provider Activities. 6.6.1 Customer may appoint a third party, whether a SWIFT registered user/member, SWIFT authorized service bureau or other third party, to send or receive SWIFT Instructions, perform other functions and/or otherwise act as Customer's agent for purposes of the SWIFT Services provided hereunder (a "Third -Party Service Provider"), as shall be set forth in the Services' Setup Form(s). In such event, Customer agrees that the Third -Party Service Provider shall have all the powers of Customer m relation to the SWIFT Services. Customer unconditionally authonzes Bank to deal directly with the Third -Party Service Provider in connection with all matters relating to the SWIFT Services, including, without limitation, the receiving and sending of SWIFT Instructions (including Payment Orders), and any testing to be completed with respect to the SWIFT Services. All SWIFT Instructions received by Bank from Third -Party Service Provider are hereby authorized by Customer. All acts and omissions of Third -Party Service Provider shall be the acts, omissions and responsibility of Customer and shall be governed by the provisions of this Appendix. For the avoidance of doubt, Customer shall ensure the Third -Party Service Provider complies with the relevant provisions of this Appendix. Notice of any termination of Third -Party Service Provider's authority to receive and send SWIFT Instructions to Bank on Customer's behalf shall be given to Bank in writing. The effective date of such termination shall be ten (10) Business Days after Bank receives written notice of such termination. Notwithstanding the foregoing, Customer agrees that Bank retains the right to reject any such Third -Party Service Provider and thus any associated SWIFT Instructions initiated by Customer's Third -Party Service Provider in Bank's sole discretion. 6.6.2 Subject to Bank's prior approval and in its sole and exclusive discretion, Customer may be pennitted to use the SWIFT Services provided hereunder on behalf of and in conjunction with Accounts that belong to Customer's clients, as well as on Customer's own behalf. Customer shall provide an appropriate letter of authority and/or execute any such other agreement(s) or documents as deemed necessary or appropriate by Bank pnor to the initiation or continuation by Customer of the SWIFT Services in the capacity of a third -party service provider. Customer agrees that Bank retains the right to reject any request by Customer to engage in such activities as well as any SWIFT Instructions by Customer in such capacity, in Bank's sole discretion. In the event Bank approves Customer's use of the SWIFT Services as a third - party service provider, then the following shall also apply: (a) Customer represents and warrants to Bank that each Customer client has given Customer authority to access and engage m SWIFT Instructions with respect to its Accounts through use of the SWIFT Services to the same extent as if Customer owned them, including in the capacity of a "third party service provider;" (b) each reference to "Customer" herem will be deemed to be a collective reference to Customer and each Customer client whose Accounts are included in Bank's implementation of Customer's set-up for the SWIFT Services; (c) all of the provisions set forth herein will apply to the Customer client's Account(s) as if Customer owned them; (d) each person who is authorized to act on Customer's behalf with respect to the SWIFT Services is also authorized to act on Customer's behalf to the same extent with respect to the Accounts of each Customer client whose Accounts are included in Bank's implementation of Customer's set-up for the SWIFT Services; and (e) Customer shall be liable for all monetary, confidentiality and other obligations to Bank hereunder as they relate to Customer's use of the SWIFT Services for itself as well as each such Customer client. Customer agrees to notify Bank immediately if Customer's authority with respect to Customer's client(s) is revoked or changed. 6.7 Customer Direction and Indemnity. 6 7.1 In the event that the BIC(s) identified by or through Customer in the Services' Setup Form(s) are owned by a parent company or other affiliate of Customer, or are owned by an unrelated third party and/or such third party is otherwise operating by agreement with Customer as Customer's Third -Party Service Provider for purposes of the SWIFT Services, Bank is prepared to act on a SWIFT Instruction from Customer's SWIFT BIC(s) only upon receipt of the indemnity provided in this Section 6. This indemnity shall be in addition to and not m lieu of an additional indemnity provided by Customer in the Cash Management Master Agreement. HCH 4846-4388.3571 v.1 page 53 of 58 0716 P67 6 7.2 Bank is authorized to accept and honor any files and/or SWIFT Instructions sent from any of Customer's SWIFT BIC(s) without making any inquiry as to the validity or sufficiency of the SWIFT Instructions and to consider the SWIFT Instructions of like force and effect as written orders made in accordance with the signing authorities held by Bank from time to time for the operation of Customer's Account(s) with Bank. 6.7.3 Without limiting the scope of Section 6.7.2, Bank is authorized to disclose information about Customer, its Accounts and banking relationship with Bank, including any changes to such information, in response to and as directed in the SWIFT Instructions as required to process the same. 6.7.4 Bank shall not be liable for any loss or damage incurred by Customer, or any third party arising from or in any way related to Bank acting upon or refusing to act upon any SWIFT Instructions from Customer's BIC(s), unless due to the gross negligence or willful misconduct of Bank. Notwithstanding the foregoing, in no event shall Bank be liable for any indirect, special or inconsequential damages incurred by Customer or any third party arising from or in any way related to Bank acting upon or refusing to act upon any SWIFT Instructions. 6 7.5 Customer hereby agrees to indemnify and hold Bank harmless from and against any losses, liabilities, claims, damages, fees, or expenses whatsoever that Bank may suffer, incur or be under or that may be brought against Bank, pursuant to, in connection with, or in any way related to Bank acting upon, delaying in acting upon or refusing to act upon any SWIFT Instructions from Customer's BIC(s). 6.8 Termination of SWIFT Services. In addition to but not in lieu of the provisions of the Cash Management Master Agreement, the SWIFT Services shall terminate automatically in the event that: either party loses user status as defined in the SWIFT General Terms and Conditions of the By- laws; SWIFT has ceased to provide, and not resumed providing, any of the SWIFT messaging services; SWIFT, in exercise of its rights under the SWIFT Rules, has required either party to temunate the SWIFT Services; or Bank has ceased to provide the Cash Management Services. 6.9 Suspension of SWIFT Services. In addition to but not in lieu of the provisions of the Cash Management Master Agreement, either party may suspend the use of the SWIFT Services for such period(s) as it considers appropriate in its absolute discretion by notice to the other party if: (a) suspension is necessary for the purposes of (routine or emergency) maintenance; (b) for security or technical reasons, including a suspension of the SWIFT messaging services by SWIFT, use of the SWIFT messaging services is impossible or cannot be achieved without unreasonable cost to Bank or Customer; (c) suspension is required by SWIFT or the SWIFT Rules; or (d) suspension is necessary to avoid or reduce any material damage or disadvantage to either party. 7. Security Procedures. 7.1 Customer agrees that the security procedures set forth or incorporated by reference in this Appendix (including without limitation the SWIFT Security Procedures), the Cash Management Master Agreement and/or associated documents provided by Bank, including without limitation the Services' Setup Form(s), are a commercially reasonable method of providing security against unauthorized access to or mterception of transmissions between Customer and Bank (hereinafter collectively the "Security Procedures"). Any transmission by Customer shall be deemed authorized if transmitted in accordance with the Security Procedures. Bank may, from time to time, modify the Security Procedures. Such modifications shall become effective upon receipt of notice by Customer or such later date as may be stated in the Bank's notice to Customer. If Customer fails to object to such change, it shall be deemed to agree to such change. 7.2 With respect to SWIFT in particular, Customer further acknowledges that the SWIFT Security Procedures are the only security procedures offered for SWIFT Instructions that Customer transmits through the SWIFT Services. Customer has solely determined that the SWIFT Security Procedures best meet Customer's requirements with regard to the size, type and frequency of the SWIFT Instructions issued by Customer to Bank using the SWIFT Services and that the SWIFT Security Procedures are a commercially reasonable method of providing security against unauthorized access to or interception of transmissions between Customer and Bank. Customer acknowledges that it is bound by the terms and conditions of each SWIFT Instruction, including any request to cancel or amend a SWIFT Instruction, whether or not authorized by Customer, that Bank receives in Customer's name or under Customer's BIC(s)through the SWIFT Services and in accordance with the SWIFT Security Procedures. 7.3 Nothing in this Appendix shall be deemed a representation or warranty by Bank that FTP, Secure Web, SFTP or SWIFT communications are secure. Rather, after review of the altematives, Customer has selected a communication method that it believes best suits its needs. 7.4 Bank and/or SWIFT (as applicable) may, from time to tune, propose different, additional or enhanced security procedures to Customer. Customer understands and agrees that if it declines to use any such enhanced procedures, it will be liable for any losses that would have been prevented by such procedures. Notwithstanding anything else contained in this Appendix, if Bank and/or SWIFT believes immediate action is required for the security of Bank, SWIFT or Customer funds or data, Bank and/or SWIFT may initiate additional security procedures immediately and provide prompt subsequent notice thereof to Customer. HC# 4846-4388-3572 ».1 Page 54 of 58 0716 P68 7.5 Customer hereby acknowledges that the Security Procedures are neither designed nor intended to detect errors in the content or verify the contents of a transmission between the parties. Accordingly, any errors contained in a transmission from Customer shall be Customer's responsibility Except as otherwise expressly provided in the parties' Cash Management Master Agreement or other Appendix between the parties, no security procedure for the detection of any such Customer error has been agreed upon between Bank and Customer. 7.6 Customer is stnctly responsible for establishing and maintaining procedures to safeguard against, detect and mitigate unauthorized access to or interception of transmissions. Customer covenants that no employee or other individual under Customer's control will be allowed to initiate transmissions in the absence of proper authority, supervision and safeguards, and agrees to take reasonable steps to maintain the confidentiality of the Security Procedures and any passwords, codes, security devices and related instructions provided by Bank in connection with any Security Procedure utilized by Bank, SWIFT and/or Customer. If Customer believes or suspects that any such password, code, security device, Security Procedure, information or instructions have been disclosed to or accessed by unauthorized persons, Customer agrees to notify Bank immediately followed by written confirmation as provided in the Services' Setup Form(s). 7.7 Customer shall retain data files for five (5) Business Days following the date of their transmittal by Customer as provided herein, and shall provide such data files to Bank upon request. 8. Effectiveness. Customer agrees to all the teens and conditions of this Appendix. The liability of Bank under this Appendix shall in all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to Data Transmission Services and shall remain in full force and effect until termination or such time as a different or amended Appendix is accepted in writing by Bank or the parties' Cash Management Master Agreement is terminated. Remainder of page intentionally left blank. HCH 4846-4388-3571 v.1 page SS of 58 0716 P69 Bank APPENDIX XXII TD ACH POSITIVE PAY SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all ID Automated Clearing House ("ACH") Positive Pay Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master Agreement or the NACHA Rules (as defined below). Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. TERMS AND CONDITIONS 1. Definitions. "Authorized Account" means the Account(s) of Customer, maintained at Bank, to which the Services will apply `ACH Entry' means an order or request for the transfer of money to an Authorized Account (a "Debit Entry"), and/or an order or request for the withdrawal of money from an Authorized Account (a "Credit Entry"). "ACH Authorizations" means Customer's written instructions and authonzation criteria provided to Bank in conjunction with the set-up and implementation of the Services, including via a separate ACH block and filter agreement with Bank (hereinafter the "Filter Agreement"), and/or otherwise in accordance with the Services as described in this Appendix, which either prohibits all ACH Entries or permits only the posting of specified ACH Entries to an Authorized Account. "Exception Entry" means an ACH Entry (excluding an ARC, BOC, POP, RCK, or XCK SEC Codes) that does not meet Customer's ACH Authorizations previously provided to Bank (and is referred to within the Services as a "Rejected" Entry), and that is therefore scheduled to be returned to the Originator of the ACH Entry. "NACHA Rules" means the National Automated Clearing House Association's ("NACHA") Operating Rules and Operating Guidelines, which govern the ACH system. "Pay Decision(s)" means Customer's instruction to Bank to pay/post an Exception Entry "Return Decision(s)" means Customer's confirmation instruction to Bank to not pay/post an Exception Entry but to instead return the ACH Entry to the Originator. "Return Default Disposition" means the automatic default disposition of all ACH Entnes that do not meet Customer's ACH Authorizations, whereby all such ACH Entries are scheduled to be returned to the Originator of the ACH Entry. 2. Services. 2.1 Description. 2.1 1 The Services described in this Appendix will provide Customer with a means to review ACH Entnes received on a particular Customer Account that are scheduled to be returned to the Originator as an Exception Entry in accordance with Customer's ACH Authorizations and to confirm the return of the Exception Entry through a Return Decision, or to override the Return Default Disposition and instruct Bank to pay/post the Exception Entry to Customer's Account through a Pay Decision. 2.1.2 Customer acknowledges that the Services have been identified by Bank as a service that can reduce the risk of fraudulent ACH Entries being posted against Customer's Account(s) when such Services are adopted and properly utilized by Customer. By conforming to the terms and conditions of this Appendix, Customer acknowledges and agrees that it may significantly reduce the chance that fraudulent ACH Entries will post to Customer's Account(s) by electronically matching incoming ACH transactions to ACH Authorizations. 2.2 Customer Authorizations. 2.2.1 Customer will designate Authorized Account(s) to be used with the Services via the Services' Setup Form. 2.2.2 As applicable, Customer shall begin the Services with either (a) any ACH Authorizations initially submitted by Customer to Bank and then established by Bank on Customer's behalf in conjunction with the set-up and implementation of the Services, or (b) any existing ACH Authonzations on Customer's Authorized Account(s) that have been established via a Filter Agreement. Customer may add to or modify those initial or existing ACH Authorizations from time to time as set forth herein. Customer shall be responsible for the accuracy and completeness of all information provided to H044841-7018-3187 56 of 58 0315 P70 Bank both through the use of the Services and via the Services' Setup Form. 2.2.3 Customer may submit additional ACH Authorizations, make changes to initial or existing ACH Authorizations, or delete initial or existing ACH Authorizations related to the Authorized Account(s) online via the Services. Such changes shall become effective on the next Business Day following the day on which the changes were made by Customer. Each Business Day, Bank will provide an updated list of successfully processed ACH Authorizations to Customer via the Services. Inthe event Customer submits a change or addition to the ACH Authorizations that is incomplete, contains an error or that cannot otherwise be processed by Bank, Bank will use commercially reasonable efforts to notify Customer on the next Business Day that the associated ACH Authorization(s) has been rejected. Until such time as Customer reviews and corrects it, the rejected ACH Authorization(s) will not appear on the updated list of successfully processed ACH Authorizations that Customer receives. 2.2.4 Should Customer fail to fully and accurately populate or complete all requested fields associated with the ACH Authorizations, the following will also apply: (a) If Customer does specified maximum dollar amount, then dollar amount shall apply with respect to ACH Entry(ies) or transaction subject Authorization(s). not insert a no maximum the applicable to the ACH (b) If Customer does not insert a specified expiration date, then no expiration date shall apply to the applicable ACH Entry(ies) or transaction subject to the ACH Authorization(s). 2.3 Processing of ACH Entries and Reporting of Exception Entries. Bank shall electronically compare each ACH Entry presented to Bank for settlement against Customer's Authorized Account(s) on a Business Day (including those presented by other depository institutions, ACH Operators or by Bank) with Customer's ACH Authorizations. On each Business Day, Bank: (a) will allow incoming ACH Entries that match Customer's ACH Authorizations to post to Customer's Authorized Account(s); and (b) will treat as Exception Entries all incoming ACH Entries that do match Customer's ACH Authorizations and will provide to Customer, through the Bank Internet System, a listing of all Exception Entnes that are otherwise scheduled for Return Default Disposition. Customer must monitor, review and issue a Post Decision or Return Decision on each Exception Entry reported through the Bank Internet System by the pre -established deadline set forth within the Services. Customer may also set up alerts to be sent to Customer by a pre -established time each Business Day advising Customer whether or not there are any Exception Entnes to be reviewed that Business Day. 2.4 Entries. Payment and Dishonor of Exception 2.4.1 Customer may choose to confirm the Return Default Disposition of individual Exception Entries presented via the Services by providing a Return Decision to Bank by the pre -established deadline set forth within the Services, in which case such Exception Entries will be automatically returned to the Originator. 2.4.2 Customer may choose to override the Return Default Disposition of individual Exception Entries presented via the Services by providing a Pay Decision to Bank by the pre -established deadline set forth within the Services, in which case such Exception Entrees will be paid/posted to Customer's Authonzed Account(s) at the end of the current Business Day. 2.4.3 Customer may choose not to or may otherwise fail to review and provide a Post Decision or a Return Decision for any Exception Entries by the pre- established deadline, in which case the Return Default Disposition will apply and all such Exception Entries will be automatically returned to the Originator. 2.8 Customer Communications. and Bank 2.8.1 Customer shall use the Services' module of the Bank Internet System to report all Pay Decisions or Return Decisions. Bank shall not be obligated to comply with any Pay Decision or Retum Decision received in a format or medium, after a pre- established deadline, or at a place not permitted under this Appendix or the Services' Setup Form(s), and may instead treat any such Pay Decision as a Return Decision or otherwise apply the Return Default Disposition to such Pay Decision. 2.8.2 Bank is not responsible for detecting any Customer error contained in any ACH Entries presented, decisioned, returned or processed, or in any Pay Decision or Return Decision by Customer. 2.8.3 In the event that Bank is unable to provide Customer with a listing of Exception Entries through the Bank Internet System for Customer's Pay Decision or Return Decision as described in Section 2.3, the Return Default Disposition shall apply in accordance with Customer's previously established ACH Authorizations. 2.8.4 Bank shall be bound only to exercise ordinary care in attempting to post or return ACH Entries as described in this Appendix. 3. Remedies. 3.1 Bank Liability. To the extent pemiitted by applicable law, the liability of Bank under this Appendix shall in all cases be subject to the provisions of the parties' Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. IIC# 4841-7018-3187 57 of 58 0315 P71 3.2 Wrongful Payment/Posting. It shall constitute wrongful payment/posting by Bank if Bank pays/posts an Exception Entry for which Customer has provided a Return Decision by the pre -established deadline set forth within the Services. In the event that there is wrongful payment/posting, Bank shall be liable to Customer for the lesser of the amount of the wrongfully paid/posted Exception Entry or Customer's actual damages resulting from Bank's posting of the Exception Entry, subject to the terms of the parties' Cash Management Master Agreement. 3.3 Rightful Payment and Return. 3.3.1 If Bank honors an Exception Entry in accordance with a Pay Decision by Customer as described in Section 2.4.2, such payment/posting shall be rightful, and Customer waives any right it may have to assert otherwise. 3.3.2 If Bank returns an Exception Entry in accordance with a Return Decision by Customer as described in Section 2.4 1, or otherwise pursuant to a Return Default Disposition as described in this Appendix, the return shall be rightful, and Customer waives any right it may have to assert otherwise. 3.3.3 Customer agrees that Bank exercises ordinary care whenever it rightfully pays/posts or returns an Exception Entry consistent with the provisions of this Appendix. 4. Other Terms of the Services. 41 Customer acknowledges that the Services do not preclude Bank's standard ACH processing procedures, which may cause an ACH •Entry to be dishonored even if Customer's instructions do not otherwise require Bank to return such ACH Entry. 4.2 Customer acknowledges that the Services do not apply to transactions between Customer and Bank, including any Bank affiliates and subsidiaries, such as loan or credit card payments ("Bank -Related Entries"). Bank is permitted to pay Bank -Related Entries whether or not Customer has included these in Customer's ACH Authorizations as reflected rn this Appendix and until such time as Customer's authonzation with respect to the underlying Bank -Related Entries is revoked or otherwise terminated. 4.3 Customer acknowledges that the Services are intended to be used to identify and return ACH Entries which Customer suspects in good faith are fraudulent or otherwise unwarranted. The Services are NOT intended to be a substitute for authorization instructions or to delay Customer's decision on ACH Entries, including but not limited to stop payment orders on ACH Entries which are not suspected in good faith to be unauthorized. If Bank suspects or deems, in Bank's sole discretion, that Customer is using the Services contrary to those intentions, Bank may require Customer to provide evidence that ACH Entries that Bank returns pursuant to Customer's instructions were in fact unauthorized. In addition, Bank may hold Customer liable for losses that Bank sustains on ACH Entries which Bank is requested to return under the Services and which Customer does not reasonably establish as unauthorized ACH Entries, including as under the NACHA Rules. 5. Governing Law. Any claim, controversy or dispute arising under or related to this Appendix shall be governed by and interpreted in accordance with the governing law provision of the parties' Cash Management Master Agreement. 6. Effectiveness. 6.1 Customer agrees to all the terms and conditions of this Appendix. The liability of Bank under this Appendix shall rn all cases be subject to the provisions of the Cash Management Master Agreement, including, without limitation, any provisions thereof that exclude or limit warranties made by, damages payable by or remedies available from Bank. This Appendix replaces and supersedes all prior agreements on file with respect to the Services, except for any existing ACH Authonzatrons currently on record with regard to the Authorized Account(s) as of the date of this Appendix. 6.2 This Appendix and the associated Services shall remain in full force and effect until such time as the Appendix or the Services are terminated, or a different or amended Appendix is implemented by Bank. This Appendix and the associated Services shall automatically terminate in the event the underlying Authorized Account(s) are closed or Customer's ACH Authorizations are otherwise terminated. In the event of termination of this Appendix and the associated Services, Customer's ACH Authorizations in effect as of the date of termination will remain in effect with respect to Customer's Authorized Accounts, and all ACH Entries will thereafter be processed in accordance with such ACH Authorizations. Also, upon termination of the Services, all sums owed to Bank hereunder shall be immediately due and payable. NCH 4841-7018-3187 58 of 58 0315 P72 TD COMMERCIAL PLUS CARD Master Agreement This TD Bank Commercial Plus Card Master Agreement (the "Agreement") is entered into as of , 2016, between INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS(the "Company"), a Florida corporation, with its main office in Vero Beach, Florida and TD BANK, N.A. ("TD"), a national banking association, with its main office in Wilmington, Delaware. RECITALS WHEREAS, TD is a member and licensee of Visa U.S.A., Inc. ("Visa") and as such is authorized to issue Visa® charge cards bearing Visa logos and service marks, to open Visa accounts, to offer Visa services and benefits as they may be made available, and to process transactions on Visa networks; and WHEREAS, TD has developed a commercial card system composed of Visa charge cards, card controls, transaction processing, and select reports to enable a business concern to facilitate, expedite and monitor the purchase of, and payment for, goods and services acquired for the legitimate business benefit of the business concern (the "Program"); and WHEREAS, the Company desires to participate in the Program, subject to the terms of this Agreement; NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements, provisions, and covenants contained in this Agreement, the parties agree as follows: SECTION 1 DEFINITIONS 1.1 DEFINITIONS. Certain terms used in this Agreement, unless the context requires otherwise, shall have the following meanings. "Account" means the Visa account of a Cardholder and/or the Company maintained with TD. "Billing Cycle" means a monthly period that ends on the same day each calendar month, unless such day is not a, Business Day, in which case, the last day of such period shall be the Business Day immediately before or after such day. "Business Day" means a day, other than a Saturday or a Sunday, on which commercial banks generally are open for business in Delaware. "Card" means a tangible Visa charge card ("Tangible Card") issued by TD pursuant to this Agreement or a virtual Visa charge card number ("Virtual Card") created by TD pursuant to this Agreement, as appropriate. "Card Cancellation Confirmation" means a written statement executed by a Program Administrator, as defined in Section 2.6(b), in form and substance satisfactory to TD, identifying certain Cards by Account numbers and Cardholder names and confirming (i) that the Company has retrieved and destroyed such Cards, or (ii) that the Company used reasonable efforts to retrieve such Cards but was unable to do so. ID Hank Internal "Cardholder" means an individual in whose name a Card is issued or any other employee, officer or director of, or other individual designated by, the Company as being expressly authorized to use a Card or Account. "Cardholder Agreement" means an agreement between TD and a Cardholder governing the use of a Card or Account, as amended from time to time. "Restricted Transaction" means a restricted transaction as defined in the Unlawful Internet Gambling Enforcement Act of 2006 and Federal Reserve Board Regulation GG (12 C.F.R. Part 233) and includes, without limitation, those in which credit, electronic fund transfers, checks, or drafts are accepted by gambling businesses in connection with the participation by others in unlawful Internet gambling. "Straight Through Processing" means the processing of a Transaction on Visa networks, without the use of a Tangible Card or Virtual Card, using an Account number, whereby the purchase results in a direct credit to the seller's merchant bank account. "Transaction" means a purchase that results in a debit to an Account. "Unauthorized Transaction" means any Transaction by a person, other than the Cardholder to whom the relevant Card, if any, was issued, who was not authorized to use such Card or Account by either such Cardholder or the 09/15 P73 Company and from which Transaction neither the Cardholder nor the Company receives any direct or indirect benefit. SECTION 2 CARD ISSUANCE 2.1 PROGRAM PARTICIPATION. Subject to the terms of this Agreement, TD shall issue Cards to, and/or establish Accounts for, the Company with such capabilities and with such processing of Transactions as may be offered by TD and selected by the Company. Tangible Cards shall be issued for a period of three (3) years. The Company and Cardholders shall use the Cards and Accounts for the business or commercial purposes of the Company only and not for personal, family, or household purposes or for the purpose of purchasing or carrying margin stock or margin securities within the meaning of Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224. The Company shall instruct all Cardholders to use the Cards and Accounts strictly for the business or commercial purposes of the Company. 2.2 EMBOSSING; LICENSE TO USE MARKS. If requested, TD shall prepare Cards bearing the Cardholder's name and, if the Company so elects, the Company's name, trademark, or logo (the "Marks"), in a form supplied by the Company and conforming to 'ID and Visa guidelines. If the Company elects to have its Marks embossed on the Cards, or provides them to TD for other purposes, then by doing so the Company grants TD a non-exclusive limited license to apply the Marks to the Cards or to use them for the purposes for which they were provided, so long as they are used solely in connection with the Program. 2.3 CARD DELIVERY. TD may deliver Cards and related Program materials to the Company or directly to the relevant Cardholders. Upon its receipt of any Card, the Company shall promptly deliver such Card to the Cardholder named thereon together with any related Program materials supplied by TD. From time to time during the term of this Agreement, TD may require the Company to follow certain security procedures regarding the custody and handling of Cards. The Company agrees to comply with all such security procedures. 2.4 CREDIT LIMITS; CHANGES AT THE DISCRETION OF TD. (a) Subject to the terms of this Agreement and the Cardholder Agreements, TD shall authorize extensions of credit with respect to (a) each Card or Account up to a specified total dollar amount (the "Account Credit Limit") set by the Company, and (b) all Cards and Accounts up to a specified total dollar amount (the "Aggregate Credit Limit") set by TD from time to time. In no event shall TD be obligated to grant credit in excess of any applicable credit limit. TD may at any time investigate the financial condition of the Company, in connection with the issuance of Cards, maintenance of Accounts, and establishment of credit limits, or as otherwise provided in this Agreement. (b) In its sole discretion, TD may decline to issue or establish any Card or Account for any Cardholder. In addition, TD at any time may cancel or suspend the right of any Cardholder to use any Card or Account. As a result of its investigation of the Company's financial condition, TD may increase or decrease any Account Credit Limit, increase or decrease the Aggregate Credit Limit, modify the time for payment of any amount due under this Agreement, or require collateral or additional collateral and the execution of a security agreement in the form provided by TD. In addition, TD may suspend the rights of all Cardholders to use any Cards or Accounts in the event of excessive disputes, or in the event of excessive loss, theft or unauthorized use of Cards or Accounts, as determined by TD in its sole discretion. All such actions may be taken without notice except to the extent that notice is available through the proprietary system provided by TD for use under this Agreement ("TD Commercial Plus Card Online") or as otherwise required by applicable law. 2.5 ISSUANCE, RENEWAL, REPLACEMENT AND CANCELLATION OF CARDS AND LIABILITY FOR UNAUTHORIZED USE. (a) Promptly following its execution of this Agreement, the Company will provide to TD an initial request (a "Card Request") either electronically, using TD Commercial Plus Card Online, or in writing, using a form provided by TD. Such Card Request shall include the names, titles, business addresses, phone numbers, birth dates and last four digits of Social Security numbers of at least ten Cardholders to whom or for whom the Company wishes TD to issue a Tangible Card and/or establish an Account. The Company may, from time to time, submit additional Card Requests either electronically, using TD Commercial Plus Card Online, or in writing, using a form provided by TD. The Company agrees not to submit, without the prior written consent of TD, a Card Request with respect to any person whose Card or Account privileges have previously been cancelled. (b) Each Card Request must be submitted by a person identified by Company as a "Program Administrator" as that term is defined in Section 2.6(b) of this Agreement. TD shall incur no liability to the Company in acting upon any Card Request which it believes in good faith to have been made by a Program Administrator. (c) Where emergency issuance of a Card is requested, TD may fulfill such request at an additional charge as determined by TD from time to time. The current charge in effect as of the date of this Agreement is set forth in a separate rebate schedule provided to Company by TD (the "Rebate Schedule"). If affected through Visa, the Company shall pay I'D Bank 06/15 Internal P74 any fees charged by Visa for emergency card issuance oil replacement. The billing for such charge shall occur in the next billing statement for the relevant Account. Unless TD1 receives contrary written instructions from the Company, and: subject to TD's rights hereunder, TD shall replace each` expiring Card with a replacement Card at least 30 days prior to' the Card's expiration date. (d) Each Cardholder shall be required to sign the Card issued to such Cardholder promptly and shall be subject to the terms of the Cardholder Agreement, if any. (e) The Company shall promptly request that a, Card or Account be cancelled, or that the authority of anyi Cardholder to use a particular Card or Account be terminated, as the case may be, if the Company or a Cardholder knows of or suspects the loss, theft or possible unauthorized use of a Card or Account. Such request shall be made by telephone at 1-877-839-6911 or such other number as TD may provide, and shall specify (i) the relevant Cardholder's name, Account number and last }Drown home and business address, ands (ii) such other information as the Company shall deem appropriate or TD shall reasonably request. The Company's request shall be deemed effective when TD receives such request and makes the corresponding changes in its processing system (which changes shall be made promptly, taking into account the mode of transmission and time of receipt). (f) The Company shall also promptly request that a Card or Account be cancelled, or that the authority of any Cardholder to use a particular Card or Account be terminated if (i) the Company wishes to cancel a Card or Account or to terminate the authority of any Cardholder to use any particular Card or Account; or (ii) the Cardholder's employment or other relationship with the Company is terminated. Such requests shall be made in accordance with Section 2.5(e). (g) Notwithstanding any request made by the Company for cancellation of a Card or Account, or for termination of the authority of any Cardholder to use any particular Card or Account, the Company shall be liable for any and all Transactions resulting from the use of the Card or Account prior to and (with respect to pending Transaction authorizations) on or after the effective time of such request (as provided in Sections 2.5(e) and (1), above), including any and all Unauthorized Transactions. , The Company shall not be liable for Unauthorized Transactions which are authorized after TD receives notice as provided in accordance with Sections 2.5(e) and (f) above, and TD has had a reasonable opportunity to act on such notice; provided, however, that the notice relates to the Card or Account used in connection with such Unauthorized Transactions. TD Bank Internal 2.6 TRANSACTION DATA, SECURITY PROCEDURES, PROCESSING PROCEDURES AND ACCOUNT MAINTENANCE. (a) TD shall provide the Company with user identification code and password -protected daily access to Card and Account transaction data and other reports. Such reporting shall be provided in accordance with such manuals, training materials and other information as TD shall provide from time to time. (b) In order to use TD Commercial Plus Card Online and/or the Virtual Card and Straight Through Processing systems made available by TD, the Company agrees to be bound by and to adhere to the following security procedures, terms, and conditions (the "Security Procedures"), which TD may revise from time to time upon notice to the Company: (i) TD Commercial Plus Card Online and Virtual Card and Straight Through Processing systems may be accessed solely through the use of user identification codes and passwords (collectively, the "Access Code"). TD shall assign an initial Access Code to an individual authorized to create and disseminate additional Access Codes (such individual is referred to as the "Program Administrator"). (ii) The Program Administrator shall assign Access Codes to users designated by the Company as authorized to (1) access and use the Service; (2) create and disseminate Access Codes to individuals who are authorized to use TD Commercial Plus Card Online (such individuals are referred to as "Authorized Users") and (3) designate additional Program Administrators within the Company. The Company shall be responsible for ensuring that each Program Administrator creates and disseminates Access Codes in accordance with TD's Security Procedures. (iii) The Company shall safeguard all Access Codes and be responsible for all use of Access Codes issued by the Program Administrator. TD may conclusively presume that all business conducted using an Access Code emanates from a Program Administrator or Authorized User and is conducted in the Company's name. Any unauthorized use of an Access Code (except for unauthorized use by a TD employee) shall be solely the responsibility of the Company. (c) In order to use TD Commercial Plus Card Online and/or the Virtual Card and Straight Through Processing systems made available by TD, the Company agrees to be bound by and to adhere to such processing procedures, terms, and conditions (the "Processing 06/15 P75 Procedures) as TD shall establish from time to time upon notice to the Company. (d) TD shall provide such assistance and training to the Company as it reasonably deems necessary to enable the Company to transmit its initial Card Requests through TD Commercial Plus Card Online and/or to initiate Card Transactions through the Virtual Card or Straight Through Processing systems made available by TD. Thereafter, the Company may from time to time, in accordance with this, Agreement, and in strict compliance with the Processing Procedures and Security Procedures, initiate Card Transactions through the Virtual Card or Straight Through Processing systems made available by TD and/or use TD Commercial Plus Card Online to make additional Card Requests and to perform certain Account maintenance functions, including, without limitation, adjustment of Account Credit Limits, blocking of Visa Merchant Category Codes ("MCCs"), and cancellations or terminations of Cards' or Accounts if the Cardholder's employment or relationship with the Company is terminated or for any reason other than loss, theft, or possible unauthorized use. SECTION 3 CARD AND ACCOUNT USE 3.1 PURCHASES. Cardholders may use Cards and Accounts to purchase, in the normal course of business, goods and services in accordance with the MCCs selected or blocked at the Company's request and in accordance with any transactional limits established by the Company. TD shall use reasonable efforts to deny a request for any purchase' authorization that falls outside such parameters or for any purchase authorization it believes is an Unauthorized Transaction, provided Transaction authorization is required. The parties acknowledge, however, that authorizations and declinations are necessarily based on the accuracy of the' Transaction data transmitted to TD. Under no circumstances shall TD be liable to the Cardholder or the Company (nor shall the Company be relieved of its obligation to pay the amounts charged or advanced) in the event any such Transactions are permitted on the basis of inaccurate or misleading data or other factors beyond the reasonable control of TD. 3.2 USE OF CARDS. Each Transaction is subject to the terms and conditions of this Agreement and to the terms and conditions of the Cardholder Agreement, if any, in effect at the time of the Transaction. TD shall have no obligation or responsibility to the Company or to any Cardholder in the event that any merchant, entity or person refuses to honor a Card or Account. A Card or Account may be used only by the Cardholder to whom it is issued or who is authorized to use it, as the case may be, and may not be transferred to another Cardholder or any other person or entity, and any such attempted transfer shall automatically be void. Without limiting any other rights of TD hereunder or under applicable law, TD may refuse to authorize any Transaction in the event that: (a) any balance owed by the Company in respect of the Account to which such Transaction relates or any balance owed by the Company on any Account, is past due; (b) the amount of the Transaction plus the outstanding balance (including Transactions authorized but not yet posted) of all Accounts would exceed the Aggregate Credit Limit; (c) the amount of the Transaction plus the outstanding balance (including Transactions authorized but not yet posted) of the relevant Account would exceed the Account Credit Limit for such Account; or (d) any other reason exists for declining a Transaction as set forth in this Agreement, in the Cardholder Agreement, if any, in the operating regulations of Visa, or under applicable law. 3.3 ADDITIONAL DUTIES OF THE COMPANY. The Company shall: (a) make sure that there are at least ten Cardholders at all times, if the Company elects to use Tangible Cards; (b) not exceed or permit Cardholders to exceed their respective Account Credit Limits or the Aggregate Credit Limit; (c) make all reasonable attempts to ensure that each Cardholder complies with the terms of the Cardholder Agreement; (d) promptly advise Cardholders of any changes made to their Account Credit Limits, whether made by the Company or by TD; (e) not impose any liability on any Cardholder for an Unauthorized Transaction on any Card or Account in excess of the amount permitted under Regulation Z of the Consumer Financial Protection Bureau, 12 C.F.R. Part 1026, as amended; and (f) return to TD, and/or provide a Card Cancellation Confirmation with respect to, any Card and related Program Materials, promptly following any request for cancellation of such Card, and all Cards and related Program materials, promptly following the expiration or termination of this Agreement. 3.4 EXPENSE REPORTING; DISCLOSURE OF ACCOUNT INFORMATION. The Company may from time to time, by written instruction in form and substance satisfactory to TD, direct TD to furnish specific Transaction data to third parties that provide expense reporting products or services to the Company. Solely for the purpose of facilitating the Company's expense reporting objectives, TD shall transmit to such third parties the Transaction data identified in such instructions. TD Bank 06/15 Internal P76 3.5 COMPANY OBLIGATIONS RELATING TO DISCLOSURE OF ACCOUNT INFORMATION AND INTERNATIONAL PROGRAMS. The Company shall clearly disclose to each of its Cardholders the extent, if any, to which TD will provide Transaction and Account information to third parties pursuant to Section 3.4 above or to an alliance bank through an international card program. Furthermore, the Company agrees not to submit a Card Request for any individual residing outside the United States without first obtaining approval from TD. 3.6 UNLAWFUL INTERNET GAMBLING. Restricted Transactions are prohibited from being processed through any Account or relationship with TD. In the event TD identifies a suspected Restricted Transaction, TD may deny services to the Company, close the Company's Account, and prohibit future transactions. Notwithstanding the foregoing, in the event a Restricted Transaction is processed, the Company will be liable for the transaction. SECTION 4 LIABILITY FOR USE 4.1 PROMISE TO PAY. (a) Unless prohibited by applicable law, or otherwise provided in accordance with any liability waiver program provided by Visa (the "Visa Liability Waiver Program"), the Company shall be liable for all Transactions that result from the Use of any Card or Account prior to and (with respect to pending Transaction authorizations) on or after the effective time of a request for caneellation or termination of a Card or Account (as provided in Sections 2.5(e) and (1) above), including but not limited to (i) Transactions by a Cardholder for business or commercial purposes of the Company in compliance with this Agreement, (ii) Transactions by a Cardholder, or a person authorized by a Cardholder, for personal family or household purposes, for the purpose of purchasing or carrying, margin stock or securities, or for any other purpose, in violation of this Agreement, from which the Cardholder receives a direct or indirect benefit, and (iii) all Unauthorized Transactions resulting from the use of the Card or Account prior to (and with respect to pending Transaction authorizations) on or after the effective time of a request for cancellation or termination of a Card or Account (as provided in Sections 2.5(e) and (f) above). The Company shall not be liable for Unauthorized Transactions which are authorized after TD receives notice as provided in accordance with Sections 2.5(e) and (f) above, and TD has had a reasonable opportunity to act on such notice; provided, however, that the notice relates to the Card or Account used in connection with such Unauthorized Transactions. (b) Regardless of any Account Credit Limits or the Aggregate Credit Limit, the Company agrees to pay and perform when due all of its obligations under this Agreement ("Obligations"), including without limitation: (i) with respect to all Accounts, the indebtedness, obligations and liabilities arising under such Accounts, including, without limitation, all fees, finance charges and other amounts payable under or in connection with each such Account; and (ii) any and all costs (including, but not limited to, reasonable attorneys' fees and disbursements, court costs, litigation and other expenses) incurred in enforcing the obligations of the Company hereunder. (c) The Company's Obligations shall be enforceable irrespective of the validity, legality or enforceability of the Cardholders' obligations and shall not in any way be affected by or conditional upon (i) any action taken under the Cardholder Agreements or the exercise of any right or power thereby conferred, (ii) the bankruptcy or similar proceedings involving or affecting a Cardholder, the Company or others, (iii) any modification, alteration, or amendment of, or addition to, any Cardholder Agreement whether with or without the Company's knowledge or consent, or (iv) any other action, inaction or circumstance whatsoever (with or without notice to or knowledge of or consent by the Company) that may in any manner vary the risks of the Company, except to the extent that notice and/or consent may be required by applicable law. The Company hereby waives all defenses based on occurrences of the types described in clauses (i) through (iv) above. (d) Except as expressly set forth herein, the Company hereby waives all presentments; demands for performance or payment; protests; notices of protest, nonperformance, dishonor, default and non-payment; notices of the existence, creation or occurrence of new or additional obligations by the Cardholders; and all other notices or formalities. (e) All amounts due under the Cards and Accounts shall be billed directly to the Company via periodic statements and shall be payable in full upon receipt by the Company. Such statements may, at TD's option, be sent by mail or made available electronically via TD Commercial Plus Card Online, the Internet, or other means. The Company shall remit payment to TD under the terms described herein. (f) All payments hereunder shall be made in U.S. dollars and by ACH debit from an account designated by the Company. In the event that there are insufficient funds in that account, the Company hereby authorizes TD to charge any unrestricted deposit account which the Company may maintain with TD for any payment required hereunder, without prior notice to the Company. TD Bank 06/15 Internal P77 {g) All charges will be posted to Accounts in U.S. dollars. If a Card or Account is used for a transaction in a currency other than U.S. dollars, the transaction will be converted to U.S. dollars, generally using either a (i) government -mandated rate or (ii) wholesale market rate in effect the day before the transaction processing date, increased by one percent (1%). If the credit has a different processing date then the exchange rate of the credit can be greater/less than that of the original transaction. The currency conversion rate on the day before the transaction processing date may differ from the rate in effect at the time of the transaction or on the date the transaction is posted on the Account. 4.2 DISPUTED AMOUNTS. (a) The Company and its Cardholders shall use their best efforts to resolve all business -to -business purchase disputes directly with the relevant merchants, including, without limitation, any disputes relating to price discrepancies or to quality, warranty, or performance issues. (b) The Company may dispute an amount reflected on a billing statement only if (i) the amount does not reflect the actual amount of the Transaction; (ii) the Transaction did not result from the use of the relevant Card or Account; or (iii) the amount being disputed is a fee that is not properly accrued under this Agreement. Unless otherwise provided in the Visa Liability Waiver Program, or any successor program established by Visa, the Company may not dispute an amount reflected on a billing statement on the grounds that the Transaction is an Unauthorized Transaction (other than an Unauthorized Transaction which is authorized after TD receives notice as provided in accordance with Sections 2.5(e) and (1) above, and TD has had a reasonable opportunity to act on such notice; provided, however, that the notice relates to the Card or Account used in connection with such Unauthorized Transactions), or on the grounds that the Transaction resulted from a Cardholder, or a person authorized by a Cardholder, using a Card or Account for personal, family or household purposes, for the purpose of carrying margin stock or securities, or otherwise in violation of this Agreement, as the result of which the Cardholder received a direct or indirect benefit. (c) In addition, the Company may not dispute an amount reflected on a billing statement unless the Company sends a written notice of the dispute that (i) is received by TD at the address for such notices specified by TD no later than 60 days after TD transmitted the first billing statement that reflected the alleged error, (ii) enables TD to identify the Cardholder's name and Account number, and (iii) to the extent possible, indicates the Company's belief and the reasons for the belief that an error exists, and the type, date and amount of the error. TD shall promptly investigate the dispute. If TD determines that the amount is properly payable, the Company will remit such amount to TD on the Company's receipt of its next billing statement. Fees and finance charges will not accrue with respect to the disputed amount pending resolution of the dispute. (d) The Company may not withhold payment of any amount due for any goods or services purchased using a Card or Account on the ground that it has a dispute with the merchant as to quality, warranty, or performance issues, even if it has tried in good faith to resolve the dispute with the merchant, even if the merchant is owned or operated by TD, and even if TD mailed or electronically transmitted to the Company the advertisement for the goods or services. 4.3 CHARGEBACKS. If the Company reasonably believes that any Transaction, including any Unauthorized Transaction, has been posted to an Account as a result of fraud, unauthorized use, or any other circumstance under which the merchant may be held liable under applicable Visa rules, the Company shall so notify TD in writing. TD shall attempt to charge the Transaction back to the merchant in accordance with Visa procedures. Any accepted chargeback will be credited to the Company's or Cardholder's next billing statement. Unless otherwise provided in the Visa Liability Waiver Program, or any successor program established by Visa, the Company shall not be relieved of liability for the Transaction if the chargeback is rejected in accordance with Visa rules. If the chargeback is rejected in accordance with Visa rules, the Company will remit such amount to TD on the Company's receipt of its next billing statement. Fees and finance charges will accrue with respect to the Transaction pending resolution of the chargeback but will be assessed only if the chargeback is rejected. SECTION 5 PROGRAM FEES, TERM AND TERMINATION, DEFAULT, REMEDIES AND DAMAGES 5.1 FEES AND PERIODIC FINANCE CHARGES. (a) Fees: The Company agrees to pay to TD the fees described in the Rebate Schedule. Such fees will be included in the Company billing statement for the Billing Cycle in which they accrue. Fees not listed in the Rebate Schedule but agreed by the Company may be invoiced separately and each such invoice shall be payable upon receipt. If the Rebate Schedule includes Annual Membership Fees, these fees are earned when assessed, are non-refundable, and are not subject to any pro rata rebate if the Account is terminated prior to expiration of the period for which the fees were assessed. (b) Periodic Finance Charges: The Company agrees to pay to TD Periodic Finance Charges as described in TD Bank 06/15 Internal P78 this section 5.1(b). Such finance charges will be included in the Company billing statement for the Billing Cycle in which they accrue. If the "New Balance" of an Account is not paid on the payment due date, a Periodic Finance Charge will begin to accrue on each Transaction in the Account from the date of the Transaction and will continue to accrue to the date of full payment. TD will figure the Periodic Finance Charges on each Account by applying a Monthly Periodic Rate to the Average Daily Balance for the Account, including current purchases, unpaid finance charges, and any other unpaid fees or charges. TD will calculate the Monthly Periodic Rate by dividing the Annual Percentage Rate ("APR") by twelve (12). The APR is set forth in the "Applicable/Potential Fees" section of the Rebate Schedule, under the heading "Finance Charge." To get the Average Daily Balance, each day TD takes the beginning balance of an Account, adds any new purchases, and subtracts applicable credits and payments. This gives the daily balance. Then, TD adds all the daily balances for the Billing Cycle and divides the total by the number of days in the Billing Cycle. This gives the Average Daily Balance, including new purchases, unpaid finance charges, and any other unpaid fees or charges. If the Previous Balance of a current Billing Cycle is either a zero or a credit balance, then the Average Daily Balance will be considered to be zero. 5.2 TERM. This Agreement shall have an initial term (the "Initial Term") of three years commencing on the date hereof and shall be renewed automatically for successive two-year terms (each a "Renewal Term") unless written notice of termination is given by either party at least 30 days prior to the end of the Initial Term or any Renewal Term. In addition, either party may terminate this Agreement at any time upon 30 days' prior written notice to the other party. Upon the expiration or termination of this Agreement for any reason, the Company agrees to retrieve all Cards and related Program materials from Cardholders, cut such Cards in half, return the Cards and related Program materials to TD, and/or provide a Card Cancellation Confirmation with respect to such Cards and related Program materials. 5.3 DEFAULT. As used in this Agreement, the term "Default" shall mean: (i) failure of the Company to remit payment to TD in accordance with the terms hereof; (ii) the failure of either party to comply with any other term of this Agreement or any other agreement between the parties, provided such failure is not remedied within 15 days of the defaulting party's receipt of written notice from the other party specifying the breach; (iii) the representation by the Company of any facts, either in this Agreement or in its financial information provided to TD in connection with this Agreement, that prove to have been materially incorrect ori misleading when such representation was made; (iv) the filing by or against either party of any petition in bankruptcy, insolvency, receivership, or reorganization or pursuant to any other debtor relief law or the entry of any order appointing a receiver, custodian, trustee, liquidator, or any other person with similar authority with respect to the assets of either party; (v) the insolvency, dissolution, reorganization, assignment for the benefit of creditors or any other material adverse change in the financial condition of either party; (vi) the entry of any adverse judgment, order, or award against the Company that has a material adverse impact on the financial condition of the Company; (vii) any change in control or material change of ownership of the Company or any event having a material adverse financial impact on the Company or a detrimental effect on the Company's ability to perform the Obligations, including, without limitation, the taking of any action by the Company to consolidate or merge or sell any substantial part of its assets; (viii) any default by the Company under the terms of any material indebtedness owed by the Company to TD, or any third party or other TD related entity; (ix) excessive fraudulent or other unauthorized use of Cards or Accounts or credit losses with respect thereto as determined by TD, in its sole discretion, or (x) failure of the Company to satisfy the requirements of TD under Section 2.4 (b). In addition, if this Agreement is secured, even as a result of cross collateralization, the term "Default" includes any event not listed above that is a default under the applicable security agreement. 5.4 REMEDIES FOR DEFAULT; DAMAGES. (a) Either party may terminate this Agreement at any time upon the Default of the other party. Except where a remedy is expressly provided herein or as otherwise provided in this Section 5.4, termination of this Agreement will be a party's sole remedy for breach; provided, that no termination or expiration of this Agreement shall release or discharge the Company from the payment of any amount otherwise payable under this Agreement. (b) Upon a Default by the Company, in lieu of termination of this Agreement, TD may, in its sole discretion, shorten the Billing Cycle until such time as TD determines to reinstate the interval for the Billing Cycle or suspend all services and obligations hereunder until such time as TD determines to reinstate such services and obligations. By shortening the Billing Cycle or suspending its services and obligations, TD shall not be deemed to have waived any right which it may have, whether as a result of the Default or otherwise, to terminate this Agreement. (c) A breaching party shall be liable for any actual damages caused by its breach, but neither party will be liable under any provision of this Agreement for any punitive or exemplary damages, or for any special, indirect or consequential damages (including, without limitation, costs incurred in developing and implementing the Program, lost revenues, lost profits, or lost prospective economic advantages) arising from or in connection with any performance or failure to perform under this Agreement, even if such party knew or should have known of the existence of TD Bang 06/15 Internal P79 such damages, and each party hereby releases and waives any claims against the other party for such damages. (d) Upon a Default by the Company, TD, in addition to any rights available to it under applicable law, shall have the right to immediately set off against amounts due' under this Agreement, any monies in any unrestricted deposit account which the Company may maintain with TD, without, prior notice to the Company. TD shall be deemed to have exercised such right to set off and to have made a charge against any such money immediately upon the occurrence of any of the foregoing events of default even though such charge is made or entered on the books of TD subsequent to those events. In addition, if this Agreement is secured, even' as a result of cross collateralization, TD shall also have such rights as are set forth in the applicable security agreement. i (e) TD's liability to the Company hereunder shall! be limited to direct damages arising from TD's gross( negligence or willful misconduct. Regardless of the form of action, in no event shall TD be liable for any indirect,, consequential, punitive, exemplary or special damages, even if TD is advised as to the possibility of such damages. Except for liability which the Company may otherwise incur under this Agreement, the Company's liability to TD hereunder shall be limited to direct damages arising from the Company's' negligence or willful misconduct. Regardless of the form oft the action, in no event shall the Company be liable for any, indirect, consequential or special damages, even if the! Company is advised as to the possibility of such damages. Without limiting the generality of anything contained in thisa section, TD shall not be liable for any damages of any kind, no matter what the cause, that arise, occur or result from: (i) the, Company using the TD Commercial Plus Card Online system,: (ii) the Company's opening ports on its firewalls, or (iii)1 problems with or defects in equipment, software or services not provided by TD. SECTION 6 MISCELLANEOUS 6.1 REPRESENTATIONS AND WARRANTIES. Each party represents and warrants that this. Agreement constitutes the legal, valid, binding and enforceable agreement of such party and that its execution and performance of this Agreement (a) do not constitute a breach' of any agreement of such party with any third party, or of any, duty arising in law or equity, (b) do not violate any law, rule or regulation applicable to it, (c) are within its corporate; powers, and (d) have been authorized by all necessary corporate action of such party. In addition, if this Agreement! is secured, even as a result of cross collateralization, the: Company also makes the representations and warranties set forth in the applicable security agreement. 6.2 NOTICES. Except as otherwise provided herein, any notice or other communication required to be given under this Agreement may be given electronically, using the TD Commercial Plus Card Online system or the e-mail address of the primary contact for the Company. TD shall incur no liability to the Company in acting upon any notice or other communication given electronically which it believes in good faith to have been made by an Authorized User. Any notice or other communication required to be in writing shall be delivered personally, by overnight delivery via a nationally - recognized delivery service or by prepaid registered or certified mail, return receipt requested, addressed to the relevant party at such address as such party may from time to time designate in writing to the other. The date of delivery of a notice (i) delivered personally shall be deemed to be the date delivered; (ii) sent by overnight delivery shall be deemed to be the following day; and (iii) sent by mail shall be deemed to be three Business Days after the date on which such notice is deposited in the United States mail. 6.3 CHANGES. During the term of this Agreement, as described in Section 5.2, TD may not amend the Fees described in Section 5.1 as detailed in the Rebate Schedule. Notwithstanding the forgoing, TD may change Fees associated with new or additional services or features that Company may request that are not included in Rebate Schedule. With respect to other changes to the Agreement, not including Fees as described in Section 5.1, TD may, at any time, amend this Agreement, any Cardholder Agreement, and/or the Program in its sole discretion. Except as expressly provided otherwise elsewhere in this Agreement or as required by applicable law, changes to this Agreement and/or the Program generally will be effective immediately upon notice to Company. Changes to any Cardholder Agreement shall be effective immediately upon receipt by the Cardholder of notice of such changes unless otherwise required by applicable law. Company will be deemed to accept any such changes if Company or any Cardholder utilizes the Program after the date on which the change becomes effective. Company will remain obligated under this Agreement, including without limitation, being obligated to pay all amounts owing hereunder, even if TD amends this Agreement. Notwithstanding anything to the contrary in this Agreement, if TD believes immediate action is required for security purposes, TD may immediately initiate changes to any security procedures and provide prompt subsequent notice thereof to Company. 6.4 FINANCIAL STATEMENTS; NOTICE OF BOND RATING CHANGE. The Company agrees to furnish TD copies of its financial statements, in a form acceptable to TD, as soon as available, but not later than 150 days following the end of each fiscal year of the Company. All such financial statements shall include an income statement for the applicable fiscal year and a balance sheet, shall have been prepared in accordance with generally accepted accounting principles, consistently applied, and shall be in accordance TD Bank 06/15 Internal P80 with the books and records of the Company. In addition, the, Company shall provide, in a timely manner, procurement or purchase -related transaction and spending data and such other current financial information concerning the Company and the; use of the Cards and Accounts as TD may request. If applicable, the Company will notify TD within five business! days of any change in the Company's bond rating. 6.5 ASSIGNMENT. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns; provided, that' the Company may not assign this Agreement or any interest, payment, or rights hereunder without the prior written consent of TD, and any such attempted assignment without such consent shall automatically be void. 6.6 FORCE MAJEURE. If either party is rendered unable, wholly or in part, by a force outside the control of such party (including, but not limited to, an act of, God, war, fire, flood, explosion, act of governmental authority, strike, civil disturbance or breakdown of telephone, computer or automated mailing equipment) to carry out its obligations under this Agreement (other than a payment obligation), or TD is notified by a state or federal regulatory body or by Visa that any aspect of the Program or this Agreement does not comply with any applicable law, regulation, rule, policy, or order applicable to TD, the affected party shall give the other party prompt written notice to that effect. Thereafter, the affected obligations of the party giving the notice shall be suspended and the failure to perform such obligations shall not be deemed a breach of or Default under this Agreement so long as the affected party is unable to so perform for such reason. A party excused from performance pursuant to this Section 6.6 shall exercise all reasonable efforts to continue to perform its obligations hereunder and shall thereafter continue with reasonable due diligence and good faith to remedy its inability to so perform. 6.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding between and among the parties on the subject matter hereof and supersedes' all prior proposals, negotiations, agreements and understandings between the parties. All exhibits and addenda+ attached hereto are hereby incorporated by reference and made a part of this Agreement. 6.8 SEVERABILITY AND WAIVER. If any; provision of this Agreement or portion of such provision or! the application thereof to any person or circumstance shall to any extent be held invalid or unenforceable, the remainder of this Agreement (or the remainder of such provision) and the! application thereof to other persons or circumstances shall not be affected thereby. No course of dealing and no delay or; omission by either party in exercising any of its rights under, this Agreement in a particular instance shall be construed as a! waiver of those rights or any other rights for any purpose and! waiver on any one or more occasions shall not be construed as a bar to or waiver of any right or remedy of either party on any future occasion. 6.9 CHOICE OF LAW. This Agreement shall be governed by and construed in accordance with federal law, and, to the extent not preempted, the substantive laws of the state where the Company has its main office, without regard to the conflict of law principles thereof, except that all credit shall be extended from Delaware and all credit terms, including, but not limited to, the account set up charges, the fees and periodic finance charges, the date finance charges begin to accrue if the new balance is not paid on the payment due date, the method of determining the balance upon which periodic finance charges will be imposed, and the allocation of payments and credits, will be governed by and construed in accordance with federal law and the laws of the State of Delaware, to the extent incorporated into federal law, without regard to the conflict of law principles thereof. 6.10 SURVIVAL. Sections 1, 4, 5.4, 6.9, 6.10, 6.11, 6.16, 6.17, 6.18, 6.19 and 6.20 shall survive the termination or expiration of this Agreement. 6.11 CONFIDENTIALITY. All information furnished by either party in connection with this Agreement, the Program, or the Transactions contemplated hereby shall be kept confidential (and shall be used by the other party only in connection with this Agreement), except to the extent that such information (a) is already lawfully known when received, (b) thereafter becomes lawfully obtainable from other sources, (c) is required to be disclosed in any document filed with the Securities and Exchange Commission, federal banking regulators, or any other agency of any government, or (d) is required by law to be disclosed, provided that notice of such disclosure has been given (when legally permissible) by the party proposing to make such disclosure, which notice, when practicable, shall be given sufficiently in advance of the proposed disclosure to permit the other party to take legal action to prevent the disclosure. The parties shall advise all employees, consultants, advisors, agents and other representatives (collectively, "representatives") who will have access to any confidential information of the obligations contained herein. The parties shall not distribute, disclose, or disseminate confidential information to anyone except its representatives who are involved in this Agreement, the Program, or the Transactions contemplated by the parties. Upon termination of this Agreement, each party shall promptly cause all copies of documents or extracts thereof containing any such information and data which has been provided by or which relates to the other party to be returned to such other party; provided, that each party may retain in its files copies of such materials as it shall deem necessary solely for archival purposes. TD Hank 06115 Internal P81 6.12 NAME AND TRADEMARK. Except as otherwise provided herein, neither party shall use the name or logo of the other party without such party's written consent. 6.13 VISA FEE ADJUSTMENTS. In the event that there is a change deemed by TD to be material in the way TD is compensated by Visa, TD may seek to renegotiate the financial terms of this Agreement. The Company shall have no obligation to renegotiate such terms; provided, that if the parties cannot agree on an adjustment of such terms, then TD at its option may (a) allow this Agreement to remain in effect without any such adjustment, or (b) terminate this Agreement upon written notice to the Company. 6.14 RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between TD and the Company. To the extent that either party undertakes or performs any duty for itself or for the other party as required by this Agreement, the party shall be construed to be acting as an independent contractor and not as a partner, joint venturer, or agent for the other party. 6.15 PATRIOT ACT; ANTI -TERRORISM LAWS. (a) Neither the Company nor any affiliate of the Company is in violation of any statute, treaty, law (including common law), ordinance, regulation, rule, order, opinion, release, injunction, writ, decree or award of any governmental authority relating to terrorism or money laundering, including Executive Order No. 13224 and the USA Patriot Act (collectively, "Anti -Terrorism Law") or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti -Terrorism Law. (b) Neither the Company nor any affiliate of the Company, or to the Company's knowledge, any Cardholder, is any of the following (each a `Blocked Person"): (i) a person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (ii) a person owned or controlled by, or acting for or on behalf of, any person that is lifted in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (iii) a person with which TD is prohibited from dealing or otherwise engaging in any transaction by any Anti -Terrorism Law; (iv) a person that commits, threatens or conspires to commit or supports "terrorism" as defined in the Executive Order No. 13224; (v) a person that is named as a "specially designated national" on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or (vi) a person who is affiliated with a person listed above. 6.16 JURISDICTION AND VENUE. The Company irrevocably submits to the nonexclusive jurisdiction of any Federal or state court sitting in the state where its main office is located, over any suit, action or proceeding arising out of or relating to this Agreement. The Company irrevocably waives, to the fullest extent it may effectively do so under applicable law, any objection it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum. The Company hereby consents to any and all process which may be served in any such suit, action or proceeding, (i) by mailing a copy thereof by registered and certified mail, postage prepaid, return receipt requested, to the Company's address shown in this Agreement or as notified to TD and (ii) by serving the same upon the Company in any other manner otherwise permitted by law, and agrees that such service shall in every respect be deemed effective service upon the Company. 6.17 JURY WAIVER. THE COMPANY AND TD EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS AGREEMENT, THE OBLIGATIONS HEREUNDER, ALL MATTERS CONTEMPLATED HEREBY AND ALL DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B) AGREE NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE, OR HAS NOT BEEN, WAIVED. THE COMPANY CERTIFIES THAT NEITHER TD NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT TD WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY. 6.18 SAVINGS CLAUSE. If the Company is at any time obligated to pay fees or finance charges in excess of the maximum fees or finance charges permitted by applicable law, then the fees and finance charges, as appropriate, shall be immediately reduced to the maximum amount permitted by applicable law and all payments in excess of the maximum amount shall be deemed to have been payments in reduction of the unpaid balance of the Account. 6.19 INDEMNIFICATION. The Company, on behalf of itself and its owners, directors, officers, employees, agents, and representatives (collectively, the "Company Group"), hereby releases and agrees to indemnify, defend and hold harmless TD, its affiliates, and their respective directors, officers, employees, agents, and attorneys (collectively, the "TD Group") from and against any Toss, claim, damages, TD Bank 06/15 Internal P82 liability, cost, expense, action or cause of action whatsoever that the Company, any Cardholder, or any third party now have or may hereafter have or threaten against any member of the TD Group, or to which any member of the TD Group may! become subject, arising out of or relating to this Agreement, including, but not limited to, (i) actions taken by TD upon the instructions of the Company or any Authorized User, (ii) any maintenance activity performed by any member of the Company Group or by any other person (other than an employee or agent of TD) using a Company Access Code; provided, however, that Company shall not be liable for unauthorized use of a Company Access Code after they Company provides notice to TD that the Access Code has' been Lost, stolen or compromised, and TD has has a reasonable opportunity to act on such notice, or (iii) any Unauthorized, Transaction resulting from the use of the Card or Account prior to (and with respect to pending Transaction; authorizations) on or after the effective time of a request for cancellation or termination of a Card or Account (as provided in Sections 2.5(e) and (f) above). The Company shall not be liable for Unauthorized Transactions which are authorized after TD receives notice as provided in accordance with Sections 2.5(e) and (f) above, and TD has had a reasonable'' opportunity to act on such notice; provided, however, that the notice relates to the Card or Account used in connection with' such Unauthorized Transactions. This provision shall be only to the extent allowed by and within the limits of liability provided by section 768.28, Florida Statutes, and shall not otherwise be deemed a waiver of Customers sovereign immunity. 6.20 OTHER WAIVERS BY COMPANY. To the extent otherwise applicable, the Company waives notice of intent to accelerate, notice of acceleration, and all other notices, consents to any renewals or extensions of time of payment, and generally waives all suretyship defenses and defenses in the nature thereof. 6.21 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute but one agreement. TD Rank Internal 06/15 P83 IN WITNESS WHEREOF. the dull authoriz d representative of the Company and the Bank has executed this Agreement as an instrument under seal as of the day and year first ‘k ritten above COMPANY: INDIAN RIVER COUNTY BOARDOE COUNT COMMISSIONERS Intemai Nai r' Joseph E. Flescher Title. Chairman TI) Bank. N.A I;) arm' gcher� t/1C+n5 rule ICE `rtJr&Y��� APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY t, LAN REINGOLC3 COUNTY ATTORNEY P84 JEFFREY R. SMITH, CPA, CGFO, CGMA Clerk of Circuit Court & Comptroller Finance Department 1801 27`' Street Vero Beach, FL 32960 TO: HONORABLE BOARD. OF COUNTY COMMISSIONERS FROM: DIANE BERNARDO, FINANCE DIRECTOR THRU: JEFFREY R. SMITH, COMPTROLLER DATE: January. 5, 2017 SUBJECT: APPROVAL OF CHECKS AND ELECTRONIC PAYMENTS December 30, 2016 to January 5, 2017 In compliance with Chapter 136.06, Florida Statutes, all checks and electronic payments issued by the Board of County Commissioners are to be recorded in the Board minutes. Approval is requested for the attached lists of checks and electronic payments, issued by the Comptroller's office, for the time period of December 30, 2016 To January 5, 2017. Attachment: DLB: DB P85 TRANS NBR 348240 348241 348242 348243 348244 348245 348246 348247 348248 348249 348250 348251 348252 348253 348254 348255 348256 348257 348258 348259 348260 348261 348262 348263 348264 348265 348266 348267 348268 348269 348270 348271 348272 348273 348274 348275 348276 348277 348278 348279 348280 348281 348282 348283 348284 348285 348286 348287 348288 348289 348290 348291 348292 348293 348294 348295 348296 348297 DATE 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/032017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/032017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 CHECKS WRITTEN VENDOR ORANGE COUNTY HOUSING & C D ALL FLORIDA REALTY SERVICES INC VERO BEACH EDGEWOOD PLACE LP GRACES LANDING LTD PAUL JULIN LINDSEY GARDENS LTD BRYAN D BLAIS RIVER PARK ASSOCIATES RICHARD C THERIEN CREATIVE CHOICE HOMES XVI LTD DAVID YORK ST FRANCIS MANOR OF VERO BEACH CITY OF VERO BEACH TREASURE COAST HOMELESS SERVICES FLORIDA POWER AND LIGHT VENETIAN APARTMENTS OF VERO BEACH PINNACLE GROVE LTD VERO CLUB PARTNERS LTD DAVID SPARKS INDIAN RIVER COUNTY HOUSING AUTHORITY INDIAN RIVER COUNTY HOUSING AUTHORITY INDIAN RIVER COUNTY HOUSING AUTHORITY CRAIG MERRILL CHRISTINE SALTER HAGGERTY FAMILY LTD SUNQUEST INC THE PALMS AT VERO BEACH THE PALMS AT VERO BEACH FELLSMERE COMM ENRICHMENT PROGRAM INC DAVID CONDON HILARY MCIVOR PAULA LANE JOHN A CAPPELLO PELICAN ISLES LP KATE TYSON LYONS SUNCOAST REALTY & RENTAL MGMT LLC OAK RIVER PROPERTIES INC SONRISE VILLAS LTD ADINA GOLDMAN INDIAN RIVER RDA LP MAURICE W BROWN RICHARD L DAVENPORT GEORGE THUYNS LAZY J LLC SYLVIA MCNEILL SKOKIE HOLDINGS INC ROGER WINSLOW COURTYARD VILLAS OF VERO LLC VINCENT PILEGGI OSLO VALLEY PROPERTIES INC SAID S MOOBARK OSCEOLA COUNTY SECTION 8 LINDSEY GARDENS II LTD ANTHONY ARROYO MIS HOLDINGS GROUP LLC DANIEL CORY MARTIN YVONNE KOUTSOFIOS ALAN R TOKAR AMOUNT 632.68 4,058.00 956.00 10,014.00 389.00 6,841.00 755.00 14,610.00 440.00 9,321.00 502.00 107.00 79.00 1,450.00 6.00 391.00 10,059.00 8,916.00 384.00 188.00 452.00 545.00 1,659.00 484.00 374.00 3,366.00 9,455.00 1,643.00 96.00 628.00 490.00 451.00 327.00 7,020.00 324.00 7,160.00 348.00 2,279.00 545.00 3,818.00 497.00 495.00 683.00 1,448.00 723.00 750.00 478.00 1,193.00 202.00 319.00 1,302.00 625.68 5,294.00 446.00 3,646.00 421.00 369.00 650.00 1 P86 TRANS NBR 348298 348299 348300 348301 348302 348303 348304 348305 348306 348307 348308 348309 348310 348311 348312 348313 348314 348315 348316 348317 348318 348319 348320 348321 348322 348323 348324 348325 348326 348327 348328 348329 348330 348331 348332 348333 348334 348335 348336 348337 348338 348339 348340 348341 348342 348343 348344 348345 348346 348347 348348 348349 348350 348351 348352 348353 348354 348355 348356 348357 DATE 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 VENDOR VILLAS OF VERO BEACH BRIAN E GALLAGHER HOUSING AUTHORITY STEPHANIE WATCHEK FOUNTAIN TRUST MICHAEL STILES RACHEL G SIDMAN SCOT WILKE J & K PALMER ENTERPRISES LLC THEODORE BARTOSIEWICZ FOUNDATION FOR AFFORDABLE RENTAL RICHARD KUSSEROW ARE JAY INVESTMENTS OF INDIAN RIVER COUNTY W SONRISE VILLAS II LLC JOHN T STANLEY CSMA SFR HOLDINGS II -LLC YELLOW KID INC WEDGEWOOD RENTALS LLC ALMA LUCKETT LIVE OAKS REALTY INC IBIS GARDENS APTS LLC JAMES HARGREAVES JOHN TSCHINKEL PORT CONSOLIDATED INC TEN -8 FIRE EQUIPMENT INC RANGER CONSTRUCTION IND INC VERO CHEMICAL DISTRIBUTORS INC RICOH USA INC VERMEER SOUTHEAST VELDE FORD INC SAFETY PRODUCTS INC THOMAS P WHITE E -Z BREW COFFEE & BOTTLE WATER SVC KELLY TRACTOR CO GENES AUTO GLASS INC SAFETY KLEEN SYSTEMS INC AMERIGAS EAGLE PROPANE LP WILD LAND ENTERPRISES INC PHYSIO CONTROL INC TIRESOLES OF BROWARD INC CALL ONE INC BARTH CONSTRUCTION INC CARTER ASSOCIATES INC CHILDCARE RESOURCES OF IRC INC BAKER & TAYLOR INC MIDWEST TAPE LLC MICROMARKETING LLC VERO COLLISION CENTER TINDALE-OLIVER & ASSOCIATES INC CITY OF VERO BEACH COMPBENEFITS COMPANY COLONIAL LIFE & ACCIDENT INS CO EBSCO INDUSTRIES INC FLORIDA GOVERNMENT FINANCE PUBLIX SUPERMARKETS ACUSHNET COMPANY FEDERAL EXPRESS CORP TRAFFIC PARTS INC FLORIDA POWER AND LIGHT FLORIDA POWER AND LIGHT INDIAN RIVER COUNTY TAX COLLECTOR AMOUNT 463.00 524.00 967.68 234.00 531.00 459.00 503.00 199.00 508.00 19,741.00 475.00 514.00 542.00 795.00 1,320.00 537.00 1,608.00 854.00 628.00 476.00 65.00 2,624.80 1,030.26 1,336.95 103.36 559.80 30.35 630.99 822.18 21.98 11.00 21.46 682.63 220.00 345.57 744.73 38.00 2,051.07 4,814.35 402.00 148,336.29 75.00 19,378.88 100.59 224.33 28.69 17,370.24 5,292.96 13,517.18 23.04 31.86 8,190.00 54.00 19.95 132.60 30.08 770.00 1,827.38 621.68 348.39 2 P87 TRANS NBR 348358 348359 348360 348361 348362 348363 348364 348365 348366 348367 348368 348369 348370 348371 348372 348373 348374 348375 348376 348377 348378 348379 348380 348381 348382 348383 348384 348385 348386 348387 348388 348389 348390 348391 348392 348393 348394 348395 348396 348397 348398 348399 348400 348401 348402 348403 348404 348405 348406 348407 348408 348409 348410 348411 348412 348413 348414 348415 348416 348417 DATE 01/05/2017 01/05/2017 01/05/2017 01/05/2017 0.1/052017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/052017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/052017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/052017 01/05/2017 01/05/2017 01/052017 01/05/2017 01/05/2017 01/052017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/05/2017 VENDOR FLORIDA DEPARTMENT OF STATE MELECH BERMAN HOLIDAY INN TAYLOR MADE GOLF CO INC FLORIDA PUBLIC EMPLOYER LABOR US KIDS GOLF LLC SUNSHINE STATE ONE CALL OF FL INC CARL BROBST CONSTRUCTION INC TREASURE COAST SPORTS COMMISSION INC NEW YORK TIMES JOHN BROWN & SONS INC WESTSIDE REPROGRAPHICS OF VERO BEACH INC MICHAEL REDSTONE INTERNATIONAL CODE COUNCIL INC BRIDGESTONE AMERICAS INC RUSSELL PAYNE INC TOWN OF ORCHID GPSERV INC FLORIDA DEPT OF JUVENILE JUSTICE FAIRFIELD INN THE SHERWIN WILLIAMS CO CENTRAL PUMP & SUPPLY INC DAYSPRING MOORE MEDICAL LLC GLOBALSTAR USA TREASURE COAST SPRINKLERS INC VERO BEACH EXCHANGE CLUB SOUTHEAST POWER SYSTEMS OF ORLANDO WINSUPPLY OF VERO BEACH TENTS N EVENTS INC RAFAEL LATKINS ELITE TENT COMPANY PROMATIC INC MOORE MOTORS INC NEWSOM OIL COMPANY TIM ZORC LOWES HOME CENTERS INC PENGUIN RANDOM HOUSE LLC STRAIGHT OAK LLC PURCHASE NURSERY INC GATOR BUILDING SUPPLY INC ARROW INTERNATIONAL SKECHERS USA INC COBRA GOLF INCORPORATED GENUINE PARTS COMPANY GERELCO TRAFFIC CONTROLS INC UNIFIRST CORPORATION SITEONE LANDSCAPE SUPPLY LLC ADVANCE STORES COMPANY INCORPORATED GUARDIAN ALARM OF FLORIDA LLC EGP DOCUMENT SOLUTIONS LLC CROSSOVER MISSION NORTH AMERICAN OFFICE SOLUTIONS INC ICIKULS INC AIRGAS INC PEOPLE READY INC EZ GO TEXTRON ARMANDO ALVAREZ ANTONIO CARMONA MARX DELPOZO AMOUNT 10.00 500.00 129.00 2,823.39 650.00 197.48 1,067.30 1,148.93 3,500.00 919.40 5,600.00 72.60 92.22 240.00 403.64 303.24 2,299.98 350.30 26,398.56 117.00 181.35 197.13 250.00 251.09 146.81 629.00 200.00 2,652.00 192.36 400.00 500.00 200.00 575.00 30.00 125.00 44.06 249.17 149.25 67.95 200.00 900.10 1,110.24 454.47 1,495.07 198.69 7,329.00 843.69 26.98 2,095.80 198.00 88.69 11,250.00 38.26 765.44 1,291.15 483.60 8,640.25 100.00 195.37 50.00 3 P88 TRANS NBR DATE 348418 01/05/2017 348419 01/05/2017 348420 01/05/2017 348421 01/05/2017 348422 01/05/2017 Grand Total: VENDOR AMOUNT NORMAN HARRISON 150.15 KREMEDY LLC 3,712.00 IRC CHAMBER OF COMMERCE 15,241.02 GIFFORD YOUTH ACHIEVEMENT CENTER INC 14,820.00 JOHNS EASTERN COMPANY INC 50,000.00 571,453.84 4 P89 TRANS. NBR 1010402 1010403 1010404 1010405 1010406 1010407 1010408 1010409 1010410 1010411 1010412 1010413 1010414 1010415 1010416 1010417 1010418 1010419 1010420 1010421 1010422 1010423 1010424 1010425 1010426 1010427 1010428 1010429 1010430 1010431 1010432 1010433 1010434 1010435 1010436 1010437 1010438 1010439 1010440 1010441 1010442 1010443 1010444 1010445 1010446 1010447 1010448 1010449 1010450 1010451 1010452 1010453 1010454 1010455 1010456 1010457 1010458 1010459 ELECTRONIC PAYMENT - VISA CARD DATE 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/29/2016 12/29/2016 12/29/2016 12/29/2016 12/29/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 01/04/2017 VENDOR EVERGLADES FARM EQUIPMENT CO INC HENRY SCHEIN INC MIKES GARAGE & WRECKER SERVICE INC GALLS LLC MEEKS PLUMBING INC ABCO GARAGE DOOR CO INC IRRIGATION CONSULTANTS UNLIMITED INC THE EXPEDITER SOUTHERN COMPUTER WAREHOUSE WIGINTON CORPORATION FIRST HOSPITAL LABORATORIES INC GLOBAL GOLF SALES INC STRYKER SALES CORP RECHTIEN INTERNATIONAL TRUCKS SYNAGRO-WWT INC SOUTHERN JANITOR SUPPLY INC CAPITAL OFFICE PRODUCTS CONSOLIDATED ELECTRICAL DISTRIBUTORS INC BENNETT AUTO SUPPLY INC L&L DISTRIBUTORS PACE ANALYTICAL SERVICES INC FILTRATION GROUP CORPORATION AT&T OFFICE DEPOT BSD CUSTOMER SVC WASTE MANAGEMENT INC COMCAST WHEELABRATOR RIDGE ENERGY INC INDIAN RIVER BATTERY DAVIDSON TITLES INC MIKES GARAGE & WRECKER SERVICE INC GROVE WELDERS INC SOUTHERN COMPUTER WAREHOUSE ' WIGINTON CORPORATION APPLE MACHINE & SUPPLY CO ROGER CLEVELAND GOLF INC DUNKELBERGER ENGINEERING & TESTING ECONOLITE CONTROL PRODUCTS INC SOUTHERN JANITOR SUPPLY INC CAPITAL OFFICE PRODUCTS BENNETT AUTO SUPPLY INC AUTO PARTNERS LLC L&L DISTRIBUTORS CUSTOM PRODUCTS CORPORATION EVERGLADES FARM EQUIPMENT CO INC ROBINSON EQUIPMENT COMPANY INC COPYCO INC COLD AIR DISTRIBUTORS WAREHOUSE MIKES GARAGE & WRECKER SERVICE INC GALLS LLC MEEKS PLUMBING INC ABCO GARAGE DOOR CO INC GROVE WELDERS INC SOUTHERN COMPUTER WAREHOUSE TOTAL TRUCK PARTS INC COMPLETE ELECTRIC INC SOUTHERN PLUMBING INC MIDWEST MOTOR SUPPLY CO RECHTIEN INTERNATIONAL TRUCKS AMOUNT 127.67 2,762.80 195.00 87.11 142.50 869.50 68.86 486.03 1,052.78 2,145.00 32.25 196.39 752.40 114.95 40,077.15 161.68 651.36 206.52 103.40 ' 2,682.88 5,044.00 637.80 13,377.74 490.97 75.08 3.07 2,948.65 80.45 527.07 420.00 172.83 49.34 886.00 50.28 727.77 2,313.50 638.00 436.90 224.40 278.94 73.40 680.28 1,155.00 913.89 658.21 10,870.00 377.57 85.00 323.99 1,094.33 187.75 987.06 3,795.39 704.72 345.00 385.00 541.39 76.03 1 P90 TRANS. NBR 1010460 1010461 1010462 1010463 1010464 Grand Total: DATE VENDOR 01/04/2017 SOUTHERN JANITOR SUPPLY INC 01/04/2017 CAPITAL OFFICE PRODUCTS 01/04/2017 BENNETT AUTO SUPPLY INC 01/04/2017 L&L DISTRIBUTORS 01/04/2017 PACE ANALYTICAL SERVICES INC AMOUNT 68.00 410.63 36.77 717.90 108.00 106,894.33 2 P91 TRANS NBR 4814 4815 4816 4817 4818 4819 4820 4821 4822 4823 4824 4825 4826 4827 4828 4829 4830 4831 4832 4833 4834 4835 4836 4837 4838 4839 Grand Total: ELECTRONIC PAYMENTS - WIRE & ACH DATE 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/03/2017 01/05/2017 01/05/2017 01/05/2017 VENDOR C E R SIGNATURE CLEANING INEOS NEW PLANET BIOENERGY LLC KIMLEY HORN & ASSOC INC IRC FIRE FIGHTERS ASSOC NACO/SOUTHEAST ICMA RETIREMENT CORPORATION FLORIDA LEAGUE OF CITIES, INC NACO/SOUTHEAST ICMA RETIREMENT CORPORATION FL SDU I R C HEALTH INSURANCE - TRUST CLERK OF CIRCUIT COURT INDIAN RIVER COUNTY SHERIFF AMOUNT 15,410.00 42,724.81 5,184.00 6,810.00 24,496.28 11,796.89 4,743.79 1,021.60 2,655.00 4,860.78 78,570.76 80,959.25 3,600,453.65 INDIAN RIVER COUNTY SUPERVISOR OF ELECTIONS 86,512.37 REGIONS BANK 163,559.82 JOSEPH G MILLER 1,000.00 AGENCY FOR HEALTH CARE ADMIN 13,173.89 IRS -PAYROLL TAXES 431,488.01 BLUE CROSS & BLUE SHIELD OF FLORIDA INC 11,438.55 MUTUAL OF OMAHA 4,210.00 CHARD SNYDER & ASSOCIATES INC 91.60 HEALTH ADVOCATE 377.85 BLUE CROSS & BLUE SHIELD OF FLORIDA INC 5,853.24 ALLSTATE 292.22 FL RETIREMENT SYSTEM 815,039.76 I R C HEALTH INSURANCE - TRUST 567,060.62 5,979,784.74 1 92 de January 17, 2017 Item 8 Consent INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER -OFFICE MEMORANDUM To: Members of the Board of County Commissioners Date: January 11, 2017 Subject: Application for Nomination to Serve on the Metropolitan Planning Organization Citizens Advisory Committee (MPO CAC) From: Tina Cournoyer, Commissioner Assistant We received the attached committee application for Mr. Zaqary Sanders. Request the Board to approve Mr. Sanders to fill the vacant BCC appointee position on the Metropolitan Planning Organization Citizens Advisory Committee. Attachments: Application of Zaqary Sanders P93 Name: INDIAN RIVER COUNTY APPLICATION FOR COMMITTEE APPOINTMENT (Zagary Sanders Full Name: (Zagary Sanders Street Address (No P.O. Boxes): Home Phone: 7725325622 Date: rt'' 3_ 'sti eat* 'b%.,Ti&it:r 12/11/16 Email Address: zagsandersagmail.com 2015 19th Avenue SW Work Phone: How long have you been a resident of Indian River County? CeII Phone: 7725325622 11 years Are you a full or part time resident? Check one: Full TirnejI Part Time Please list current employer or business. If retired, please list any business experience that may be applicable to the committee. Citrus Grillhouse Please list any licenses you presently hold: Driver's License Please list any organization of which you are currently a member: Please list any other committees or boards you currently sit on: Continued on next page RECEIVED DEC %22016 BOARD OF COUNTY COMMISSION P94 Place a check mark next to the committee(s) you would like to serve on: AFFORDABLE HOUSING ADVISORY COMMITTEE AGRICULTURE ADVISORY COMMITTEE BEACH & SHORE PRESERVATION ADVISORY COMMITTEE 0 CHILDREN'S SERVICES ADVISORY COMMITTEE Li CODE ENFORCEMENT BOARD COMMUNITY DEVELOPMENT BLOCK GRANT II CONSTRUCTION BOARD OF ADJUSTMENT & APPEALS 11 ECONOMIC DEVELOPMENT COUNCIL ENTERPRISE ZONE DEVELOPMENT AGENCY ID ENVIRONMENTAL CONTROL HEARING BOARD MPO BICYCLE ADVISORY COMMITTEE El MPO CITIZEN ADVISORY COMMITTEE II NEIGHBORHOOD STABILIZATION PROGRAM — CITIZEN ADVISORY TASK FORCE (-1 1 I PLANNING & ZONING COMMISSION V SCHOOL PLANNING CITIZEN OVERSIGHT COMMITTEE II TOURIST DEVELOPMENT COUNCIL TRANSPORTATION DISADVANTAGED LOCAL COORDINATING BOARD II TREASURE COAST REGIONAL PLANNING COUNCIL — COMPREHENSIVE ECONOMIC DEVELOPMENT STRATEGY :Please print and return the completed application, along with a current resume, to the Board of County Commission office, 1801 27th Street, Vero Beach, FL. 32960, or by fax at 772-770-5334. Please note: All applications are kept on file for 6 months. P95 ZAQARY SANDERS 2015 191h Avenue SW 1 zagsanders@gmail.com 1 772.532.5622 OBJECTIVE 1 I hope to gain more experience in local politics as well as help [positively] impact my community in any way possible. My every day goal is to improve the life of others and to improve my community and country I feel that serving on the Beach & Shore Preservation Advisory Committee or the Planning & Zoning Commission would enable me to both become more involved in the community as well as become more experienced in American politics. SKILLS & ABILITIES 1 Types at 60 WPM, CPR -certified, attentive, sociable (when warranted), helpful, natural leader, goal -oriented, well-spoken, motivated EXPERIENCE 1 RECREATION ASSISTANT INDIAN RIVER COUNTY RECREATION DEPARTMENT NOVEMBER 2013 -MARCH 2014 As a recreation assistant, my duties consisted of organizing and aiding in the set up various sporting and recreation events (i.e. basketball, baseball, dances, banquets) I also kept score and helped coach youth sports. CHILD WATCH REPRESENTATIVE SOUTH LAKE HOSPITAL JUNE 2015 -JULY 2016 Much of my job as a Child Watch Representative was watching children while their parents used the fitness center. While under our supervision and care, children played video games, colored, played ball, and did homework. WELCOME DESK REPRESENTATIVE SOUTH LAKE HOSPITAL MARCH 2016 -JULY 2016 At the Welcome Desk, my job was to greet guests with a smile and assist them with anything and everything they asked. I filed fitness and medical papers, registered guests, dealt with billing issues etc. SERVERS' ASSISTANT CITRUS GRILLHOUSE JULY 2016 -PRESENT As a servers' assistant, my job is to set the restaurant up for service; bus, clear, and reset tables; and, clean up the restaurant at the end of each night. I also interact with the guests to get them anything they may need or want, as well as to ensure they leave happy and fulfilled with their experience. EDUCATION I EAST RIDGE HIGH SCHOOL, CLERMONT, FLORIDA GPA: 3 4, AP Psychology, Pre -Calculus, Cyber Security, Intro to Information Technology COMMUNICATION j Kindness and open-mindedness was instilled in me from a young age but have been greatly improved because of my work at South Lake Hospital. I do well under pressure and always manage to keep a smile on my face. I tend to take roles of leadership when things begin going awry while also respecting standing authority While being vocal about my own opinions and thoughts, I am able to listen to others and give them a chance to speak and state their opinions as well. P96 REFERENCES I SCOT SEELEY, RECREATION COORDINATOR INDIAN RIVER COUNTY RECREATION DEPARTMENT Address: 1800 27th St., Vero Beach 32960 Phone Number: 772.226.1729 NATALIE PAVLEK, SUPERVISOR, MEMBERSHIP AND PLAYWELL SERVICES SOUTH LAKE HOSPITAL (LIVEWELL FITNESS CENTER) Address: 1935 Don Wickham Dr., Clermont, FL 34711 Phone Number: 352.241.7144 ext. 4219 SCOTT VARICCHIO, CHEF/OWNER CITRUS GRILLHOISE Address: 1050 Easter Lily Ln., Vero Beach, FL 32963 Phone Number 772.234 4114 VAL ZUDANS M.D., CEO/OPTHAMOLOGIST FLORIDA EYE INSTITUTE Address: 2750 Indian River Blvd., Vero Beach, FL 32960 Phone Number: 772.713.0835 PAGE 2 P97 7c Consent Aaenda Indian River County Interoffice Memorandum Office of Management & Budget To: Members of the Board of County Commissioners From: Michael Smykowski Director, Office of Management & Budget Date: January 10, 2017 Subject: Miscellaneous Budget Amendment 005 Description and Conditions The attached budget amendment appropriates funding necessary for the following: 1. Due to an increase in taxable value after the Fiscal Year 2016/17 budget was adopted, an increase in the Community Redevelopment Districts has become necessary. The attached entry appropriates funding in the amount of $738 from General Fund/Reserve for Contingency. 2. Roseland Community Center repairs are higher than originally anticipated. The attached entry appropriates funding in the amount of $15,000 from General Fund/Reserve for Contingency. 3. According to Florida Statute 113.07, when public officials are required to post fidelity of performance bonds, such bonds must be written by a surety company. The attached entry appropriates funding in the amount of $3,500 from General Fund/Reserve for Contingency. 4. It has become necessary to replace the eleven year old metal detector at the Courthouse. The attached entry appropriates funding in the amount of $5,000 from Court Facilities Surcharge Fund/Cash Forward Oct 1st 5. On June 7, 2016 the Board of County Commissioners approved the FEMA Assistance to Firefighters Grant in the amount of $856,819 with a match to be provided by Emergency Services District/Cash Forward Oct 1st in the amount of $85,681. The attached entry appropriates these funds totaling $942,500. P98 RESOLUTION NO. 2017- A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA, AMENDING THE FISCAL YEAR 2016-2017 BUDGET. WHEREAS, certain appropriation and expenditure amendments to the adopted Fiscal Year 2016-2017 Budget are to be made by resolution pursuant to section 129.06(2), Florida Statutes; and WHEREAS, the Board of County Commissioners of Indian River County desires to amend the fiscal year 2016-2017 budget, as more specifically set forth in Exhibit "A" attached hereto and by this reference made a part hereof, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that the Fiscal Year 2016-2017 Budget be and hereby is amended as set forth in Exhibit "A" upon adoption of this Resolution. This Resolution was moved for adoption by Commissioner , and the motion was seconded by Commissioner and, upon being put to a vote, the vote was as follows: Chairman, Joseph E. Flescher Vice Chairman, Peter D. O'Bryan Commissioner, Susan Adams Commissioner, Bob Solari Commissioner, Tim Zorc The Chairman thereupon declared this Resolution duly passed and adopted this day of , 2017. INDIAN RIVER COUNTY, FLORIDA Attest: Jeffrey R. Smith Board of County Commissioners Clerk of Court and Comptroller By By Deputy Clerk Joseph E. Flescher, Chairman BY APPROVED AS TO FORM AND LEGAL SUFFICIENCY COUNTY ATTORNEY P99 Exhibit "A" Resolution No. 2017 - Budget Office Approval: Michael Smykowski, Budget Director Budget Amendment: 005 Entry Number Fund/ Department/Account Name Account Number Increase Decrease 1. Expense General Fund/Redevelopment District/Sebastian 00113719-088220 $472 $0 General Fund/Redevelopment District/Fellsmere 00113719-088221 $266 $0 General Fund/Reserves/Reserve for Contingency 00119981-099910 $0 $738 2. Expense General Fund/Facilities Management/Maintenance- Buildings 00122019-034610 $15,000 $0 General Fund/Reserve for' Contingency 00119981-099910 $0 $15,000 3. Expense General Fund/BCC/Surety Bonds 00110111-034540 $6,000 $0 General Fund/Reserve for Contingency 00119981-099910 $0 $6,000 4. Revenue Court Facilities Surcharge Fund/Cash Forward Oct 1st 140039-389040 $5,000 $0 Expense Court Facilities Surcharge Fund/Facilities Managernerit/Other Machinery & Equipment 14022019-066490 $5,000 $0 5. Revenue Emergency Services District/Federal Grant/FEMA FF Assistance Grant 114033-331200-16815 $856,819 $0 Emergency Services District/Cash Forward Oct 1st 114039-389040 $85,681 $0 Expense Emergency Services District/Fire Rescue/Other Machinery & Equipment/FEMA FF Assistance Grant 11412022-066490-16815 $942,500 $0 P100 SID CONSENT AGENDA INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: January 6, 2017 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: Jason E. Brown, County Administrator Mike Smykowski, Budget Director FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Recommendation of Award — Bid 2017014 — Self -Contained Breathing Apparatus BACKGROUND: On June 7, 2016, the, Board approved the acceptance of an $856,819.00 Assistance to Firefighters Grant for the replacement of Self Contained Breathing Apparatus and associated equipment. On behalf of the Emergency Services Division, the Purchasing Division solicited sealed bids for the purchase of 145 new units and accessories. BID RESULTS: Bid Opening Date: December 28, 2016 Advertising Date: November 29, 2016 Deinandstar Broadcast to: 61 Subscribers Specifications/Plans Downloaded by: 17 Vendors Replies: 1 Vendor Bidder Location Total Bid Ten -8 Fire Equipment, Inc. Bradenton $834,501.00 ANALYSIS: Emergency Services District Staff have reviewed the bid received and determined it to be responsive and Ten -8 responsible to provide the equipment and associated service. The Emergency Services Director has made a recommendation of award to Ten -8 Fire Equipment, Inc., for the total bid amount of $834,501.00. SOURCE OF FUNDS: As detailed in the Grant agreement, funding will be derived from the Assistance to Firefighters Grant EMW-2015-FO-05298 and District Cash Forward. Source Percentage of Cost Amount Assistance to Firefighters Grant 90 $751,050.90 Emergency Services District Match 10 $83,450.10 P101 CONSENT AGENDA RECOMMENDATION: Staff recommends the Board of County Commissioners award Bid 2017014 to Ten 8 Fire Equipment, Inc. and authorize the Chairman to execute the attached agreement after the County Attorney has reviewed it for form and legal sufficiency. Attachment: Agreement P102 Agreement THIS AGREEMENT is by and between INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida organized and existing under the Laws of the State of Florida, (hereinafter called OWNER) and (hereinafter called VENDOR). OWNER and VENDOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1- WORK VENDOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: Provision of and warranty assurance for 145 self-contained breathing apparatuses. ARTICLE 2 - THE PROJECT The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Project Name: Self -Contained Breathing Apparatus Bid Number: 2017014 Project Address: Indian River County Emergency Services 4225 43rd Avenue Vero Beach, Florida 32967 ARTICLE 3 - CONTRACT TIMES 3.01 Days to Achieve Substantial Completion, Final Completion and Final Payment A. Products to be provided under this contract will be delivered in full working order with all accessories within 60 days of execution. ARTICLE 4 - CONTRACT PRICE 4.01 OWNER shall pay VENDOR for completion of the Work an amount in current funds equal to the sum of the amounts determined pursuant to paragraph 4.01.A and summarized in paragraph 4.01.B, below: A. For all Work, at the prices stated in VENDOR's Bid, attached hereto as an exhibit. B. THE CONTRACT SUM subject to additions and deductions provided in the Contract Documents: 1 P103 Numerical Amount: $ Written Amount: ARTICLE 5 - PAYMENT PROCEDURES 5.01 Method of Payment Owner shall make only one payment for the entire amount of the contract when the work has been satisfactorily completed. Upon a determination of satisfactory completion, the Emergency Services Director will authorize payment to be made. All payments for services shall be made to the VENDOR by the COUNTY in accordance with the Local Government Prompt Payment Act, as may be amended from time to time (Section 218.70, Florida Statutes, et seq.). ARTICLE 6 - INDEMNIFICATION 6.01 VENDOR shall indemnify and hold harmless the OWNER, and its officers and employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the VENDOR and persons employed or utilized by the VENDOR. ARTICLE 7 - VENDOR'S REPRESENTATIONS 7.01 In order to induce OWNER to enter into this Agreement VENDOR makes the following representations: A. VENDOR has examined and carefully studied the Contract Documents and the other related data identified in the Invitation to Bid documents. B. VENDOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. C. VENDOR has given OWNER written notice of all conflicts, errors, ambiguities, or discrepancies that VENDOR has discovered in the Contract Documents, and the written resolution thereof by OWNER is acceptable to VENDOR. D. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. 2 P104 ARTICLE 8 - CONTRACT DOCUMENTS 8.01 Contents A. The Contract Documents consist of the following: (1) This Agreement (pages 1 to 11, inclusive); (2) Certificate(s) of Liability Insurance (3) Invitation to Bid 2017014 (4) VENDOR'S Bid Form (pages 11 to 19 of 33, inclusive); (5) Certified Cashier's Check 64478189 in the amount of $50,000; (6) Drug Free Workplace Form (page 20 of 33) (7) Affidavit of Compliance (page 21 of 33); (8) Sworn Statement Under Section 105.08, Indian River County Code, on Disclosure of Relationships (pages 22 to 23 of 33, inclusive); (9) Certification Regarding Lobbying (page 24 of 33) (10) Warranty Information Form (page 25 of 33) (11) The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a) Written Amendments; b) Work Change Directives; c) Change Order(s). ARTICLE 9 - MISCELLANEOUS 9.01 Terms A. Terms used in this Agreement will have the meanings indicated in the Invitation to Bid. 9.02 Severability 3 P105 A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and VENDOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 9.03 Venue A. This Agreement shall be governed by the laws of the State of Florida. Venue for any lawsuit brought by either party against the other party or otherwise arising out of this Agreement shall be in Indian River County, Florida, or, in the event of a federal jurisdiction, in the United States District Court for the Southern District of Florida. 9.04 Public Records Compliance A. Indian River County is a public agency subject to Chapter 119, Florida Statutes. The Vendor shall comply with Florida's Public Records Law. Specifically, the Vendor shall: (1) Keep and maintain public records required by the County to perform the service. (2) Upon request from the County's Custodian of Public Records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Vendor or keep and maintain public records required by the County to perform the service. If the Vendor transfers all public records to the County upon completion of the contract, the Vendor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the vendor keeps and maintains public records upon completion of the contract, the Vendor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the Custodian of Public Records, in a format that is compatible with the information technology systems of the County. 4 P106 B. IF THE VENDOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE VENDOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (772) 226-1424 publicrecords@ircgov.com Indian River County Office of the County Attorney 1801 27th Street Vero Beach, FL 32960 C. Failure of the vendor to comply with these requirements shall be a material breach of this Agreement. ARTICLE 10 — FEDERAL CLAUSES 10.01 OWNER and VENDOR will adhere to the following, as applicable to this work A. Clean Air Act: (1) The vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. (2) The vendor agrees to report each violation to the County and understands and agrees that the County will, in turn, report each violation as required to assure notification to the State of Florida Department of Emergency Management, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office. (3) The vendor agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FEMA. B. Federal Water Pollution Control Act: (1) The vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. (2) The vendor agrees to report each violation to the County and understands and agrees that the County will, in turn, report each violation as required to assure notification to the State of Florida Department of Emergency Management, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office. (3) The vendor agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FEMA. C. Energy Policy and Conservation Act 5 P107 (1) The Vendor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act, as applicable. D. Suspension and Debarment (1) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the vendor is required to verify that none of the vendor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (2) The vendor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. (3) This certification is a material representation of fact relied upon by Indian River County. If it is later determined that the vendor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to Indian River County, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (4) The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. E. Byrd Anti -Lobbying Amendment (31 U.S.C. § 1352 (as amended)—Vendors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient. F. Procurement of Recycled/Recovered Materials: (1) In the performance of this contract, the Vendor shall make maximum use of products containing recovered materials that are EPA -designated items unless the product cannot be acquired— (i) Competitively within a timeframe providing for compliance with the contract performance schedule; (ii) Meeting contract performance requirements; or (iii) At a reasonable price. (2) Information about this requirement is available at EPA's Comprehensive Procurement Guidelines web site, http://www.epa.gov/cpg/. The list of EPA -designate items is available at http://www.epa.gov/cpg/products.htm. 6 G. Access to Records The following access to records requirements apply to this contract: (1) The Vendor agrees to provide Indian River County, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Vendor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. (2) The Vendor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. (3) The Vendor agrees to provide the FEMA Administrator or his authorized representative's access to construction or other work sites pertaining to the work being completed under the contract. H. DHS Seal, Logo, and Flags: The vendor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre - approval. I. Compliance with Federal Law, Regulations, and Executive Orders: This is an acknowledgement that FEMA financial assistance will be used to fund the contract only. The vendor will comply will all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives. J. No Obligation by Federal Government: The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non -Federal entity, contractor, or any other party pertaining to any matter resulting from the contract. K. Program Fraud and False or Fraudulent Statements or Related Acts: The vendor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the vendor's actions pertaining to this contract. L. Affirmative Steps: VENDOR shall take the following affirmative steps to ensure minority business, women's business enterprises and labor surplus area firms are used when possible: (1) Placing qualified small and minority businesses and women's business enterprises on solicitation lists. (2) Ensuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources. (3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises. (4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises. (5) Using the services and assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce. 7 P109 Article 11: TERMINATION OF CONTRACT A. The occurrence of any of the following shall constitute a default by VENDOR and shall provide the OWNER with a right to terminate this Contract in accordance with this Article, in addition to pursuing any other remedies which the OWNER may have under this Contract or under law: (1) if in the OWNER's opinion VENDOR is improperly performing work or violating any provision(s) of the Contract Documents; (2) if VENDOR neglects or refuses to correct defective work or replace defective parts or equipment, as directed by the Owner pursuant to an inspection; (3) if in the OWNER's opinion VENDOR's work is being unnecessarily delayed and will not be finished within the prescribed time; (4) if VENDOR assigns this Contract or any money accruing thereon or approved thereon; or (5) if VENDOR abandons the work, is adjudged bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a trustee or receiver is appointed for VENDOR or for any of his property. B. OWNER shall, before terminating the Contract for any of the foregoing reasons, notify CONTRACTOR in writing of the grounds for termination and provide VENDOR with ten (10) calendar days to cure the default to the reasonable satisfaction of the OWNER. C. If the VENDOR fails to correct or cure within the time provided in the preceding Sub -Article B, OWNER may terminate this Contract by notifying VENDOR in writing. Upon receiving such notification, VENDOR shall immediately cease all work hereunder. D. The VENDOR shall be liable for: (1) any new cost incurred by the OWNER in soliciting bids or proposals for and letting a new contract; and (2) the difference between the cost of completing the new contract and the cost of completing this Contract; (3) any court costs and attorney's fees associated with any lawsuit undertaken by OWNER to enforce its rights herein. E. TERMINATION FOR CONVENIENCE: OWNER may at any time and for any reason terminate VENDOR's services and work for OWNER's convenience. Upon receipt of notice of such termination VENDOR shall, unless the notice directs otherwise, immediately discontinue the work and immediately cease ordering of any materials, labor, equipment, facilities, or supplies in connection with the performance of this Contract. Upon such termination Contractor shall be entitled to payment only as follows: (1) the actual cost of the work completed in conformity with this Contract and the specifications; plus, (2) such other costs actually incurred by VENDOR as are permitted by the prime contract and approved by the OWNER. 8 P110 Vendor shall not be entitled to any other claim for compensation or damages against the County in the event of such termination. 9 P111 IN WITNESS WHEREOF, OWNER and VENDOR have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and VENDOR. All portions of the Contract Documents have been signed or identified by OWNER and VENDOR or on their behalf. This Agreement will be effective on , 20_ (the date the Agreement is approved by the Indian River County Board of County Commissioners, which is the Effective Date of the Agreement). OWNER: VENDOR: INDIAN RIVER COUNTY By: Joseph E. Flescher, Chairman By: (VENDOR) By: Jason E. Brown, County Administrator (CORPORATE SEAL) Attest APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: Dylan Reingold, County Attorney Address for giving notices: Jeffrey R. Smith, Clerk of Court and Comptroller License No. Attest: (Where applicable) Deputy Clerk (SEAL) Agent for service of process: Designated Representative: Name: Designated Representative: Title: Name: Address: Title: Phone Address: Email 10 Phone: Email: (If VENDOR is a corporation or a partnership, attach evidence of authority to sign.) P112 CONSENT INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Jason E. Brown, County Administrator THROUGH: Richard B. Szpyrka, P.E., Public Works Director James W. Ennis, P.E., PMP, County Engineer FROM: Nathan Ottoson, P.E., Project Engineer SUBJECT: Award of Bid No: 2017013 43rd Avenue Sidewalk Improvements from Aviation Boulevard to Airport Drive West DATE: December 22, 2016 DESCRIPTION AND CONDITIONS On September 13, 2016, the Board of County Commissioners approved a Local Agency Program Agreement FM No. 431725-2-58/68-01 with the Florida Department of Transportation (FDOT) for the construction of an 8 -foot wide concrete sidewalk along the east side of 43rd Avenue from Aviation Boulevard to Airport Drive West. The sidewalk improvements will be approximately 0.69 miles in length. The work will also include minor shoulder work, ditch grading, drainage piping with drainage structures, signing and pavement markings. The LAP Grant will provide up to $569,763.00 reimbursement of the eligible construction cost which includes construction engineering inspection (CEI) services. The bid opening was held on December 12, 2016. Four qualified (4) bids were received and opened. A detailed bid tabulation is on file and available for viewing in the County Engineering Division. Bid totals are as follows: Timothy Rose Contracting, Inc. PRP Construction Group, LLC Engecon Construction, Inc. Blue Goose Construction, LLC Vero Beach, Florida Indiantown, Florida Lake Worth, Florida Fort Pierce, Florida $497,113.24 $533,520.00 * $537,785.05 $572,460.80 * *Denotes mathematical errors were found and bid amount corrected. Timothy Rose Contracting, Inc. is considered to be the lowest, responsive, responsible bidder for the project with a bid totaling $497,113.24. Timothy Rose Contracting, Inc., has completed various construction projects for the County and has consistently performed work in a satisfactory manner. Timothy Rose Contracting, Inc. bid of $497,113.24 was below the Engineer's estimate of $552,634.90. C \Users\GRANIC-1\AppData\L.ocal\Temp\BCL Technologies\easyPDF 71@BCL@DOO5AA29 awl CL@DoO5AA29.doc P113 Page 2 Award of Bid No: 2017013 43rd Avenue Sidewalk Improvements (Aviation Blvd to Airport Drive West) FUNDING The federal funds appropriated for this FDOT LAP grant are in the amount of $508,717.00 for construction and $61,046.00 for construction engineering inspection (CEI) services totaling $569,763.00. Funding is budgeted and available from Secondary Roads Account No. 10921441- 066510-15028. RECOMMENDATION Staff recommends that the project be awarded to Timothy Rose Contracting, Inc., in the amount of $497,113.24 and requests that the Board of County Commissioners approve the sample agreement and authorize the Chairman to execute said agreement after receipt and approval of the required Public Construction Bond and Certificate of Insurance and after the County Attorney has approved the agreement as to form and legal sufficiency. ATTACHMENTS 1. Sample Agreement DISTRIBUTION 1. William Scott, Road & Bridge Superintendent 2. Timothy Rose Contracting, Inc. APPROVED AGENDA ITEM FOR JANUARY 17, 2017 C:\Users\GRANIC-1 AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@D005AA29\@BCL@D005AA29.doc P114 SECTION 00520 - Agreement (Public Works) TABLE OF CONTENTS Title Page ARTICLE 1- WORK 2 ARTICLE 2 - THE PROJECT ARTICLE 3 — ENGINEER f' 2 2 ARTICLE 4 - CONTRACT TIMES ARTICLE 5 - CONTRACT PRICE ARTICLE 6 - PAYMENT PROCEDURES ?:-, 3 ARTICLE 7 - INDEMNIFICATION ARTICLE 8 - ARTICLE 9 - CONT .0DOCUMENES ARTICLE;{0:?,IISCEL• :%'ial NUS JTHE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY) 00520 - 1 C:\Users\GRANIC-1 AppData\Local\Temp\BCL Technologies\easyPDF 7\raBCL@D0059030\@BCL@D0059030.doc 6 8 @BCL@D0059030 P115 SECTION 00520 - Agreement (Public Works) THIS AGREEMENT is by and between INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida organized and existing under the Laws of the State of Florida, (hereinafter called OWNER) and Timothy Rose Contracting, Inc. (hereinafter called' CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1 - WORK 1.01 CONTRACTOR shall complete all Work as specified ori i 4d in the C ntract Documents. The Work is generally described as follows: „ .,,,P N' {�T of The project consists of the construction of ann 8 foot wide c. ` ete sidewalk along the east side of 43rd Avenue from Avia 6i 'Boul -yard to Airport Drive West. The sidewalk improvements will be approximately` 0.69 Iles) engthh The work will also include minor shoulder work, ditch gracing, drainage ,pipin t` drainage structures, signing and pavement markings. %'{ ARTICLE 2 - THE PROJECT 2.01The Project for which the Work under th: 4.02 Days to Achieve Substantial Completion, Final Completion and Final Payment A. The Work will be substantially completed on or before the 120"' calendar day after the date when the Contract Times commence to run as provided in paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with paragraph 14.07 of the General Conditions on or before the 150th calendar day after the date when the Contract Times commence to run. 4.03 Liquidated Damages A. CONTRACTOR and OWNER recognize that time is of the ece ofit Agreement and that OWNER will suffer financial Toss if the Work is not con pet' d within",th'e times specified in paragraph 4.02 above, plus any extensions thereof allOWO. in acro lance with Article 12 of the General Conditions. Liquidated darn. ges will commeni vfor: his portion of n,=a work. The parties also recognize the delays, expend difficulties in {? ued�in proving in a legal proceeding the actual loss sufferedvb,WNEF%usf the Work not completed on time. Accordingly,instead of requiring.'rd fin "s% roof .•OWNER "d CONTRACTOR agree that as liquidated damages foflay (but sojas a malty CONTRACTOR shall pay OWNER $1,099.00 for each calejdar day what expires. er the time specified in paragraph 4.02 for Substantial Gompleippon? he Work is substantially complete. After Substantial Completion, if CO neglect, refuse, or fail to complete the remaining Work within the Con f 'me °many proper extension thereof granted by OWNER, CONTRACTOR shall pa. 'ER $499.00 for each calendar day that expires after the time specifiettip,paragrap coreetion and readiness for final payment until the Work is completetiand. read • r final payment. OWNER shallOpay,-*2 NTRAC 1..k4' , for completion of the Worl< in accordance with the Contract Docatents, *At!lo.ufitlh current funds equal to the sum of the amounts determined pursuant4p, araafa 5.01.A and summarized in paragraph 5.01.B, below: A or all Work, at thgences stated in CONTRACTOR's Bid, attached hereto as an exhibit. ., ,aiN RAeASUM'subject to additions and deductions provided in the Contract:: Numerical kriount: $ 497,113.24 Written Amount: ARTICLE 6 - PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions and the Contract Documents. @BCL@D0059030 00520 - 3 C:\Users\GRANIC-1\AppData\Local\Temp\BCL Technologies\easyPDF \@BCL@D0059030\@BCL@D0059030.doc P117 6.02 Progress Payments. A. The OWNER shall make progress payments to the CONTRACTOR on the basis of the approved partial payment request as recommended by ENGINEER in accordance with the provisions of the Local Government Prompt Payment Act, Florida Statutes section 218.70 et. seq. The OWNER shall retain ten percent (10%) of the payment amounts due to the CONTRACTOR until fifty percent (50%) completion of the work. After fifty percent (50%) completion of the work is attained as certified to OWNER by ENGINEER in writing, OWNER shall retain five percent (5%) of the payment amount due to CONTRACTOR until final completion and acceptance of all work to be performed byQONTRACTOR under the Contract Documents. Pursuant to Florida Statutes secti"bn 218.735(8)(b), fifty percent (50%) completion means the point at which teCounty as OWNER has expended fifty percent (50%) of the total cost of the construction services work a purchased under the Contract Documents, together witti ll costs associated with existing change orders and other additions or modificatiofso the co : Sfruction services work provided under the Contract Documents. 6.03 Pay Requests. A. Each request for a progress payrxie T s `{ f •be s omitted on the application for payment form supplied by Ot and tl e, applica#ion f4 vyfl> ayment shall contain the CONTRACTOR'S certification. All profss paym e�r' •.ts will be on the basis of progress of the work measured b yhe schedule of values established, or in the case of unit price workas bed orn,he number of units completed. After fifty percent (50%) compl+g i6r1:; and ursuant to Florida Statutes section 218.735(8)(d), the CONTMCT,bR ma submit a pay request to the County as OWNER for u :tt©,one half (2) o; fie retainage held by the County as OWNER, and the Couri .-s..®I,L ER Shall promptly make payment to the CONTRACTOR unless such amot ntts� the ubject of a good faith dispute; the subject of a claim pursuant to'Florrda Sth`tute`s. section 255.05; or otherwise the subject of a clainitalAemand by es Calf* as OWNER or the CONTRACTOR. The CONT 2AC ;R: acknow' clges that where such retainage is attributable to the labor, service's, b 5rraateriaT Supplied by one or more subcontractors or suppliers, the Conttacto� sha1lfinely remit payment of such retainage to those ubcontracto and suppliers. Pursuant to Florida Statutes section 218.735(8)(c), CONTRA AR further acknowledges and agrees that: 1) the County as —.. sh f�I. receive immediate written notice of all decisions made by �"�CONTR CT i to withhold retainage on any subcontractor at greater than five }Y'''�u��}�}p{� percent(5%) after fifty percent (50%) completion; and 2) CONTRACTOR will not seek rrele se from the County as OWNER of the withheld retainage until the final pa � e est. 6.04 Paragraphs 6.02 and 6.03 do not apply to construction services work purchased by the County as OWNER which are paid for, in whole or in part, with federal funds and are subject to federal grantor laws and regulations or requirements that are contrary to any provision of the Local Government Prompt Payment Act. In such event, payment and retainage provisions shall be governed by the applicable grant requirements and guidelines. @BCL@D0059030 00520 - 4 C:\Users\GRANIC-11AppData\Local\Temp\BCL Technologies\easyPDF 71@BCL@D00590301@BCL@D0059030.doc P118 6.05 Acceptance of Final Payment as Release. A. The acceptance by the CONTRACTOR of final payment shall be and shall operate as a release to the OWNER from all claims and all liability to the CONTRACTOR other than claims in stated amounts as may be specifically excepted by the CONTRACTOR for all things done or furnished in connection with the work under this Contract and for every act and neglect of the OWNER and others relating to or arising out of the work. Any payment, however, final or otherwise, shall not release the CONTRACTOR or its sureties from any obligations under the Contract Documents or the Public Construction Bond. ARTICLE 7 - INDEMNIFICATION 7.01 CONTRACTOR shall indemnify OWNER, ENGINEER, an. *thers%accordance with paragraph 6.20 (Indemnification) of the General Conditions to the:o struction Co'tract. ARTICLE 8 - CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce OWNER to enter into this4reemer3`;CONTRACTOR makes the following representations: A. CONTRACTOR has examined and erefully st died the C ct Documents and the other related data identified in the Bidding Docu B. CONTRACTOR has visited thebe`ci'aae familiar with and is satisfied as to the ai{ general, local, and Site conditions ihaf y aff rt, progress, and performance of the a• Work.; ''�r,.. C. CONTRACTOR is famili reith.4fisAtisfied'as to all federal state, and local Laws and Regulations that may affecttbst, pfogress; and performance of the Work. j� D. CONTRACTC 2, i acarefullNvo y 's# died all: (1) reports of explorations and tests of subsurface conditions a terkkcontigubus to the Site and all drawings of physical conditions in ,or relating to$'existin surfa' 'z'or subsurface structures at or contiguous to the Site (d ctUndergrr~d' Facilities) which have been identified in the Supplementary ::; ;conditions as pro‘ed in paragraph 4.02 of the General Conditions and (2) reports and rawings,fa vHazardous Environmental Condition, if any, at the Site which have been rdenti d "in th t Supplementary Conditions as provided in paragraph 4.06 of the General rditions. E. CONTI •AC OR'has obtained and carefully studied (or assumes responsibility for having done so ) all additional or supplementary examinations, investigations, explorations, tests, studies, and data conceming conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by CONTRACTOR, including applying the specific means, methods, techniques,, sequences, and procedures of construction, if any, expressly required by the Contract Documents to be employed by CONTRACTOR, and safety precautions and programs incident thereto F. CONTRACTOR does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the t@i BCL@D0059030 00520 - 5 C:\Users\GRANIC-1 WppData\Local\Temp\BCL Technologles\easyPDF T@BCL@D0059030\@BCL@D0059030.doc P119 Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents. H. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. I. CONTRACTOR has given ENGINEER written notice of all conk s errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Cora tct Documents, and the written resolution thereof by ENGINEER is acceptable to CO. TRACTOR: J. The Contract Documents are generally sufficient to indicate an4.0m y undersea ding of all terms and conditions for performance and furnishing of the Wort }fir ARTICLE 9 - CONTRACT DOCUMENTS A. The Contract Documents consist of the followhg: ' 1. This Agreement (pages 00520-1000520-10� its,- lusive); ✓ " 2. Notice to Proceed (page 005504); 3.. Public Construction Bond (pages.00e 1:0-1 to .p610-3, inclusive); 4. Sample Certificat m.f ialility Ins nce age 00620-1); ri:{."oi3Y 5. Contractors Applicationjbr. Payor (pages 00622-1 to 00622-6, inclusive); 6. Certificat "of Sebstantial Corm etion (00630-1 to 00630-2. inclusive); 7. ontractor's°:IFinal rtificai,of Work (pages 00632-1 to 000632-2, inclusive); ` ✓ 4:?rr ��j'rr Professional S14,r3/eyor and Mapper's Certification as to Elevations and Locatio"r''s. sof the,'.. /..ork (00634-1); L R Lae"' Conditions (pages 00700-1 to 00700-44, inclusive); 10. Supptemrttary Conditions (pages 00800-i to 00800-11, inclusive); 11. Specifications as listed in Division 1 (General Requirements) and Division 2 (Technical Provisions). 12. Drawings consisting of a cover sheet and sheets numbered 1 through 19, inclusive, with each sheet bearing the following general title: 43nd AVENUE SIDEWALK IMPROVEMENTS FROM AVIATION BOULEVARD TO AIRPORT DRIVE WEST; 13. Addenda (numbers to , inclusive); @BCL@D0059030 00520 - 6 C:\Users\GRANIC-11AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@D0059030\@BCL@D0059030.doc P120 14. Appendices to this Agreement (enumerated as follows): Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F — — Title VI/Nondiscrimination Policy Statement — Indian River County Fertilizer Ordinances — Federal Required Contract Provisions — FHWA 1273 — Permits Indian River County Traffic Engineering Division, Special Conditions for Right -of -Way Construction 15. CONTRACTOR'S BID (pages 00310-1 to 00310-7, inclusive 16. Bid Bond (pages 00430-1); 17.Swom Statement Under Section 105.08, Indian River Coun Relationships (pages 00452-1 to 00452-2, inclusive); 18. Sworn Statement Under the Florida Trench Sa et Act (pages inclusive); e, on Disdiisure of 19. Qualifications Questionnaire (page:"� 0456-1 20. List of Subcontractors (pageA0458 a'!') 21. The following which may bect orratsued on or after the Effective Date of the Agreement and are not attached. hecto: a) Written Amend a A. b) Work„Change Directies; c) Changej 2..; DBE Bid Pa ige tiform pti. (pages 00470-1 to 00470-9. inclusive); Itt Non -Collusion ►`f idavit (page 00472-1); 16. -eft' icationi#or Disclosure of Lobbying Activities on Federal -Aid Contracts ages 0041 to 00474-3. inclusive); 25. ,C.OiTioleAegarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — Prn"y Covered Transactions (page 00476-1); 26. Certification of Non Segregation & Non Discrimination (pages 00490-1 to 00490-2, inclusive); 27. Buy America Certificate of Compliance (page 00492-1); 28. Drug Free Workplace Certification (page 00494-1), 29. LAP Certifcation Capacity/Status of Contracts on Hand (pages 00496-1 to 00496-2, inclusive); @BCL@D0059030 00520 - 7 C:\Users\GRANIC-1\AppData\Local\Temp\BCL Technologies\easyPDF 7\ BCL@D0059030\@BCL@D0059030.tloc P121 30. Certification of Sublet Work (pages 00500-1 to 00500-2, inclusive); 31. USDOL Wage Determination — FL160213; ARTICLE 10 - MISCELLANEOUS 10.01 Terms f; A. Terms used in this Agreement will have the meanings indicated in 01 General Conditions. 10.02 Assignment of Contract . A. No assignment by a party hereto of any rights under or intern sts i :;e Contract will be binding on another party hereto without the written consent of:Ile-party sou, to be bound; and, specifically but without limitation, moneys that may b me, due a4i moneys that are due may not be assigned without such consent (except teilLeAelit that the ViaecificaIrtated to the `' d unless s p effect of this restriction may be limited by law), �n� contrary in any written consent to an assigntt Kno` agignment will release or discharge the assignor from any duty or responsiblinder the Cofit ct Docrts. 10.03 Successors and Assigns A. OWNER and CONTRACTORea, bine` its partners, successors, assigns, and legal representatives to the othershereto, ats partners, successors, .assigns, and legal representatives in respect to all coVen ag events, and obligations contained in the Contract Documents .0...� 10.04 Severability A. Any provisiow part of the ° o:rktract Documents held to be void or unenforceable under any Law or },egula#on, shall ed�eemed stricken, and all remaining provisions shall continue to be 'slid anin'dirag upon OWNER and CONTRACTOR, who agree that the Contract Docum„ `: ts, Ilbil firmed to replace such stricken provision or part thereof '16. a 'slid and e�f rceable provision that comes as close as possible to expressing the %Intention of the stricken provision. At .A. 10.05 ,`_ n.oe A. This Contract st)a11 be governed by the laws of the State of Florida. Venue for any lawsuit brough f.ytt3'er party against the other party or otherwise arising out of this Contract shall be in'zl`iidian River County, Florida, or; in the event of a federal jurisdiction, in the United States District Court for the Southern District of Florida. 10.06 Public Records Compliance A. Indian River County is a public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall: (1) Keep and maintain public records required by the County to perform the service. @BCL@D0059030 00520 - 8 C:\Users1GRANIC-1 AppData\Local\Temp\BCL Technologies\easyPDF 71@BCL@D0059030\@BCL@D0059030.doc P122 (2) Upon request from the County's Custodian of Public Records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, tope County all public records in possession of the Contractor or keep andntain public records required by the County to perform the service. If 4. Contractor transfers all public records to the County upon completion of` h contract 'Ehe Contractor shall destroy any duplicate public records that are I4xempt_ r confidential and exempt from public records disclosure requirements. I ie'ntractor keeps and maintains public records upon completion of the contra, he Conor shall meet all applicable requirements for retaining public record 11 re"cbrds stored electronically must be provided to the Coun#y4upon request fro lie Custodian of Public Records, in a format that i % ompafit e,with the information technology systems of the County. B. IF THE CONTRACTOR II APPLICATION OF CHAFE CONTRACTOR'S DUf" RELATING TO THIS CONT. PUBLIC RECOR$.DI (772) 226-14 f< pubIicrecords R.c9oil eb'm Indian R xer Court y Office of the County Attorney 1801`27 St`s' `et Vero Beach 29.60 • S QUTION GARDING THE FLORIDA STATUTES, TO THE OVIDE PUBLIC RECORDS , CONTACT THE CUSTODIAN OF 4.4 C0�f�ailure oft 4;<Gontf ctor to comply with these requirements shall be a material breach of hisAgfeement . , [The remainder of this page was left blank intentionally] @BCL@D0059030 00520 - 9 C:\Users\GRANIC-11AppDatalLocal\Temp\BCL TechnologiesleasyPDF 71(BCL@D0059030\@_DBCL@D0059030.doc P123 IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and CONTRACTOR. All portions of the Contract Documents have been signed or identified by OWNER and_ CONTRACTOR or on their behalf. This Agreement will be effective on , 20_ (the date the Contract is approved by the Indian River County Board of County Commissioners, which is the Effective Date of the Agreement). OWNER: INDIAN RIVER COUNTY By: Joseph E. Flescher, Chairman By: Jason E. Brown, County Administrator APPROVED AS TO FORM AND LEO, SUFFICIENCY: CONTRACTOR: Timothy Rose OW actinci, Inc. By: 4ttest CGhtractor) � (COR ( . EAL) By:... Dylan Reingold, County Attomey Jeffrey R. Smith, Clerk of Co rt Attest: ddress for giving notices: (SEAL) ry�le��k f � Designatipresentativ{ Name;. _ aures W. Ennis, PE: PMP Title: Count Engrrteer fr w ' 1801 �it rStr t 11,,fVero Beach.Forida 32g60 (772) 226-1221> Facsimile: (77)<77'i License No. (Where applicable) Agent for service of process: Designated Representative: Name: Title: Address: Phone: Facsimile: (If CONTRACTOR is a corporation or a partnership, attach evidence of authority to sign.) **END OF SECTION** @BCLOD0059030 00520 - 10 C:\Users\GRANIC-1\AppData\Local\Temp\BCL Technologies\easyPDF 71@BCL@D00590301@BCL@D0059030.doc P124 CONSENT AGENDA INDIAN RIVER COUNTY, FLORIDA BOARD MEMORANDUM TO: Jason E. Brown, County Administrator THROUGH: Richard B. Szpyrka, P.E. Public Works Director FROM: James D. Gray, Jr. Coastal Engineer SUBJECT: Private Community Requests to Use County Beach Park Access for Emergency Dune Repair Projects - Post Hurricane Matthew DATE: January 10, 2017 DESCRIPTION AND CONDITIONS The western eyewall of Hurricane Matthew passed approximately 3-5 miles east of Indian River County on October 7, 2016, with maximum sustained winds of approximately 45-55 mph and maximum recorded gusts of up to 74 mph producing 15-20 foot breaking waves along the coast and 35 to 40 foot waves offshore. As a result of the high surf, approximately 10-15 feet of dune retreat was observed throughout the County shoreline. Separate from the County, several private communities have received emergency permits to repair their significantly eroded dunes. However, these communities do not have adequate heavy equipment beach access to perform dune repairs. As such, staff has received requests to utilize the following County owned beach parks for heavy equipment access: • Golden Sands Beach Park • Wabasso Beach Park • Seagrape Trail Beach Park The purpose of the item is to request Board approval for the County Administrator or his designee to execute County beach park access agreements for the purposes of private emergency dune repair projects. If the Board approves beach access, all private projects will be coordinated with staff in an effort to minimize disruption to the public. Note: All beach work must be completed by February 28, 2017 to avoid sea turtle nesting season. FUNDING This item does not require .expenditure of County funds. C:\Users\GRANIC-1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@A00516D7\@BCL@A00516D7.docx P125 Page 2 Consent Agenda Item for January 17, 2017 Request for Beach Access RECOMMENDATION The recommendation of staff is for the Board to authorize the County Administrator or his designee to execute County beach park access agreements for the purposes of private emergency dune repair projects. ATTACHMENTS Sample access agreement is attached for Board consideration Access request from: • Town of Orchid to use Golden Sands Beach Park • Disney's Vero Beach Resort to use Wabasso Beach Park • Sea Oaks Property Owners Association to use Sea Grape Trail Beach Park • Baytree Condominium Association and Marbrisa Homeowners Association to use Sea Grape Trail Beach Park APPROVED AGENDA ITEM FOR: JANUARY 17, 2017 C:\Users\GRANIC-1 AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@A00516D7\@BCL@A00516D7.docx P126 GOLDEN SANDS BEACH PARK LICENSE AGREEMENT Indian River County ("County") hereby authorizes the Town of Orchid and its affiliates, agents, representatives and contractors (collectively "Licensee") to use the established beach access point at Golden Sands Beach Park ("Park") for the limited purpose of delivering beach material and locating certain heavy equipment onto the beach to perform dune stabilization projects for the nearby residential development. Use of the Park for this purpose is limited to 19 days between January 30, 2 (including weekends) between the hours of 7:30 AM — 5:30 and is subject to the following terms and condition,„, 'and and February 17, 2017 cense Period"), 1) Licensee shall operate all equipm:r or ca safe and prudent manner, and in accordance for public safety by CountycyAff ment to be o'. erated, in a any msuresmed necessary 2) Licensee shall (a) keep the gate. o the Par securely locked at all times except when opened for the passage 1 icensee's e u , ment, (b) manage in a timely and efficient manner.nfy_ytraffic issues ta''t�ryarise asa _result of Licensee's use of the Park, and (c)r'o 1 it?pan.. ublitvehi u, r or pe estrian use of the Park during Licensee's dune sta zlization activi; s. Licensee shall post "Beach Closed" signs at the Park entrance curing Lieens �.ee?dune stabilization activities. i '•1'¢ ? � 3) Any sang e� de o estab i a. "sand : mpff for equipment to access the beach, or „ro perform the dune ��sstabilizatiorojects for the nearby residential developments, f%f%� � liall be provided by ;cbnsee. No use of existing sand from the Park or beach shall be allowed :�ny dam r �ff satisfaction oft), County and at no cost to the County. The agreed upon access r tit al1;be m pected/videoed by County staff with the Licensee present, prior �f�' ��1i}fi�fi. �� , to 1 e equipnent nrniob, ilization to the identified Beach Park. OA 4) The County,,asslimes no liability for loss of or damage to Licensee's equipment or personal td rty staged or stored at the Park. Any such equipment or property shall be staged or stored at the sole risk of Licensee. e by Licensee to the Park shall be repaired to the 5) The Park is located between two residential communities. As such, Licensee shall minimize construction impacts to the residential communities (i.e. work hours 7:30 AM — 5:30 PM, construction noise, equipment vibration, etc) to the greatest extent practical. Licensee shall provide 48 hour notice to the HOAs of the adjacent residents and the County prior to commencing access activity through County property. P127 6) Licensee shall indemnify the County for any damage to Park structures, roads, vegetation or other Park features or County property resulting from Licensee's performance of the dune stabilization projects, or this License Agreement. Any such damage shall be repaired to the satisfaction of the County, or Licensee shall pay to the County the reasonable cost to repair any such damage. Licensee shall also indemnify and hold harmless the County, and its officers and employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the Licensee and persons employed or utilized by the Licensee in the performance of the dune stabilization projects, or this License Agreement. 7) Licensee shall maintain, or cause to be maintained, ti g the License Period, the insurance policies and coverage limits set forth: Insurance: fi • Owners and Subcontractors Insurance: The :,icensee shall nx t. commence work they X41 ed under this ction 1 until until have obtained all the insurance re` such insurance has been approved b r' wner" shall the Lice . allow any ci subcontractor to commence wuntilhe subc has a'btained the insurance required for a contract r} a ein an B } uch insAri�ha'�s" cebeen approved unless the subcontractor work is c;,weredzri ' the protecq s afforded by the Licensee's insurance. '. 1. f' • Worker's Compensation Insuran e The Li nsee shall procure and maintain worker's compe cation insura ip to e exten;,% equired by law for all their employees to be�nged..in wor`- der hs, contract. In case any employees are to be engaged in hrdo"Rik t;firer thisontract and are not protected under the worker's compensat ton state t Licensee shall provide adequate coverage °}//'?rte. • ,,C\x,.... for the iote n of such ployee f; :;Public LiabYlity InSU ance: Tl e ,icensee shall procure and maintain broad form /. commercialgeneVriab'hty; insurance (including contractual coverage) and commercial a ife, °bile liability insurance in amounts not less than shown below. ,o�rsha) be an additional named insured on this insurance on this Ltt�sfatietli re t to all claims arising out of the operations or work to be performed. ' Commercia gral (Public) Liability, other than Automobile $1,000,000.00 Combined single limit for Bodily Injury and Property Damage Commercial General A. Premises / Operations B. Independent Contractors C. Products / Completed Operations D. Personal Injury E. Contractual Liability F. Explosion, Collapse, and Underground Property Damage P128 Automobile $1,000,000.00 Combined single limit Bodily Injury and Damage Liability A. Owner Leased Automobiles B. Non -Owned Automobiles C. Hired Automobiles D. Owned Automobiles • Proof of Insurance: The Licensee shall furnish the owner a certificate of insurance in a form acceptable to the owner for the insurance required. Such certificate or an endorsement provided by the contractor must state that the owner will be given thirty (30) days written notice prior to cancellation or material change in coverage. Copies of an endorsement -naming owner as Additional Name Insured must accompany the Certificate of Insurance. 8) Insurance certificates attached hereto as Composite ibit A fi 9) At the completion of Licensee's project or..expiration of ti icense, whichever occurs first, Licensee shall return the Park to .bstantially the*acme condition as it was at the beginning of the lease, to the County ` ole satisfactife; , 10) Licensee shall perform its workoli sfrict�liaric,> ith any permit issued for the project. If at any time Licensee„does notdhere@ : he pert conditions or County y order the work to ` ` ' ately cease until above conditions, the Cour : ma ',4 • k Licensee brings the projeo comaic�� Violation of permit conditions and/or the terms of this LicensebAgreen t f may result in termination of the License Agreement by the Coui y rwith a at no cost to the County. Date: Prim"4d Name and Tit INDIAN RIVER COUNTY COUNTY Signed: Date: Printed Name and Title: P129 December 20, 2016 Mr. Jason Brown, County Administrator 1801 27th Street Vero Beach, FL 32960 Dear Mr. Brown, As you know our dunes sustained significant damage as a result of Hurricane Matthew and therefore, the Town of Orchid plans to complete a dune repair project. This project is being done. in accordance with Indian River County Field Permit Number IR -17 -CO No. 1, pursuant to the Florida Department of Environmental Protection Emergency Final Order — OGC No 16-1319. The scope of the project is to place up to 16,500 cubic yards of sand along Orchid to replace a portion of our lost dunes. As Orchid no longer has an access point to bring in sand to the beach, the Town respectfully asks your permission to use the access at Golden Sands Beach Park. We would like to begin the project immediately and have it completed no later than February 28, 2017. To avoid potential conflicts, use of the access would be coordinated with the County's proposed dune repair project at Golden Sands Beach Park. The Town of Orchid's beach is part of the Sector 3 which is an engineered beach. The project undertaken by Indian River County for the emergency dune repair has provisions in County Bid # 2017.018 that allows Orchid to obtain the services of the successful bidder for the repair of our dunes, Co -Operative Purchasing (page 7 of 41). It is our understanding that if the Town were to become eligible for the reimbursement of its project costs from FEMA there would need to be a Memo of Agreement (MOA) between the Town and the County allowing the Town to use the Counties procured contract. We appreciate the Counties assistance in previous beach management programs and respectfully request the development of a MOA between the County and Town. Should you have any questions or would like to discuss this matter further, please feel free to contact me at (772) 581-2770 or email me at townmanager@townoforchid.com. As our ability to move forward with this project hinges on access, I would appreciate your response as soon as possible. Sincerely, Noah M. Powers Town Manager Cc: Town Council James Gray, Jr., IRC Coastal Engineer Richard Szpyrka, Public Works Director Fred Marino 7707 US HIGHWAY 1, Suite 1 • VERO BEACH, FL 32967 TELEPHONE: 772.581.2770 • FAcs1M[LE: 772.581.2771 P130 James Gray From: Steve Boehning, PE, CFM <steve@coastalwde.com> Sent: Thursday, December 01, 2016 3:58 PM To: James Gray Cc: 'Hart, Paul' Subject: Disney's Vero Beach Resort - Dune Repair Project - Wabasso Beach Access use Agreement James: On behalf of Disney's Vero Beach Resort, we are requesting construction access through the Wabasso County Beach Park. We expect to coordinate the Disney's Vero Beach Resort Repair project with the County Dune Repair project to minimize interruption to the County's use of the park. Disney's Vero Beach Resort staff will need time to review the access agreement prior to the agreement being signed by Disney's Vero Beach Resort. Please contact me with any questions regarding this request. Regards, Steve Stephen W. Boehning, P.E., CFM President / Principal Coastal Engineer �°� Coastal Waterways Engineering, Floodplain & Emergency Management Solutions Within our Coastal and Marine Environment IT (772) 473-4099 steve@coastalwde.com www.coastalwde.com 1 P131 James Gray From: Steve Boehning, PE, CFM <steve@coastalwde.com> Sent: Tuesday, January 10, 2017 4:32 PM To: James Gray Subject: Baytree and Marbrisa Request for County beach park access James: On behalf of the Baytree Condominium Association (BCA) and the Marbrisa Homeowners Association (MHOA), we are requesting the use of the county beach park, known as Sea Grape Trail, for construction access associated with the proposed Baytree Emergency Dune Repair Project and Marbrisa Emergency Dune Repair Project. The project construction date is uncertain, but is expected to occur over a two week period beginning possibly in late January and extending through February of 2017. As you are aware, we have included the Indian River County dune material specifications as part of our project specifications. Work will be performed under the Emergency Permit issued separately for BCA and MHOA by your office under the authorization of the state. Please contact me with any questions. Kind regards, Steve Stephen W. Boehning, P.E., CFM President / Principal Engineer -v� Coastal Waterways Engineering, Floodplain & Emergency Management Solutions Within our Coastal and Marine Environment CD (772) 473-4099 steve@coastalwde.com www.coastalwde.com 1 P132 James Gray From: Steve Boehning, PE, CFM <steve@coastalwde.com> Sent: Tuesday, January 10, 2017 4:32 PM To: James Gray Subject: Sea Oaks Request for County beach park access James: On behalf of the Sea Oaks Property Owners Association (SOPOA), we are requesting the use of the county beach park, known as Sea Grape Trail, for construction access associated with the proposed Sea Oaks Emergency Dune Repair Project. The project construction date is uncertain, but is expected to occur over a two week period beginning possibly in late January and extending through February of 2017. As you are aware, we have included the Indian River County dune material specifications as part of our project specifications. Work will be performed under the Emergency Permit issued by your office under the authorization of the state. Please contact me with any questions. Kind regards, Steve Stephen W. Boehning, P.E., CFM President / Principal Engineer Coastal Waterways Engineering, Floodplain & Emergency Management Solutions Within our Coastal and Marine Environment ® (772) 473-4099 steve@coastalwde.com www.coastalwde.com i P133 INDIAN RIVER COUNTY, FLORIDA AGENDA ITEM Assistant County Administrator / Department of General Services CONSENT AGENDA Date: To: January 10, 2017 The Honorable Board of County Commissioners Thru: Jason E. Brown, County Administrator From: Michael C. Zito, Assistant County Administrator Subject: Irrigation System Pump Station Replacement at Sandridge Golf Club - Lakes Golf Course DESCRIPTIONS AND CONDITIONS: The irrigation pump station for the Lakes Golf Course was installed in April 1992, with an anticipated life expectancy of twenty years. Only one of the two pumps in the station is currently operational, with the second deemed beyond repair. Staff recently advertised an Invitation to Bid (ITB) for the replacement of the entire irrigation system on the Lakes Golf Course, including the pump station. As the condition of the operating pump has continued to decline, and the necessity that the pump station be replaced whether or not the irrigation system bid is awarded, Staff deleted the pump station replacement from the irrigation 'bid and solicited quotes for replacement of the pump station separately. The irrigation system project is scheduled to begin no earlier than May to minimize impact to play on the Lakes Course. With a lead-time for pumps and appurtenances of six to eight weeks after order, removal of the pump station separately from the bid will enable its replacement as early as March. The separate direct purchase and replacement of the pump station will also reduce the cost of the work, as the County will not need to pay the sales tax an irrigation contractor would under the bid. EVALUATION: The pump station specifications from the bid were used to obtain quotes for the replacement of the pump station from the three previously approved pump manufacturers, with the following results: Vendor Quote Watertronics $108,727.00 MCI Pumps $112,879.00 Flotronex $125,229.00 C:\Users\GRANIC-1\AppData\Loca1\Temp\BCL Technologies\easyPDF T@BCL@48050F57\@BCL@48050F57.doc P134 FUNDING: . Other Machinery and Equipment 41822172-066490 $108,727.00 Capital improvements in the form of replacing the entire irrigation system on the Lakes Course totaling $1,100,000 were approved in the FY 16/17 budget, with the golf course funding the project RECOMMENDATION: Staff recommends the Board waive the formal bid requirement for bids for the replacement of the pump station, accept the quotes from the qualified vendors referenced above, and authorize the Purchasing Division to issue a Purchase Order to Watertronics in the amount of $108,727.00. C:\Users\GRANIC- 1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@48050F57\@BCL@48050F57.doc P135 974 December 19, 2016 Deryl Loar Indian River County Sheriff's Office The Honorable Joseph E. Flescher, Chairman Indian River Board of County Commissioners 1801 27th Street Vero Beach, FL 32960-3388 Re: Law Enforcement Trust Fund, County Fund 112 — Special Law Enforcement Dear Chairman Flescher: Florida Statute 932.7055, the Florida Contraband Forfeiture Act, provides that proceeds and interest earned from the forfeiture of real or personal property shall be used for providing additional equipment and may not be used to meet normal operating expenses of the law enforcement agency. These funds are the direct result of our deputies' diligent law enforcement efforts and are derived mainly from drug related offenses. None of the funds are derived from county tax dollars. Pursuant to the above statute, I am requesting that $80,821.45 from our Law Enforcement Trust Fund be used to purchase active shooter kits, SWAT armor, and tactical assault vests for Corrections officers. This equipment is essential in the replacement of vests that will be expiring and to complete active shooter kits that were previously purchased for active shooter scenarios. Please place this item under Constitutional Officers for the January 17, 2017 board agenda. If you have any questions or require additional information, please contact me at 978-6406. Thank you for your consideration. Sincerely, Deryl Loar, Sheriff DL:nmj cc: Jason E. Brown, County Administrator Michael Smykowski, OMB Director Kelly Goodwin Metcalf, Comptroller 4055 41st Avenue • Vero Beach, FL 32960 • (772) 569-6700 • www.ircsheriff.org P136 Bill To: GT Distributors - Austin P.O. Box 16080 Austin TX 78761 (512) 451-8298 Ext. 0000 Ship To: :Quote ; QTE0045897 Dt3"t'e . ,' 11/10/2016 pailei: , 1 P137 Indian River Co.Sheriffs Office (FL) Attn: Accounts Payable 4055 41st Avenue Vero Beach FL 32960 Indian River Co Sheriffs Office (FL) 4055 41st Avenue Attn; Debbie Wadsworth Vero Beach FL 32960 P'urc'Rase: Order toi C0stomer ID." ' .. talitieeeidfilta Shippirief3Methiodt Payment Terms..: fe i.:Shia bate iAaster No: IRCSO ACTIVE SHOC 010069 JL FACTORY DIRECT NET 30 0/0/0000 1,539,124 Ouan'tfiii `_ Ite' i Nunitier• . - De ripq .. ,1: _ = Sr. llb�r:: :` '_ 'rt.� �.: t',;,.i : },:_ , i;Y.O' `'^' y �1ni, t`P65.63 5 EXt :.Pitt 40 PTA -TAC -PH -10X12' Protech TAC PH Modular Webbing Carrier, 10' .M:.� EA $65.63 .2: $2,625.20 TAC PH, Traditional Modular Webbing, 10" X 12" Plate Pocket Black In Color 80 PTA -I -SHE -LG' Protech Large SHERIFF ID Patch 8.5x3 EA $5.25 $420.00 Black on Color SHERIFF in White 40 PTA-LT-TP33' Tourniquet Pouch Each $21.00 $840.00 Black in Color 40 PTA-LT-TP5' M4 Magazine Pouch, Single Black in Color Each $26.25 $1,050.00 40 SBA -BAG -SAF -ABA' Concealable Armor Carry Bag Each $21.00 $840.00 1 NOTES' Notes: EA $0.00 $0.00 All above item pricing based on Florida State Contract 40 PTA -1093630- Protech IMPAC RT PLUS 10X12 EA $130.00 $5,200.00 40 PTA -1193543' IMPAC RT PLUS 10X12 Flat, Rectangle Each $130.00 65,200.00 1 NOTES' Notes: EA $0.00 $0.00 Complete Active Shooter Kit Includes: TAC PH Carrier, 2 ID panels, Tournique Pouch, M4 Pouch, Carry Bag and 2 RT Plates: Cost per kit: $404.38/each All returns must be authorized by GT Distributors. Interest charges on past sutitoi i= n ` $16,175.20 due invoices at the maximum rate allowed by law. `i1Ai`sc` X'° :` :i`:r '. so.00 Your salesperson is Jeff Ludwig. Thank You. rte'" ;Tait„»� �+�'z.e:n,.,>-•: ,�.. $0.00 i` iaht J ` .VitIV:. $0.00 6Tota I azu,; $16,175.20 P137 Bill To: GT Distributors- Austin P.O. Box 16080 Austin TX 78761 (512) 451-8298 Ext. 0000 Ship To: ,Oirf tieZ QTE0045435 it58tie> 11/4/2016 ?asii:. , 1 P138 Indian River Co Sheriffs Office (FL) Attn: Accounts Payable 4055 41st Avenue Vero Beach FL 32960 Indian River Co Sheriffs Office (FL) 4055 41st Avenue Attn; Debbie Wadsworth Vero Beach FL 32960 Purchase 0ider: N& :CilsYorner ID r ; ;t:;'Sile`spere`oris4D;, :ShIbbIF i`lVitt'hodt, Paa%riieh1t rerma R"egi"" Sli'i�pliDat� lUla3ter�No "` 'RCSOTITAN 010069 JL FACTORY DIRECT NET 30 0/0/0000 1,536,432 Qtian`tltli�= tems . iliiilier=;`.�.:�d'�z: I "' : bescrl l o`3ibii L. wim�• - AL, -0-* .;,• woOtyNRVt� 1IificPrfcem ° ib,�l3iite°_i 20 PTA-TAV-AWS-CARR-F Titan Assault Tactical Platform, Advanced Wet Each $430.11 $8,602.20 Titan Assault Tactical Platform, Advanced Webless System, First Spear® Tubes 20 PTA-TAV-HW68-3A' Titan Assault Ballistics, Hardwire® 68 Level 111 Each $1,262.57 $25,251.40 20 PTA-TAV-SHR-HW68-3 Titan Assault Shoulder Ballistics, Hardwire® 6E Each $124.87 $2,497.40 20 PTA-TAV-SDE-HW68-3 Titan Assault Side Ballistics, Hardwire® 68 Lev Each $183.16 $3,663.20 20 PTA-CLR-HW68-3A' Collar, Hardwire® 68 Level IIIA Each $138.76 $2,775.20 20 PTA-THR-HW68-3A' Throat, Hardwire® 68 Level IIIA Each $86.02 $1,720.40 20 PTA-SBCP-SHT-HW68- Structured Upper Arms, Short, Hardwire® 68 L Each $310.79 $6,215.80 20 PTA-GRN-HW68-3A' Groin, Hardwire® 68 Level IIIA Each $163.72 $3,274.40 0 NOTES' Notes: EA $0.00 $0.00 Per Mark Brown, Safariland Shipping included Prices for quantity listed All returns must be authorized by GT Distributors. Interest charges on past Suliicfaf:;: %=•F`:. ':•: 654,000.00 due invoices at the maximum rate allowed by law. :Miecti:.. i-�':;:.• ::<_ $0.00 Your salesperson is Jeff Ludwig. Thank You. f7az i•W :'!;� 'x::f' $0.00 Freiahlt `..r; ':. = •... $0.00 x: ._, ' Y ..An T-pe otal ' . :.`'': $54,000.00 P138 Bill To: GT Distributors - Austin P.O. Box 16080 Austin TX 78761 (512) 451-8298 Ext. 0000 Shia To: :Quote. QTE0045927 Date.. ' 11/30/2016 Paper '. 1 P139 Indian River Co Sheriffs Office (FL) Attn: Accounts Payable 4055 41st Avenue Vero Beach FL 32960 Indian River Co Sheriffs Office (FL) 4055 41st Avenue Attn; Larry Nusser Vero Beach FL 32960 1 ha'se rde `No:? 'Gu'stoiii`®t:{il):. ''. _':. Se'lesp'erso'e`:ID". ShIDDDlha Me2tiod .P:aviiieWri erMs'= Req`_ShiiPlie i Master -No IRCSO GENERIC SIZE 010069 JL FACTORY DIRECT NET 30 0/0%0000 1,539,379 is uantrttj Iteni=Nifmber...... -.; ��' De$Crltltton=--- .:-, ..: ".. .:..". "".: `:.: ". , . �. ":.U,OfVI:::�< tliifi<,iP.i1ce'.,: 'E'iit�lDiEtcc'..: 15 ABA-XT03-II-M' ABA XT03 Level 2 Male Vest EA $562.75 $8,44125 Generic Sizes: 3 SRC - SRRC, 4 MRC-MRRC, 2 LRC-LRRC 3 1RC-1RRC, 1 2RC-2RRC 2 3RC-3RRC 30 ABA-TAC1-CLN' ABA Tac Assault Carrier Clean EA $73.50 $2,205.00 Grn in Color, SHERIFF in White 2 each for above listed sizes 1 NOTES' Notes: EA $0.00 $0.00 Prices based on Florida State Contract • Mi returns must be authorized by GT Distributors. Interest charges on past Subtoiat.... $10,646.25 due Invoices at the maximum rate allowed by law. li�iisc .. ` .:::' : $0.00 Your salesperson is Jeff Ludwig. Thank You. _'- TeX- $0.00 Fretaht $0.00 Total $10,646.25 P139 January 10, 2017 Sheriff Deryl Loar Indian River County Sheriff's Office The Honorable Joseph E. Flescher, Chairman Indian River Board of County Commissioners 1801 27th Street Vero Beach, FL 32960-3388 Re: Budget Amendment Dear Chairman Flescher: On December 3, 2016, my office participated in a public auction of surplus property and vehicles. We netted $105,174.00 from this function. In keeping with past practice, I am requesting the proceeds be used to acquire new like -kind property within the current fiscal year pursuant to Chapter 274, Florida Statutes. Please place this item under Constitutional Officers for the January 17, 2017 board agenda. If you have any questions or need additional information, please let me know. Sincerely, Deryl Loar, Sheriff DL:nmj cc: Jason E. Brown, County Administrator Michael Smykowski, OMB Director Kelly Goodwin Metcalf, Comptroller 4055 41st Avenue • Vero Beach, FL 32960 • (772) 569-6700 • www.ircsheriff.org ^ta8r P140 r { _Ji Ellu(� " v Beat Estate Associate Auctions Settlement Statement Seller: Indian River County Sheriff Property: Personal Property Settlement Surplus Auction 12/3/16 Total (Bid Price): $ 109,115.00 Advertising $ _0_ Net to Seller $ 109,115.00 Indian River County Sheriff acknowledges receipt of funds and full settlement for the Personal Property Auction December 3rd 2016. �. LCA 1 i, Indian River Count, Sheriff Associate Auctions LLC. 608 Colorado Ave, Stuart Florida 34994 Licensed Real Estate Brokers BK 3070353 AU3602 Date P141 Me INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSION REQUEST TO BE SCHEDULED FOR PUBLIC DISCUSSION Any organization or individual wishing to address the Board of County Commission shall complete this form and submit it to the Indian River County Administrator's Office. PUBLIC DISCUSSION INFORMATION Indian River County Code Section 102.04(10)(b): as a general rule, public discussion items should be limited to matters on which the commission may take action Indian River County Code Section 102.07(2): limit remarks to three minutes unless additional time is granted by the commission NAME OF INDIVIDUAL OR ORGANIZATION: Phyllis Frey, the American Coalition 4 Property Rights ADDRESS: 275 Date Palm Road, Vero Beach, FL 32963 PHONE: 772-713-0909 SUBJECT MATTER FOR DISCUSSION: HUD's Affirmatively Furthering Fair Housing rule IS A DIGITAL/ELECTRONIC PRESENTATION PLANNED? IS THIS AN APPEAL OF A DECISION WHAT RESOLUTION ARE YOU REQUESTING OF THE COMMISSION? Policy change re: AFFH rule YES YES x x NO NO ARE PUBLIC FUNDS OR ACTIVITIES REQUIRED? WHAT FUNDS OR ACTIVITIES ARE Discussion & subsequent meeting REQUIRED TO MEET THIS REQUEST? YES NO Transmitted to Administrator Via. Interactive Web Form x E -Mail Hand Delivered Phone COUNTY ADMINISTRATOR: Jason E. Brown MEETING Date: January 17, 2017 F\County Admin\ExecAsst\AGENDA\Public Discussion Items Fonadoc P142 January 4, 2017 Happy New Year Commissioner 7. ori, IAN 0 5 201 3OARi) OF COUNTY COMMISSION ISSI©N As you will recall, l provided a presentation on April 12, 2016 to the IRC BOCC regarding HUD & the Affirmatively Furthering Fair Housing Rule (see enclosed). In the interest of protecting our small community from the federal over reach of HUD and A FFH, I ani submitting a proposal calling for a policy change (more effective than a Resolution), that would protect the county from HUD's federal AF.FH mandates which are often embedded in grants such as CDBG's and others. As an example, I have included/ a copy of the Sedgwick County, Kansas policy change that we could use as 0 model. The verbiage is as follows: "WHEREAS, the Board of County Commissioners adopted Resolution 2008-12 on .February= 13, 2008 creating a "Grant Application and Award Policy," and most recently amended the polio' on April 17, 2013;.and WHEREAS upon review, it has been determined that it is desirable that this police should be amended to better serve current needs, which include not entering into grant agreements that require an Assessment of Fair Housing pursuant to the federal regulations contained within the Affirmatively Furthering Fair Housing Final Rule. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY, KANSAS, that: Section 1. The revised Grant Application and Award Policy is attached hereto and incorporated herein by reference, and it is hereby adopted and shall be incorporated in the Sedgwick County Policies and/ Procedures Manual, replacing earlier versions of said policy." .:5:•r. My proposal is supported by Senate member Mike Lee, S. B.1909 and House member Paul Gossar•, H.B. 1995. 1 will be presenting a similar bill to our State Representatives. However, the tinge -sensitive nature of this issue clearly points to our responsibility on a local level to prevent federal over reach of .IIUD/AFFI-I, by protection through local policy changes. 1 am requesting the call for policy change to be addressed under "Commissioners Matters" at your earliest possible convenience. Thank you very much for your response to this matter. PhiFrey ?72- 7145 - O��2 Indian River Countv Legislative Delegates Session, December 21, 2016 Speaker: Phyllis Frey, American Coalition 4 Property Rights I am here to speak about the Affirmatively Furthering Fair .Housing Rule under the department of Housing & Urban Development, with a proposal for legislation that advances protection of Home Rule ofLaw from federal overreach. Currently, under Home Rule ()flaw local agencies control land use and zoning laws that largely control where you live, the value of your home and what it costs to keep it. These factors are controlled by our local communities and reflect our living and voting preferences. HUD & the AFFH rule is about to change all of that. Here's how. If an applicant accepts a Community Development Block Grant, or others embedded with the AFFH rule, HUD now controls your communities' planning & zoning rights and land use. HUD's AFFH rule also forces your city or county to join a region, whether you want to or not, placing the priorities of the region and RPC's above local councils, commissions, P&Z Boards and Home Rule of Law. Grant applicants must use HUD's data tables and jurisdictions that force compliance with adjoining counties that change your zoning plans to conform with regional zoning plans. This effectively annexes your community to a region while you forfeit control of local planning and zoning land use. Case histories prove that when a grant recipient fails to comply with AFFH, HUD will respond with a compliance review followed by a lawsuit from the Dept. of Justice. This egregious assault on private property, constitutional and home rule must be stopped through legislation that will protect our small communities from grants embedded with HUD's AFFH rule. My proposal is supported by Senate member Mike Lee in S.B. 1909, and House member Paul Gossar, 14.B. 1995. Documentation I've provided shows that cities and counties across the U.S. are protecting themselves through similar policies. In IRC, CDBG's are being applied for and approved. Where is the oversight? Where is our protection? The best means for protecting Home Rule of Law is through new or amended legislation. During the first week in January I will provide a template for a bill. Florida should not agree to funding or assistance to any grants containing the Affirmatively Furthering Fair Housing Rule. INDIAN RIVER COUNTY LEGISLATIVE DELEGATION 2017 LEGISLATIVE SESSION HEARING: Wednesday, December 21, 2016 Subject HOUSING AND URBAN DEVELOPMENT AFFIRMATIVELY FURTHERING FAIR HOUSING RULE Proposal for Legislative Protection of Constitutional Right to home Rule of Law /I/2-3 Documentation for Delegates, Indian River County 2017 Legislative Session RE: Housing and Urban Development Affirmatively Furthering Fair Housing rule TABLE OF CONTENTS Request to speak form by Phyllis B. Frey II. a. Legislative topic b. Issue statement c. Florida Statutes d. Amendments to existing legislation e. Supporting statistics f. Legislators supporting the issue III. Presentation: Speaker, Phyllis B. Frey IV. a. Congressman Paul. A. Gosar's H.B. 1995 b. Senate member Mike Lee, S.B. 1909 V. Supportive cities and counties. Resolutions/Policy changes a. Sedgwick County, KS b. Douglas County, CO c. Castle Rock, CO d. Westchester County, NY (www.sustainablefreedomlab.org) VI. Civil Rights Compliance Review by HUD/AFFII VII. Summary 'presented to City of Vero Beach, FL & Indian River County re: HUD/MTH VIII. Analysis of HUD`s Proposed AFFH Rule INDIAN RIVER COUNTY LEGISLATIVE DELEGATION 2017 LEGISLATIVE SESSION [-Tearing: Wednesday, December 21, 2016 ** MUST BE TYPED OR PRINTED** Name of Organization: American Coalition 4 Property Rights Contact Person: Phyllis Fre). Address: 275 Date Palm Road City: Vero Beach Phone: 772-234-3995 State:I'L Email: global6 ti n sn.corn Name of person speaking: Phyllis Fre) Zip• 32963 .Mobile: 772-713-0909 Is this a funding request? Yes _ No X Is this a legislative proposal? Yes X No Plan/Objective: Educate our Representatives regarding Housing and Urban Development's Affirmatively Furthering Fair Housing rule, with a request for call to action. Requested Delegation action: Adopt legislation that protects our small Florida communities 1 from HUD's AFFIJ rule that usurps local home rule of Jim. constitutional and private property rights IIa'-e you net with a State Legislator regarding this issue? Yes No X If yes Who have you met with: Will you be distributing materials at the hearing? Yes X No Please return this forst Friday, December 16`i' to: Margaret Mitchell 1801 27'" Street. 131 d g. 13 Vero Beach, Florida 32960 THE AMERICAN COALITION 4 PROPER] Requested information submitted to INDIAN RIVER COUNTY 2017 LIX3ILSATIVI by: Speaker Phyllis Frey December 21, 2016 'Y RIGHTS DELIGATION ;islative topic: Affirmatively Furthering Fair Housing rule, Housing and Urban Development Issue statement: Under the Affirmatively Furthering Fair I lousing rule, ifa city, county or state accepts HUD grants containing the AFFH rule, .HUTS bypasses local home rule of law. I-RJD then controls planning, zoning, land use and forces local municipalities to join a region. Lawsuits by the Department of Justice will ensue following a compliance review. Florida statute 123, Chapter 186.507 charges Regional Planning Councils with adopting strategic policy plans that address affordable housing. By using grants that contain the AFFH. rule, local communities are now controlled by the RYC's and the AF'FI-1 federal mandates. Amendments to existing legislation must include the prevention of. the Department of Housing and Urban Development (IIt,D) from implementing the Affirmatively Furthering Fair Housing (AFFH) rule. Statistics: Statistics show that in August, 2015 a developer in Rockford, Illinois proposed 69 affordable housing units. The town council, the county Board and the public decided to build 49 units instead. HUI) responded with a compliance review for failure to affirmatively further housing with a threat to refer the case to the Department of Justice. The local council and Board reversed their vote. The landmark case in Westchester county, NY arose when I IUD mandated that 750 affordable housing units be developed in the community. HUD attempted to dismantle local land use control and zoning ordinances by with holding grants. '1'he County insisted that 1 -HUD violated home rule provisions of the state of NY and fought 1 -IUD's anti -constitutional mandates for seven years. 11 Jl.) is receiving increasing numbers of third party AI"FI-I-related complaints in NY, DIE IL, LA, W1 and CA where lawsuits are forcing communities into line. http://www.sustainablefreedomlab.org \v.sustainab1efreedolnlab.org In Indian River County, the city of Fel lsmere recently received a Community Development Block Grant. On December 13, 2016 the IRC Board of County Commissioners announced a pending CDBG for 2019. The city of Vero Beach Cultural Arts Council will be applying for grants under the Auspices of the Treasure Coast Regional Planning Council. The I Iistorical Society continues to apply for Ci)BG grants. Where is the oversight to determine if AI;F}1 and its mandates are contained within these grants? It is imperative that we pass legislation to stop HUD's AFFH rule. Names of Legislators already supporting the issue: Proposals to eradicate HUD's AFFTI rule are supported by House member Paul Gossar who sponsored H.R. 1995, Local Zoning and Property Rights Protection Act 2015. This bill reverses 1 -IUD's AFFI I rule. http:; /gosar.house.gov/press-release/house-passes-gosar-amendnient- protecti,ng-local-zoning-rights-I .deral-overreach (printed text attached) Senate member Mike I.,ce sponsored S. 1909 Local Zoning Decisions Protection Act 2015 effectively stopping 1. -IUD's overreach. http://www.Iee.senate.gov/publ ie/i ndcx.cfni/speeches?I D---2I_)16964B- A1)7D-4180-854 1)03FFBOd2I F 14 (printed text attached) Other groups opposed to I -IUDs AFFH rule: Additional1 , counties such as ;edgg\\ ick county. Kansas and Douglas county, CO, Rockford, 11 & Westchester County, NY have passed similar legislation and/or fought lawsuits to protect local communities From IIUD/AFH http/sustainablefreedornlab.org/wp- content/uploads/2015/1 I /Sedgwick-County-AFFH-Grant-Poli cy-Markup.pd (printed text attached) President-elect Trump has promised to stop the Affirmatively Furthering Fair blousing rule and reduce It UD regulations by 70% http://\vww.sustainablefi•eedomlab.org (printed text attached) Please refer to all documentation contained in the distributed information packets for your convenience. Phyllis Frey. Chairperson, The American Coalition 4 Property Rights 275 Date Palm Road Vero Beach, FL 32963 772-713-0909 /y2 -7 SEDGWICK CY, KS REFUSES AFFH-RELATED GRANTS Sedgwick County, KS is refusing AFFH related grants. Notice on the (next) cover page commissioners state they are changing policy. That is stronger than issuing a resolution. Sedgwick county is issuing both, giving citizens more time to consider a grant's implications if future commissioners should try to reverse the policy. A county mayor can apply for CDBG grants without going to the commissioners. A document should be drafted to vote on and change that. 1IUD officials know that they often change their MTH name and re -name programs that attempt to conceal the fact that AFFH is embedded in their documents. An attorney should include wording covering any programs with similar anti -local rule and pro -regional outcomes. /4/2-5 A RESOLUTION ADOPTING A REVISION TO THE SEDGWICK COUNTY, KANSAS GRANT APPLICATION ANI) AWARD POLICY - 2016 WHEREAS, the Board of County Commissioners of Sedgwick County, Kansas, is authorized by K.S.A. 19-101 to do all acts in relation to the property and concerns of the County necessary to the exercise of its corporate and administrative powers; and WHEREAS, the Board of Count) Commissioners adopted Resolution 2008-12 on February 13, 2008 creating a "Grant Application and Award Policy," and most recently amended the policy on April 17, 2013; and WHEREAS, ,upoli teVieW-, it has been determined, that it is desirable that this policy should be-c'arnencled, to better, ,Serve current needs, which include not entering]nto -grant agreeMelik:that require 'an Assessrnent of Fair :I4otising, pursuant to the federal regulations .contained:Within the Affirmatively Furthering Fair Housing Final Rule. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COI.TNTY COMMISSIONERS OF SEDGWICK COUNTY, KANSAS, that: SECTION 1. The revised Grant Application and Award Policy is attached hereto and incorporated herein by reference, and it is hereby adopted and shall be incorporated in the Sedgwick County Policies and Procedures Manual, replacing earlier versions of said policy. SECTION 2. This resolution shall take place upon its passage and adoption. Commissioners present and voting were: DAVID M. UNRUH TIM R. NORTON KARL PET.ERJOHN RICHARD RANZAU JAMES M. HOWELL Dated this ATTEST: KELLY B. ARNOI day of , 2016. BOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY, KANSAS ,1411-4'. AMP,S Ni_1 lOWEL LI Chairman Cah/missioner, Fifth District /4/2 APPROVED AS TO FORM: JIJOIN M. WAGCiONEI Aistalit County Countlor '72 RICCIARD RANZA1.J Chair Pr' l'em Commissioner, Fourth District DAVID M. UNRUH Commissioner, First District 11) \ TIM it. N .ZON er:•fiS-ec'ond District / 1\ \\'t \ KAkt, PETERJOIN Commissioner, Third Dist xi - /92 -/0 CHAPTER: POLICY: PAGES: 5 SUBJECT: Grant Applications & Awards RELATED POLICIES: ENABLING RESOLUTION: 2008-12 RESOLUTION DATE: February 13, 2008 REVISED 'RESOLUTION & DATE: OFFICE WITH PRIMARY RESPONSIBILITY: Finance L PURPOSE 64-2013; April 17, 2013 -2016; June 1, 2016 This policy .establishes an orderly procedure for the approval of grant applications by the Board of County Commissioners prior to submittal. -Sedgwick County will only research, pursue and obtain federal, state and private foundation grant funding that is consistent with the County's Goals and ObjectiN es and the current goals of the Board of County Commissioners. II. POLICY STATEMENT The Board of County Commissioners is the lawful governing board of Sedgwick County; thereforeit is the responsibility and duty of the Commission to approve grant applications and authorize the Chairman or designee to approve the commitment of Sedgwick County to fulfill any and all obligations incurred in the grant application, 111, DEFINITIONS Authorized Organization Representative (AOR) — an employee who registers with the Grants.gov website and is approved by the e-business point of contact for Sedgwick County and is thereby authorized to submit grant applications to Federal Agencies via Grants.gov, after proper approvals are obtained. Grant — award of financial assistance from a federal, state, or local agency or a public or private business or foundation to a recipient to carry out a public purpose. Grants may be in the form of a Cooperative Agreement or a Contract. A competitive grant is one that requires submission of an application that is reviewed, scored and compared with other grant applications. where funding is allocated based on specific criteria provided in the -application. A non-competitive grant is one that is an allocation of funding based on a 1 of 5 formula or other determining factors other than a competitive or comparative process. Non-competitive grants may also require the submission of an application. Grants.gov — A website listing numerous federal grant opportunities. An AOR can submit grant applications through this site. Grants Manager — The Division of Finance, Accounting Department Revenue Manager shall serve as Grants Manager and be responsible for reviewing grant applications, delegating Legistar grant related agenda items to the proper senior staff for review, and tracking grant applications through the Legistar process. IV. PROCEDURES APPROVALS MATCHING FUNDS OR PLEDGED R1SOI1RCES. Any grant or service contract, whether new or renewal, or which requires as a condition for award, matching funds from the County or a pledge of County resources beyond normal operations, must be approved by the Board of County Commissioners if such funding or resources are not readily available in the approved department or agency budget, and a fund transfer or authorization to use reserves is needed to meet the match requirement. If funding is available through the approved budget and no transfer or use of reserves is needed, then the match requirement S25,000 or less, may be approved by the County Manager, and the grant or contract shall be approved consistent with the other provisions of this Policy. A. ADM 'MAL FULL-TIME EQUIVAI .ENT POSITIONS. 1. GRAMAPPROVAL. Any grant, whether new or renewal, for which the County Will be required or need to employ persons in new or additional full time equivalent (FTE) positions must be approved by the Board of County Commissioners. 2. FULL-TIME EQUIVALENT POSITION APPROVAL. The Board of County Commissioners shall approve all new or additional FTE positions associated with any grants approved under this Policy. B. COUNTY MANAGER APPROVAL T() APPLY FOR ANI) ACCEPT NEW GRANTS. Approval must be obtained from the Cotmty Manager prior to submitting a new grant application or accepting a new grant award in a monetary amount of S100,000.00 or less. C. BOARD OF COUNTY COMN11SSIONERS APPROVAL To APPLY FOR ANI) ACCEP 1 NEW GRANTS. Other than as already provided, any new grant in a monetary amount of $100,000.01 or more must be approved by the Board of County Commissioners. D. COUNTY MANAGER APPROVAL TO APPLY FOR AND ACCEPT GRANT RENEWALS. Other than as already provided, a grant renewal, with no additional 2 of 5 -/2- requirements or change in conditions, in a'monetary at of $100;000.00 or :less must be approved by the County Manager: E. BOARD OF COUNTY COMMISSIONERS APPROVAL TO APPLY FOR AND ACCEPT GRANT RENEWALS. Any other grant renewal of $100,000.01 or more will need to be approved by the Board of County Commissioners F: :MATERIAL FUNDING:INCREASE, Any grant renewal or extension which has .an increase hi funding :�f25% �r .more and the new amount exceeds .$100000.0.1 hall be considered a new grant:and must be .approved in accordance with the new grant. The•County Manager Will notify the Board of County Commissioners of any submissions of new grants or grant renewals. G. • tEIRMATI-MEIL-YettYltiTTIERIN&TAIRvH2O.USING. app,ty!_4oriz:,orPagreettoiacceptndny4funoing,-or ',fassistalit`e;ef,whether,tdireCtl. "Atigh*t he " fe • etalgOVertunentfi'eNpatstthrouglifunolingfundingheStatelOfiKarillnitati. . Requires an Assessment of Fair :1,101.101g; or • Is from any grant program with the United States Department of HOUSing and Urban Development Within the Affirmatively Furthering Fair HouSitig Final Rule (24 C,F,R. Parts 5, 91, 92, el al, and 24 C,F.R. § 6.150, el as stated within 24 C,F.R, § $.154(b)(1), that requires a recipient to complete an Assessment of Fair IiouSing, including the following 'United States Department of Housingand Urban Development progiarns , a ,u,Ommunity evelOptnetit oc rants; b, KOMEAnVesithent c. and and d. lidi4Op13,dttpnitiesibr-VOLSOliS with Abs . Grant Departments wishingto apply for a grant Will use 'the Legistar systern to apply for grants or accept grants as they would an agenda item. When the application has completed the :Legistar review process, the County Manager will -review each grant related application with.other agenda items. Using the Legistar system for grant applicatiOnS folloWs the Sarne general steps Currently used to process regular agenda itorn., "Grant Application" should be selected as the type of item and the submitter should use the "Grant 'Form" template. It is -important that grant applicants include all of the Information listed in the "Grant Form'? template so that the reviewers and Board of County CdriuniSSiorierS are prepared to make an informed .3 of 5 /4-/2-/2 ..!a. C.^.N 31.DEERAT,ON OF GRAIN TriE AY.,U;JTCF $_ FOR t!!ilesztcd Ir'. `FFGCiii ENCEJ AC i)04T.ka7r= :e pri a -A Vv.a..;..rt a t: t:..p Garyi strier ss, ^: ++n .r, yr .'inarciF1 Gar:,. �.,ck- areaicadU-e Sra:y Talir atsaaes w+;. -[k anter Persa''aci Cam rva;ma seo:r dfis Fla•?r1 Or Ikon W riga, t: DELETE B,:Cait AIJ`arty Add y_'rrnt and F+ricnn.i Carfldertlws t! r/ I.a rztrcq,rtedi rGa.'Y R.irwx>i Yes a i h ?fres r AjpBeO Yes n He • (,rani &new y Ara Tr i,na. Can3eraG.nr. pa-rdsti C' ip t.i e,'a.% r n;e L !P"4..'9 crit $ Pegi,41`!,ft 3 Regayed;astf3nrk $ Ro-7 adr-Ka414ata. OW sit i0 -A,. S.: ALES P,Vt Y:2,5., i %'$-r11Ct $ rase$ 107Ai r •:-.:5: i iyi! Uf!n UFunclio; WW1 Scie,:i j dr !!;:k7,g`sr„ iNne rflratal!, :d in Joe, Pcit"^r.NcrtwffreCticCo�b:f; &+ire dt!C°c: &rr±rg r:rres.'.~aait!asRm:c5 a i The County Counselor's Office must review a hard copy of the grant terms and conditions for all applications prior to submission. Once the County Counselor's Office approves the terms and conditions of the application, the documents will be signed by the reviewer and returned to the Division Department to submit with the grant agenda request. Division/Departments shall attach the completed application forms, terms and conditions approved by the County Counselor's Office to the grant related agenda item as well as a budget form. Divisionst/Departments are responsible for delivery of all documents that require signature of the Chairman to the County Clerk's Office by no later than Monday of the week prior (nine calendar days) to the scheduled Board of County Commissioners (BOCC) Agenda meeting. All documents submitted to the Clerk's office must include the Legistar file number, BOCC Agenda Meeting Date and signature areas properly identified. When the grant application template is complete, the submitting department will use the "grants" approval sequence, and mark Cirants Committee "in control" which will include the grants manager, the budget director, the departmental budget analyst, the deputy chief .financial officer and the county counselor's office. As with any other Legistar item, each reviewer is asked to review grant applications in a timely manner and to identify potential issues involved with the grant, application or supporting materials. The department may include the originator of the Legistar item as last reviewer so that they know when it is 4 of 5 /W House Passes Gosar Amendment Protecting 1..,oca1 /minng (tights trorn 1•ecieral Overreach.,. Page 1 of Horne » Newsroom House Passes Gosar Amendment Protecting Local Zoning Rights from Federal Overreach Jun 9, 2015 Issues: Spending Cuts and Debt For Immediate Release Contact: Steven D. Smith Date: June 9, 2015 Steven.SmithAmail.house.gov WASHINGTON, D.C. - Today, U S Congressman Paul A Gosar, D D•S (AZ -04) released the following statement after his arnendrnent preventing the Department of Housing and Urban. Development (HUD) from implementing the Affirmatively Furthering Fair Housing (AFFH) regulation passed the House by a vote of 229-193 and was attached to the Transportation, Housing and Urban Development and Related Agencies Appropriations Act for Fiscal Year 2016: "As the president reaches the end of his second term, he has made it clear that his top priorities during his waning days are furthering his far - left political agenda by forcing .big government programs on the American people His new AFFH regulation is one of the most far- reaching attempts yet to punish communities that don't submit to the president's liberal ideology. American citizens and communities should be free to choose where they would like to live and not be subject to httn•it ncmr hence nnv/mess-release/house-n asses-S7osar-. mendment-protect ne-local-zoni.. 12/10 2016 House Passes. Uosar Amendment Protecting Local Zoning Rights from Federal Overreach.. Page 2 of1 federal neighborhood engineering at the behest of an overreaching federal government. "Furthermore, HUD officials shouldn't be holding hostage grant monies aimed at community improvement based on its unrealistic utopian ideas of what every community should resemble. Local zoning decisions have traditionally been, and should always be, made by local communities, not bureaucrats in Washington DC, 1 am extremely pleased to see the House put a stop to this attempt by the Obama Administration to control a fundamental aspect of the American dream " Additional: Congressman Gosar's amencment is endorsed by Americans for Limited Government, Freedom Works, Council for Citizens Against Government Waste, Taxpayers for Common Sense and Eagle Forum. Americans for Limited Government suppprted the Gosar amendment stating, "Housing discrimination basec on race has been illegal since the 1960s, and people should be allowed to choose for themselves where they live without D.C. bureaucrats nationalizing zoning c political reasons." ecisions for An amendment to this same a opropriations bill blocking funds from going to this misguided rule successfully passed in the 113th Congress More information on that amendment can be found HERE. Congressman Gosar appeared on Fax Business Network to discuss the issue Click HERE to watch the clip. In addition, Congressman Gosar's bill, the Local Zoning and Property Rights Protection Act. "MR 1995. rejects this overreaching rule is currently cosponsored by 20 members in the House. inti) 82osar house oc)vinres-relels'e.iiiniNc.-1-r,i,:q;..,:-;1(1,,;:11^-;Inienrintimi-nrnri-4-Tino-Inof:11-7nni /r2. -/z 1 ')/l 0r)() 1 A House Passes uosar Amendment Protecting Local Zoning Rights from Federal Overreach... Page 3 of 4 The AFFH regulation will increase local taxes, depress property values, and cause further harm to impoverished communities that are actually in need of these funds According to reports, in 2012, this rule would have negatively imoacted more than 1,200 municipalities throughout the country, costing these communities to forfeit millions that are meant help the neediest families. A trial run of the AFFH rule already took place in New York state. The rule was a failure and a local county was initially forced to forego $12 million in funds that would have benefited the community due to the impractical and unrealistic requirernents associated with misguided agency regulation. The county had intended to use a large portion of these block grant funds to establish public housing for individuals in need, Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center and writer for National Review, has been following this issue -for years and published an article prior to the vote entitled, Obama's Next Transformation: And How to Stop It CONGRESSMAN Ji1 Hun Ilonar trA,11,1te1 1f P",r+ o' Defunding HUD's Affirmatively Furthering Fair Housing Rule Speeches - United States... Page 1 of 5 Speeches Defunding HUD's Affirmatively Furthering Fair Housing Rule thttp://wwwolee.senate.gov/public/index.cfm/speeches? ID=2D16964B-AD7D-4180-854D-03FFBOD2EF14) May182016 Defunding HUD's Affirmatively Furthering Fair Housing... Mr. President: In a piece of legislation of this size, there is always much to praise - and, unfortunately, even more to criticize. I rise today, specifically, to correct one major mistake in this bill. As currently written, it. permits the Department of Housing and Urban Development to proceed in the implementation of its radical new regulation, the insultingly misnamed "Affirmatively Furthering Fair Housing Rule," orAFFH Proponents of AFFH, including President Obama, claim that it fulfills the original purpose and promise of the Fair Housing Act of 1968. But the truth is, HUD's new housing rule isn't the fulfillment - but a betrayal - of the Fair Housing Act of 1968. t.+ ..1h,...,... t.... *., ,...,./.-....L.1 .F . .l,,....f.:.__/.._,„,,,,t,—')1TI._'1T11 41l 4T'1 n TV7r> 41 011 OC ArN 1,111, r,1n 1 `Defunding HUD's Affirmatively Furthering Fair 1 -lousing Rule - Speeches - United States... Page 2 of 5 The original intent of the Fair Housing Act was to protect the God-given right of individuals and families - no matter their skin color or ethnicity - to buy and rent homes where they please. By contrast, the explicit purpose of HUD's new rule is to empower federal bureaucrats to dictate where a community's low-income residents will live. This is not what "progress" looks like, Mr. President. AFFH not only grants unprecedented new powers to HUD that were not contemplated by- and have no legitimate basis in - the Fair Housing Act of 1988, but it will ultimately hurt the very people it purports to help: public -housing residents - especially African-American public -housing residents - who too often find themselves trapped in dysfunctional, broken neighborhoods. To make matters worse, this new rule will end America's unique - and unique`y successful - commitment to localism and diversity, and presidents. ake neighborhood level construction decisions subject to the whims of future If this past year has not yet done enough to give you pause about handing over such power to the Executive Branch, you're not paying close enough attention So i'rn offering an amendment today -- number 3897 - that would prohibit HUD from using any federal taxpayer money to carry out the Affirmatively Furthering Fair Housing Rule. The House of Representatives has already passed this amendment - twice - and will likely to do so again in the near future. We should follow the House's lead. Here's how the rule works. AFFH requires cities and towns across the country to audit their local housing poi cies, under close supervision by HUD regulators, who may have never have lived anywhere near there. If any aspect of -a community's housing and demographic patterns fails to meet HUD bureaucrats' expansive definition of "fair housing," the local government must submit a plan to reorganize the community's housing practices according to the preferences and priorities of the bureaucrats. Critics of AFFH often say - as I have said - that this rule turns HUD into a National Zoning Board with the power to unilaterally rewrite local zoning laws and land -use regulations in every city and town in America. But that's not quite how the rule works, and it's why Senator Collins' amendment would not do anything -to prevent the implementation of AFFH. In the 10 months since the rule was finalized, it has become clear that the mechanics of AFFH are much more underhanded and subversive than critics have often cia me(' /`/1-/9 ht.tn:/hvwtiv_iee.senate vov/nuhlic/index.cfrn/sneeches?ii)=21)1696413-A1)71)-41 RO-X54D-.. 12/11/2016 Defunding HUD's Affirmatively Furthering Fair Housing Rule - Speeches - United States... Page 3 of5 Under the new rule, HUD doesn't replace local Pudic Housing Authorities - it conscripts them into its service. Mr. President, this gets to the heart of the difference between my amendment and the amendment offered by my colleague, Senator Collins. The danger of AFFH is not that HUD will direct local governments and public housing authorities to make specific changes to their zoning policies. It will just threaten them, by tying obedience to federal Community Development Block Grants. CDBG is a federal -grant program controlled by HUD that allocates $3 billion per year to local governments to help them address avariety of community-developrnent needs, including providing adequate and affordable public housing. Traditionally, local officials have been free to use their CDBG grant money according to their community's needs and priorities. But underAFFH,,HUD officials will withhold a local government's CDBG funds unless that local government adopts HUD's preferred housing policies. Predictably, proponents of the rule claim that this will be a collaborative process, with local -government officials in the driver's seat while the bureaucrats at HUD merely provide "support" and "guidance." But the 10 - month track record of AFFli suggests that the opposite will be true In fact, I have already heard from the Housing Authority of Salt Lake County predicting that the costs of complying with AFFH will stretch their already -thin resources, add hundreds of hours of bureaucratic paperwork to their workloads, and -eliminate their autonomy to determine the best ways to provide adequate low-cost housing to their community. Mr. President, the problem with HUD's new rule has noth ng to do. with the intentions behind it In a press release announcing the finalization of AFFH, HUD Secretary Julian Castro said: "Unfortunately, too many Americans find their drearns limited by Where they come from, and a ZIP code should never determine a child's future " I completely agree. There's no disputing that the neighborhood in which a chid grows up affects his educational, social,'and professional outcomes in the future. Nor is there any disagreement that far too many children today are raised in dysfunctional neighborhoods because it's the only place their parents can find affordable housing. The lack of affordable housing is not a new problem in America - just ask anyone who has ever had to pay rent in one the major metropolitan areas controlled by the Democratic Party But neither is the solution. /92-ZG hitn•//www lee senntc> l)=7I)l69(4R-Af171)-41R(1_RS41-)- 1')/1'2/')(11(, Defunding HUD's Affirmatively Furthering Fair Housing Rule - Speeches - United States... Page 4 of 5.4' The best way to make housing more affordable is to allow more housing to be built, And the best way to help tow -income citizens find fair and affordable housing is to empower them to live in a neighborhood that meets their needs, The history of Chicago is instructive here In the 2000s, Chicago's city government demolished many of its public -housing facilities without a plan to replace them. Those with the resources and wherewithal to choose where to live moved to places where housing is cheap and economic opportunity is plentiful, But the less fortunate Were relocated to more remote, less prosperous towns, like Dubuque, Iowa, at the behest of - who else - the Department of Housing and Urban Development. In 2008, the city of Dubuquewas struggling to meet the needs of its own public. -housing residents, Yet in stepped HUD, declaring that the city's housing policies would fail to meet the agency's fair -housing standards - and that, therefore, the city would be ineligible to receive federal funding from HUD - unless the local government actively recruited Section 8 voucher holders from Chicago Unwilling to Jose access to federal funding on which the city had come to rely, the small lowan town acquiesced to HUD's demands. This imposed an enormous administrative burden on the city's resource -strapped housing agencies, but t -IUD's real victims were Chicago's public -housing residents who were forcibly displaced to an unknown town 200 miles from the city tney used to call home. Mr. President, unless we pass this amendment to defund the disastrously misguided AFFH rule, this is what the future of public housing in America willlook like. I urge my colleagues to join mein supporting this amendment and reaffirming that low-income families are not statistics to be managed by disfant bureaucrats - they're human beings, our neighbors in need, who deserve to be treated with .dignity and respect. I yield the floor. Permalink: http://www.tee.senate.gov/public/index.cfrn/2016/5/defunding-hud-s-affirmativety- furthering-fair-housing-rule (http://www.iee.senate.gov/public/index.cfmJ2o16/5/defunding-hud-s- affirmativety-furthering-fair-housing-rule) httn://www lee senate tc viniuhlic/inrlex cit'm/sneeche' 2TD=7T716964Ft-AD7D-4'1 Rfl_RS4l- /41- L/ 17/i"ti?t11A p��. DOUGLAS OGrS o y,x DvpartmehnvfCommunity Dovo|uprnont ^=w.dous{BS ,C0.us August 1T.2O16 Regulations Division Office oyGeneral Counoo; Deprnen of Housing and Urban Dav&opnin 451 7th Street SW, Room1tY27G Washington, DC.; {c(rminu\alcIResource Servir; RE Docket No FR -0173-N-05 HUD Affirmatively Furhuting Fair Housing Axaexymont Tact (30 -day notice) To Whorn It May Concern Douglas County, Colorado has developed a response to the notice of proposed information collection (FR -5173 -N -0S) entitled "Affirmatively Furthering Fair Housing Assessment Tool: Solicitation of Comment -30 -Day Notice UnderPperwork Reduction Actaf 1995 pubUshed in the Federal Registef an July 16, 2015 Douglas County supports Fair Housing and has made every effort to affirmatively further fair houSing for our residents, We believe the approach we have implemented since receiving Community Development Block Grant (CDBG) funds in 2004, is innovative and proactive and the right approach for our residents We have attempted to serve as a model recipient of HUD funds by encouraging collaboration, engaging stakeholders and working to provide equal access to housing opportunities for all of our residents After reviewing the proposed Fair Housing Assessment Tool we find it to be unclear and ineffective We find both Option A and Option 13 inctuded as a part of the Assessrnent of Fair Housing (AFH)1 are inadequate The Tool rnust be refined and parameters rrtust Lie established The[oVntyrequeutsthat HUD make substantial revisions to the Tool, as outlined iri this letter The Tool does not clearly define the intent of What it means to affirmatively further fair housing. The information and definitions provided are vague, subjective and therefore open to interpretation. We request that HUD clarify their intent before we. are asked to move forward and effectively complete an Assessrnent of Fair Housing. After reviewing the contributing factors identified in the tool We find many to be contradictory in nature.Addr2ssihgonecontributinghactormayactumUycreotebanieotofurthrringh»irhousing|n anothercontdbudngfector.VVerequeslHUDp/ovidecoetncs(oreachtoctoroudinedinthetoo| A 1 � 7 /.2 -Z2. table should be created considering contributing factors in an urban, suburban and rural context as defined by the U.S Census Bureau. The table should include metrics that define each contributing factor, providing grantees and housing authorities clear guidelines of what it means to successfully affirmatively further fair housing. Once this tool has been revised, we request a full 60 -day cor n ent period in order for staff to conduct a thorough review of the tool This tool represents significant impacts to our programs and our community and we need to ensure that we understand HUD's intent and the required steps to move forward. Organizations such as NACo, NAHRO, NACCED, and NCDA submitted concerns during the initial 60 -day comment period (ending November 25, 2014) that went largely unaddressed For example, see NACo's response letter dated Novernber 25, 2014, commenting on the proposed Assessment Tool. NACo urged HUD not to mandate use of the Tool Douglas County wholeheartedly supports the comments previously offered by these organizations We strongly encourage HUD to take seriously the responses from these organizations, as well as responses from the grantees and housing authorities that wiil be required to implement the Tool. Approving the Tool as is will negate the County's rights and seriously hamper our ability to effectively respond, manage local affairs, and affirmatively furtherfair housing, The definition of Affirmatively Furthering Fair Housing must be refined The definition is shown below with the red text indicating unclear phraseology: "Taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communitrefree fiom barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful action that, taken together, address significant disparities in housing heeds and in access to opportunity, replacing segregated living patterns with tru'yintegroted and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas 6f opportunity, and fostering and maintaining corn pl;ance with civil rights and fair housing laws. The duty to affirmatively further fair housing extends to all of a program participant's activities and programs relating to housing and urban development." NACo raised concerns about how these terms are defined in their original response letter. Essentially, how will we know when we have taken meaningful actions? How can we overcome patterns of segregation? How will we know which opportunities are important enough to provide access, when each 2 /92 - Z J ` individua|ee.SidentwjUv8|ueopportuhitiesdifferendv?|ndhort,hovvmurhisenuuOhtosucceed?These are questions Douglas County expects HUD to address as part of these revisions The definitions and examples provided in the Assessment Tool are unclear and highly subjective. Definitions in the Tool are written in broad expansive terms, making it impossible to identify HUD's intent. In the ana!ysis section of the Tool, a Ist of 40 contributing factors is put forward, with the statement that it is not an exhaustive list. Communities are expected to consider these and other factors as part of the analysis, but the definitions and examples provided remain unclear. Many of these 40 factors are ambiguous and potentially contradictory. Furthermore, as the Fair Housing Act is now beirig interpreted to include lack of access to opportunities, our future efforts will be ineffective because local input isdiminished through the prescriptive hst of contributing factors we will be obligated to address in the Tool Douglas County has identified several key concerns with the contributing factors provided in the Tool First and foremost, we question why market driven factors are included on the list of examples of contributing factors For example, the "location of employers" is an important issue driven by the free market. While the connections between work and housing choice are undeniable, local governments are limited in their influence over the market, and should not be held accountable through an Act that is meant to provide fair and equal access to housing. Douglas County supports the business community and ensures that aI land developrnent proposaFs are reviewed fairiy during the panning process lncluded below are twa excerpts from the contributing factors that demonstrate the expansive t.rms and subjectivity that must be resoved The tanguage used in Land Use and Zoning Laws rnplies that zoning is immutable, Well -reasoned communities like Douglas County operate with a zoning ordinance that provides for a variety of zone districts, uses and Iots sizes without federal interference. Rezoning options available through the land developnlent process allows Planned Development (PD) zone districts to inciude muIti-unit and rnixed use developments The contributing factor regarding land use b&ow shoutd be removed from the Tool, and local contro restored: Land Use and Zoning Law,s "The term "land use and zoning lows' generally refers to regulation by local government of the use of land and bui/dings, inc!uding regulation of the types of octivtties that may be conducteci, the density at w6ichthoseoctk/it/es/noybeperfonned'uodd/eoze\shopeund/ocobon of of bw/dings and other structures oro/hen/t/es. Zoning and land use laws affect housing choice by determining where housing is built, what type of housing is built, who con live in that housing, and the cost and accessibility of the housing fxonnp/esofsuch/ououndpolic/es/nc/ude6uto/enut0nx/tedtu. 3 /z>.2_�� o Lin its on multi -unit developments, which may it/chicle outright bens on multi -unit developments or indirect limits such as height limits and minimum pcirlanb requirements. O viinimum lot sizes • Occupancy restrictions, which regulate how many persons may occupy o property or the relationship between those persons o inclusionary zoning practices that mandate or incer;tiv'ize the creation of affordable units Requirements for special use permits for all muitif,nrni'y properties or multifamily properties serving individuals with disabilities " The contributing factor identified as Displacement of Residents Due to Economic Pressures is ill conceived Terms larking definition are shorn below in red text Economic pressures are largely driven by market factors that jurisdictions do not influence or contro Being a relatively young county with 94% of the housing stock built after 1978, we believe th potential for residents being d solaced due to economic factors in Douglas County is non-existent 'run exemplifies the uniqueness of each grantee and jurisdiction The description provided lacks clarity, purpose and the potential! resolution HUD expects through implementation of the AFH, inciud•ng the de's;cr ption as a contributing factor implies that it should be addressed The contributing factor r e arci:nn uisp!acement of residents below should be removed from the Tool, and local control restored Displacement of Residents Due to Economic Pressures "The term "displacement" refers her to a r: :dent's tindtesireci departure from a place where an individual hos been living "Eco';o!?c pressures" may Inc:iucie but ori:' not limited to, rising rents, rising property taxes related to hon'ie prices, rehabilitation of existing structures, demolition of subsidized housing, and public and private investments in neighborhoods Such pressures can lead to loss of existing affordable housing in areas experiencing rapid econorn;;,. growtn and 0 resulting /055 of access to Opportunity onsets for lower income families that previously lived there, Where Ciis iocemenr disproport;otiate'l;'a`fects per cons wri' certain protected characteristics, t,'?A, displacement of residents due to economic pressures may exacerbate patterns of residential segregation " in addition to lack of clear definition and intent, benchmarks and metrics have not been identified to guide us in determining if these factors are a fair housing concern for bur corninunity, Douglas County is concerned that the mere identification of these factors subjects all grantees to the judgment of specie! interest groups, as it :','Ill 'be financially Irnpussib e Or any community to address every factor Given that so many factors have been identified for considerat cn, and no clear guidelines were provided to judge them by, it will be extremely difficult to comply with the new AFH requirements Metrics are also needed to assist Regional HUD staff When they review grantee's AFH Tool We are assured that the Assessment Tool will include opportunities to provide local knowledge and local data How can HUD regional staff be expected to reasonably assess local data provided from grantees throughout mu|tip|estaLe region? An explanation of how HUDsstaff will review the AFH, including the contributing factors, rnust be provided in the revised Too Metrics must be provided to facititate a fair and consistent review of AFH submittals Each jurisdiction, across the nation is unique As sjch, we have the righ and the abiJty to efficienUy direct local funds to have a positive impact on affirmatively furthering fair housing Douglas County believes it 15 imperative to refine the intent, p/oviUe clear definitions, establish metrics and set clear parameters in the Tool. These steps are required to assist grantees and public housing authorities to move forward in successfully affirmatively furthering fair housing. Refinements of the Tool, followed by a 60 -day comment period, are essential to this public process and will allow us to continue serving Douglas County residents in meaningful ways Thank you for this opportunity to cornrnent an the Afl1 Too! Sincerely, Jennifer Eby, ACP, Conirnunity arid Resourco Services Manager 100 Third Street Castle Rock, CO 80104 jeby@douglas co.us S Sustainable Freedom Lab I Wily One 1 OW11 Said "NU to t-1 LJ U Page 1 of 6 26 APR WHY ONE TOWN SAID "NO" TO HUD Posted at 20:42ii in U: categorized by John Anthony • 6 Comments • 3 Likes • Share When Castle Rock, CO refused to apply fora HU[) grant, the recipients of the money wore upset, But, Castle ROCK had done their homework h:,., re:,po''; to the grantees should be read by every public official who ever considers accepting a federAgrant. HUD shielded their 2015 rule, Affirmatively Furtherer g Fair Housing from public view for nearly a year The agency withheld the proposal announcement from the spring and fall 2012 Un''fied Agendas. The Office of Management and Budget finally released the proposal to the publ c ori December 71. 2012, during the Christmas holiday, after government operations had shut down Because of the t ruing of the release, AFFH received little notice, Now we know why Through a labyrinth of application requirements and legalese, the agency can force HU[: grant recipients to.,. • reverse voters decisions, • alter zoning laws and land use regulations, and • join a region against the community's wit In the history of HUD, there has never been this type of dangerous grab of local authority and personal property rights. The Castle Rock letter explains. /4',1,-777 httn•/isrt<tninnhle'frr'rrinminh nrcJ/7f1l (,/f14/ (i!,vhv-nnp_inu;n_cairl_nn_tn.hrrr'1! 1')/1 ann i 0; Sustainable Freedom Lab 1 Why Une loin Said "NU" to t-.tUt.) rage z or o Letter from the Castle Rock Town Council to HUD Grantees (Linkto original letter) Note* The Town Council letter was addressed to the following grantees... Exec. Dir. Audio Information Network of Colorado Reg. Dir. Catholic Charities of Central Colorado Exec. Dir. Crisis Center of Castle _Rock Exec, Dir. Douglas County Housing Partnership Exec. Dir.. DougtasiElbert Task Force Vol. Chairman Parker Task Force for Human Services Exec. Dir. Southeast Community Outreach Grants Mgr Society of St. Vincent de Paul Thank you for your letter concerning CDBG funds and the Town of Castle Rock, Last year, when faced with the question of whether the Town should become an entitlement community under the CDBG program, the Council declined to pursue that Status because it would resu`t In unclear and unwarranted interference from the Department of Housing and Urban Development (HUD) For years, Castle Rock has accepted various grant monies offered by HUD through Douglas County. This money was parceled out by Town Council mainly to fix alleyways and make curbs ADA accessible. But last year HUD added very alarming strings to the grants, 377 pages of new rules that give HUD drastic new powers over our cities and counties that :r affect el;m nate the zoning and plann'ng powers of your local elected officials which can now be overruled by HUD bureaucrats inVVashirgton•DC. If we continue to accept the HUD grants, we will be forced to prepare detailed taxpayer -financed studies of our schools, retail, housing, and other cot :Iun,ty aspects to HUD who will decide if our neighborhoods are "furthering fair housing.' i hat means that even though our town has never been found in violation of the anti -discrimination hous.ng rules that have been law For over 50 years, HUD on a whim could force us to build low-income, government subsidized housing into our neighborhoods if HUD decides we aren't racially balanced enough This is already happening across the U.S.: just google Westchester County, New York. Ore example according to HUD, if your family home sits on a quarter -acre property,.your neighborhood is potentially discriminatory. It would be much less racist if a high-rise low-income apartment building went up next door, never mind local zoning regulations. hftn'/I nstninnhlefreetjom h ori 1/ 016v04/26!whv-one-town-said-no-to-hudi /2 12/14/2016 Sustainable Freedom Lab j Why One Town Said "NO" to HUD Page 3 of 6 rr The result for us could be reduced property values, a large population increase due to•an influx of people from the cities to our suburbs, more crime, large local tax increases to support HUD's mandate, and loss of local zoning control and other local decisions. As a Town Council, we will resist all federa' attempt to destroy our local sovereignty, be it from HUD, the EPA, or any other government agency Council will always defend our resident's right to make their own local decisions without federal interference. While ; appreciate the many good works that.are represented by your programs, accepting onerous federal grant requirements, which harm our community, cannot be the price to pay for federal monies. Sincerely, Paul Donahue. Mayor, District Jennifer Greer, Mayor Pro Tern, District Renee Valentinem Councilmember District 5 George Teal, Councilmember District 6 Mark;Heath, Councilmember District 2 TAGS: AFFH, Affirmatively Furthering Fair Housing. Castle Roc -k, HUD 6 COMMENTS s 1 r rn n 1 r 'n .., /V2- L9 Office of Fair Housing and Equal Opportunity Lawrence J. Morrissey Mayor City of Rockford, Illinois 425 E. State Street, 8th Floor Rockford, IL 61104 U.S, DEPARTMENT OF HOUSING AND URBAN DEVE CdPIVI ENT Midwest Regional Office, Region V Ralph H. Metcalfe Federal Building 77 West Jackson Boulevard — Room 2101 Chicago, Illinois 60604-3507 November 12, 2015 Subject: Civil Rights Compliance Review under Title Vi HUD Case Number: 05-16-R001-6 Dear Mr. Morrissey. / ))-7"k') • By this letter, the US Department of Housing and Urban Development Office of Fair Housing and Equal Opportunity (FHEO) is notifying the City of Rockford that FHEO will conduct a Title 6 compliance review of the City. We wiU undertake this review under the authority of Title VI of the Civil Rights Act of 1964 and its implementing regulations found at 24 CFR Part 1. In addition to the Tit(e VI Compliance Review, FHEO will also be reviewing the City's obligation to Affirmatively Further Fair Housing. This review is being conducted due to the actions taken by the City Council in regards to proposed New Towne project by the Rockford Housing Authority. Title VI of the Civil Rights Act of 1964 (Title VI) provides that ". no person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance'. The Fair Housing Act not only prohibits discrimination but, in conjunction with other statutes, directs HUD's program participants to take significant actions to overcome historic patterns of segregation, achieve truly balanced and integrated living patterns, promote fair housing choice, and foster inclusive communities that are free from discrimination. A finding that the City is not in compliance with Title VI of the Civil Rights Act or its obligation to affirmatively further fair housing may result in the suspension or termination of federal financial assistance (24 CFR § 1.8 ) Further, if evidence develops that Title VIII of the Fair Housing Act has also been violated due to discriminatory land/use and zoning practices, the evidence will be referred to the Department of Justice pursuant to 42 U S C. 3610. Telephone: (312) 353-7776 Fax. (312) 886-2831 Hot Line 1-800-765-9372 TDD 1-800-927-9275 2 FHEO is obligated to inform you that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected by the civil rights laws enforced by this Office. Any individual alleging such harassment or intimidation may file a complaint with FHEO and the Office would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, upon request, release of this docurnent may be necessary along with related correspondence and records. In the event that such a request is made, we will protect personal information, the release of which could constitute an unwarranted invasion of privacy, to the extent allowed by law. Please be advised that a data request letter will be sent under separate cover and we will be contacting you to schedule on-site interviews. If you have any questions, please contact Kimberly Nevels, Chicago FHEO Center Director, at 312-913-8429 Sincerely, 'Maurice McGou h, Drector Region V Office of Fair Housing and Equal Opportunity city' crf 1 ero Beach, April 5, 2016 Indian River Counti' Board of Con ntt' Conrnlissil)1l, April 12, 2016 1 would like to thank sou for the opportunity to speak today about the Affirmatively Furthering Fair Housing Rule, and how your decisions regarding this (111(1 other grants will affect not only the filture development t)f our county, but ilollre rule of halt'. C"Tlr`rently, tallier Itolne ride t)f lalt', the local agencies that control 1(111(1 use a11c1 zoning laths largely control where you live, the value of your ilo,,n', (111(1 winit it will Cost to keep it. Right no3t' these factors are controlled 1)y (n(r community and local officials who re et oitr living preferences, HUI) and the AFFII Rule is about to change that. On July Mt, 2015, Secretary for Housing and Urban Development Julian Castro announced the finalization of the Affirmatively Furthering Fair Dousing Rule based ilpoit the current Administration's conclusion that HUD has not been aggressive l'noiiz','ll in /iialIlif;rrl;; ;rant money at 11 local level. Hence the new rule. Older the new regulation, if you accept HUD grant. , in order to assure fair housing compliance, their agencies then control your land use, your zoning laws 1111d fer.force you tojoin tl region. Here's holt': HUD grant applicants are required to complete an assessment affair housing. This involves a house -by -house analysi.3 of data involving race, ethnicity, concentrations of poverty, English proficiency, disabilities and Il olrl-trll;. Next you will list community resources such as Netter .scihools, jobs, transportation, Voisin:;, parks and recreational facilities. Finally, y', , 'ou wit/ itemize ant' barriers that could nnike it harder 0 the public to (recess community resources. HUD even provides a list of 40 barriers on contributing factors that must be reduced or eliminated far .:417F11. Some include current zoning laws, or failure to cooperate with a re coir. TI,Ce expect you to resolve tlies'e issues. To receive the grant money you must also engage the public in completing }'our assessment of fair housing. That means civil rights advocates, affordable housing developers, community develol)Jllellt organizations, and any interested members of the public who must be allowed to participate i11 f ill ding potential areas of discrimination. /4/2--37— Applicants must Ilse 11111)'S' data tables and jurisdictions o/1 regional trending snaps to design your plan to rentove the barriers and comply with adjoining counties and regions. By requiring your connnunrly to compare ,your demographics with those of the region, HUD assures that your zoning plans will conform to the regional zoning plans. This effectively annexes your community with the region. HUD's documentation clearly states quote, "This rule does rl01 impose (Ill) land use 0r zoning laws on a/11' goverllrlhent.".Ella quote. But paragraphs later, the sante rule says quote, "HUD will assist recipient to adjust their land use and zoning laws to meet the legal obligations of AFFIL.".End quote. So, while. MID says it does not personally affect your zoning I(li►'s, if you take the grant looney, they 11 'ILL obligate you to intpose thein. The legal obligation HUD refers to is a statement applicants- must sign, quote, "Your jurisdiction agrees 10 tape no action materially inconsistent with its obligation t0 (Ifflr/)latii'eIv fhrrther fair housing." End quote. Under 4 F II regulation, your co!n1nh(Irlty tt'ill lose control of local zoning aizd lana use and you can be reed to join a region whether you want t0 or not. According to legal analysts Fo.v Rothschild, LLP attorneys at law, tIzis .statement establishes the basis for False Claims Act lawsuits, by the Department of' Justice or private individuals. When a grant recipient fails to affirmatively further fair (housing, HUD can respond with a compliance review, loss of grant mo/lt.{', or lawsuits. Lawsuits- can also he initialed by third parties, the very same people that you invited to participate in your C01111IIlllliiy's fair housin'ig assessment. Here's an example. In August of 2015, a developer proposed 69 affordable housing units in Roc/ ford, Illinois. The town council, the county Board and the public decided to bui/d 49 logits instead 01.69. Shortly' after the decision, HUD received a complaint against Roc/,ford for choosing fewer lholising units. HUD responded with a compliance re►'iew f{)r potential civil rights violations, failure to affirmatively farther fair /lousing with a threat to refer the case to the Department OJ'Justice. Public officials reversed the vote. HUD is ret eiringr Increasing numbers of third party .4 H' IM -related complaints in r Y, DE, IL, LA, WI and CA, ---the list goes on--- where iv1 J3 111tt°SI/Its are forcing coInnhlin111eS into Line, incluai;zg me lanairli ('llse t esichester County, ,fir}'. It was recently published that Vero Beach has the highest (disparity of income in the United States. Ereil though we /rare over 200 charitable organizations, ei't'n though we Have Habitat for Humanity that has provided over 600 new or remodeled hollies, 1111!1 of/ler lower income housing based upon local decision-making. Even though our county continues to !upgrade infrastructure in the neediest of areas, HUD will target our community and challenge our local decisions. 7f (Jaber ATEA ruling, the government demand or balanced and integrated living patterns forces conillillllities into regional Iri'Ing, impedes local rule and suppresses community decisions. One of"the methods for implementation of HUD grants as we have already experienced is through Regional. Planning Councils. In 2012 1.11'D offered a 54.25 million grant through Seven 50, a 50 .year redevelopment plan supported and promoted by the Treasure Coast Regional Planning Council. Three counties and their cities, excluding Sebastian and Fcllsllrere ti'ilely voted "110 thank you." lint !aider the new F11:11?i,Ie, 111.11) will be returning. The TCRPC, was recently invited by the C'OVB to create a visioning,overlay fir new zoning,', density, building heights and low income housing because quote, "Thej' are able 10 get the grants" according to the cit!' !Manage!'. 3t lrc'lr this chamber was filled to historic levels and there were long lines ai 1/ie podiums with citizens who objected to the terms and conditions oldie HUD grant that would have us -toped /lonU' rule of law, this Board wisely voted NO. But the Regional Planning Council has its own agenda for how it intends to redevelop our eominuniiy. You (ire 01!!' 1(1S't line of defense fin. protecting Ironic' rule of law. We risk that.you consider this. Thank you for your time. Analysis of HUD's Proposed AFFH Rule Michael Allen Reiman, Dane & Col fax, PLLC 1225 19th Street, N.W., Suite 600 Washington, D.C. 20036 Telephone: 2021728-1888 E-mail • mallenrelmanlaw.com Briefing on the Proposed HUD Rule Affirmatively Furthering Fair Housing Tuesday, July 30, 2013 Overview With the passage of the Fair Housing Act in 1968, Congress first imposed on the U.S. Department of Housing and Urban Development (HUD) and recipients of HUD funds, the obligation to affirmatively further fair housing (AFFH), 42 U.S.C. §3608; see also 42 U.S.C. §§5304(b)(2), 5306(d)(7)(B)(Housing and Community Development Act of 1974, as amended); 42 U.S.C. §12705(b)(15) (consolidated planning); 42 U.S.C. §1437C -1(d)(16) (public housing). HUD has promulgated regulations implementing the AFFH requirements for entities receiving block grant and public housing funds. See 24 C.F.R. §§570.602; 91.225, 91.325, 91.425, 903.7(o). HUD recently proposed new regulations to clarify and expand the AFFH obligations of HUD "program participants" (States and municipalities that receive HUD block grant funds and public housing authorities, or PHAs). See Proposed Rule on Affirmatively Furthering Fair Housing, 78 Fed. Reg, 43710-43743; July 19, 2013 (Proposed Rule). The Proposed Rule requires program participants to address "fair housing issues," which are defined as "local or regional segregation..., racial or ethnic concentrations of poverty, disparities in access to community assets, disproportionate housing needs based on race [and other protected classes] and evidence of illegal discrimination...." §5.152. Comments are due on September 17, 2013. The Proposed Rule's revised definition of AFFH, at §5.152, frames all of a participant's obligations: "Affirmativelv furthering fair housing means taking proactive steps beyond simply combating. discrimination to foster more inclusive communities and access to community assets for all persons protected by the Fair Housing Act. More specifically, it means taking steps proactively to address significant disparities in access to community assets, to overcome segregated living patterns and support and promote integrated communities, to end racially and ethnically concentrated areas of poverty, and to foster and maintain compliance with civil rights and fair housing laws. The rule's preamble notes that "a program participant's strategies and actions may include strategically enhancing neighborhood assets,- 78 Fed. Reg. 43716, but this strategy should not be implemented in a manner that perpetuates segregation. §5.152. Recognizing that "[s]egregation carries a heavy social cost," 78 Fed. Reg. 43714, the Proposed Rule replaces the Analysis of Impediments (Al) with a new framework—the Assessment of Fair Housing, or AFH—through which program participants must identify, analyze and mitigate barriers to fair housing choice, and ties it to other planning processes through which federal, state and local resources are allocated. In other words, it creates a fair housing lens for all of a participant's decisions about housing and community development needs. Participants must submit AFIls to HUD, which can reject noncompliant AFIls, and impose a range of sanctions for noncompliance, up to and including \vithholding federal funds. The new framework requires greater reliance un data (which will be supplied by HUD), greater transparency and public participation in the development of the AFH, and greater accountability with respect to expanding housing choice. Most importantly, it will require program participants to initiate and follow through on jurisdiction -specific community con \ ersations about race, segregation and access to opportunity areas. Finally, the Proposed Rule emphasises that a participant's AFFH obligation is not bounded by what it can do with the HUD funds it has received. The strategies and actions "will be accomplished primarily by making. investments with federal and other resources...." §5.152; 78 Fed. Reg. 43716. This regulatory language reinforces a provision that has been in HUD's Fair Housing Planning Guide, at p. 1-3, since 1996: Applicability: Although the grantee's AFFH obligation arises in connection with the receipt of Federal funding, its AFFH obligation is not restricted to the design and operation of HUD -funded programs at the State or local level. The AFFH obligation extends to all housing and housing -related acti \ ities in the grantee's jurisdictional area whether publicly or pri' atel:\ funded. Procedural Issues in the Proposed Rule • HUD will provide uniform data sets to allow participants to identify fair housing issues. §5.154(c) • Participants are required to develop and submit an initial AFH to HUD 270 days before the start of the block grant or PHA funding cycle. §5.160(a). If the AFH is not submitted by August 16 of the fiscal year for which funds were appropriated, a participant will automatically lose CD130 funds. §5.160(b). Participants w ill be required to submit an AFH every fie years, §5.160(c), or when "a significant material change in circumstances occurs that calls into question the continued validity of the AFH.,.." /r2 -J.6 O Allis must be submitted to HUD, which will review them, and "may choose not to accept an AFI1, or a portion of the assessment, if it is inconsistent with fair housing or civil rights laws or if the assessment is substantially incomplete." §5.162(b). HUD can also turn down an AFH that is "developed kvitltout the required community participation or the required consultation." §5 162(b)(1). HUD has 60 days from the date of submission to review, and an AFI} is deemed ''accepted" if HUD does not give the participant written notice to the contrary within that period. §5.162(a). }-IUD's acceptance of an .AFI -1 '`sloes not mean that HUD has determined that a jurisdiction has complied with its obligation to affirmatively .further fair housing under the Fair }sousing Act: has complied with other provisions of the Act; or has complied with other civil rights laws. regulations or guidance." §5.162(a)(2) o The Proposed Rule enhances the public participation and consultation requirements, §5.158, and aligns the AFI -I regulations on this topic with those relevant to the expenditure of block grant funds under the Consolidated Plan process. §931.100, 91.105, 91.110, 91.115 and the PHA Plan process. §903.15. While there is no explicit complaint process established in the Proposed Rule, the public participation and consultation requirements are likely vehicles for community groups to lodge objections with HUD that ari AFI-} does not meet HUD's requirements o The proposed Rule leaves in place HUD's enforcement powers with respect to the AFH and compliance with participants' AFFH obligations. See, e.g., 24 C.F.R. §§91.500(b)(1I1JD approval action); 570.30-4 (making of grants); 570.485(c)(nnaking of grants); 570.601 and 570.602 (civil rights certification requirements); 570.904 (equal opportunity and fair housing revic\.ti criteria); 570.910-570.913 (corrective and remedial actions). ® Proposed Rule encourages regional Allis and collaboration between inunicipalities and PHAs. §5.156, Substantive Issues in the Proposed Rule O A1:%..I must identify goals to AFJ 1-1 and to inform fair housing strategies in other planning processes including, but not limited to housing, education, transportation, and environment. §5.154(d) e AFI-} must consider all fair housing issues in a jurisdiction. §5.154(d)(1) • Participants must use HUT) data to identify the existence and extent of: (1) segregation. (2) racially or ethnically concentrated areas of poverty; (3) disparities in access to community assets. (4) disproportionate housing needs and (5) illegal discrimination. §5.154(d)(2) • AFH must "identify' the primary determinants influencing conditions" listed in previous point. §5.154(d)(3) /2/2-37 • AM must set and prioritize goals for mitigating or addressing these determinants. §5.154(d)(4) O The Proposed Rule requires the jurisdiction's Consolidated Plan and related submissions to HUD to describe how the priorities and specific objectives of the jurisdiction will affirmatively further fair housing, and that the description should be done by setting forth strategies and actions consistent with the goals and other elements identified in an AFH, §§91.215, 91.220, 91.315, 91.320, 91 415, 91.420 This will ensure that fair housing planning drives decisions about how housing and community development funds will :be spent. The Proposed Rule defines the AFFH certification to mean that a block grant recipient "vvi11 take meaningful action to further the goals identified in the AF11 ., and that it will take no action that is materially inconsistent with its obligation to affirmatively further fair housing." §§91.225, 91.325. 91 425. • Although the Proposed Rule does not prescribe the specific strategies any participant must adopt, or actions it must take, it does emphasize that any strategies selected should "overcome segregated living patterns and support and promote integrated communities." §5.152 The Proposed Rule directs -participants "to examine relevant factors, such as zoning and other land -use practices that are likely contributors to fair housing concerns; and to take appropriate actions in response." 78 Fed. Reg 4371.6. 4 /y2- 38 time to change in control to "Board of County Commissioners". Once the agenda item has been changed "in control" to Board of County Commissioners you inay want to add a department head or division director as an FYI. The director of the submitting department; or a designee, shall present the grant application to the Commission at the regular meeting and receive approval or denial of the item. Upon approval, the County Clerk will obtain signatures from the Commission Chairman or designee; scan and record the documents in a P -Drive folder and forward the documents to the department to complete the grant application process. Divisions/Departments inay submit their electronic grant applications once the Agenda request has been approved by the Board of County Commissioners. Screen prints or printouts of the electronic application process or any other application material that was not available in Legistar mea) be scanned and sent to the Grants Manager via email. In cases where the complete signed grant application is scanned and filed by the County Clerk's Office in the P -Drive the Grants Manager may access it there. (~,rant Aw a rd Upon receipt or the grantor's funding decision, the Department shall immediately forward a scanned copy of the award document/notification letter/denial letter to the Grants Manager via email and/or the grants P -Drive folder. In the case of an award, the Department shall also submit a Budget Form to the Grants Manager or appropriate Accounting staff via email for processing with the Budget Department at which time an internal order is established, the staffing table is established, the fund center budget is established, and ERP processes are set up in SAP to allow the fund center and internal order activity. Additionally, the grants list website (http://www.scks.info/grants/) will be updated with the new grant award information. In cases where a county department docs not officially apply for a grant but is issued an award as an allocation of funds by the grantor or an informal arrangement to provide funding for a county operated program the department receiving the award will process a grant award acceptance agenda item for BOCC approval prior to accepting the award and setting up budget authority in SAP. 'this s, rant award agenda item will also be processed through Legistar in the same manner as a grant application. Departments and/or Divisions shall retain primary responsibility for developing the budget, preparing reports, program implementation, staff assignments and other items related to grant implementation and administration although some support services may be provided by central administration. 5 of 5 Sustainable Freedom Lab) A Trump Strategy to Neuter HUD's AFFH Page 1 of 8 15 NOV A TRUMP STRATEGY TO NEUTER HUD'S AFFH Posted at 12.47h in Articles by John Anthony • 3 Comments • 0 likes • Share When President Reagan took office in 1980 he promised to reduce the number of federal agencies and rules. Eight years later, his Presidential Task Force on Regulatory Relief fared to eliminate a single agency or even one of the thousands of federal regulations Today, President-elect Trump has promised to stop HUD's Affirmatively Furthering Fair Housing and reduce all regulations by 70%. Unfortunately, it cannot be done with a "phone and a pen " The good news is, even though the rescission process May be arduous, the change to the new administration will almost immediately blunt sdrne'of AFFH's worst consequences for communities, HUD does not want to risk exposing a confiscatory agenda that does little to help the poor. Before l offer my suggestions for neutralizing HUD'S anti -Constitutional activities, let me explain why this process of reigning in HUD and all federal agencies is irnperative, no matter how rigorous it may be. /92 4 a 1 n /1 4 Pin 1 Sustainable Freedom Lab! A Trump Strategy to Neuter HUD's AFFH Page 2 of 8 Most people may not realize that the federal agency bureaucracy, not Congress is now the primary lawmaking body in Washington DC. In 2015, while Congress passed 115 laws, over 400 agencies churned out 3378 regulations, all with the full force of a congressional law Our Founders never intended to create a nation swimming in laws. They knew that more laws encourage citizens to lose their self-reliance and become increasingly dependent on government for fairness. support and decision-making. That is why Congress alone has law -making authority and why the people control Congress. As James Bovard states in his book, Freedom in Chains, laws cause citizens "to cede more of their judgment in daily life." He continues, "Each additional law vesting new power in government agencies, or creating new penalties for private conduct, further preempts and politicizes the citizen's life." Decades ago, Congress began surrendering their responsibilities to federal agencies so they could manage the details necessary to implement legisia'ive-laws Today, those 'details' have enabled federal agencies to dwarf Congress, Unelected bureaucrats flood our ration with 3,000 to 4,000 new laws every year. it does not stop there. The 3000 plus federal regulations are a microdot compared to the rules we rarely hear about. Rules that forrner FTC economist Robert Rogows y calls sub -rosy regulations. He describes them as: "An impressive underground regulatory infrastructure that thrives on investigations, inquiries, threatened legal actions and negotiated settlements Without having to "break cover" as one career regulator termed it, savvy bureaucrats can fulfill an agenda of intervention without resorting to rulemaking or other formal mechanisms.Threats of regulation or litigation and the skillful use of public opprobrium can be very effective instruments of a command and control economy." Federal agencies' sub rosa regulatory activities and guidance number in the tens of thousands every year. /4/2- hub://sustainablefreedomlab.org/20 16/11 /1/haw-truing-cats-neuter-huds-affh/ 12/14/2016 sustainable Freedom Lab ; A Trump Strategy to Neuter HUD's AFFH Page 3 of g Clyde Wayne Crews, Jr, in a Dec 2015 report for the Competitive Enterprise Institute, explains that sub rosa regulations or 'guidance -documents' can consist of agreements, bulletins, information sheets, manuals, memorandum; 'advisory opinions, clarification, etc. Most fall outside of the already weak regulatory.review process rewired for agency rules The IRS drew from a culture o` informal memos and unwritten. innuendoes to delay and reject conservative Tea Party applicants for noreprof t status. Since there were no traceable rules, the President easily declared there was not even a "smidgeon of corruption," even in the face of what later proved w be massive rights' violations In 1946, Congress passed the AdrT instrative Procrdure5 Act to protect consumers by creating a "notice and comment" rulemaking process, The APA gave citizens the opportunity to review proposed rules in the Federal Register and voice their responses before they became law. But, according to Crews, agencies frequently use decrees besides rules to sidestep the APA. ..agency and presidential rnenl0ronda, g -i dance docunierts ("nonlegislative'' of irrtP''p'eUve rules), notices, bulletins, directives, news releases, letters, and even blog posts may enact. policy while flouting the APA's public notice and comment requirements for legislative rules." lhreats are another way agencies force constituents to comply that leave little evidence of the coercrorl and less recourse for the individual Operation Choke Point was a Department of,usti .e initiative that forced banks to withdraw services to politically disfavored businesses including payday loan. pawnshops and gun shops. There was n0 law/ no regulation or -Oven an executive order. It was simply a list of targeted companies provided to banks:accompanied by tireats c,f internal reviews for failure to comply wi,"rr federal guidelines As Prof Tirn Wu, a supporter of these agency tactics writes it the Duke Law Review "Rule by threats, l argue, 's under some Circu ristanr es, a superior means of regulatory oversight.". HUD seems to agree. I'tttp://sustdltlahIeli'eecIoi17on- 7/7E1i<Il fi l/....‘ trt111'1tl—fs t,,,.r.. r.rYl_i Sustainable Freedom I,ab A Trump Strategy to Neuter ITIUD's AF FN Page 4 of 8 There is nothing in the Fair Housing Act a<€thori zing HU) to demand that Dubuque IA issue section 8 vouchers to low-income families in Chicago, 180 miles away in another state. Yet, under legal threat for a failure to affirrnat'veiy further fair housing, the city buckled to the bureaucrats' outrageous dernands. Federal agencies have become so powerful that they car' now use existing Congressional authority to -write rules and guidance documents to control virtually all of our society and economy without congress passing another law During his campaign, Donald Trump talked about "dra n ng the swam,. " Much of the swamp is in the federal age; Because federal regulations have the force of lave, and legislative protection, any long-term regulatory changes the rew President makes will requi e workng with Congress to crenate legislation This means developing strategies to avoid a potential Senate f i buster It x150 me::15 the administration willneed the courts t:7 r: i:)I1olc Challenges t0 new iaws, or to invalidate existing rules. Here are strateg es President Tru€rp can sexpicr is to end HUD's AFFH, reign in future agency rules and begin to address the sub rosa regulatory culture The in`ormat on applies to most federal agencies, Review the Cost -Benefit Analysis for HUD's AFFH - Though law requires it, a .enc:es are notorious for ignoring or submitting shoddy cost benefit ana`yse.;. Review the actual financial effects of AFFH on communities. If appropriate bring legal action to halt the program. Form a HUD Action Review Committee. Require 'IUD departments to submit proposed Cornpliance Reviews or legal actions against grant recipients to HARC for approval. HARC reports to the HUD Secretary Encourage whistleblowers to expose dubious sub rosa activities. Begin a process of removing g:.fidance documents, threats and practices that are antagonistic to lovai rune and property rights. Replace these activities with pro local autollorn practices and policies Congress can pass new legislation to counter the effects of AFFH. Courts tend to disfavor legislation designed to block existing agency reg.r:ations Therefore, it will be necessary to have strong /y1,- ? httb://sustainablefree Iomlab.org/?O16/11/1s/liow-trump-carrneuter-huts-affh/ 12/14/2016 Sustainable Freedom Lab I A Trump Strategy to Neuter HUD's AFFH Page 5 of'S Constitutional voices on the Supreme Court to upfold the new laws that protect local rule and property rights. Redirect the Justice Department to 'focus an the primacy of property rights and local rule. DOJ actions should first consider the Constitutional rights of States and of the people above federal agency initiatives 'Use the appropriations process to limit regulatory activity So far, Republicans have found it difficult say 'no' to agency appropriations. With a memuer of their own party in the presidency; this is now a viable solution, Work with Congress to amend the Congressional Review Act. Congress has 60 days of legislative sessions following issue of a rule, in which to issue 0 joint resolution of disapproval and rescind an agency rule The CRA generally fails because Congress lacks the votes to overr do lire President's likely veto. Since the CRA passed in 1994, agerICieS have .ssued 84.,310 regulatory r hundreds of thousands of guidance documents Th CRA process rescinded one. not Counting The Presiders can work w€th Congress t0 amen ci the CRA to make it easter to rescind regulations. Amend the Administrative Procedures Act Change the Ac major regulations quire Con gressioria'tipprovat for Pass legislation requiring Congressional oversight of guidance documents Agencies issue 20 times as many guidance documents as they do rules, though they can have a iiovterfui and terrifying effect On citizens, businesses and jurisdictions It is time for Congress to review or hrr t ahem Inv'estiga'te attempts of agencies to Use guidance documents to sidestep the Administrative Procedures Act or any regulatory oversight. There is also much communities can do to protect tnei•nselves from HUD's AFFH :chile waiting for the administration's processes • Do not sit on the sidelines. Work with your Congressional representatives to support efforts to reign in federal agencies; and with your State representatives to block HUD's attempts to manage local authority and regionalize yourcornmuniues. /yz- y y htln'f/ uctninahlefrerr1nrnlnh (ro'm-16'1 111 Sihnny-trrrmlm-rnn-npiif r -h l._;rAH 1')/1r11?111(, 'Sustainable Freedom Lab ; A Trump Strategy to Neuter 11UD's MTh Page 6 ol'li • With a new party in power, expect a red;,ctir;n in HUD's aggressive-litigcltton actions The agency does not want their aggressive tactics, nor their invasive programs, like "income di versay' or "Move t� Opportunity," exposed • Until the administration or Congress rescinds HUD's AFLH rule, continue to reject HUD grants. Each time your cornrriun.ity accepts a HUD grant and the AFFH rile is alive, you are cret}t'ng a future retroactive liability ' Look for alternate ways to fund housing and urban development. Some communities are looking at Vojndations and 'rust Funds that provide grants to communities Others are reso'arr ing donation matching with focal corporations to fund protects Stay involved and informed We face threats to our communities.and property berouse for decades, we failed to follow Legislation and monitor what our politicians were doing It is a mistake we cannot repeat. 3 COMMENTS http://sustainablefreedomlab.org/2016/11/15/how-truiun-can=neuter-hods-a1Thl 12/141'2'016 PUBLIC NOTICE ITEMS: 1/17/17 / (j C► Office of INDIAN RIVER COUNTY ATTORNEY Dylan Reingold, County Attorney William K. DeBraal, Deputy County Attorney Kate Pingolt Cotner, Assistant County Attorney MEMORANDUM TO: Board of County Commissioners FROM: Dylan Reingold - County Attorne DATE: January 3, 2017 RE: Public Notice of Public Hearing Scheduled for January 24, 2017 to Consider Codifying the Code of Indian River County - LEGISLATIVE The Board of County Commissioners will hold a Public Hearing on Tuesday, January 24, 2017, at 9:05 a.m. or as soon thereafter as the matter may be heard, to consider amending Section 100.03 "Amendment or Repeal of Ordinances" of Chapter 100 "General Provisions" of the Code of Indian River County ("the Code"), codifying and publishing the ordinances up to and including Supplement 119 thereto, readopting the Code, designating the Code as the best evidence of the current law of Indian River County, Florida, and providing for severability, codification, and an effective date. /nhm P143 Date: To: Regular Agenda Item INDIAN RIVER COUNTY, FLORIDA DEPARTMENT OF UTILITY SERVICES January 9, 2017 Jason E. Brown, County Administrator From: Vincent Burke, P.E., Director of Utility Services Prepared By: Arjuna Weragoda, P.E., Capital Projects Manager Subject: West Wabasso Phase II Sewer and the East Gifford Drainage Project — Bidding Status: Bid No. 2017021 DESCRIPTIONS AND CONDITIONS: On December 1, 2015, the Indian River County Board of County Commissioners (BCC) approved the Federally - Funded Sub -Grant Agreement — FY 2014 Funding Cycle for Contract Number 16DB-OK-10-40-01-N05. This agreement was in regard to both the West Wabasso Phase II sewer and the East Gifford drainage projects for a total amount of $750,000.00 and the St. Johns River Water Management District FY 15/16 Cost Share grant for a total amount of $343,677.05. The project was advertised initially on August 28, 2016, and bids were opened September 29, 2016. On November 1, 2016, the BCC authorized staff to reject the two bids, modify the specifications, and re -advertise since the initial bid prices were approximately $1 million over budget. The project was re -advertised November 14, 2016 and opened December 15, 2016. ANALYSIS: The itemized bid schedule was broken into two separate schedules labeled A for the West Wabasso Phase II sewer project and B for the East Gifford drainage project. The engineer's opinion of probable construction cost for the projects are as follows: Name Schedule A -Sewer Schedule B -Drainage Total Indian River County $1,041,445.60 $169,624.80 $1,211,070.40 Of the seven (7) prospective bidders who attended the mandatory pre-bid meeting held September 12, 2016, only two submitted bids. The results are as follows: Initial Bids Opened September 29, 2016 Bidder Schedule A -Sewer Schedule B -Drainage Total Blue Goose Construction $2,081,776.30 (99.89% increase) $176,945.40 (4.32% increase) $2,258,721.70 (86.51% increase) Timothy Rose Contracting $2,176,814.40 $251,448.46 $2,428,262.86 C:\Users\GRAN IC'1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@480598FC\@BCL@480598FC.docx P144 Only two (2) prospective bidders attended the non -mandatory pre-bid meeting that was held November 28, 2016. Re -Advertised Bids Opened December 15, 2016 Bidder Schedule A -Sewer Schedule B -Drainage Total Blue Goose Construction $2,046,448.00 (96.50% increase) $215,080.20 (26.80% increase) $2,261,528.20 (86.74% increase) Timothy Rose Contracting $2,125,513.40 $200,768.80 $2,326,282.20 The two bidders that attended the meeting are the same contractors who submitted bids both rounds. The following table compares the lowest, responsive, responsible bidder's prices from the initial and re -bid. Note that bid reductions from both contractors were unsuccessful during the rebid. The lowest overall bid actually increased from the initial bid. For the rebid, the lowest bidder's price for Schedule A -sewer reduced by $35,328.30, but the drainage portion of the project, schedule B, increased by $38,134.80. Bidder Schedule A -Sewer Schedule B -Drainage Initial Bid Re -Bid Initial Bid Re -Bid Blue Goose Construction $2,081,776.30 (99.89% increase) $2,046,448.00 (96.50% increase) $176,945.40 (4.32% increase) $215,080.20 (26.80% increase) Given that the lowest bid price is still approximately $1 million over the budgeted amount and only two bids were submitted, staff feels that in order to ensure the county receives competitive bids for the subject project, the most appropriate action is to reject this bid and table the project for a later date. The lack of participation and higher than anticipated bids could possibly be attributed to the complexity of paper work, auditing requirements that are mandated as part of the federal grant, and the abundance of construction activity available for potential bidders in the Treasure Coast area. Staff would like to present the following options for the BCC to consider: 1. Since the bid prices are approximately $1 million over budget, do nothing and table the project for a later date. The BCC agenda item for December 1, 2015, noted that "if during the procurement process bids are much higher than the Engineer's opinion of probable cost, the county has the option to close the sub -grant early without addressing any construction." The following will need to happen to exercise this option. • Terminate the Small Cities Community Development Block Grant (CDBG) Agreement 16DB-OK-10-40-01- N 05 through a written request per Item 13 (Termination). Please note that there are no penalties for early modification to close an agreement with no construction expenditures and no other compliance issues. • Terminate the St. Johns River Water Management District FY 15/16 Cost Share grant. This can be accomplished via a letter notifying the district of the reasons for termination. District staff stated that the subject termination will not be viewed negatively on future grant applications since the reasons for termination are beyond the control of the county. • Keep in mind that one of the goals in the Gifford Neighborhood Plan is to complete certain drainage improvements in this area by 2019. Staff can move forward with the proposed drainage improvements for the East Gifford area as designed and itemized in Schedule B through a separate procurement process utilizing other funding sources. C:\Users\GRANIC^'1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@480598FC\@BCL@480598FC.docx Page 2 of 5 P145 2. Award the bid to the lowest, responsive and responsible bidder, Blue Goose Construction, for a total sum of $2,261,528.20 to include Schedule A and B work. Fund the deficit from other funding sources such as follows: PROJECT NAME/ACTIVITY CONSTRUCTION COST (Blue Goose) CDBG FUNDING COST -SHARE FUNDING* OTHER FUNDING SOURCE COMMENTS West Wabasso Sewer Phase II $ 2,046,448.00 $ 720,000.00 $ 343,677.05 $ 982,770.95 The deficit will be funded through Optional Sales Tax. East Gifford Drainage Project $ 215,080.20 $ 30,000.00 $ 0.00 $ 185,080.20 Deficit to be funded via available MSBU funds in the amount of $19,000 and the reminder to be funded through Optional Sales Tax. FUNDING: Funding for the West Wabasso Phase II sewer project is available in the Utilities capital fund account. Capital fund revenues are generated from impact fees. Funding for the East Gifford drainage project is available in the Optional Sales Tax fund. Description Account Number Amount West Wabasso Phase II Sewer Project 472-169000-14501 $1,050,000.00 Optional Sales Tax- East Gifford Drainage Project 31524319-066340-15017 $ 170,000.00 RECOMMENDATION: Staff recommends Option No. 1 outlined above, rejection of all bids submitted in response to Invitation to Bid No. 2017021 and table the project for a later date, and authorize staff and the chair to sign any documents necessary to effectuate the termination of the agreements associated with the West Wabasso Phase II Sewer project. ATTACHMENT(s): Bid Comparison for Schedule A and B C:\Users\GRANIC"1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@480598FC\@BCL@480598FC.docx Page 3 of 5 P146 SECTION 00310 -3 -SCHEDULE A SCHEDULE OF BID ITEMS BID NUMBER 2017-021 Dated: 12/16/16 PROJECT IDENTIFICATION: West Wabasso Community Gravity Sewer System, Phase 2 BID COMPARISON Bid Item No. Bid Item Description Unit of Measure Quantity Blue Goose Timothy Rose Unit Price Total Unit Price Total 1 8" PVC Gravity Sewer 4' - 8' Deep LF 3,445 $110.70 $381,361.50 $144.00 $496,080.00 2 8" PVC Gravity Sewer 8' - 10' Deep LF 500 $79.65 $39,825.00 $261.00 $130,500.00 3 8" PVC Gravity Sewer 10' - 12' Deep LF 510 $93.45 $47,659.50 $387.00 $197,370.00 4 8" PVC Gravity Sewer 12' -14' Deep LF 500 $114.15 $57,075.00 $478.00 $239,000.00 5 8" PVC Gravity Sewer 14' - 16' Deep LF 40 $137.15 $5,486.00 $720.00 $28,800.00 6 4' Diam. Manholes 4' - 8' Deep EA 10 $4,600.00 $46,000.00 $4,280.00 $42,800.00 7 4' Diam. Manholes 8' - 10' Deep EA 1 $9,200.00 $9,200.00 $6,200.00 $6,200.00 8 5' Diam. Manholes 10' -12' Deep EA 1 $11,270.00 $11,270.00 $9,736.00 $9,736.00 9 5' Diam. Manholes 12' -14' Deep EA 1 $12,650.00 $12,650.00 $10,484.00 $10,484.00 10 5' Diam. Manholes 14' - 16' Deep EA 2 $13,225.00 $26,450.00 $11,658.00 $23,316.00 11 Type B Stabilized Subgrade (12")- Per FDOT Spec 160-4 (LBR 40) SY 13,160 $15.50 $203,980.00 $3.20 $42,112.00 12 Type SP 9.5 (Traffic C) (1" Thick)- Per FDOT Spec 334- 7 SY 13,160 $7.70 $101,332.00 $5.97 $78,565.20 13 Type SP 12.5 (Traffic C) (1.5" Thick)- Per FDOT Spec 334-7 SY 13,160 $9.20 $121,072.00 $8.60 $113,176.00 14 6" Thermoplastic White Per FDOT Spec 711-11 LF 50 $3.00 $150.00 $22.00 $1,100.00 15 Install 6 -inches of millings over 12 -inches of Type B stabilized subgrade on 64th Avenue from approximately station 307+40 to 310+00. LF 260 5235.00 $61,100.00 $36.52 $9,495.20 16 Sewer Laterals both long (>50 feet) and short (<50 feet) from the main line to Clean Out (C.0) at Right-of-way (R/W) EA 60 $1,248.00 $74,880.00 $600.00 $36,000.00 17 Sewer Service Lateral from C.O. at R/W to extend 75 -IF including a C.O. at house connection as directed by Utility inspector, restoration of all disturbed areas with sod. Building Division permit will be required ($75) and also to be included with the price of each service lateral. Any additional costs will be included in the unit price for gravity pipe installation. EA 45 $2,415.00 $108,675.00 $1,600.00 $72,000.00 18 Septic tank pump out and abandonment per FDOH requirements, fill, restoration of all disturbed areas with sod. EA 45 $1,325.00 $59,625.00 $420.00 $18,900.00 Bid Form 00310 Page 1 SCHEDULE A P147 19 Construct County Lift Station, Complete and Operable. Furnish Pumps Package and Dataflow System. Pump package will include pumps, cables, guide rails and assemblies, float assembly, anchor bolts and washers and nuts, lifting bailes, SS nipples and elbows, float switches, hatch covers, duplex comtrol panel, SS base plates and spare parts, concrete drive and housekeeping pad. Lift Station construction also includes connection to the 4" force main on the west side of 64th Avenue. The price to Include Dataflow equipment with the spare Telemetry Control Unit (TCU) Supply spare parts per IRCDUS Construction Standards Section 10. LS 1 $305,625.00 $305,625.00 $203,000.00 $203,000.00 20 Silt Fence LF 10,000 $1.00 $10,000.00 $1.00 $10,000.00 21 Install CDBG Sign Per detail sheet 10 of 15 EA 1 $1,000.00 $1,000.00 $1,050.00 $1,050.00 22 Maintenance of Traffic LS 1 $80,000.00 $80,000.00 $127,168.00 $127,168.00 23 Record Drawings/As-built Survey LS 1 $20,000.00 $20,000.00 $47,000.00 $47,000.00 24 Mobilization, Demobilization LS 1 $167,000.00 $167,000.00 $90,000.00 $90,000.00 25 Public Construction Bond LS 1 $20,032.00 $20,032.00 $16,661.00 $16,661.00 SUB -TOTAL $1,971,448.00 $2,050,513.40 FORCE ACCOUNT $75,000.00 $75,000.00 TOTAL $2,046,448.00 $2,125,513.40 Bid Form 00310 Page 2 SCHEDULE A P148 SECTION 00310-3- SCHEDULE B SCHEDULE OF BID ITEMS BID NUMBER 2017-012 Dated: 12/15/16 PROJECT IDENTIFICATION: EAST GIFFORD DRAINAGE PROJECT BID COMPARISON Bid Item No. Item Unit Quantity Blue Goose Timothy Rose Unit Price Total Unit Price Total A. 101-1 Mobilization LS 1 $5,000.00 $5,000.00 $15,000.00 $15,000.00 102-1 MOT LS 1 $6,000.00 $6,000.00 $10,085.87 $10,085.87 104-1 Erosion & Water Pollution LS 1 $3,000.00 $3,000.00 $6,000.00 $6,000.00 110-1-1 Clearing & Grubbing LS 1 $4,500.00 $4,500.00 $8,800.00 $8,800.00 Mobilization & Demolition Subtotal $18,500.00 $39,885.87 B. Site Improvements 07 Consruction Stakeout / As -Built LS 1 $9,600.00 $9,600.00 $12,000.00 $12,000.00 105-1 Testing (Density, Compaction, Etc.) LS 1 $21,903.00 $21,903.00 $4,200.00 $4,200.00 120-1 Excavation, Regular (Roadway) CY 490 $18.00 $8,820.00 $22.00 $10,780.00 285-7-11 (12") Compacted Base (Limerock or Coquina) SY 250 $25.85 $6,462.50 $28.00 $7,000.00 334-1-11 Superpave Asphaltic Concrete - 1-1/2" SP 12.5 TN 25 • $175.00 $4,375.00 $175.00 $4,375.00 425-15-21 Type "C" Ditch Bottom Inlet (<10' depth) EA 13 $2,585.00 $33,605.00 $1,600.00 $20,800.00 430-174-215 14" x 23" Horrizontal ERCP LF 585 $71.50 $41,827.50 $76.06 $44,495.10 430-982-625 14" x 23" MES EA 1 $1,100.00 $1,100.00 $1,245.00 $1,245.00 530-3-4 Rip -rap rubble, ditch lining TN 15 $550.00 $8,250.00 $75.00 $1,125.00 570-1-2 Performance Turf (sod, bahia) CY 3,912 $3.50 $13,692.00 $2.40 $9,388.80 700-1-50 Single Post Sign (Install) EA 11 $336.00 $3,696.00 $375.00 $4,125.00 700-1-50 Single Post Sign (Relocate) EA 11 $90.00 $990.00 $175.00 $1,925.00 985-1-1 Geotectile Fabric LF 18 $40.00 $720.00 $54.00 $972.00 1080-15 Utility Fixtures, Adjust & Modify EA 3 $632.50 $1,897.50 $600.00 $1,800.00 700-1 Install CDBG Sign (refer to detail on sheet 10 of 15, West Wabasso Plans) EA 1 $1,000.00 $1,000.00 $1,050.00 .$1,050.00 Public Construction Bond LS 1 $2,795.00 $2,795.00 $2,140.56 $2,140.56 Site Improvements Subtotal $160,733.50 $127,421.46 TOTAL CONSTRUCTION= $179,233.50 $167,307.33 Contingency (20%) = $35,846.70 $33,461.47 TOTAL = $215,080.20 $200,768.80 Bid Form 00310 Page 3 SCHEDULE B P149 January 17, 2017 ITEM 14.E.1 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER -OFFICE MEMORANDUM TO: Members of the Board of County Commissioners DATE: January 9, 2017 SUBJECT: HUD and the Affirmatively Furthering Fair Housing .(AFFH) Rule FROM: Tim Zorc Commissioner, District 3 Discussion Item: I would like to discuss a proposal by Phyllis Frey, American Coalition 4 Property Rights, regarding, amending Indian River County Resolution 2008-12 "Grant Application and Award Policy" to stipulate that the County will not enter into any grant agreements requiring an Assessment of Fair Housing pursuant to the Federal Regulations contained within the Affirmatively Furthering Fair Housing (AFFH) Final Rule. P150