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11/15/2016 (2)
j4��'ER c A COUNTY COMMISSIONERS DISTRICT Bob Solari, Chairman District 5 Joseph E: Flescher, Vice Chairman District 2 Wesley S. Davis District l Peter D. O'Bryan District 4 Tim Zorc District 3 BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA COMMISSION AGENDA TUESDAY, NOVEMBER 15, 2016 - 9:00 A.M. Commission Chambers Indian River County Administration Complex 1801 27th Street, Building A Vero Beach, Florida, 32960-3388 www.ircgov.com Jason E. Brown, County Administrator Dylan Reingold, County Attorney Jeffrey R. Smith, Clerk of the Circuit Court and Comptroller 1. CALL TO ORDER 9:00 A.M. PAGE 2. INVOCATION Commissioner Wesley S. Davis 3. PLEDGE OF ALLEGIANCE Commissioner Tim Zorc 4. ADDITIONS/DELETIONS TO THE AGENDA / EMERGENCY ITEMS 5. PROCLAMATIONS and PRESENTATIONS A. Presentation of Proclamation Designating the Week of November 14 as Indian River Habitat for Humanity Week____________________________________________________________ 1__ B. Presentation of Proclamation Honoring Wesley S. Davis for 17 years of Public Service __followed by brief Recess/Reception) 2 November 15, 2016 Page 1 of 6 6. APPROVAL OF MINUTES PAGE None 7. INFORMATION ITEMS FROM STAFF OR COMMISSIONERS NOT REQUIRING BOARD ACTION A. Fitch Press Release _(memorandum dated September 26, 2016)----------------------- 3-9 - ------------------------------------- B. Proclamation and Retirement Award Honoring Michael Nixon on His Retirement from Indian River County Board of County Commissioners Department of Public Works/Engineering Division with Eleven .Years of Service 10-11 -------------------------------------------------------------------------------------------------------------------- C. Proclamation and Retirement Award Honoring Mary Snyder on Her Retirement from Indian River County Board of County Commissioners _Department of General Services/Main _Library with Thirty Years of Service 12-13 -------------------- 8. CONSENT AGENDA A. Approval of Checks and Electronic Payments November 3, 2016 --(memorandum-dated November 3,2016) ---------- B. TD Banking Contract __(memorandum dated November 7 2016) — October 28, 2016 to -----------------------------------14-22 23-107 ------------------------------------------ C. Designation of Econolite as Sole Source Provider Traffic Control Systems _(memorandum_dated November l Z 2016) 108-112 ---------------------------------------------------------------- D. Third Amendment to Elevated Water Tank Space License Agreement with New Cingular Wireless PCS, LLC (memorandum dated November 7 2016) 113-131 E. Declaration of Excess Equipment as Surplus for Sale or Disposal (memorandum dated November 8, 2016) 132-144 ---------------------------------------------------------------- F. Resolution Formally Designating a Portion of County Owned Property Along 415` Street as Right -of -Way (memorandum dated October 25,2_01§) ---------------------------------------------------- 145-149 G. Work Order No. 2, Carter Associates, Inc., Intersection of 215` Street SW and 27`x' Avenue, Mast Aran Traffic Signal Design (memorandum dated November 2 20.16) _____________________________________ 150-163 November 15, 2016 Page 2 of 6 8. CONSENT AGENDA PAGE H. Designation of Alpha Technologies as Sole Source, Traffic Signal Battery Back -Up Systems (memorandum dated November 2 2016) ____________________ 164-166 I. Final Payment to SRS Services, LLC — Dunes Course Golf Cart Concrete Path Repairs (IRC Bid No. 2016040) (memorandum dated November 2 2016) 167-168 J. 2017 Oblique Aerial Imagery Acquisition Project __(memorandum dated November 7Z 2016) _______________169-188 -------------------------------------- 9. CONSTITUTIONAL OFFICERS and GOVERNMENTAL AGENCIES A. Indian River County Sheriff Dervl Loar Request for Funding to be Returned to the Sheriff's Office __(ietter_dated October 31,_2016) ____ 189 10. PUBLIC ITEMS A. PUBLIC HEARINGS 1, Fracking Ordinance (memorandum dated October 25 2016) 190=195 Legislative B. PUBLIC DISCUSSION ITEMS (As a general rule, public discussion items should be limited to matters on which the commission may take action.) 1. Request to Speak from Brian Heady Regarding Representative Government 196 --------------------------------------------------------------------------------------------------------- C. PUBLIC NOTICE ITEMS None 11. COUNTY ADMINISTRATOR MATTERS None Novciubcr 15, 2016 Page 3 of 6 12. DEPARTMENTAL MATTERS PAGE A. Community Development 1. Condemnation, Demolition and Removal of Unsafe Structures Located at 529 20th Street S.W.; 2385 11th Court S.W., 4795 32nd Avenue, and 6345 85th Street _(memorandum dated November 2,2016) 197-227 --------------------------------------- 2. Request for Authorization to Initiate a Comprehensive Plan Text Amendment to Mixed Use Policy 5.6 of the Future Land Use Element (FLUE) _(memorandum dated November 4, 2016)___________________________ 228-238 B, Emergency Services None C. General Services None 1, Human Services None 2, Sandridge Golf Club None 3, 1 Recreation None D. Human Resources None E. Office of Management and Budget None F. Public Works 1. As -Built Resolution and Final Assessment Roll for 51" Avenue Petition Millings Project (65th Street to 67th Street) __(memorandum_dated October 31,2016) ------------------------------------------ 239-246 G. Utilities Services None November 15, 2016 Page 4 of 6 13. COUNTY ATTORNEY MATTERS PAGE A. Approval of Mediated Settlement Agreement - Parcel of Property Owned by Kevin and Paula Jones Located on 27`h Avenue SW at the, South Main Relief Canal - (memorndum dated November 4, 20 16) 247-254 - - a - - - - - ---------------------------------------------------------------- B. 1016 Booker Street — County Deed to City of Fellsmere _(memorandum dated November 2 2016) _____ _______ 255-263 14. COMMISSIONERS MATTERS A. Commissioner Bob Solari, Chairman 1. The Spoonbill Conspiracy _(memorandum dated November 8, 20 16) 264 ---------------------------------------- B, Commissioner Joseph E. Flescher, Vice Chairman None C. Commissioner Wesley S. Davis None D. Commissioner Peter D. O'Brvan None E. Commissioner Tim Zorc 1. Privately Funded Indian River Lagoon Pilot Project --(memorandum dated November 8, 2016)- ---------- - --- - 265.267 2. No Net Loss Policy for Ballfields (memorandum dated November 8 20 16) 268 - - - - ------------ 15. SPECIAL DISTRICTS AND BOARDS A. Emergency Services District None B. Solid Waste Disposal District None C. Environmental Control Board None November 15, 2016 Page 5 of 6 16. ADJOURNMENT 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 Meeting may be broadcast live by 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 pan., Thursday at 1:00 p.m. through Friday Morning, and Saturday at 12:00 Noon to 5:00 p.m. November 15, 2016 Page 6 of 6 PROCLAMATION S DESIGNATING THE WEEK OF NOVEMBER 14, AS INDIAN RIVER HABITAT FOR HUMANITY WEEK WHEREAS, Indian River Habitat for Humanity (Habitat) is celebrating 25 years of serving this community; and WHEREAS, Habitat is the leader in affordable housing in Indian River County by building strength, stability, and self-reliance through shelter, and WHEREAS, 420 families have been served locally in 25 years through a combination of 340 new homes sold, and 80 renovated homes sold; and WHEREAS, 250 Neighborhood Revitalization repair projects have been financed in the Gifford and Fellsmere communities; and WHEREAS, 837 children living in Habitat homes are assured a brighter future with better education and health; and WHEREAS, the recipients of Habitat's new and renovated homes contributed $181,113 in real estate taxes in 2015; and WHEREAS, over 820 additional families have been served overseas, often after natural disasters, such as earthquakes and hurricanes; and WHEREAS, the Habitat ReStore, being the 2nd largest in Florida, funds the construction of 1 in 3 of Habitat's new homes, and contributed $110,397 in Florida sales tax this last year; and WHEREAS, Habitat mobilized 1,331 volunteers who donated a total of 49,237 hours this last year to support the mission; and WHEREAS, Habitat celebrates its accomplishments and looks forward to serving 500 more local families in the next 5 years. NOW, THEREFORE, BE IT PROCLAIMED BY THE BOARD OF COUNTY COMMISSIONERS, INDIAN RIVER COUNTY, FLORIDA that the week of November 13, 2016, be designated as Habitat for Humanity Week in Indian River County, and the Board encourages all citizens to shop, donate, and volunteer with Indian River Habitat for Humanity and the Habitat Restore. Adopted this 15th day of November, 2016 BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA PROCLAMATION 5 . Honoring Wesley S. Davis for 17 years of Public Service WHEREAS, Wesley S. Davis was born January 16, 1970 in Vero Beach, Florida; and WHEREAS, Wesley married Tonya Patterson on June 23, 1990. Wesley and Tonya raised two children, Wesley, Jr. and Taylor, and are soon expecting grandson, Trent Michael; and WHEREAS, Wesley began his public service in November, 1994, when elected to the Indian River County School District of Indian River County with Superintendent Dr. Roger Dearing; serving as Chairman to the Board from 1996 to 1999; and WHEREAS, Wesley was elected as County Commissioner for District 1 in November, 2004 and served as Chairman of the Board of County Commissioners from 2008-2009 and 2014-2015; and WHEREAS, Wesley has been honored for his achievements by Florida Association of Counties Advanced County Commissioner, 2009; World Wide College of Auctioneers, 2000; Sun Up Center Auctioneer Extraordinaire, 2007; and Barrier Island Coalition Outstanding Citizen, 2008; and WHEREAS, Wesley takes pride in assisting special causes with compassion, enthusiasm, positive outlook, and generosity with raising funds. In recognition for his outstanding service to the citizens of Indian River County as a successful Auctioneer for non-profit organizations, Wesley has maintained a license as a Professional Auctioneer since 2000, during which time he has successfully auctioned over $1,000,000.00 for charities within Indian River County. Clients range from private, independent and public schools, faith -based groups, animal welfare, arts and culture, health care, and foundations. He has ensured successful fundraising for organizations such as IRC Healthy Start Coalition, IRC Rotary Clubs, IRC Youth Guidance Luau, Beachland Elementary, Treasure Coast Women Auction for Scholarships, American Red Cross, Habitat for Humanity, 4-H Foundation, Harvest Food Outreach, St. Edwards School, Children's Home Society, and Homeless Family Center; and WHEREAS, as County Commissioner, Wesley has been a stalwart supporter of open meetings and helped set the standard for citizen input in front of the Board, and as Chairman, Wesley has always conducted meetings in a professional, businesslike manner in an effort to provide the citizens of Indian River County fair representation. NOW, THEREFORE, BE IT PROCLAIMED BY THE BOARD OF COUNTY COMMISSIONERS, INDIAN RIVER COUNTY, FLORIDA that the Board expresses their most devout appreciation for Wesley S. Davis' 17 years of public service, and the Board further extends their best wishes to Wesley and Tonya for continued success in future endeavors. Adopted this 151h day of November 2016, BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Bob Solari, Chairrrwn Peter D_jg4cyan Tim airman Certificate of Appreciation Is hereby presented to BEACHLAND CLEANING SERVICE WHEREAS, the Cleaning for a Reason Foundation is a nonprofit organization that offers free professional housecleaning services to improve the lives of women undergoing treatment for cancer; since its inception in 2006, it's maid service partners have donated over $6,000,000 worth of free cleaning to more than 23,000 women in North America, and WHEREAS, Beachland Cleaning Service has been a participating partner in Indian River County since 2007, and WHEREAS, Beachland Cleaning Service has provided cleaning services to over 100 women in Indian River County, thereby allowing them to focus on their health as they battle this cruel disease, and WHEREAS, Beachland Cleaning Service has helped raise over $100,000 for the Cleaning for a Reason Foundation, THEREFORE, this Certificate of Appreciation is presented to Beachland Cleaning Service for their dedication to helping women during a traumatic time in their lives. Presented on this 15'h Day of November, 2016 BOARD OF COUNTY COMMISSIONERS, INDIAN RIVER COUNTY, FLORIDA Bob Solari, Chairman Joseph E. Flescher, Vice Chairman Wesley S. Davis Tim Zorc Peter D. O'Bryan INFORMATIONAL ITEM INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET DATE: September 26, 2016 TO: Board of County Commissioners THROUG14: Jason E. Brown, County Administrator FROM: Michael Smykowski, Budget Director SUBJECT: Fitch Press Release BACKGROUND As part of its due diligence efforts, bond rating agencies conduct surveillance calls relative to outstanding debt to determine if, due to changing economic conditions, any change in the rating assigned to the bond issue is warranted. Fitch Ratings, Inc. recently reviewed Indian River County's Long -Term Issuer Default Rating (IDR) and affirmed the rating at the existing 'AAA' level, reflecting the "county's exceptional financial resilience, superior budget flexibility, and prudent financial management." Fitch Ratings, Inc. also reviewed the Spring Training Facility revenue bonds and affirmed the 'AA+' rating assigned to this debt, noting the "strong debt service coverage, solid expected growth prospects, and exceptional resilience that Fitch expects the revenue stream to show through a moderate economic downturn scenario." The full text of the Fitch press release is included as an attachment to this agenda item. FUNDING There is no funding associated with this agenda item. RECOMMENDATION The information contained herein is for informational purposes only and does not require any formal action by the Board of County Commissioners. 3 INFORMATIONAL ITEM ..APPROVED ASA ITEM lµitc Ratings FITCH AFFIRMS INDIAN RIVER COUNTY (FL)'S SPRING TRAINING REVS AND IDR; OUTLOOK STABLE Fitch Ratings -New York -02 November 2016: Fitch Ratings has affirmed the following ratings on Indian River County, FL: --Long-Term Issuer Default Rating (IDR) at 'AAA'; -$6.7 million spring training facility revenue bonds, series 2001 at'AA+'. The Rating Outlook is Stable. SECURITY The spring training facility revenue bonds are limited obligations of the county, secured by a first lien on a statutory annual distribution of funds from the State of Florida general revenue fund for. new or retained professional sports facilities, and proceeds from the fourth -cent tourist development tax (TDT) levied by the county and 86% of the local government half -cent sales tax distributed to the county by the state. The lien on the TDT and half -cent sales tax is automatically released as of April 1, 2021 (10 years before the final maturity date of the bonds of April 1, 2031). The bonds are additionally secured by.a cash -funded reserve equal to maximum annual debt service (MADS). KEY RATING DRIVERS The 'AAA' IDR reflects the county's exceptional financial resilience, superior budget flexibility and prudent financial management. The 'AA -P rating on the special facility revenue bonds includes the strong debt service coverage, solid expected growth prospects, and exceptional resilience that Fitch expects the revenue stream to show through a moderate economic downturn scenario. The rating also reflects Fitch's expectation that pledged revenues will not be leveraged to the 1.25x ABT. Economic Resource Base Indian River County is located on the Atlantic coastline, approximately 135 miles north of Miami, and includes the cities of Vero Beach and Sebastian. The county's population has shown steady growth with a 2015 census estimate of 147,919, up 7% since 2010. Revenue Framework: 'aa' factor assessment Fitch expects revenues to rise at a slow pace but one that exceeds historical trends over the last decade or so, driven by growth in population and economic development. The county has considerable legal revenue raising ability with current millage rates well below the 10 -mill statutory limit. Expenditure Framework: 'aa' factor assessment The county's pace of spending is expected to be in line with or marginally above revenue trends in the absence of policy action. Carrying costs for debt and retiree liabilities are moderate at 10%. Long -Term Liability Burden: 'aaa' factor assessment County debt and pension benefit liabilities are very low, estimated at below 3% of personal income. Liabilities are expected to remain low. Operating Performance: 'aaa' factor assessment The county's reserves have remained very high during and after the great recession, benefitting from the county's superior budget flexibility. Fitch expects the county will continue to maintain solid operations and gap -closing ability through economic cycles. RATING SENSITIVITIES LONG-TERM LIABILITIES: The rating is sensitive to a significant growth in long-term liabilities relative to total spending. SPRING TRAINING FACILITY BONDS: The rating is sensitive to a material change in coverage resulting from additional leverage or a shift in the performance of pledged sales tax and/or TDT revenues. Furthermore, the rating is sensitive to changes in the credit quality of the state of Florida ('AAA' IDR with a Stable Outlook), with respect to pledged revenues related to the annual distribution of funds for professional sports facilities; due to the nature of this pledge, the bonds cannot be rated higher than one notch below the state's IDR. The rating assumes limited leverage of pledged revenues. Borrowing outside of this expectation would pressure the rating. CREDIT PROFILE The local economy of Indian River County is traditionally centered on agriculture and tourism, although it has diversified with an increased presence of health care and information technology, light manufacturing, wholesale and retail trade and service sector jobs. County home values endured steep declines during the recession and have notably recovered but remain below the 2006 peak. Assessed values have experienced similar declines during the recession (about 3011/o from 2008 through 2013) and have also exhibited similar expansion in recent years. The county's unemployment rate has improved considerably but still exceeds the state and the U.S average. The tourism sector continues to strengthen, with tourist development taxes up by 19% in fiscal 2015 attributable to an increase in visitors. The county's population is considerably .older than the state and national averages, with above average income levels. Revenue Framework Property tax revenues are the county's largest revenue source, comprising 56% of general fund revenues in fiscal 2015. Property tax revenues experienced significant declines during the recession, due to the significant reduction in home values and state property tax reform. The county raised rates in 2009 and 2010 to offset the revenue decline. The county's historical general fund revenue growth has lagged both U.S. GDP and inflation increases since 1999, due to the severe impact of the great recession and housing market decline in the state of Florida as well as the state property tax reform. Growth prospects are somewhat more positive, driven by continued population growth and development. The county has ample legal revenue raising authority as the current millage is well below the property tax cap of 10 mills. The adopted tax rate for fiscal 2016 was 3.3602 mills. Annual changes in the property tax rate are determined using a rolled -back or revenue neutral rate, which is then adjusted for changes in Florida's per capita personal income. However, this limitation may be overridden by vote of the county governing body. The county also has the ability to increase various license and permit revenues and service charges that make up a smaller but still notable portion of its revenue base. Expenditure Framework The county maintains solid expenditure flexibility with moderate carrying costs. Public safety is the largest spending item, with fiscal 2015 outlays comprising 48% of total general fund 6 expenditures. General government spending is the second largest spending category equal to about 24% of the total. The county's pace of spending is expected to be in line with or marginally exceed revenue growth trends, absent policy action, due to the need to meet the demands of an expanding population. Employee wages and benefits are the main expenditure driver. Wages and benefits are collectively bargained. County employees are largely represented by two unions; the county recently renewed one of its contracts for a three-year term and is in negotiations with the other union. Under state law, if impasse is declared, both parties are required to engage in a non-binding mediation process after which the local government may impose contract terms for one year. The county was able to manage the budget through the great recession by privatizing certain services, implementing hiring and wage freezes and layoffs, and using reserves. It has since increased staffing levels in recent years and reinstated pay increases; however, staffing levels are still below prerecession levels and the county's high proportion of public safety spending may present some practical restrictions on future expenditure flexibility. Fixed costs associated with. debt and retiree liabilities are equal to about 10% of total government spending., Long -Term Liability Burden The county's long -tern liability burden is equal to less than 3% of personal income and is expected to remain very low. The county's overall debt totals $145 million or about 1.5% of personal income and mainly reflects the overlapping obligations of the county school board. The county's direct debt amortizes at an aggressive pace with more than 90% of principal to be repaid within 10 years. Capital needs are manageable and largely related to transportation and utility system improvements financed from gas and sales tax revenues, impact fees, user fees and grants. The county does not contemplate any additional debt issuance at the present time. County officials are seeking voter approval to extend the existing sales tax levy for 15 years, upon its expiration in 2019. The tax levy currently generates about $16 million annually; the county plans to continue to use the funds to support its infi-astructure and capital. needs on a pay-as-you-go basis. The county participates in the state -administered Florida Retirement System; a cost sharing multiple employer pian. FRS is adequately funded with an asset to liability ratio estimated at 82%, using a Fitch adjusted 7% discount rate. The county's net pension liability totaled $98 million as of the most recent report. The county historically fiords 100% of the ARC. Operating Performance Fitch believes that the county's broad revenue raising ability and spending flexibility provide it with the ability to maintain reserves well in excess of a level consistent with a'aaa' financial resilience assessment through economic cycles. Fitch's Analytical Sensitivity Tool (FAST) generates a general fund revenue decline of nearly 4% in a moderate economic downturn scenario. Fitch believes that the county is well positioned to manage through economic cycles while maintaining a high level of financial resilience, due to its financial reserve policy (unassigned reserves equal to 20% of total operational spending), ample revenue raising ability and solid ability to manage expenditures. The county has demonstrated robust financial management by maintaining ample reserves. The county chose to draw on fund balance to pay down its debt during fiscal 2012 and fiscal 2013. For fiscal 2015, the county planned a $1.4 million drawdown of reserves, due to the expected use of funds previously set aside for legal expenses. Despite the operating deficits that occurred in each of these years, the county's unassigned reserve levels have remained in excess of 50% of total expenditures (after transfers). The county has well-defined fund balance policies, which outline a minimum unassigned fund balance equal, to 20% of budgeted operating spending. The county also maintains a separate 5% reserve for both budget stabilization and emergency use. County officials are expecting favorable results for fiscal 2016, consistent with prior year results. The fiscal 2017 adopted budget is balanced and represents a 10% decrease from the 2016 budget, reflecting an increase in the tax base, no millage rate increase, new positions, and various capital improvements and technology upgrades. Spring Training Bonds Demonstrate Solid Resilience Fiscal 2015 pledged revenues totaled $8.5 million, including about $7.5 million of the county's local government half -cent sales tax, $566,774 in TDT revenue, and $500,004 from the state's allocation. Coverage of MADS was a strong 9.7x. The half -cent sales tax and TDT revenues continued to perform well, with annual sales tax and TDT tax collections 'up around 6% and 19% in fiscal 2015, from the prior year. Sales tax collections through the first 11 months of fiscal 2016 are 3% higher than the prior comparable Period. TDT tax collections through the first 10 months are 7% higher. The state payment represents a'fixed amount payable to the county pursuant to Florida Statute 288.1162 and the county's certification by the state as a retained spring training franchise. Following the release of the half cent -sales tax and TDT pledge, bondholders will be solely secured by the state payments in 2021. MADS will decline to $499,750 resulting in MADS coverage just over lx. Based on the pledged revenue history, Fitch's Analytical Sensitivity Tool (FAST) generates a 3.8% revenue decline in a moderate downturn scenario. The largest decline in historical revenues was equal to a steep 20% from fiscal 2005 to fiscal 2010, reflecting the significant impact of the great recession on the Florida economy. Pledged revenues have since notably improved. Fitch expects revenue growth to continue at a pace that exceeds historic trends, to at least track the rate of inflation going forward. This is supported by the county's continued growth in population, continued improvement in home values, tax base expansion and economic development. Given current solid coverage levels, the structure could tolerate a 90% decline in pledged revenues before MADS coverage reaches l .Ox. This level of tolerance is equivalent to about 24x times the FAST result and 5x the largest actual revenue decline. Fitch considers these results to be equivalent to a'aaa resilience assessment. The county has indicated that it does not expect to issue additional debt. Contact: Primary Analyst Grace Wong Director +1-212-908-0652 Fitch Ratings, Inc. 33 Whiteball Street New York, NY 10004 Secondary Analyst Kevin Dolan Director +1-212-908-0538 Committee Chairperson Laura Porter Managing Director +1-212-908-0575 9 Media Relations: Elizabeth Fogerty, New York, Tel: +1 (212) 908 0526, Email: elizabeth.fogerty@fitchratings.com. Additional information is available at'www.fltchratings.com'. In addition to the sources of information identified in Fitch's applicable criteria specified below, this action was informed by information from Lumesis and InvestorTools. Applicable Criteria U.S. Tax -Supported Rating Criteria (pub. 18 Apr 2016) httPs://Www.fitchratings.com/site/re/8,79478 ALL FITCH CREDIT RATINGS ARE SUBJECT TO CERTAIN LIMITATIONS AND DISCLAIMERS. PLEASE READ THESE LIMITATIONS AND DISCLAIMERS BY FOLLOWING THIS LINK: HTTPS:/JWWW.FITCHRATrNGS.COM/UNDERSTANDrNGCREDMtATINGS. IN ADDITION, RATING DEFINITIONS AND THE TERMS OF USE OF SUCH RATINGS ARE AVAILABLE ON THE AGENCY'S PUBLIC WEB SITE AT W W W.FITCHRATINGS.COM. PUBLISHED RATINGS, CRITERIA, AND METHODOLOGIES ARE AVAILABLE FROM THIS SITE AT ALL TIMES. FITCH'S CODE OF CONDUCT, CONFIDENTIALITY, CONFLICTS OF INTEREST, AFFILIATE FIREWALL, COMPLIANCE, AND OTHER RELEVANT POLICIES AND PROCEDURES ARE ALSO AVAILABLE FROM THE CODE OF CONDUCT SECTION OF THIS SITE. 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Due to the relative efficiency of electronic publishing and distribution, Fitch research may be available to electronic subscribers up to three days earlier than to print subscribers. For Australia, New Zealand, Taiwan and South Korea only: Fitch Australia Pry Ltd holds an Australian financial services license (AFS license no. 337123) which authorizes it to provide credit ratings to wholesale clients only. Credit ratings information published by Fitch is not intended to be used by persons who are retail clients within the meaning of the Corporations Act 2001 PROCLAMATION HONORING MICHAEL NIXON ON HIS RETIREMENT FROM INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS DEPARTMENT OF PUBLIC WORKSIENGINEERING DIVISION WHEREAS, Michael Nixon retired from Indian River County Engineering Division effective November 30, 2016; and WHEREAS, Michael Nixon began his career with Indian: River County on May 16, 2005, as a Design Professional Engineer. On October 5, 2007, Michael Nixon was promoted to Roadway Production Manager and continued in that capacity until his retirement; and WHEREAS, Michael Nixon has served this County and the Public with distinction and selflessness. During his eleven years of service, he was dedicated, and his work was greatly appreciated by the employer, citizens, and co-workers alike; and NOW, THEREFORE, BE IT PROCLAIMED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that the Board applauds Michael Nixon's efforts on behalf of the County, and the Board wishes to express their appreciation for the dedicated service he has given to Indian River County for the last eleven years; and BE IT FURTHER PROCLAIMED that the Board of County Commissioners and staff extend heartfelt wishes for success in his future endeavors! Adopted this 15th day of November 2016. "V -V -- . BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA ti Bob Solari, Chairman 2his is to certify that Michaef9Vkon is hereby presented this Wstirement Award for outstanding performance. and faithfulservice to Indian 2iver County Board of County Commissioners For eCeven years of service on this 3oth day of Xovem6er,2016 cErard B. Szp.#6 Bob so&ri Director of Puffic Works Board of County Commissioner, Chairman PROCLAMATION HONORING MARY SNYDER ON HER RETIREMENT FROM INDL4NRIVER COUNTYBOARD OF COUNTYCOMMISSIONERS DEPAR TMENT OF GENERAL SER VICES/MAIN LIBRAR Y WHEREAS, Mary Snyder retired from Indian River County effective November 30, 2016; and WHEREAS, Mary Snyder began her outstanding career as Director in July, 1983, which at the time the library was a Not For Profit Corp. run by Indian River Library Assoc. Inc. A bond issue passed for Indian River Co. for the construction of additional libraries and the existing library. On October 1, 1986, Mary Snyder became Director of Library Services and continued in that capacity until her retirement; and WHEREAS, Mary Snyder played an integral role in the construction of the Main, North County, Law and Brackett Libraries. She secured over six million dollars in grants for the Adult Literacy Program and LR.C. Library System. WHEREAS, Mary Snyder has served this County and the Public with distinction and selflessness. During her thirty years of service, she was dedicated, and her work was greatly appreciated by the employer, citizens, and co-workers alike; and NOW, THEREFORE, BE IT PROCLAIMED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that the Board applauds Mary Snyder's efforts on behalf of the County, and the Board wishes to express their appreciation for lite dedicated service she has given to Indian River County for the last thirty years; and BE IT FURTHER PROCLAIMED that the Board of County Commissioners and staff extend heartfelt wishes for success in her future endeavors! Adopted this 15th day of November 2016. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Bob Solari, Chairman 2liis is to certify that Wary Snyder is hereby presented this Wstirement Award for outstanaring performance and faithfulservice to Indian W}ver County hoard of County Commissioners Tor thirty years of service On this 30th day of November 2016 Mcfiaef,Zito Assistant CountyAdministrator Lit& ��o-tA- Bob Sofari Board of County Commissioner, Chairman CHECKS WRITTEN TRANS NBR DATE VENDOR AMOUNT 346075 11/01/2016 ORANGE COUNTY HOUSING & C D 632.68 346076 11/01/2016 ALL FLORIDA REALTY SERVICES INC 4,138.00 346077 11/01/2016 VERO BEACH EDGEWOOD PLACE LP 956.00 346078 11/01/2016 GRACES LANDING LTD 9,118.00 346079 11/01/2016 PAUL JULIN 389.00 346080 11/01/2016 LINDSEY GARDENS LTD 5,880.00 346081 11/01/2016 BRYAN D BLAIS 756.00 346082 11/01/2016 RIVER PARK ASSOCIATES 14,303.00 346083 11/01/2016 RICHARD C THERIEN 440.00 346084 11/01/2016 CREATIVE CHOICE HOMES XVI LTD 8,036.00 346085 11/01/2016 DAVID YORK 502.00 346086 11/01/2016 ST FRANCIS MANOR OF VERO BEACH 107.00 346087 11/01/2016 CITY OF VERO BEACH 79.00 346088 11/01/2016 TREASURE COAST HOMELESS SERVICES 1,431.00 346089 11/01/2016 FLORIDA POWER AND LIGHT 6.00 346090 11/01/2016 VENETIAN APARTMENTS OF VERO BEACH 391.00 346091 11/01/2016 HERMOSA PROPERTIES LLC 281.00 346092 11/0I/2016 PINNACLE GROVE LTD 7,609.00 346093 11/01/2016 VERO CLUB PARTNERS LTD 10,406.00 346094 11/01/2016 DAVID SPARKS 384.00 346095 11/01/2016 INDIAN RIVER COUNTY HOUSING AUTHORITY 188.00 346096 11/01/2016 INDIAN RIVER COUNTY HOUSING AUTHORITY 452.00 346097 11/01/2016 INDIAN RIVER COUNTY HOUSING AUTHORITY 545..00 346098 11/01/2016 CRAIG MERRILL 1,510.00 346099 11/01/2016 CHRISTINE SALTER 484.00 346100 11/01/2016 HAGGERTY FAMILY LTD 374.00 346101 11/01/2016 SUNQUEST INC 2,825.00 346102 11/01/2016 THE PALMS AT VERO BEACH 9,963.00 346103 11/01/2016 THE PALMS AT VERO BEACH 1,643.00 346104 11/01/2016 FELLSMERE COMM ENRICHMENT PROGRAM INC 96.00 346105 11/01/2016 DAVID CONDON 628.00 346106 11/01/2016 HILARY MCIVOR 490.00 346107 11/01/2016 PAULA LANE 451.00 346108 11/01/2016 JOHN A CAPPELLO 327.00 346109 11/01/2016 PELICAN ISLES LP 6,466.00 346110 11/01/2016 KATE TYSON LYONS 324.00 346111 11/01/2016 SUNCOAST REALTY & RENTAL MGMT LLC 7,160.00 346112 11/01/2016 OAK RIVER PROPERTIES INC 348.00 346113 11/01/2016 SONRISE VILLAS LTD 2,425.00 346114 11/01/2016 ADINAGOLDMAN 528.00 346115 11/01/2016 INDIAN RIVER RDA LP 4,059.00 346116 11/01/2016 MAURICE W BROWN 497.00 346117 11/01/2016 RICHARD L DAVENPORT 495.00 346118 11/01/2016 GEORGE THUYNS 683.00 346119 11/01/2016 LAZY J LLC 1,448.00 346120 11/01/2016 SYLVIAMCNEILL 723.00 346121 11/01/2016 SKOKIE HOLDINGS INC 750.00 346122 11/01/2016 ROGER WINSLOW 478.00 346123 11/01/2016 COURTYARD VILLAS OF VERO LLC 1,270.00 346124 11/01/2016 VINCENT PILEGGI 202.00 346125 11/01/2016 OSLO VALLEY PROPERTIES INC 812.00 346126 11/01/2016 SAID S MOOBARK 1,302.00 346127 11/01/2016 OSCEOLA COUNTY SECTION 8 625.68 346128 11/01/2016 LINDSEY GARDENS II LTD 4,830.00 346129 11/01/2016 ANTHONY ARROYO 446.00 346130 11/01/2016 AHS HOLDINGS GROUP LLC 3,942.00 346131 11/01/2016 DANIEL CORY MARTIN 421.00 346132 11/01/2016 YVONNE KOUTSOFIOS 440.00 is TRANS NBR DATE VENDOR AMOUNT 346133 11/01/2016 ALAN R TOKAR 650.00 346134 11/01/2016 VILLAS OF VERO BEACH 463.00 346135 11/01/2016 BRIAN E GALLAGHER 524.00 346136 11/01/2016 HOUSING AUTHORITY 967.68 346137 11/01/2016 STEPHANIE WATCHEK FOUNTAIN TRUST 234.00 346138 11/01/2016 MICHAEL STILES 531.00 346139 11/01/2016 RACHEL G SIDMAN 458.00 346140 11/01/2016 SCOT WILKE 572.00 346141 11/01/2016 MARK BAER 476.00 346142 11/01/2016 J & K PALMER ENTERPRISES LLC 199.00 346143 11/01/2016 THEODORE BARTOSIEWICZ 510.00 346144 11/01/2016 FOUNDATION FOR AFFORDABLE RENTAL 18,553.00 346145 11/01/2016 RICHARD KUSSEROW 475.00 346146 11/01/2016 ARE JAY INVESTMENTS OF INDIAN RIVER COUNTY IN 514.00 346147 11/01/2016 SONRISE VILLAS 11 LLC 542.00 346148 11/01/2016 JOHN T STANLEY 795.00 346149 11/01/2016 CSMA SFR HOLDINGS II -LLC 1,389.00 346150 11/01/2016 YELLOW KID INC 537.00 346151 11/01/2016 WEDGEWOOD RENTALS LLC 1,608.00 346152 11/01/2016 ALMA LUCKETT 854.00 346153 11/01/2016 LIVE OAKS REALTY INC 628.00 346154 11/03/2016 PORT CONSOLIDATED INC 47,739.77 346155 11/03/2016 JORDAN MOWER INC 317.45 346156 11/03/2016 TEN -8 FIRE EQUIPMENT INC 5,650.84 346157 11/03/2016 RANGER CONSTRUCTION IND INC 286.28 346158 11/03/2016 VERO CHEMICAL DISTRIBUTORS INC 699.20 346159 11/03/2016 VELDE FORD INC 210.50 346160 11/03/2016 SAFETY PRODUCTS INC 1,167.86 346161 11/03/2016 STEWART MATERIALS INC 314.71 346162 11/03/2016 DATA FLOW SYSTEMS INC 1,646.93 346163 11/03/2016 THOMAS P WHITE 11.00 346164 11/03/2016 E -Z BREW COFFEE & BOTTLE WATER SVC 43.93 346165 11/03/2016 KELLY TRACTOR CO 3,537.88 346166 11/03/2016 SAFETY KLEEN SYSTEMS INC 465.80 346167 11/03/2016 GRAYBAR ELECTRIC 746.79 346168 11/03/2016 MY RECEPTIONIST INC 440.06 346169 11/03/2016 AMERIGAS EAGLE PROPANE LP 27.84 346170 11/03/2016 AMERIGAS EAGLE PROPANE LP 1,084.27 346171 11/03/2016 AMERIGAS EAGLE PROPANE LP 1,249.29 346172 11/03/2016 AMERIGAS EAGLE PROPANE LP 1,512.07 346173 11/03/2016 AMERIGAS EAGLE PROPANE LP 1,921.97 346174 11/03/2016 HACH CO 3,212.87 346175 11/03/2016 SWE INC 325.00 346176 11/03/2016 BOUND TREE MEDICAL LLC 265.50 346177 11/03/2016 PETES CONCRETE 850.00 346178 11/03/2016 TI.RESOLES OF BROWARD INC 3,918.83 346179 11/03/2016 BARTH CONSTRUCTION INC 839.70 346180 11/03/2016 ARMFIELD WAGNER APPRAISAL AND RESEARCH INC 1,450.00 346181 11/03/2016 DELL MARKETING LP 3,873.27 346182 1.1/03/2016 GOODYEAR AUTO SERVICE CENTER 989.98 346183 11/03/2016 BAKER & TAYLOR INC 1,705.70 346184 11/03/2016 MIDWEST TAPE LLC 575.76 346185 11/03/2016 NORTHERN SAFETY CO INC 66.58 346186 11/03/2016 MICROMARKETING LLC 756.28 346187 11/03/2016 K & M ELECTRIC SUPPLY 125.26 346188 11/03/2016 INDIAN RIVER COUNTY HEALTH DEPT 133.52 346189 11/03/2016 INDIAN RIVER COUNTY HEALTH DEPT 70.00 346190 11/03/2016 CITY OF VERO BEACH 59,974.54 346191 11/03/2016 CHAPTER 13 TRUSTEE 201.08 346192 11/03/2016 COMPBENEFITS COMPANY 194.64 2 16 TRANS NBR DATE VENDOR AMOUNT 346193 11/03/2016 COLONIAL LIFE & ACCIDENT INS CO 21.24 346194 11/03/2016 UNITED STATES POSTAL SERVICE 215.00 346195 11/03/2016 JANITORIAL DEPOT OF AMERICA INC 1,274.52 346196 11/03/2016 TREASURE COAST HOMELESS SERVICES 1,098.25 346197 11/03/2016 UNIVERSITY OF FLORIDA 75.00 346198 11/03/2016 FLORIDA FIRE MARSHALS & INSPECTORS 390.00 346199 11/03/2016 ACUSHNET COMPANY 3,285.98 346200 11/03/2016 AQUAGENIX 249.50 346201 11/03/2016 FLORIDA WATER & POLLUTION CONTROL 95.00 346202 11/03/2016. FLORIDA WATER & POLLUTION CONTROL 130.00 346203 11/03/2016 FLORIDA WATER & POLLUTION CONTROL 130.00 346204 11/03/2016 FLORIDA WATER & POLLUTION CONTROL 160.00 346205 11/03/2016 ST JOHNS RIVER WATER MGMT DISTRICT 250.00 346206 11/03/2016 ELIZABETH MARTIN 224.25 346207 11/03/2016 TYLER TECHNOLOGIES INC 37,730.46 346208 11/03/2016 TIMOTHY ROSE CONTRACTING INC 63,832.60 346209 11/03/2016 FLORIDA POWER AND LIGHT 15,068.14 346210 11/03/2016 FLORIDA POWER AND LIGHT 1,692.46 346211 11/03/2016 TAYLOR MADE GOLF CO INC 286.41 346212 11/03/2016 US KIDS GOLF LLC 97.68 346213 11/03/2016 STRUNK FUNERAL HOMES & CREMATORY 425.00 346214 11/03/2016 FLORIDA STATE GOLF ASSOCIATION 150.00 346215 11/03/2016 BE SAFE SECURITY ALARMS INC 120.00 346216 11/03/2016 FLORIDA UC FUND 319.94 346217 11/03/2016 UNITED HEALTH CARE INS COMPANY 248.90 346218 11/03/2016 GERALD A YOUNG SR 120.00 346219 11/03/2016 GREY HOUSE PUBLISHING 317.97 346220 1.1/03/2016 ALAN C KAUFFMANN 200.00 346221 11/03/2016 WESTSIDE REPROGRAPHICS OF VERO BEACH INC 540.00 346222 11/03/2016 INTERNATIONAL ASSOC OF EMERGENCY MANAGERS 380.00 346223 11/03/2016 HUMANA 179.64 346224 11/03/2016 SYMBIONT SERVICE CORP 129.00 346225 11/03/2016 J C WELTON CONST INC 3,527.50 346226 11/03/2016 PUKKA INC. 1,254.00 346227 11/03/2016 RUSSELL PAYNE INC 2,575.02 346228 11/03/201.6 CINTAS CORPORATION NO 2 199.23 346229 11/03/2016 JAMES A BARRY 1,110.00 346230 11/03/2016 CLYDE D.HAYES 200.00 346231 11/03/2016 ROSENTHAL & LEVY PA 367.26 346232 11/03/2016 CENTRAL PUMP & SUPPLY INC 962.94 346233 11/03/2016 PELICAN ISLES LP 500.00 346234 11/03/2016 GLOVER OIL COMPANY INC 2,778.88 346235 11/03/2016 ADMIN FOR CHILD SUPPORT ENFORCEMENT 287.58 346236 11/03/2016 ADMIN FOR CHILD SUPPORT ENFORCEMENT 291.48 346237 11/03/2016 ADMIN FOR CHILD SUPPORT ENFORCEMENT 162.64 346238 11/03/2016 GARY L EMBREY 170.00 346239 11/03/2016 D&S ENTERPRISES OF VERO BCH LLC 25.00 346240 11/03/2016 JOHNNY B SMITH 110.00 346241 11/03/2016 MUNICIPAL WATER WORKS INC 6,256.50 346242 11/03/2016 SUMMERLINS MARINE CONST LLC 46,300.00 346243 11/03/2016 CHARLES A WALKER 100.00 346244 11/03/2016 JR APARTMENT RENTALS INC 400.00 346245 11/03/2016 GUARDIAN COMMUNITY RESOURCE MANAGEMENT 500.00 346246 11/03/2016 MICHAEL KORPAR 40.00 346247 11/03/2016 INTERNATIONAL SWEEPING INC 10,448.00 346248 11/03/2016 JOHN K DILLON 527.60 346249 11/03/2016 JOHN MESKILL 560.00 346250 11/03/2016 FLEETBOSS G P S INC. 25,517.40 346251 11/03/2016 FLORIDA EAST COAST INDUSTRIES INC 22,634.05 346252 11/03/2016 CONNIE BOWLING 202.00 17 TRANS NBR DATE VENDOR AMOUNT 346253 11/03/2016 WELLCARE HEALTH PLAN 445.10 346254 11/03/2016 FLORIDA MEDICAID 95.61 346255 11/03/2016 KNAPHEIDE TRUCK EQUIPMENT SOUTHEAST 294.24 346256 11/03/2016 WEST CONSTRUCTION INC 141,426.31 346257 11/03/2016 DE LA.HOZ BUILDERS INC 7,368.00 346258 11/03/2016 CIVILSURV DESIGN GROUP INC 1,789.73 346259 11/03/2016 BACKFLOW SOLUTIONS INC 495.00 346260 11/03/2016 WOERNER DEVELOPMENT INC 203.00 346261 11/03/2016 ATLANTIC COASTAL LAND TITLE CO LLC 150.00 346262 11/03/2016 ECMC 254.35 346263 11/03/2016 RHEA SAPARITO 78.05 346264 11/03/2016 JOSEPH CATALANO 40.00 346265 11/03/2016 RAYMOND J DUCHEMIN 60.00 346266 11/03/2016 BERMUDA SANDS APPAREL LLC 2,342.81 346267 11/03/2016 FBM HOLDINGS LLC 267.45 346268 11/03/2016 SEMS TECHNOLOGIES LLC 5,750.00 346269 11/03/2016 HEATHER HATTON 20.00 346270 11/03/2016 MOORE MOTORS INC 361.42 346271 11/03/2016 FORD GOLF AND SPECIALTIES LLC 532.77 346272 11/03/2016 TIM. ZORC 46.28 346273 11/03/2016 REPROGRAPHIC SOLUTIONS INC 4.68 346274 11/03/2016 LOWES HOME CENTERS INC 2,208.70 346275 11/03/2016 ALEX MIKLO 120.00 346276 11/03/2016 BURNETT LIME CO INC 9,648.80 346277 11/03/2016 PENGUIN RANDOM HOUSE LLC 194.25 346278 11/03/2016 CARMEN LEWIS 81.00 346279 11/03/2016 SUN MOUNTAIN SPORTS INC 1,113.00 346280 11/03/2016 CHEMTRADE CHEMICALS CORPORTATION 2,275.81 346281 11/03/2016 BAUDVILLE INC 222.95 346282 11/03/2016 WADE WILSON 190.00 346283 11/03/2016 SUMMIT CONSTRUCTION OF VERO BEACH LLC 109,000.00 346284 1-1/03/20.16 FAMILY SUPPORT REGISTRY 156.45 346285 11/03/2016 BOSTON BARRICADE COMPANY INC 8,666.63 346286. 11/03/2016 COAST TO COAST COMPUTER PRODUCTS 662.96 346287. 11/03/2016 LANGHAM CONSULTING SERVICES INC 6,435.00 346288 11/03/2016 RONALD NICHELSON 60.00 346289 11/03/2016 RELIANT FIRE SYSTEMS INC 924.20 346290 11/03/2016 CORNERSTONE FAMILY SERVICES OF WEST VIRGINIA 850.00 346291 11/03/2016 DORIS DEROSIA 197.49 346292 11/03/2016 LONGHORN LANDSCAPING AND SOD LLC 2,531.25 346293 11/03/2016 JOSEPH DIZONNO 60.00 346294 11/03/2016 GENUINE PARTS COMPANY 1,122.79 346295 11/03/2016 TRIBOND LLC 8,167.44 346296 11/03/2016 RED THE UNIFORM TAILOR 3,579.02 346297 11/03/2016 CATHEDRAL CORPORATION 20,092.61 346298 11/03/2016 UNIFIRST CORPORATION 1,919.44 346299 11/03/2016 SYSTEMS TECHNOLOGY GROUP INC 1,000.00 346300 11/03/2016 ADVANCE STORES COMPANY INCORPORATED 628.72 346301 11/03/2016 EGP DOCUMENT SOLUTIONS LLC 313.10 346302 11/03/2016 NORTH AMERICAN OFFICE SOLUTIONS INC 25.00 346303 11/03/2016 RUSSELL L OWEN 111 40.00 346304 11/03/2016 ROCCO CAVALLO 60.00 346305 11/03/2016 WAGEWORKS INC 39.00 346306 11/03/2016 AC VETERINARY SPECIALTY SERVICES 285.00 346307 11/03/2016 EDWARD ILLIDGE 60.00 346308 11/03/2016 OKLAHOMA SIMMS 120.00 346309 13/03/2016 SILVIO MARTINEZ 117.00 346310 11/03/2016 PEOPLE READY INC 2,901.60 346311 11/03/2016 KEITH ADAMS 120.00 346312 11/03/2016 RICHARD A WHITFIELD 560.00 1$ TRANS NBR DATE VENDOR AMOUNT 346313 11/03/2016 MOLD REMEDY XPERT LLC 875.00 346314 11/03/201.6: ROBERT O RICHARDSON 60.00. 34631.5, 11/03%2016 AVIS CAR RENTAL &. SALES 200.00 346316 11/03/2016 COURTNEY HARRIS 91.15 346317 11/03/2016 ALAN HALL 500.00 346318 11/03/2016 JOSE FONSECA 21.00 346319 11/03/2016 LEONARD D DABREAU 250.00 346320 11/03/2016 MURIEL E HASSEL 275.00 346321 11/03/2016 ROKH HENDERSON 25.00 . 346322 11/03/2616 ANITA L HERBST 219.20 346323 11/03/2016 IRENE F LIPARELI 275.00 346324 11/03/2016 BETTY K VOGT 92.43 346325 11/03/2016. ANN MARIE REILLY 91.99 346326 11/03/2016. STEVE MIX 960.00 346327 11/03/2016 UNITED AGAINST POVERTY INC 6,000.00 346328 11/03/2016 JANET MAC LEAN 125.00 346329 11/03/.2016 JANE BENTLEY 3,146.53 Grand Total: 926,003.32 19. 5 ELECTRONIC PAYMENT - VISA CARD TRANS. NBR DATE VENDOR AMOUNT. 1010028 ] 0'31/2016 AT&T 6,015.64 1010029 10/31/2016 OFFICE DEPOT BSD CUSTOMER SVC 169.24 1010030 10'3112016 CALLAWAY GOLF SALES COMPANY 24.68 1010031 10,,'3V2016 WASTE MANAGEMENT INC 1.332.21 1010032 10/31/201.6 COMCAST 1.19.75 1010033 103 1,22016 POLYDYNE INC 2.507.00 1010034 10i31 /2016 WASTE MANAGEMENT INC 91.96 1010035 10/31/2016 EVERGLADES FARM EQUIPMENT CO INC y 2.822.50 1010036 1.0/31!2016 COMMUNICATIONS MUCATIONS INTERNATIONAL 329.00 1010037 10131 /2016 HENRY SCHEIN INC 54.00 1010038 10/31%2016 HELENA CHEMICAL 975.50 1010039 10,13 1 /2016 COLD AIR DISTRIBUTORS WAREHOUSE 929.11 1010040. 10/31;2016 INDIAN RIVER BATTERY 1.661.75 1.010041 10/31/2016 RING POWER CORPORATION 1,238.38 1010042 10/31/2016 DEMCOINC 196.36 1010043 10/31/2016 MIKES. GARAGE & WRECKER SERVICE INC 65.00 1010044 10/31/2016 APPLE INDUSTRIAL SUPPLY CO 579..91 1010045 10/31/2016 GALLS LLC 2.168.16 1010046 10/31/2016 CENTER POINT INC 6,679.71 1010047 10/31/2016 ALLIED UNIVERSAL CORP 2;617..83 1010048 10/31/2016 IRRIGATION CONSULTANTS UNLIMITED INC 115.45 1010049 10/31/2016 THE EXPEDITER 24.57 1010050 10/31x'2016 GROVE WELDERS INC 845.14 1010051 10/31/2016 RECORDED BOOKS LLC 99.00 1010052 10,131/2016 SOUTHERN COMPUTER WAREHOUSE 873.97 1010053 10/31/2016 APPLE MACHINE & SUPPLY CO 193.92 I010054 10/31/2016 COMO OIL COMPANY OF FLORIDA 2.155.30 1010055 10/31/2016 COMPLETE ELECTRIC INC 180.00 1010056 10/31/2016 RECHTIEN INTERNATIONAL TRUCKS 114.95 1010057 10/31/2016. FLAGLER CONSTRUCTION EQUIPMENT LLC 48.62 1.010058 10/31/2016 SOUTHERN JANITOR SUPPLY INC 125.88 1010059 10/31/2016 SOUTHERN JANTTOR SUPPLY INC 4,097.96 1010060 10/31/2016 CAPITAL OFFICE PRODUCTS 2,340.34 1010061 10/31/2016 CUMMINS POWER SOUTH LLC 3.775.01 1010062 10/31/2016 BENNETT AUTO SUPPLY INC ],'104.53 1010063 10/3102016 AUTO PARTNERS LLC 48.79 1010064 10/31/2016 PACE ANALYTICAL SERVICES INC 700.00 1010065 1051/2016 ALLIED DIVERSIFIED OF VERO BEACH LLC 175.00 1010066 11/0202016 AT&T 202.79 1010067 1.1/02/2016 OFFICE DEPOT BSD CUSTOMER SVC 1,258.07 1010068 11/02/2016 EVERGLADES FARM. EQUIPMENT CO INC 134.72 1010069 11/02/2016 COLKITT SHEET METAL & A/C INC 174.00 1010070 11 /02!2016 COMMUNICATIONS INTERNATIONAL 3.574.53 1010071 11/02/2016 INDIAN RIVER BATTERY 316.00 1010072 11/02/2016 APPLE INDUSTRIAL SUPPLY CO 745.43 1010073 11/02/2016 IRRIGATION CONSULTANTS UNLIMITED INC 308.32 1010074 11/02/201.6 HILL MANUFACTURING CO INC 1.571.11 1010075 11/02/2016 GROVE WELDERS INC 2,135.40 ^ 1010076 11/02,2016 COMPLETE RESTAURANT EQUIPMENT LLC 669.43 1010077 11/02/2016 COMMUNITY ASPHALT CORP 258.42 1010078 11/0202016 DYNAMIC BRANDS LLC 1,829.40 1010079 11/02/2016 GLOBAL GOLF SALES INC 2,004.12 1010080 11/02/2016 COPYTRONICS INC 70.64. 1010081 11/02/2016 CAPITAL OFFICE PRODUCTS 1.,383.08 1010082 11/02!201.6 CONSOLIDATED ELECTRICAL DISTRIBUTORS INC 818.40 1010083 11/02/2016 BENNETT AUTO SUPPLY INC 48.68 1010084 11/02/2016 AUTO PARTNERS LLC 1,732.56 1010085 11/02/2016 HYDRA SERVICE (S) INC 784.00 20 TRANS. NHR DATE VENDOR AMOUNT 101.0086 11/02,12016 HORIZON DISTRIBUTORS INC 408.99 1010087 11/02/2016 TIGHT LINE PRODUCTIONS INC 153.00 1010088 11103!2016 PRIDE ENTERPRISES 3 6.2 8 1010089 11/03/2016 CAPITAL OFFICE PRODUCTS 20.99 1010090 11103/2016 CONSOLIDATED ELECTRICAL DISTRIBUTORS INC 818.36 Grand Total: 69.055.84 i 21 ELECTRONIC PAYMENTS - WIRE& ACH TRANS NBR DATE VENDORA MOUlr'T 4697 10/28/2416 .. CER SIGNATURE CLEANING 21,010:00. 4688 10/31;2016 CLERK OF CIRCUTT COURT 80,959?; . 4689 10;31/2016 INDIAN RIVER COUNTY SHERIFF .3,600,45a:65 4690 10!31/2016 INDIAN RIVER COUNTY SUPERVISOR OF ELECTIONS 86.512.37 4691 10/31/2016 IRS -PAYROLL TAXES 7.843.10 4692 11 /01 /2016 JOSEPH G MILLER 1,000.00 4693 11/01,'2016 AGENCY FOR HEALTH CARE ADMIN 13.133:89 4694 11/0'_'201.6 FL RETIREMENT SYSTEM 519.366:23 4695 11/0312016 VEROTOWN LLC 19.849.82. 4696 11/03./2016 AMERICAN FAMILY LIFE ASSURANCE CO 18:622.44 4697 11 /03,'2016 ALLSTATE 2.42.22 Grand Total: 4,369,482:97 22 J JEFFREY R. SMITH, CPA, CGFO, CGMA Clerk of Circuit Court & Comptroller P.O. Box 1028 Vero Beach, FL 32961-1028 Telephone: (772) 770-5185 TO: Board of County Commissioners FROM: Diane Bernardo, Finance DirectorU THROUGH: Jeffrey R. Smith, Clerk of Circuit Court and Comptroller 7r DATE: November 7, 2016 SUBJECT: TD Banking Contract On October 18, 2016, the Board awarded the banking services for the Board of County Commissioners to TD Bank and authorized staff to work with TD Bank on a contract to bring back to the Board at a later date. Attached are the various agreements provided by TD Bank. Finance staff and the County Attorney's Office have been working with TD Bank on updating the contract documents to reflect TD Bank's proposal as well as some small technical and legal issues. A substantial amount of time is needed to complete the implementation and transition the Board's accounts to TD Bank by the January 1, 2017 start date. The existing banking services agreements expire on December 31St. Finance staff requests the Board to approve the attached documents and authorize the Chairman to execute them upon final review and approval by the County Attorney. The final approved documents will be placed on a future Board Agenda as an informational item. Recommendation: Staff recommends the Board to approve the attached documents and authorize the Chairman to execute them upon final review and approval of the County Attorney. Staff also recommends that the Chairmanbe authorized to execute any other documents necessary to effectuate these documents. APPROVED AGENDA ITEM: FOR: 11/15/2016 Indian River County ApOiL Date Administrator i n A !( County Attorney Budget / Department Risk Mana ement 23 CASH MANAGEMENT MASTER AGREEMENT Customer: INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS Date: TD 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 I1)............................................................... 3. TD Wire Transfer Services (Appendix Ill)...................................................................® 4. TD Sweep Services (Appendix IV) .................................. I.............................. 5. TD Positive Pay Services (Appendix V)......................................................................� 6. TD Controlled Disbursement Services (Appendix VI) ................................................. ❑ 7. TD Lockbox Services (Appendix VIn......................................................................... n S. TD Digital Express Services (Appendix VIII) .............................. 9. TD Account Reconcilement Services - Full (Appendix IX) ......................................... 10. TD Account Reconcilement Services — Partial (Appendix X) ...................................... ❑ 11. TD Deposit Reconcilement Services (Appendix XI) ....................................................❑ 12. TD Check Imaging Services (Appendix XII).........................................:.....................n 13. TD Zero Balance Account Services (Appendix XIII) .............................................. 14. TD Currency Services (Appendix XIV)....................................................................... n 15. TD EscrowDirect Services (Appendix XV)................................................................. ❑ 16. TD Information Reporting File Transmission Services (Appendix XVI) .....................❑ 17. TD Data Exchange Services (Appendix XVII)..................................................:.........n 18. TD ACH Third Party Sender Services (Appendix XVIII) ............................................ n 19. TD Image Cash Letter Services (Appendix XLX)....................................... 20. TD Healthcare Remittance Management Services (Appendix XX) ............................. n 21. TD Data Transmission Services (Appendix XXI)........................................................ 22. TD ACH Positive Pay Services (Appendix XXII)....................................................... 23. TD Currency Services for Smartsafe (Appendix )=) .............................................. [] 1 Of 58 0916 2-4 24. TD Electronic 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 (this "Agreement") is by and between Bank and Customer. Bank agrees to provide to Customer and Customer agrees to use certain Cash Management Services (as defined above) offered and approved by Bank for Customer's use. Bank and Customer agree that the Cash Management Services will be governed by the general terms and conditions of this Agreement and the rules and procedures applicable to each of the Services (collectively, the "Rules"). The Rules are contained in the Appendices to this Agreement, and are hereby incorporated in and made a part of this Agreement. By signing this Agreement, Customer agrees to be bound by the terms and conditions of this Agreement and all applicable Appendices, as the same may be amended from time to time as further described below. This Agreement becomes effective with respect to a Cash Management Service(s) described herein when this Agreement has been executed without modification by Customer, and the Agreement becomes effective for any subsequent Cash Management Service(s) that Customer may wish to use when any relevant Appendices have been executed without modification by Customer. Bank will provide use of a Cash Management Service when Bank has received all required and properly executed agreements and forms and when Customer has satisfactorily completed Bank's implementation, testing and training requirements, if any, in the use of the Service(s). Customer may not modify any portion of this Agreement or any Appendices to this Agreement without Bank's prior written consent and agreement, and any attempt by Customer to do otherwise shall render Customer's Agreement null and void. 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 ofa 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. sOf5R "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 herein 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 govern, 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. !0916 25 "Bank Internet System Appendix" means the agreement issued by Bank that governs 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 writing by Bank, the address for Customer associated with the Primary Account shall be the address to which all notices and other communications concealing 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 21" Century Act ("Check 21'), P.L. 108-1,00,12 U.S.C. § 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 Authorized Representative, may use the Services solely in accordance with the terns and conditions of this Agreement and the related Appendices. 2.3 1 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 to use the Services only for the purposes and in the manner contemplated by this Agreement. 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 information 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 1-866475-7262, or by contacting 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 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 in this Agreement 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; D"vided, 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 Services. 0916 3.4 Customer is not a "consumer" as such term is defined in 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 authorized 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 Customer agrees to compensate Bank for all Accounts and Services that Bank provides pursuant to this Agreement, including any Appendices, in accordance with the applicable fee schedules or agreements between Bank and Customer in effect from time to time that apply to the Services (the "Service Fees"). By signing 4 of 58 below, Customer acknowledges receipt of the Account Agreement and acceptance of the Service Fees, and agrees to be bound by their terms, as those terms may be amended from time to time in accordance with the terms of this Agreement. 4.3 Customer authorizes Bank to charge the Primary 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 Bank may amend Service Fee(s), in aggregate or individually, at any time. To the extent that such changes adversely affect Customer, Bank will use commercially reasonable efforts to give notice to :Customer of such changes, in accordance with applicable law, or as may otherwise be agreed to by the parties. 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 ankauthorizing 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 writing between Bank and Customer, Customer shall be responsible for the payment of all costs of installation of any Software provided to Customer in 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 and assigns, from and against any loss, damage or other 0916 27 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. 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 relies; including preliminary injunctive relief and specific performance, should be awarded as appropriate to remedy such breach; without limiting Bank's right to otherremedies 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. Sof38 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 he 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 Communications; Security Procedures. .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 ensuring 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 Batik has complied with the security procedures. 0916 28 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 writing believed by it in good faith to be genuine and correct and to have been signed by an Authorized 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 Authorized Representative other than the Authorized Representative from whom Bank purportedly received an instruction. Bank may, but shall have no obligation to, request additional confirmation, written or verbal, of an instruction 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 Authorized 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 art 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 Batik 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, retaining 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 information to 6ofM 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 0916 29 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 error 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 in 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 risk 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 financial 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 communicated 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. 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 until terminated by either parry with thirty (30) Calendar Days' prior written notice to the other. Either parry 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 in connection with the terminated Service(s). 14.3 If an Appendix is terminated 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 authorized 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 Code or other statute or regulation relating to bankruptcy or relief of debtors, (iii) in the event of a material breach, 0916 30 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 risk 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. 15.1 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, attorneys' 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 restricted 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. 8 of58 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, incomplete, 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, fiords 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 fiords transfer order by such receiver or receiving depository financial institutions, and no such person shall be deemed Banles 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; 09/6 31 WARRANTIES, EFI rFER 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 Except as otherwise expressly prohibited or limited by law, 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. 16.2 The provisions of this Section 16 shall survive termination of this Agreement. 9 ofss 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 this Agreement and any amendments hereto, all other documents incorporated by reference therein, and Appendices constitute the complete and exclusive statement of the agreement between them with respect to the Services, and supersede any prior oral or written understandings, representations, and agreements between the parties relating to the Services. 21. Amendments. 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 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 and provide prompt subsequent notice thereof to Customer. As set forth in Section 14.2, Customer may terminate this 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 interpreted so as to achieve, to the extent permitted by applicable law, the purposes intended by the original provision, and the remaining provisions of this Agreement 0916 32 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 rights or delegate any of its responsibilities in 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 terms and conditions set forth or incorporated in this Agreement shell 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 10 of SB 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 (1) 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 (11) 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 original 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. Customer 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 0916 33 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 right 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, in 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) 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 in 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 I r ofsa 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 Custer Engaging` a Third -Party Service Provider. Subject to Bank's prior 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, jointly 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 arising 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 authority 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. 0916 12 Of JS 0916 35 • 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, "Goveming 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, couaty or similar local governmental unit, including 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. (b) (a) If Customer is a Governmental 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 (c) Treasurer, Finance Director, or other officer authorized by law with signatory authority to enter into banking services agreements; (ii) that this HCk 4818-2476.301 v. l 13 of S8 Agreement has been duly authorized 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 terms. 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 perfonning this Agreement and any related ACH or wire transfer service agreement; (iv) 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; and (v) that this Agreement is the valid and binding obligation of Customer, enforceable against Customer in accordance with its teams. 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 0916 36 evidence of those persons authorized to disburse Customer funds as described in (a)(iii) and (b)(iv) above; (ii) that upon Bank's request, Customer will certify its compliance with (a) or (b), as applicable, on an annual 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 (bXiv) is no longer so authorized or his/her position of such authority is terminated for any reason. HC 4818-1416-3481 r.! 3. Effectiveness. Customer agrees to all the terms and 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. 14 vf3s 0916 37 Im 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 terms used herein without defmition 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. TERMS AND CONDITIONS 1. Definitions. Accounts) " means, with respect to eTreasury, a checking, regular statement savings, money market deposit, certificate of deposit, investment or commercial loan orline 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 employees) 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. 2.1 This Appendix describes the terms and conditions under which Bank will provide Customer with access to and use of any of the electronic information delivery and transaction initiation services that Bank makes available using the Bank Internet System. 2.2 By accessing the Services with the Access Devices (as defined in the Cash Management Master Agreements 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 right 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 periods) 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. HC# 4826. 87"I SI v / 15 Of 58 1016 38 2.3.3.1 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, ne-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 Authorized 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 he 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 loam 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 -use 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) HCu 4816.8874-0154 v.1 16 of 58 1016 39 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. 2.42 ACH Originations. ACH originations are subject to the terns 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 into 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 e11 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 writing. S. Administrator(s) and Authorized Users. 5.1 Customer shall designate Administrator(s) with Bank as set forth in the Services' Setup Form(s). Customer is solely responsible for designating its Administrator(s). 5.2 The Administrator(s) may designate other Administrators 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 Authorized 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 Administrator(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 authority to access or use the Services. HCY 4616.8874-0134 v,1 17 of 58 1016 40 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 Intemet-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 BaW 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 security 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 security 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 security 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 combining 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 Authorized 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 Authorized 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 fiutber agrees to notify Treasury Management Services Support immediately at 1-866475-7262 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 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 Payment, transfer or other use of the Services. Customer acknowledges and agrees that Bank is authorized to act on any and all communications or instructions received using the Access Devices, where such communications were provided to Bank in 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, HC8 481"87"154 v.l 18 Of se 1016 41 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 security 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 unauthorized transactions) 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 electronic statement delivery. For joint 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 generally be available within 24 hours after the statement cut-off date. The statement cut-off date for Customer's electronic 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, print 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. 11Cz 481"89,1-0154 v.1 19 oJ58 /016 42 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 nurnber(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 subiect 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 agreements) 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 FIC: 4816-8874-01 J4 vJ 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 sunsetpolicy 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 proprietary 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 risk 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 then 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) in accordance with the terms and conditions of the Cash. Management Master Agreement. 10 of S8 1016 43 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. 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. HCS 4816-8874-01 S4 v.1 21 of J8 1016 44 Bank APPENDIX H 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 Customgr's capacity as an Orirg:nator, by Bank, as an Originating Depository Financial Institution ("ODFP'). All capitalized terms used herein without definition shall have the meanings 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 Administrator(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.gM 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 submitted and against which any rejected or returned Entries may be credited or debited. Bank reserves the right, in 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-fimding of such Entries, including as otherwise set forth in this Appendix. Bank also reserves the right, in its sole and exclusive HC 48146754-JJ49 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 pertaining 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, dirties 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 faihme 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 12 of 58 022016 45 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 historical 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, in 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 Entries 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 in 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. HC 4814-6754-1149 4.1 Customer may elect, in accordance with the Services' Setup Form(s), to transmit 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: 4.1.1 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 Transmission 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 Originator 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. 23 0558 022016 46 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 ("RDFI") 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 transmit 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 in Bank's sole and exclusive discretion. 6. International ACH Transactions ("IAT Entries"). 6.1 An TAT 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. TAT 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 IAT 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 TAT 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 TAT 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 TAT Entries between Bank and the ACH Operator through which Bank processes the IAT Entry, the terms of which Bank communicates to Customer HC 1814-6754-1544 prior to Customer's use of the Services or from to time thereafter, and (c) the NACHA Rules. 6.2 Customer aclmowledges and agrees that IAT Entries 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 Entries according to Foreign Country Rules, Bank and the ACH Operator. Customer expressly acknowledges and agrees that Outbound TAT 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 (64) 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 Entries. 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 risk 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 whirr Bank processes the TAT Entry, in its sole discretion, may also refuse to handle TAT 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 TAT 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 TAT Entry in the receiving country in processing or failing to process any TAT 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 TAT Entry. Bank is also not responsible for the transmission or 24oj58 022016 47 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 intergovernmental 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 determined to be erroneous, the ACH Operator will convert the amount to be returned from the Foreign Currency to USD. Bank will not be liable for any difference in the amount of the original Entry atter 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 aclrnowledges and agrees the :Security Procedures are a commercially reasonable method for the purpose of verifying the authenticity of Entries (or any request for .cancellation or amendment thereofl. 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 N.9CHA Rules with respect to the protection of ACH information (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 records Customer shall ensure that its security policies, procedures and systems: HC 4814-6754-1549 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 harm to the Receiver/customer. Customer wan -ants 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 confirmation to TD Bank, N.A., Atm: 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 prior to, and within a reasonable time period after, its receipt of such notification. 7.3 Bank may, from time to tine, 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 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. 15 Of S8 011016 4P 9. Recording and Use of Communications. Customer and Bank agree that all telephone conversations or data transmissions between them 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 deadline 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 Business 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 terms 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 Entries. 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 Entries) 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 HC 4814-6754-1549 26 nJr58 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 rights 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 Rides. 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 retuned Entries from the ACH Operator, perform 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, Ransmittal 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 ?, Securi(v Procedures. Bank may also reject any Entry which contains a future Settlement Date that exceeds the limits sex 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 arty 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 returned 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 Entries 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 return rates, (2) invoke premium penalty fees for unauthorized or excessive return rates, and/or (3) invoke 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 022016 49 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 Entrie"iles. 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 NACHO 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 ager 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 HC 4814-675¢!549 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 RDFT 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.goy/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 theperiod 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 this 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 RDFT pursuant to this Appendix. 17of38 022016 50 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 determine, 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"), asset 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 eomreetion 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. HC 48146754-1549 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 inspect 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 fad that, if such settlement is not received, the RDFT shall be entitled to a refund from the Receiver of the amount of the Entry; (vii) with respect to each International ACH Transaction ("FAT") that Customer may be permitted by Bank to initiate, Customer shall (a) classify and format payments transmitted to or received from a financial 28 of 58 022016 51 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- initiated/mobile nternetinitiated/mobile ("WEB'I (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 risk of fraud related to Internet -initiated payments, (2) commercially reasonable procedures to verify 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 verify the identity of the Receiver, and (b) utilized commercially reasonable procedures to verify 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 employed 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 drat 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'J Entry that Customer may be permitted by Bank to initiate, (a) Customer has employed commercially reasonable procedures to verify the identity HC 4814-6754-1549 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 returned; (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 retuned by the RDFI, (f) the information encoded after issue in magnetic ink 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 arising 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 RDFI. 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: 23.1 Customer shall be solely responsible for transmitting its SDA Entries with the appropriate 29 of 58 022016 52 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 whidt 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 determining 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 same 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 name 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 HC 4.114-6751-1549 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 foregoing 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 security 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 unauthorized 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 30 of 58 021016 53 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 right 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, Entries, 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 malting 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 prior to termination, the payment obligations of Customer with respect to services performed by Bank prior to termination, or any other obligations or HC 4814-6754-1549 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 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 described herein 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. 31 of S8 022016 54 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 terms 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 Intemet 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 COND111ONS 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 Fed -Aire funds transfer system owned and operated by the Federal Reserve Bank, or a similar wire transfer system used primarily 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 HCV 1852!1802-1554 32 of58 correspondent bank that Bank reasonably selects to transfer funds from time to time. 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 Business Day for Bank's correspondent facility and the recipient bank. Future -dated domestic wire transfers will be initiated on the effective 0614 55 date requested by Customer, not on the date Customer entered the transaction using the Services. 3.3 Bank may handle wire transfers received from Customer in any order convenient to Bank, regardless of the order in which they are received. 4. International Wires. 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 international 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 die 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, NC.'4852-M2-2554 entities or countries 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) involving 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 famished 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 return, 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 33,!fm 0914 04 providing security against unauthorized wire transfers and for all other instructions from Customer to Bank (hereinafter the "Security 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 Security 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 Us Appendix, if Bank believes immediate action is required for security of Bank or Customer funds, Bank may initiate additional security procedures immediately and prm ide 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 unauthorized 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, Security Procedure, information or instructions have been disclosed to or accessed by unauthorized 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 Ha 4852-0802.1354 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 finds 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. 14. 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 WERE 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. 34 qf$* 0614 57 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 NC 3811.4801-2554 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. 35458 0614 �Q 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. HCO /8361579-3165 v.l "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 (ACTT) transaction, or check that has been converted to an ACH transaction that does not contain a serial 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 36 of 58 0916 59 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 verification 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 verification 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 Override Checks"). Any Presented Check or Systematic Override 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 terms of this Appendix. Except as may otherwise. be provided in 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 deadline(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 Form(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 NCB 4836.1579-3463 v.l 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 terns 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 Return 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 Authorized 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 Sank Teller Stations. 2.4.4.1 Notwithstanding anything in this Appendix to the contrary, Bank may, in its sole and absolute discretion, return to the person presenting 37 of SB 0916 60 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 and Bank Communications. 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, Return 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) he 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 Return 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 Return 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 Ha' 4836-1379-3465 v.1 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 Gable 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 Gable 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 4-406. 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 38Of58 0916 f-1 (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 accordancewith 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 FIC:: 48361579-3465 .4 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 4209. 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 cher: 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 in 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 immediately due and payable. 39 of 38 0916 ,62 ID= 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 Clearingf for the 2151 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 outlined 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 HC 4814-6754-1.49 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 some 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 may 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: 40 of58 032016 6-3 Q) 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 (b) 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 fihrther 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 telemarketets 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. 3.2.1If 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 endorsements) on the original Third Party Checks are legible, genuine and accurate; Customer has instituted procedures to ensure that each original Third Party Check was authorized 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, HC 4814-6754-1549 Customer is authorized to enforce each Third Party Check that is transmitted to Bank using the Services, and Customer is authorized 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 &.motely-CM&A 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 authorized 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 proofs 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. 41 Of J8 022016 4M OV) 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 fmancial 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, unauthorized, 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 in 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 ensue: that the item is legible and can be reproduced as an Image Replacement Document ('M(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 HC 481"754-1549 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 pm. 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 return 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 original 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 m accordance with the terms and conditions of this Appendix related to un-processable Electronic Items and (a) shall not be transferred for value to any other person or other entity. As an additional security 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. 41 oj58 021016 65 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 original 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 maintain tax identification numbers or non-public personal information of any third -parry 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 rules 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 HC 4814-6754-1549 shall redeposit a returned original check or a returned Electronic Item by delivering the same to any Bank branch location. A returned original check or returned 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 in any Electronic 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 original 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, oras 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 prior 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. 43 of 58 022016 66 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 permission 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 Terrorist", "Specially Designated Narcotics Trafficker", or "Foreign Terrorist Organizations" as defined by the United States Office of Foreign Assets Control. 5.12 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 from 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 HC 4814-6754-1549 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 Administrator(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 time 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 Bank that will be used for log -in by Customer's Administrator(s) and Authorized User(s). Bank will also provide the Administrator(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 security purposes, as prompted by the Services Site, or more frequently. 44 Of58 011016 8.2 Customer acknowledges that Administrator(s) will, and Customer authorizes Administrator(s) to, select other Administrators and Authorized Users by issuing to any person an individual password. Customer further acknowledges that Administrator(s) 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 Authorized 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 ot; 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 authorized 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 HC 4814.6754-1549 authorized 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. 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 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 45 Of 58 027016 68 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 and/or (ii) conformance with Customer's obligations hereunder. In addition, Bank reserves the right, in itssole 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. Any 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 S 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 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 HC 48166754-1349 46 Of 58 0220/6 69 APPENDIX TX 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 Prior 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 outstanding, 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' (R'1913778.1) 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 Prior 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 contains 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 47 of 38 0909 70 the Cash Management Master Agreement, including, Services and shall remain in full force and effect until without limitation, any provisions thereof that exclude or termination or such time as a different or amended Full limit warranties made by, damages payable by or remedies Reconcilement Services Appendix is. accepted in writing by available from Bank. This Appendix replaces and Bank or the Cash Management Master Agreement is supersedes all prior agreements on file with respect to the terminated. ¢{'1913778.1} Remainder of page intentionally left blank. 0of38 0909 J� �j 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. 1.1 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 -Accounts) to the pre- selected target balance(s), M set forth in the Services' Setup Form(s). 1.3 Customer may select a target balance for each Sub -Account in the amount of $0 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 1f 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 authority 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 oases 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 terminated. Remainder of page intentionally left blank (Wx040745.1) 49 of 58 `7.7 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 platform. 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. Ha 4846.438&3571 c.l 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 conned 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 trunsmission. 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 perform, 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. Page 50 OHS 0716 73 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 SFT? server. Files transfers through SFTP communications are encrypted using Secure Shell ("SSE" ). SSE is an open protocol for securing data communication across computer networks providing a secure channel for data transmission,. The encryption used by SSE is intended to provide confidentiality and integrity of data over an unsecured network, such as the Internet. SSE 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 TP 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 ofthe 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 URLldomain name, unique user name, password, and directory. For Customer to pull files from Bank's SFTP server, Customer must provide the external IF 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 perform, 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 SSE 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. HC# 4846.4388-3572 xl Page 31 of 58 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 prior 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.1.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 fnancial.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.coni, 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, communication or instruction, including any Payment Order (hereinafter a "SWIFT Instruction") received in Customer's name or 0716 74 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-CUCr, 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 authorized 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, i£ HC# 4846-4388-3372 v.! Page 52 cf 58 the SWIFT Instruction does not meet the reouirements of the SWIFT Rules or otherwise appears not to have been prepared or sent in accordance with this Section: ■ Bank considers that the execution of that SWIFT Instructign_may place Bank in breach of any law or regulation; or Bank reasonably suspects that the SWTFT 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 nqt 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 them 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 ("BKE"), 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. 07/6 6.5 Customer Regmsentations 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 Administered 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 internationally recognized accounting standards by independent auditors. 6.6 Third -Party Service Providers: Third Party -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'l, 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 in relation to the SWIFT Services. Customer unconditionally authorizes 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 HCb 4846-4388.3371 v.l Pelle 53 of s8 may be permitted 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 prior 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 in 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" herein 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 Dirgction and Tndemnity. 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 in lieu of an additional indemnity provided by Customer in the Cash Management Master Agreement. 0776 76 6.71 Bank is authorized to accept .and honor any files andlor 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 terminate 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 discretionby 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 HCV 4846-4388.3572 v. t Page 54 of 58 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 documerrts provided by Bank, including without limitation the Services' Setup Form(s), are a commercially reasonable method of providing security against unauthorized access to or interception 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, SFT? or SWIFT communications are secure. Rather, after review of the alternatives, 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 time, 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. 0716 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 strictly 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 HCW 484644&3372 v.1 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 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 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 tenruinated. Remainder of page intentionally left blank. Page 55 of 5a 0716 Bank APPENDIX XXH TD ACH POSITIVE PAY SERVICES This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD 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 Definitions. "Authorized Account" means the Account(s) of Customer, maintained at Bank, to which the Services will apply. "ACH EntrV' 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'). `A CH Authorizations" means Customer's written instructions and authorization 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 ("NACIW) 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 Entries that do not HCh 4841-7018-3187 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 Entries 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 Authorizations 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 56.158 0315 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. In the 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 not insert a specified maximum dollar amount, then no maximum doUar amount shall apply with respect to the applicable ACH Entry(ies) or transaction subject to the ACH Authorization(s). (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 Acoount(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 Entries 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 Entries to .be reviewed that Business Day. HCf! 4841-7018.3187 2.4 Payment and Dishonor of Exception Entries. 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 Entries will be paid/posted to Customer's Authorized 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 and Bank Communications. 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 Return 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 permitted 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. 57 of 58 0315 80 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 preestablished 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 Derision 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. 4.1 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 in this Appendix and until such time as Customer's authorization 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 HCP 4641-7018-3187 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 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, except for any existing ACH Authorizations 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 Accounts) 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. 56 of 56 0315 Bank America's Most Convenient Bank* COMMERCIAL CARD SOLUTIONS Pricing Prepared for: Indian River County Board of County Commissioners Rebate Program: The TD Commercial Plus Card & TD ePayables Rebate Program' financially rewards clients for making procurement, travel and.AP payments using their TD Bank issued commercial card solution. The program offers an increased rebate incentive for incrementally expanding annual spend volumes. The attractive program's annual spend and rebate tiers are outlined below: ScheduleRebate Interchange Grace Period In iDays Annual Spend' 2 7 14 21 28 Rebate in Basis Points Y - - $8,000,000 - $14,999,999 145 142 139 136 133 $1,000,0001- $7,999,999 140 137 134 131 128 ScheduleRebate Specialized B213 Interchange Type Rebate in Basis Points 2 Visa Purchasing Large Ticket (PLT) 50 Visa Large Purchase Advantage (LPA) 25 "' Annual Dollar Spend = Purchase totals less returns for 12 month period from first month with spend s Rebates paid annually ConfidentialConfidential to TD Bank. 10/2172016 14�� Bank Amerka's Most Convenient Bank' COMMERCIAL CARD SOLUTIONS Applicable.! Potential Fees: Custom logo on cards Outbound reporting file: - Custom mapping and programming - Data Transmission Data Transmission File (Visa VCF 4.4) Special request items: - Express Card Delivery - Printed Statements Cash Advance: Foreign Transaction Fee Finance Charge Client Acceptance: $700.00 one-time implementation .(waived) $150.00 per hour $200.00 per month (waived) $150 per month . $25.00 per card $1.00 per statement 3.00%. Minimum of $5.00 / Maximum of $50.00 1.00% 13.90% APR Signature: Printed Name: Title: Date: 2 ConfidentialConfidential to TD Bank. 10/21/2016 t� I D1 ACH BLOCK & FILTER SERVICES AGREEMENT This ACH Block & Filter Services Agreement (this "Agreement") is by and between TD Bank, N.A. ("Bank") and the customer identified below ("Customer'). Bank and Customer agree that the. ACH Block & Filter Services (the "Services", as described below) provided to Customer by Bank will be governed by the terms of this Agreement and any amended agreement entered into by Bank and Customer from time to time with respect to the Services, and by the terms and conditions of the parties' agreement governing the underlying deposit accounts) in Customer's name at Bank (hereinafter "Account(s)") and that are associated with the Services (the "Account Agreement"). All capitalized terms used herein without definition shall have the meanings given to them in the Account Agreement or the National Automated Clearing House Association's e NACHA") Operating Rules and Operating Guidelines which govern the ACH system (the `NACHA Rules'). ® New ❑ Add Customer/Company Name: INDIAN RIVER BOARD OF COUNTY COMMISSIONERS Type of Business: Government Bank (Select one): 01/91 04/94 ❑ 02/92 ❑ 11/86 ❑ 03/93 E118/87 Customer/Company Contact: -Contact -- ❑ Block All ACH Credits. If checked here, Customer instructs Bank to block ALL incoming ACH credits. If not checked, Customer instructs Bank to HONOR ONLY the ACH credits identified below. Account Number(s): ® Block All ACH Debits. If checked here, Customer instructs Bank to block ALL incoming ACH debits. If not checked, Customer instructs Bank to HONOR ONLY the ACH debits identified below. Account Number(s): A/P Payroll 1 of 5 HC 4817-0457-3971 0313 84 FILTERS -- Block all ACH Entries except the following authorized Entries: (Please use additional sheet if necessary.) FOR ACH DEBITS ONLY: Customer's Originating Originating Company ID Account Number Company Name Max Dollar Amount (i) Debit Date (x) Expiration Date (3) Recurring (4) M or (N) FOR ACA CREDITS ONLY: Customer's Originating Originating Company ID Max Dollar Amount (i) Account Number Company Name Credit Date (2) Expiration Date (3) Recurring (4) (Y) or (1) If this field is left blank or completed with "N/A," no maximum dollar amount shall apply with respect to the applicable ACH Debit/Credit Entry(ies) or transaction(s). (2) If this field is left blank or completed with " N/A," no specific debit/credit date shall apply with respect to the applicable ACH Debit/Credit Entry(ies) or UwL%aetion(s). (3) if this field is left blank or completed with "N/A," no expiration date shall apply to the applicable ACH Debit/Credit Entry(ies) or transaction(s). (4) If this field is left blank or completed with "N/A," the default setting shall be to "Y" with respect to the applicable ACH Debit/Credit Entry(ies) or transaction(s) 2 of 5 0313 TERMS AND CONDITIONS 1. Services. 1.1 The Services described in this Agreement allow Customer to elect how Bank will handle incoming Automated Clearing House ("ACH") Entries presented to Customer's Account(s). Customer may pre- establish certain ACH payment authorization, which include several options to filter ACH Entries (hereinafter collectively referred to as "ACH Authorizations"). 1.2 Customer acknowledges that the Services do not apply to transactions between Customer and Bank, including Bank's 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 them in Customer's ACH Authorizations as reflected in this Agreement and may do so until such time as Customer's authorization with respect to the underlying Bank -Related Entries is revoked or otherwise terminates. 2. Operations. 2.1 If Customer checks the box(es) above to block incoming ACH Debit Entries or ACH Credit Entries presented to Customer's Account(s), Customer thereby instructs Bank to block all incoming ACH Debit Entries. or ACH Credit Entries presented to such Account(s). 2.2 If Customer elects the ACH filter feature, Customer thereby instructs Bank to permit only those incoming ACH Entries from the specific Originator identified by Customer above by the Originating Company ID number. All other incoming ACH transactions will be returned to the Originator. 2.3 This Agreement is Bank's record of Customer's ACH Authorizations and represents Bank's understanding of Customer's instructions associated with incoming ACH Entries. If the information that Customer has provided above is incorrect in any category, Customer must advise Bank immediately, as Bank is NOT responsible for blocking or filtering ACH transactions unless Customer's ACH Authorizations are accurately described in this Agreement. 2.4 Customer's ACH block instruction(s) will be accepted subject to the condition that ACH transactions have not already been posted or are not in the process of posting, and that Bank will have a reasonable opportunity to ax on Customer's request before any such processing. 2.5 Bank shall be bound only to exercise ordinary care in attempting to block or filter ACH transactions. . 2.6 Bank shall have a reasonable time after receipt of Customer's request to implement this Agreement and shall not assume responsibility for stopping ACH transactions that have already been posted to the Account, 3 oj5 3. Account Agreement; Service Fees. 3.1 Bank and Customer agree that the Services and any Account established by Customer in connection with the Services shall also be governed by the Account Agreement, including one or more fee schedules issued by Bank for the Account, and the terms of the Account Agreement are incorporated herein by reference. 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 conflicd. Customer agrees to compensate Bank for the Services in accordance with the applicable fee schedules or written agreements between Bank and Customer in effect from time to time that apply to the Services. 3.2 Customer authorizes Bank to charge Customer's Account for all applicable charges and fees to the extent that such charges and fees are not offset by earnings credits or allowances for Customer's Account(s). 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. 3.3 Bank may amend fees associated with the Services and Account(s) in aggregate or individually, at any time. To the extent that such changes adversely affect Customer, Bank will use commercially reasonable efforts to give notice to Customer of such changes, in accordance with applicable law, or as may otherwise be agreed to by the parties. 4. Limitation of Liability; Disclaimer of Warranties. 4.1 Except to the extent required by law, the liability of Bank in connexion with the Services shall in all cases be limited in accordance with the terms of the Account Agreement. 4:2 CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT CUSTOMER'S SOLE RISK, AND THE SERVICES ARE PROVIDED "AS IS," AND BANK AND ITS SERVICE PROVIDERS AND AGENTS DO NOT MAKE AND EXPRESSLY DISCLAIM ANY 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. 5. Indemnification. Except as otherwise expressly prohibited or limited by law, Customer agrees to indemnify and hold Bank harmless from any and all claims, liabilities, 0313 fosses, damages, costs and expenses (including its reasonable attorneys' fees) that Bank may incur or that may be asserted by any person or entity against Bank, in accordance with the terms of the Account Agreement, and that may be incurred by Bank relating to or arising out of its refusing or accepting payment of ACH Debit Entries or receipt of ACH Credit Entries in accordance with Customer's ACH Authorizations, including, without limitation, any claim that the return of any blocked ACH Entry is improper as against the ACH Originator or its Originating Depository Financial Institution. 6. Term and Termination. 6.1 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 reasonably required by Bank prior to commencing providing the Services. 6.2 Except as otherwise expressly set forth herein, this Agreement shall continue in effect until terminated by either party on five (5) days' prior written notice. Notice for Customer must be provided by an Authorized Representative. Termination will occur automatically upon the closure of the Account(s). 6.3 Any termination of this Agreement, whether initiated by Customer or Bank, will not affect any of Customer's or Bank's rights and obligations under this Agreement which have arisen before the effective date of termination of this Agreement. In addition, the provisions of this Agreement relating to Customer's and Bank's liability, Customer's indemnification of Bank, and the disclaimer of warranties shall survive the termination of this Agreement 7. 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 from operating normally. 8. Entire Agreement; Changes to the Services and this Agreement. Bank and Customer acknowledge and agree that this Agreement and any amendments hereto, the Account Agreement, and 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 prior oral or written understandings, representations, and agreements between the parties relating to the Services. Bank may change the Services and this Agreement (including any Amended Agreement) in accordance with the terms of the Account Agreement. Customer will remain obligated under this Agreement, including without limitation, being obligated to pay all amounts owing under this Agreement, even if Bank amends this Agreement. a ors 9. 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 interpreted so as to achieve, to the extent permitted by applicable law, the purposes intended by the original 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 orpolicy. 10. Successors. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. 11. Non -Waiver. No deviation from any of the terms 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. 12. Governing Law; Conflicts. 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. 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. 13. Notices. All notices required or permitted by this Agreement (including all documents incorporated herein by reference) to be given shall be sent by first class mail, postage prepaid, and addressed to Bank at the address provided to Customer in writing for that purpose or to Customer at the address associated with Customer's Account. All such notices shall be effective upon receipt. 14. 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. 15. 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. 16. Recording of Communications. Customer and Bank agree that all telephone conversations between them or their agents made in connection with this Agreement 0313 may be recorded and retained by either party by use of any reasonable means. 17. Facsimile Signature. The parties acknowledge and agree that this Agreement and any Amended Agreement may be executed and delivered by facsimile, and that a facsimile signature shall be treated as and have the sante force and effect as an original signature. IN WITNESS WHEREOF, Customer and Bank have duly caused this Agreement to be executed by an Authorized Representative. INDIAN RIVER COUNTY BOARD OF TD BANK, N.A. COUNTY COMMISSIONERS (Customer) 1800 27th 'Street Vero Beach, FL 32960 (Address) By: _ (Signature of Authorized Representative) Print Name: Title: Date of Agreement: , 2016 s of s By: (Signature) Print Nam e: Title: 0313 ATTACHMENT TO APPENDIX H - ACH ORIGINATION SERVICES AND APPENDIX XVIII - ACH THIRD PARTY SENDER SERVICES ACH CREDIT PRE -FUNDING I DELAYED DEBIT SETTLEMENT Customer: INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS Effective Date of Attachment: Date of ACH Origination Appendix: This Attachment supplements either (a) Appendix II - Automated Clearing House Origination Services or (b) Appendix XVIII — Automated Clearing House Third Party Sender Services, which has been entered into by the parties (hereinafter, the "Appendix"), and applies to all Automated Clearing House Services made available by Bank to Customer. All capitalized terms used herein without definition shall have the meanings given to them in the Appendix. . By signing this Attachment, Customer agrees to be bound by the terms and conditions of this Attachment. This Attachment becomes effective when this Attachment has been executed without modification by Customer. Bank will provide use of features described in this Attachment when Customer has satisfactorily completed Bank's implementation, testing and training requirements, if any, in connection with the use of these features. Customer may not modify any portion of this Attachment without Bank's prior written consent and agreement, and any attempt by Customer to do otherwise shall render Customer's Attachment null and void. Notwithstanding anything to the contrary contained in the applicable Appendix, the following terns and conditions shall apply to the applicable Appendix: TERMS AND CONDITIONS 1. ® Settlement of Credit Entries (applicable if box checked). 1.1 Bank requires, as a condition of initiating any ACH credit Entry, that Customer irrevocably provides available funds in the Settlement Account for the total amount of all ACH credit Entries submitted to Bank for processing, in accordance with the selection below (hereinafter, Customer's "Funding Obligation: NC 4831-43704341 Internal] oft 1.2 Customer shall satisfy its Funding Obligation by irrevocably providing available funds in the Settlement Account for the total amount of all credit Entries submitted to Bank prior to Customer's submission of the credit Entries. Bank will place a hold on funds in the Settlement Account equal to the total amount of the ACH credit Entries on the Business Day that Bank begins processing Customer's ACH file, and Customer's Settlement Account will be debited at the end of the Business Day, simultaneously with removal of the hold on funds in the Settlement Account. 1.3 Customer may satisfy its Funding Obligation by maintaining a sufficient balance of available funds in the Settlement Account. Customer authorizes Bank to deduct from Customer's Settlement Account the amount necessary to satisfy Customer's Funding Obligation. 1.4 . Bank is under no obligation to contact Customer if insufficient funds exist in Customer's Settlement Account. However, if contacted, Customer agrees to immediately deposit collected funds into the Settlement Account in the form of a cash deposit, wire transfer, intra -bank fund transfer or loan advance to cover the Funding Obligation. Should Bank elect to release a file against insufficient collected funds, it is under no obligation to release subsequent files for. which insufficient collected funds may exist. 1.5 If Customer fails or refuses to satisfy its Funding Obligation, Bank may, at its sole discretion, refuse to process credit Entries submitted by Customer to Bank If such credit Entries are not processed, Bank will request authorization from 0316 Customer to delete the ACH file. Customer may only re-initiate the Entries if Customer first satisfies the Funding Obligation by providing available funds in the Settlement Account. 2. ❑ Settlement of Debit Entries (applicable if box is checked). 2.1 Customer agrees to the settlement. of debit Entries in accordance with the following terms. 2.2 Bank reserves the right to delay crediting Customer's Settlement Account with available funds up to two (2) Business Days after the Settlement Date of the debit Entry. 2.3 In the event a debit Entry is rejected or returned by an RDFI in accordance with the NACHA Rules and after Bank has permitted Customer to withdraw immediately available funds in the amount thereof, Customer will, immediately upon Bank's demand, reimburse Bank with available funds in the amount thereof. 2.4 Customer acknowledges and agrees that: (a) in accordance with the NACHA Rules, consumer debit Entries, such as PPD and P.PD+, may be returned up to sixty (60) Calendar Days after Settlement Date, or such longer period as may be provided by the federal Electronic Funds Transfer Act, as implemented by Consumer Financial Protection Bureau Regulation E; and (b) other Entries, such as International ACH Transactions (IAT), may exceed the sixty (60) day return window defined by the U.S. ACH system, the NACHA Rules, and the laws and payment system rules of the receiving country. 3. Effectiveness. Customer agrees to all of the terms and conditions of this Attachment. The liability of Bank under this Attachment shall in all cases be subject to the provisions of the Cash Management Master Agreement and the Appendix, including, without limitation, any provisions thereof that exclude or limit wan -antics made by, damages payable by or remedies available from Bank This Attachment replaces and supersedes all prior agreements on file with respect to the terms described herein and shall remain in full force and effect until termination or such time as a different or amended Attachment is provided or accepted in writing by Bank or the Cash Management Master Agreement or Appendix is terminated. IN WITNESS WHEREOF, Customer has duly caused this Attachment to be executed by an Authorized Representative. Indian River County Board of County Commissioners (Customer) 1800 27th Street . Vero Beach, FL 32960 (Address) By: (Signature of Authorized Representative) Print Name: Title: HC4 4831-4370-3341 InterwI2 oj2 0316 90 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 COMM]SSIONERS(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. To Bank 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 09/1S 91 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 TD 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 To Bank Internal 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 06/)5 92 any fees charged by Visa for emergency card issuance or replacement. The billing for such charge shall occur in the next billing statement for the relevant Account. Unless TD 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 day s 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 term s of the Cardho lder Agreement, if any. (e) The Company shall 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, 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 known home and business address, and (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 (f), 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 sank 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 93 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. m Bmk Internal 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. 33 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. 06/15 94 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 cancellation 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 TD Bank Internal 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. 06/15 95 (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 (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), 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 secunities, 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. U TD determines that the amount is properly payable, the Company will remit such amount to TD on the Company's To Bank Internal 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 PA 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 acerae 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 06/15 96 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 one-year terms (each a "Renewal Tern") 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. 53 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 or 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 To Bank Internal 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 06115 97 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. (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 of 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 this 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) 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 TD Bank Internal 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. 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 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 W15 98 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, To sank Internal 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. 6.12 NAME AND TRADEMARK. Except as otherwise provided herein, neither party shall use the name or logo of the other parry 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 06/15 99 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 TD Back Intemal 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 loss, claim, damages, 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 the 06115 100 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 (0 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. 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. 06/l5 Internal 101 IN WITNESS WHEREOF, the duly authorized representative of the Company .has executed this Agreement as an instrument under seal as of the day and year first written above. COMPANY: INDIAN .RIVER COUNTY BOARD OF COUNT COMMISSIONERS By: Name: Title: TD Bank Intemal F-1 0 owls 102 CORPORATE PAYMENT NOTIFICATION SERVICES AGREEMENT This Corporate Payment Notification Services Agreement (this "Agreement') is by and between TD Bank, N.A. (`Bank') and the customer identified below ("Customer"). Bank and Customer agree that the Corporate Payment Notification Services (the "Services", as described below) provided to Customer by Bank prior to or as of the date of this Agreement will be governed by the terms of this Agreement and any amendment hereto from time to time with respect to the Services, and by the terms and conditions of the parries' agreement governing the underlying deposit account(s) in Customer's name at Bank (hereinafter "Account(s)") and that are associated with the Services (the "Account Agreement"). All capitalized terms used herein without definition shall have the meanings given to them in the Account Agreement or the National Automated Clearing House Association's ("NACHA") Operating Rules and Operating Guidelines which govern the ACH system (the "NACHA Rules'). By signing this Agreement, Customer agrees to be bound by the terms and conditions of this Agreement, as the same may be amended from time to time as further described below. This Agreement becomes effective with respect to the Services when this Agreement has been executed without modification by Customer. Bank will provide use of the Services when Bank has received all required and properly executed agreements and forms .and when Customer has satisfactorily completed Bank's implementation, testing and training requirements, if any, in the use of the Services. Customer may not modify any portion of this Agreement without Bank's prior written consent and agreement, and any attempt by Customer to do otherwise shall render Customer's Agreement null and void. ® New Services' Set -Up ❑ Existing Services' Customer ❑ Change Delivery Method ❑ Add Account(s) Customer Name: INDIAN RIVER COUNTY BOARD ODCCOUNTY COIvIMISSIQNERS Address: 1800 271h Street City, State, Zip: NL�ercBeacb; T 32960 Contact Name: Lv.J Contact Phone: I ABA number from check / item. 1 of HC# 4831-2600-0923 Account 0614 103 Remittance Details Delivery Method: ® Add ❑ Delete ® TD eTreasury (Note: Requires Customer's execution of TD eTreasury Service Appendix and associated cash management documents) ❑ Add ❑ Delete ❑ Secure Email (list all email addresses): ❑ Add [—]Delete ❑ Facsimile ❑ Facsimile Number (one only): ❑ Add ❑ Delete ❑ File Transmission (Note: Requires Customer's execution of TD Data Transmission Service Appendix and associated cash management documents) INTERNAL USE ONLY ate name to be completed by Transmission Group only.) (Naming convention for file name allows four (4) characters to identify the Customer.) Date: TERMS AND CONDITIONS 1. Services. The Services described in this Agreement allow Customer to receive detailed reports for Received Debit Entries and Received Credit Entries ("Reports"). The information included in the Reports includes batch, Entry and Addenda Record information. The Reports display all SEC Codes unless otherwise indicated by Bank from time to time. 2. Definitions. The following terms are all defined in the NACHA Rules: ACH, Entry, Received Debit Entry, Received Credit Entry, SEC Codes, Addenda Record. 3. Operations. 3.1 Renorts QWions. Customer must select a Remittance Details Delivery Method option above as offered by Bank for the Services from time to time. HC# 4831-2600-0923 nrli l e_tri �e ri t� r 2 ofS 3.2 Reports and File Output. The Reports that are made available to Customer are generally in ".human readable format," except for Reports that are requested to be transmitted via TD's Data Transmission Service in NACHA or other formats. Bank will report the following SEC Codes: CCD, CCD+, CIE, CTX, PPD and PPD+, and will include information of both the NACHA six record (Entry Detail Record) and the seven record(s) (Addenda Record(s)). Incoming International ACH (IATs) are not delivered in human readable format, unless delivered via TD's Data Transmission Service (which transmission method includes all SEC Codes). IAT's are manually delivered, unless otherwise indicated by Bank from time to time. 3.3 Reyrorts Transmission. Bank shall use commercially reasonable efforts to make the Reports available to Customer each Business Day on which any Received Debit Entries or Received Credit Entries are received by Bank. Customer reports are delivered on a daily basis. Custom options to have the Reports made available on a weekly or monthly basis, or as otherwise specified by W"In 104 Customer, may be agreed to by Bank. Non -daily Reports contain cumulative information for the period covered in the Report. Reports will be made available to Customer through the designated channel offered by Bank and selected by Customer from time to time. Bank may change any such offered channel at any time. 3.4 This Agreement is Bank's record of Customer's instructions regarding the Services. If the information that Customer has provided above is incorrect in any category, Customer must advise Bank immediately, as Bank is NOT responsible for providing or not providing the Reports unless Customer's instructions are accurately described in this Agreement. 3.5 Bank shall be bound only to exercise ordinary care in providing the Reports as set forth herein. 3.6 Bank shall have a reasonable time after receipt of Customer's request to implement this Agreement or any changes hereto or to Customer's instructions. 4. Account Agreement Service Fees. 4.1 Bank and Customer agree that the Services and any Account established by Customer in connection with the Services shall also be governed by the Account Agreement, including one or more fee schedules issued by Bank for the Account, and the terms of the Account Agreement are incorporated herein by reference. 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. Customer agrees to compensate Bank for the Services in accordance with the applicable fee schedules or written agreements between Bank and Customer in effect from time to time that apply to the Services. 4.2 Customer authorizes Bank to charge Customer's Account for all applicable charges and fees to the extent that such charges and fees are not offset by earnings credits or allowances for Customer's Account(s). 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. 4.3 Bank may amend fees associated with the Services and Account(s) in aggregate or individually, at any time. To the extent that such changes adversely affect Customer, Bank will give notice to Customer of such changes, in accordance with applicable law, or as may otherwise be agreed to by the parties. 5. Limitation of Liability; Disclaimer of Warranties. 5.1 Except to the extent required by law, the liability of Bank in connection with the Services shall in all cases be limited in accordance with the terms of the Account Agreement. 3 ofS HC# 4831-2600-0923 5.2 CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT CUSTOMER'S SOLE RISK, AND THE SERVICES ARE PROVIDED AS 1S," AND BANK AND ITS SERVICE PROVIDERS AND AGENTS DO NOT MAKE AND EXPRESSLY DISCLAIM ANY 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. 6. Indemnification. Except as otherwise expressly prohibited or limited by law, Customer agrees to indemnify and hold Bank harmless from any and all claims, liabilities, losses, damages, costs and expenses (including its reasonable attorneys' fees) that Bank may incur or that may be asserted by any person or entity against Bank, in accordance with the terms of the Account Agreement, arising out of any action at any time taken or omitted to be taken by (i) Customer under or in connection with this Agreement, including, but not limited. to, Customer's failure to observe and perform properly each and every obligation in accordance with this Agreement; or (ii) Bank in reliance upon any instructions given or purporting to have been given under this Agreement by Customer to Bank, or any information or order which Customer provides to Bank. 7. Term and Termination. 7.1 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 reasonably required by Bank prior to commencing providing the Services. 7.2 Except as otherwise expressly set forth herein, this Agreement shall continue in effect until terminated by either party on five (5) days' prior. written notice. Notice for Customer must be provided by an Authorized Representative. Termination will occur automatically upon the closure of the Account(s). 7.3 Any termination of this Agreement, whether initiated by Customer or Bank, will not.affect any of Customer's or Bank's rights and obligations under this Agreement which have arisen before the effective date of termination of this Agreement. In addition, the provisions of this Agreement relating to Customer's and Bank's liability, Customer's indemnification of Bank, and the disclaimer of warranties shall survive the termination of this Agreement. 0614 8. 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 from operating normally. 9. Entire Agreement; Changes to the Services and this Agreement. Bank and Customer acknowledge and agree that this Agreement and any amendments hereto, the Account Agreement, and 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 prior oral or written understandings, representations, and agreements between the parties relating to the Services. Bank may change the Services and this Agreement (including any Amended Agreement) in accordance with the terms of the Account Agreement. Customer will remain obligated under this Agreement, including without limitation, being obligated to pay all amounts owing under this Agreement, even if Bank amends this Agreement. 10. 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 interpreted so as to achieve, to the extent permitted by applicable law, the purposes intended by the original 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. 11. Successors. Ibis Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. 12. 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 4 of S HC# 4531-2600-0923 of its rights hereunder on any occasion shall not be deemed to be a waiver of such rights on any future occasion. 13. Governing Law; Conflicts. 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. 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. 14. Notices. All notices required or permitted by this Agreement (including all documents incorporated herein by reference) to be given shall be sent by first class mail, postage prepaid, and addressed to Bank at the address provided to Customer in writing for that purpose or to Customer at the address associated with Customer's AccounL All such notices shall be .effective upon receipt. Notices by Bank may be made in accordance with the terms of the Account Agreement. 15. 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. 16. 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. 17. Recording of Communications. Customer and Bank agree that all telephone conversations between them or their agents made in connection with this Agreement may be recorded and retained by either party by use of any reasonable means. 18. Facsimile Signature. The parties acknowledge and agree that this Agreement and any amended Agreement 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 original signature. 0614 t06 IN WITNESS WHEREOF, Customer has duly caused this Agreement to be executed by its Authorized Representative. INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS (Customer) 1800 27`x' Street Vero Beach, FL 32960 (Address) By: (Signature of Authorized Representative) Print Name: Title: Date of Agreement: , 2016 5 ofS HC#4831-2600-0923 0614 107 WA INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: November 1, 2016 TO: Jason E. Brown, County Administrator THROUGH: Michael Smykowski, Budget Director V� Richard B. Szpyrka, P.E., Public Works Director FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Designation of Econolite as Sole Source Provider Traffic Control Systems BACKGROUND: In the traffic signal operations and maintenance industry there are multiple vendors that provide traffic signal controller equipment and assemblies. The various vendors' equipment are not compatible with each other. Starting in 2001, the County's Traffic Engineering Division established Econolite products as the County's standard, thereby guaranteeing consistency and communication between each traffic signal, thus increasing the timing and efficiency of roadway corridors throughout the County. In order to ensure consistency and standardization throughout our system, the Public Works Department is requesting the Board of County Commissioners declare Econolite as the sole source manufacturer and provider for all related traffic control systems equipment and authorize the waiver of the requirement for bids for their purchase. This will enable efficient replacement of inventory as required for use in the field, including three (3) traffic signal cabinet assemblies and two (2) video detection cameras that were damaged during Hurricane Matthew. FUNDING: Annual expenditures for signals come from various accounts in Transportation/Traffic Engineering, as well as specific roadway projects, as determined by location and type of work to be completed. Expenditures for the replacement parts associated with Hurricane Matthew in the amount of $59,320 will be available in the Traffic Engineering/Other Operating Supplies/Hurricane Matthew account - 11124541-035290-17001. RECOMMENDATION: Staff recommends the Board declare Econolite as the County's sole source provider for all traffic signal related equipment and waive the requirement for bids for their purchase, as needed. X08 ,ATTACHMENTS: Econolite Memo Two quotes for replacements associated with Hurricane Matthew [ 3'a NDA Jason E/ Brlbwn, County Administrator FOR: Novem6e-r 15, 201 Indian River - • � t"i�,�Sllrlfill t.A.� r.�. U"/M To: Indian River County From: Matt Joseph/Account Manager Econolite Control Products, Inc. Date: 10/24/2016 . Re: Sole Source To whom it may concern, This letter is to verify that Econolite Control Products, Inc. Located at PO Box 550897 Jacksonville, Florida 32255 is the sole provider and manufacturer of any and all, "Econolite" products in the state of Florida. This would include cabinets (TS1 and TS2), Controllers, Suitcase Testers, CentrarsT"', ,I;,E and icons ","'software, Auras -,video detection, Ecf�n;-'ofitt' I?40 s r toad Nes, and any other products with the name. This also includes any products or licensing that would be associated with Econolite proprietary products. Example:;P`LF;Af t"" software upgrades can only be purchased through Econolite as the software is registered, trademarked and distributed only by Econolite. Econolite is the manufacturer and sole distributor af,a#tfo"''" products in the United States. If you have any questions concerning this matter, please feel free to contact me at (904) 334-5891. We appreciate the opportunity for your business! Thank You, Matt Joseph Econolite Control Products, Inc. Florida Account Manager . Quote Date: October 18, 2016 To: Indian River County Re: Indian River Quote Hurricane Replacement Parts Item # part # Qty Description Prtce'per Extended 1 Ts2T1 3 TS2T1 PLUG AND GO CABINET $13,600.00: $40,800.00 ASSY (PER INDIAN RIVER SPECS) INCLUDES: Cobalt Controller, 16 Load Switches, Laptop Shelf, Straight pickle cord- Hardwired, lea flasher, 6 FTR's, 16Ch LEip MMU, 16 ch detector rack, 3 BIU's, RS232, Manuals, Additional Outlet, Zea fan SHA -1250 Plug In Surge Suppressor Photocell, Interface panel, _.. _..................... .... Premption 2 BIU 10 Bus interface unit $185.00; $1,650:00 3 3700663 10 Load Switch $35.00 $350.00 4 1133-128 8 16 Channel LEip MMU $1,050.00: $8,400.00 ITOTAL $51,400.00 I Unless specifically requested or noted on this quotation, the product(s) quoted herein may or may not comply with any Buy America requirements. The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or legally privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited except as required by law. Quote Valid For: FOB: Econolite Factory M `Shipping: Included I *"Taxes: Included Matthew Joseph -Account Manager mjoseph@econolite.com Shipping Date: 8 weeks ARO, approved credit terms and submittal approval when applicable P.O. Box 550897 Jacksonville, FL 32255 Page 1 of 1 141 Date: October. 241' 2016 To: ndian River County Re: Indian River Video Detection 1801 27th Street /ero Beach, FL 32940-6605 `,ttn: John Ankeny Item # Part # 1 11 Qty Description Price per Extended 1 AENCOREH 2 Autoscope ENCORE MVP Sensor $3,960.00: $7,920.00 with EasyLock Connector - white TOTAL $7,920.00 Unless specifically requested or noted on this quotation, the product(s) quoted herein may or may not comply with any Buy America requirements. Quote Valid For: FOB: Econolite Factory M Jj2js Terms: 'Shipping: Included Matthew Joseph -Account Manager 'Taxes: Included mjoseph@econolite.com Delivery: 4 weeks ARO, approved credit terms and submittal approval when applicable P.O. Box 550897 Jacksonville, FL 32255 Page 1 of 1 112 Consent Agenda Item- INDIAN tem , INDIAN RIVER COUNTY, FLORIDA DEPARTMENT OF UTILITY SERVICES Date: November 7, 2016 To: Jason E. Brown, County Administrator From: Vincent Burke, P.E., Director of Utility Services Prepared By: Cindy Corrente, Utilities Finance Manage Subject: Third Amendment to Elevated Water Tank Space License Agreement with New Cingular Wireless PGS, LLC DESCRIPTIONS AND CONDITIONS: In March 2004, the Board of County Commissioners (BCC) entered into a lease agreement with Bellsouth Mobility, dba Cingular Wireless (now known as New .Cingular Wireless). The agreement allowed the Licensee to install and operate a communications facility at the Utility Department's elevated tank located at 1805 58`h Avenue (Kings Highway Tank). The license fee was $20,000 per year and included a clause that required a four percent increase per year. On September 10, 2013, and again on October 15, 2015, the lease was amended to allow for installation of additional equipment on the tank. In October 2015, there was an Amended and Restated Memorandum of License agreement as well. Presently, the annual lease fee is $54,518.04. ANALYSIS: Recently, a representative for New Cingular Wireless contacted staff to request permission to upgrade certain equipment at the site. The new annual fee will be $57,593.16. As in the original lease and all previous amendments, the four percent increase per year remains in effect as well. FUNDING: There is no cost to the department as a result of this lease. However, the department will receive revenues as a result of this lease agreement. The revenues will be recorded in the operating fund under the Radio Tower Rents account. The operating fund is used to cover daily expenses encountered while providing services to existing customers. Description Account Number Amount Radio Tower Rents 471038-362011 $57,593.16 RECOMMENDATION: Staff recommends the approval of the attached Third Amendment to Elevated Water Tank Space Agreement as well as the Amended and Restated Memorandum of License Agreement with New Cingular Wireless PCS, LLC. Staff requests the BCC authorize the Chairman to execute the attached Third Amendment and Restated Memorandum on their behalf. Page 1 of 2 1�1. ATTACHMENT(s): 1. Third Amendment to Elevated Water Tank Space License Agreement 2. Amended and Restated Memorandum of License Agreement By: f /V 1 ( .091- Jason 0 1 ...r. Jason E. Prow f, County Administrator For: Nove&b(er 1 Date e Indian River Co. Appr v d Date Administration 4 Legal IL Budget a Utilities Utilities -Finance F:\Utilities\00_UTILITY - AGENDA TEMPLATE & GUIDELINES\2017 Agneda Items\Agenda - AT & T Cellular Lease Third Amendment Kings Highway Tank Nov 2016.doc Attachment ! THIRD AMENDMENT TO ELEVATED WATER TANK SPACE LICENSE AGREEMENT THIS THIRD AMENDMENT ("Third Amendment") is made and entered into as of the day of , 2016, ,to that certain Elevated Water Tank Space License Agreement, dated March 23, 2004 ("License Agreement") as amended by the First Amendment to the Elevated Tank Space Agreement, dated September 10, 2013 ("First Amendment"), and the Second Amendment to the Elevated Water Tank Space License Agreement dated October 20, 2015 ("Second Amendment"), by and between Indian River County, a political subdivision of the State of Florida, whose address is 1801 27th Street, Vero Beach, Florida 32960 (the "Licensor") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 575 Morosgo Drive, Atlanta, Georgia 30324 (the "Licensee"). WHEREAS, on March 23, 2004, Licensor and Licensee's predecessor in interest entered into the License Agreement in which Licensor authorized certain use of the Land and Elevated Tank, as set forth more fully therein which License Agreement was amended by the First Amendment and Second Amendment (collectively the "Agreement"); and WHEREAS, Licensee desires to install and operate Additional Radio Communication Equipment on the Land and Elevated Tank, which equipment is described more fully on Exhibit F attached hereto ("Additional Radio Communication Equipment"); and WHEREAS, Licensor is willing to allow installation of the Additional Equipment, and related use of the Land and Elevated Tank, in accordance with the terms of this Third Amendment, NOW, THEREFORE, in consideration of the mutual undertakings herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Recitals. The above recitals are true and correct, and are incorporated herein. 2. Additional Radio Communication Equipment. Licensee shall have the right to install and operate Additional Radio Communication Equipment as more fully described in Exhibit F, subject to the remaining terms of the Agreement and this Third Amendment. Installation of the Additional Radio Communication Equipment shall be strictly in accordance with the construction drawings previously submitted by Licensee and approved by Licensor's outside contractor ("CD's") attached herein in Exhibit F. Said CD's shall also reflect any existing equipment that will remain on the Land and Elevated Tank. Licensee shall be responsible for all permits and assurances that installation of the Additional Radio Communication Equipment meets all applicable building codes and zoning requirements. Licensor authorizes Licensee to prepare, execute, and file all required applications to obtain any government approvals for Licensee's use of the Land and Elevated Tank under this Agreement. No later than ninety (90) days after installation of the Additional Radio Communication Equipment, Licensee shall obtain (at Licensee's expense) an 115 inspection conducted by Licensor's outside contractor of all equipment and the installation of the Additional Radio Communications Equipment to confirm compliance with the approved CD's. Any material non-compliance with the approved CD's shall be corrected immediately. No later than ninety (90) days after installation of Additional Radio Communication Equipment, Licensee shall hire Licensor's outside contractor at Licensee's expense, to perform any touch up to paint and finishes that were affected by installation of the Additional Radio Communication Equipment or relocation of existing equipment. A copy of the final inspection report shall be submitted to the Licensor .within twenty (20) days of the report date. 3. Labeling of Equipment. In connection with the installation of the Additional Radio Communication Equipment, Licensee shall label all of its equipment, including coaxial cables, located or to be located on the Land and Elevated Tank, so that Licensor and its contractors are able to distinguish Licensee's equipment from equipment owned by other licensees. This requirement shall apply to all equipment/cables, not just the Additional Radio Communication Equipment. Verification of labeling shall be included with the copy of the final inspection report as described in Section 2 of this Third Amendment. 4. License Fee. Commencing upon completion of installation of the Additional Radio Communication Equipment, Generator, the annual license fee shall be increased to FIFTY-SEVEN THOUSAND, FIVE HUNDRED NINETY-THREE and 16/100 DOLLARS ($57,593.16) to be paid in equal monthly installments of FOUR THOUSAND SEVEN HUNDRED NINETY-NINE and 43/100 DOLLARS ($4,799.43). 5. Notices. Notices to the Licensee shall be addressed to the following: Licensee: NEW CINGULAR WIRELESS PCS, LLC Billing Address: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site Name: WEST VERO (FL) Fixed Asset No: 10032101 575 Morosgo Drive Atlanta, GA 30324 With a copy to: NEW CINGULAR WIRELESS PCS, LLC Attn: AT & T Legal Department Re: Cell Site Name: WEST VERO (FL) Fixed Asset No: 10032101 208 S. Akard Street Dallas, TX 75202-4206 6. Remaining Terms. Except as modified herein, all remaining terms and conditions of the Agreement shall remain in full force and effect. Capitalized terms not defined herein shall have the meaning set forth in the Agreement. 2 :1.16' IN WITNESS WHEREOF.; the parties hereto have executed this Amendment as of the day and year first above written. Witnesses: By•". PrintA,mq,,.1"A Amy M. Mee Print Name: Licensee: NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: � (J"(, Print name: Hamradara Its: Area Manager Date: -o — 3 t17 STATE OF aM DA ) COUNTY OF 6WWOUV,) On the 4 day of 44 RAM , 2016, bef a me, a Notary Public, per onally appeared L/� , as AEA AAs& P* AQ- jT&T Mobility Corporation, anager of New Cingular Wireless PCS, LLC, a Delaware limited liability co y, "Licensee," who executed the foregoing instrument on behalf of said entity. Said person i is personally known to me, or O produced to me satisfactory evidence in the form of , to be the individual whose name is subscribed to the within instrument, and acknowledged to me that (he) (she) executed the same in (his) (her) capacity and that by (his) (her) signature(s) on the instrument, is. the individual or the person on behalf of which the individual acted, executed the instrument. WITNESS my hand and official seal in the state and county last aforesaid. [Affix Seal) taw-- Notallyzu i tate of —F74)!!Wtl 7�h otary Public State of Florida Print name. _AnW. M. Meek my nn r,reekSerial number: ice' (Io1S'Sy Commission FF 1107'55 Expires 04/08/20:a My commission expires: .ATTEST: Jeffrey R. Smith, Clerk of Court, and Comptroller By: Deputy Clerk Approved: Jason E Brown, County Administrator Licensor: INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS By: Bob Solari, Chairman Approved by BCC: 2016. Approved as to form and legal sufficiency: EIK T. Reingold, County Attorney 3 IS EXHIBIT F �y Z) tV LL Z r w jJ U- O +// \\ W z cli 4 L- 0 W �ug O O O O gi S# �� Q p p p ` I ! k , - MM V [V� W Li cr- Laia00 U-1 as p � L SLI t U g ip. 11:5�ygg ps e kal � VI $m p a ! v ♦ Z t7 $nye - U }� :- filO€B g��� UPa 6. W 4 de �- W IEEE J gni ri iA r: 6a z o in E VW pI�Q EZ-,�!4'En4.UZ Q Q1¢w2 3 ;�a Qk zi oa&35iu 'o°vi' k.. zld I rz m d-G�oYV nw B� j g '•y 5 � Z CD g .. `5 ��g��.8To lacrdgJCy 120 U �+ m m'�E s 8� zz €s �7 Eli VIS a �+ s _ _ A5 AN it E fix 5 It 916P 0 2 2F Lit LO Id ERN I if i q u � o _ �tr !� F n r vi e n IY O� F N N h r +i 7 &gF�let gi, b I g8 RY $ " � � � ji- 1 IN ARS ns H ,eV 15 �n 111.8 I Rig kisall 3 P <Lu gay PER ��n O ¢_ Eta '�gg.i? � z OF ui z 121 HIM w � ggg �BfP B��KS U �+ m m'�E s 8� zz €s �7 Eli VIS a �+ s _ _ A5 AN it E fix 5 It 916P 0 2 2F Lit LO Id ERN I if i q u � o _ �tr !� F n r vi e n IY O� F N N h r +i 7 &gF�let gi, b I g8 RY $ " � � � ji- 1 IN ARS ns H ,eV 15 �n 111.8 I Rig kisall 3 P <Lu gay PER ��n O ¢_ Eta '�gg.i? � z OF ui z 121 f o•: U �+ m m'�E s 8� zz €s �7 Eli VIS a �+ s _ _ A5 AN it E fix 5 It 916P 0 2 2F Lit LO Id ERN I if i q u � o _ �tr !� F n r vi e n IY O� F N N h r +i 7 &gF�let gi, b I g8 RY $ " � � � ji- 1 IN ARS ns H ,eV 15 �n 111.8 I Rig kisall 3 P <Lu gay PER ��n O ¢_ Eta '�gg.i? � z OF ui z 121 flog 5 ;X 0 fi 0.. C'4 OKA 122 Li 01 122 123 124 W � Bm 4-0 ^;... ;alll W � Bm 4-0 W W O a S ; 6 �KOK sit E � o W W O 125 rig p L, S 8 Is S ^ 1°� o o g eT.g 8� goo ��=V5qog N UQO t O y .<�•� g e[jG5 pp -A 8$ Ys Z �I 'cel ext Rig � bg �� `* z =o �ar NO a�g sig z Of 126 ........... LLJ z s a� n ',vi' g a : fT 0 4 z 4 t :O o¢ w w ac i 6........... y cx " a +r. ! a Afld_. rig p L, S 8 Is S ^ 1°� o o g eT.g 8� goo ��=V5qog N UQO t O y .<�•� g e[jG5 pp -A 8$ Ys Z �I 'cel ext Rig � bg �� `* z =o �ar NO a�g sig z Of 126 Attachment 2 Re: Cell Site Name: TC West Vero Fixed Asset Number: 10032101 State: Florida County: Indian River AMENDED AND RESTATED MEMORANDUM OF LICENSE AGREEMENT This Amended and Restated Memorandum of License Agreement of the Elevated Water Tank Space License Agreement .is dated as of day of 2016, and is between Indian River County, a political subdivision of the State of ' Florida ("Licensor") and New Cingular Wireless PCS, LLC, a Delaware limited liability company successor by merger to BellSouth Mobility LLC, a Georgia. limited liability company, having a mailing address of 575 Morosgo Drive, Atlanta, GA 30324 ("Licensee"). 1. Licensor and Licensee entered into a certain Elevated Water Tank Space License Agreement dated March 23, 2004, as amended by that certain First Amendment to Elevated Water Tank Space License Agreement dated September 10, 2013, Second Amendment dated October 20, 2015, and Third Amendment dated 2016, for the purpose of installing, operating and maintaining a communications facility and'other improvements as described in Exhibit G attached hereto and made a part hereof, together with the improvements thereon ("Premises") and (ii) a Memorandum of License Agreement ("Memorandum") dated as of June 1, 2004 and filed for record on June 8, 2004, in the Official Records of Indian River County, Florida at Instrument No. 1549608, Book 1742, Page 2186 (the "Memorandum") which Memorandum provides record notice of the License Agreement as it applies to the Premises. It is the intention of the Licensor and Licensee to amend and restate the previous Memorandum of License Agreement dated June 1, 2004. 2. The initial lease term under the Agreement commenced on March 23, 2004 and expired on March 22, 2009, with three (3) additional five (5) year renewal terms, the first term of which. Licensee has already exercised. 1 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written. Witnesses: By: Print Print Name: s ✓ u Licensee: NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager I By: Print name: Reny man Its'' Area ManaW R �B�C�nstn� Date: 2 44 STATE OF�1 ) COUNTY OF S (100 LL ) On the lwo(day of����'' , 2016, befqTe me, a Notary Public, personall Y appeared _ ! lzs APJ , as 4LA � .940elLof AT&T Mobility Corporation, Manager of New Cingular Wireless PCS, LLC, a Delaware limited liability co y, "Licensee," who executed the foregoing instrument on behalf of said entity. Said person 9 iis personally known to me, or D produced to me satisfactory evidence in the form of , to be the individual whose name is subscribed to the within instrument, and acknowledged to me that (he)(she) executed the same in (his)(her) capacity and that by (his)(her) signature(s) on the instrument, is the individual or the person on behalf of which the individual acted, executed the instrument. WITNESS my hand and. official seal in the state and co ty last aforesaid. [Affix Seal] Notary Public Stets Ol Florida Notary state of ti -040A Amy M Meek c 4 : PJVy Commission fF 110755 Print name: till a epi, .jai eek Expires 0 410 812 0 1 8 Serial number: rF My commission expires: -Y- Licensor: ATTEST: Jeffrey R. Smith, Clerk of Court, INDIAN RIVER COUNTY BOARD OF and Comptroller COUNTY.CO1V MISSIONERS Deputy Clerk Bob Solari, Chairman Approved by BCC: , 2016. ApWro, Approved as to form and legal sufficiency: JasuntyAdministrator Dyla �ei.�,g_g.ld, �C..n_tyAttorney 3 11q. EXHIBIT G :130 131 WA - Z • ' boll o dol p gg d Leb 6 O 131 WA - Z 1 o ?� p gg d O U 131 WA - 1 o ?� p :ui .as i •V.. � I fib? � I E j f r i t i 0 1'b 1 F. a i 11 a �.a �q k Ys C Z AP LS �S � � O a 0 v 131 WA - 1 ?� :ui .as i •V.. � I fib? � I f r i t i 0 1'b 1 F. a i 11 a �.a �q k Ys C Z AP LS �S � � O a 0 v 131 CONSENT AGENDA INDIAN RIVER COUNTY g� OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: November 8, 2016 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: Jason E. Brown, County Administrator Michael Smykowskector, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Declaration of Excess Equipment as Surplus for Sale or Disposal BACKGROUND: The equipment on the attached list has been determined excess to the needs of Indian River County and requires disposal in accordance with Florida Statutes and Finance Policies. The next scheduled auction will be held at the Fairgrounds on Saturday, December 3, 2016. All heavy equipment and vehicles will be sold there, and the other items will be disposed of either at the Fairgrounds auction or by online auction. The funds received from the sale of these items will be returned to the appropriate accounts. RECOMMENDATION: Staff recommends the Board declare the items on the attached Excess Equipment List as surplus and authorize their sale and/or disposal as indicated. There is no cost to the County associated with this request. ATTACHMENT: Proposed Surplus Item List Dated November 8, 2016 APPROVED A NDA ITE Indian River Co Appr Date BY: Admin 11, Jason. 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Y U Y U ]C Y U U ]d Y ]C Y ]C ]C a •- O L t O O t N_ C C Y C C C C -i — V U U U U U O N O Q O O O J J N O J J m m O d m y m CL = 0 O 0 0 0 O O 00000 O O 0 0 • � N Ln CN LA a N n tmo w as w t0 M O O W to m NO -CT 14 N N N N N N N N y w C w ` w ✓� w M N w L N w w N N w L w -A w N w m N w w w m w N LNL w w N N w N�. w 1�1 NL w V� NL w y� N iA 0 w N N LN w N N N L w N 0 H L L w w N L L w w N Gl 0J r O L " L I M - L _V1 la L f m L f m _N fa � 'I 'fp '� 'I M '- 'fa 'm 'm '2 'fa 'N to - •N 'fa L 1A 'fa 'fa L N 'f` 'ID 'fa v� 'm CL O Y -W .M .Y a a a a a n aaa a a a L a a - L a a L " a n L a a L L s a a a L a a L a a a a L s a L 0. a L a a L s a L n. a a Cl L a a L L a 0. a a L L a a a n L a a a a L a a L s s o m m m m m -M" a a a a a a a aaa a a a a a a a a a a a a a a a a a a a a t C m J D_ d d d a d d d T r T r T r T r T r >• r �. r >. r >, �. r r ], r r r r w w w al w w w w w w w w w w w w w w w w w w r w w r w w r w r r ro M a 0 a 0 a 0 a a 0 0 a 0 a 0 a a a a a Cl n a a a 0. a a a a a a a a w a a w a w a s= = a n d 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 cL a d aL a a a aL aL a` CL. aL a aL a` a` a a` Q. d aL a` a M. d c` a` M TI, 136 137 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 Ecotech Consultants, Inc. (hereinafter called CONSULTANT). OWNER and CONSULTANT, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE I - WORK CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents, The Work is generally described as follows: Management of an existing 4.0 MGD Average Annual Daily Flow (AADF) permitted capacity system (R7001) consisting of a created wetland treatment/reuse system (WTS) comprising of 169± acres (135± total wetted acres) and including an influent deep settling pond with overland flow through nine (9) deep marsh cells and three (3) shallow marsh cells to a final storage outfall cell. The FDEP-required annual WTS report will be delivered to Indian River County on or before February 28, 2017. ARTICLE 2 - THE PROJECT The Project for which the Work under the Contract Documents may bethe whole or only a part is generally described as follows: Project Name: Maintenance and Operation of the West Regional WWTF Wetlands System Bid Number: 2017011 Project Address: 8.405 8`" Street, Vero Beach, Florida ARTICLE 3 - CONTRACT TERM The contract shall be effective from November 1, 2016 until October 31, 2017, unless terminated earlier as authorized within this agreement. ARTICLE 4 - CONTRACT PRICE OWNER shall pay CONSULTANT for completion of the Work at the prices stated in CONSULTANT's Bid, attached hereto as an exhibit. ARTICLES ---PAYMENT PROCEDURES 5.01 Monthly Payments. A. The OWNER shall make monthly payments to the CONSULTANT on the basis of an approved invoice and In accordance with the.provisions of the Local Government Prompt Payment Act, Florida Statutes section 218.70 et. seq, •3. 5.02 Pay Requests. A. Each request for a progress payment shall contain the CONSULTANT'S certification. All progress payments will be on the basis of progress of the work measured by the schedule of values established, or in. the case of unit price work based on the number of units completed, 5.03 Paragraphs 5.01 and 5.02 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. ARTICLE 6 - INDEMNIFICATION 6.01 CONSULTANT shall indemnify and hold harmless the OWNER, and its commissioners, 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. CONSULTANT and persons employed or utilized by the CONSULTANT in the .performance of the Work. ARTICLE 7 - CONSULTANT'S REPRESENTATIONS 7.01 In order to induce OWNER to enter into this Agreement CONSULTANT makes the following representations: A. CONSULTANT has examined and carefully studied. the Contract. Documents and the other related data Identified in the invitation to Bid documents. B. CONSULTANT has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. CONSULTANT 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. D. CONSULTANT has obtained and carefully studied (or assumes responsibility for having done so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning 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 CONSULTANT, including applying the specific means, methods, techniques, sequences; and procedures of construction, if any, expressly required by the Contract Documents to be employed by CONSULTANT, and safety precautions and programs incident thereto. E. CONSULTANT does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. 140, F. CONSULTANT 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. G. CONSULTANT has correlated the information known to CONSULTANT, 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. . H. CONSULTANT has given OWNER written notice of all conflicts, errors, ambiguities, or discrepancies that CONSULTANT has discovered in.the Contract Documents, and the written resolution thereof by OWNER is acceptable to CONSULTANT. I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. ARTICLE 8 - CONTRACT DOCUMENTS 8.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 1 to 6, inclusive); 2. Certificates of Liability and Workers Compensation insurance; 3. Invitation to Bid 2017011; 4. CONSULTANTS Bid Form (pages 12 to 13 of 19, inclusive); S. Bidders Questionnaire (page 14 to 15 of 19); i 6. Affidavit of Compliance (page 16 of 49); 7. Sworn Statement Under Section 105.08, Indian River County Code, on Disclosure of Relationships (pages 17 to 18 of 19, inclusive); 8. Drug -Free Workplace Certification (page 19 of 19); 9. The following which maybe 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). 10. Contractor's invoices 3 141 ARTiCLE.9 - MISCELLANEOUS 9.02 Terms A. Terms used in this Agreement Will have the meanings indicated in the Invitation to Bid. 9.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Agreement will be binding on another party hereto without the written consent of the party sought to be bound, and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by taw); and unless specifically stated to the contrary in any written consent to, an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 9.03 Successors and Assigns A. OWNER and CONSULTANT each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and.legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. M4 Severability 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 CONSULTANT, 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. 9.05 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. 9.06 Termination A. Either. party may terminate a contract by giving thirty (30) days notice, in writing, of the intention to terminate:. The County reserves the right to terminate this contract for convenience of the County and / or with or without cause. 4 142 9.07 Public Records Compliance A. Indian River County is a public agency subject to Chapter 129, Florida Statutes. The CONSULTANT shall comply with Florida's Public Records Law. Specifically, the CONSULTANT 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 bylaw for the duration of the contract term and following completion of the contract if the CONSULTANT 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 'CONSULTANT or keep and maintain public records required by the County to perform the service. If the CONSULTANT transfers all public records to the County upon completion of the contract, the CONSULTANT shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONSULTANT keeps and maintains public records upon completion of the contract, the CONSULTANT 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. B. IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA. STATUTES, TO THE CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (772) 226-.1424 Publicrecords ircl;ov com Indian River County Office of the County Attorney 180121t1 Street Vero Beach, FL 32960 C. Failure of the CONSULTANT to comply with these requirements shall be a material breach of this Agreement. 5 1443 IN WITNESS WHEREOF, OWNER and CONSULTANT have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and CONSULTANT. All portions of the Contract Documents have been signed or identified by OWNER and CONSULTANT or on their behalf. This Agreement will be effective on __ort ber 20� (the date the Agreement is approved by the Indian River County Board of County Commissio�agp,.which is the Effective Date of the Agreement). OWNER: CONSULTANT: INDIAN RIVER COUNTY �,(�j ;;; ECOTECH CONSULTANTS, INC. y , By:' OQ�. B : l B ri, Chairm : +�'••�.�� (CONSULT T) By. (CORPORATE SEAL) Jason E. row County Administrator Attest APPROVED AS TO FORM AND LEGAL 5U ICIENCY: By: DYI eingold, County Attorney Address forgiving notices: P.O. BOX 690265 VERO BEACH FLORIDA 32969 Jeffrey R. Smith, Clerk of Court and Comptroller / C.��--- License No. N/A Attest: (Where applicable) Deputy Clerk (SEAL) Agent for service of process: N/A 61 Designated Representative: Rich Meckes, Wastewater Plant Superintendent 4350 41st Street Vero Beach, FL 32967 (772) 226-3423 rmeckes@ircgov.com Designated Representative: Name.: C.E. SWINDELL, JR. Title: PRESIDENT Address: P.O. BOX 690265 VERO BEACH, FLORIDA 32969 Phone: 407.466.6989 Email: eootech(cr�,bellsouth net (If CONSULTANT is a corporation or a partnership, attach evidence of authority to sign.) 1.44 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: Michael D. Nixon, P.E., Roadway Production Manager 40 SUBJECT: Resolution Formally Designating a Portion of County Owned Property Along 41St Street as Right -Of -Way DATE: October 25, 2016 DESCRIPTION AND CONDITIONS In the course of the preparation of roadway intersection plans on 411t Street and Old Dixie Highway which is to be constructed within the next two years, it became apparent that a portion of County owned property located at the northwest corner of 41St Street and the Florida East Coast Railway, LLC Right -of -Way had insufficient right-of-way to construct the roadway improvement. In order to proceed with the roadway project and allow for future road expansion, staff thought it appropriate to designate the right-of-way by formal document. The attached resolution has been prepared for this purpose. After the dedication of the right-of-way, the remaining parcel will continue to be utilized as a stormwater treatment facility. FUNDING The only cost associate with this matter will be recording fees for recordation of the resolution in the amount of $35.50. Funding for this expenditure is budgeted and available in Account No. 31521441-066510-14001, Optional Sales Tax, 41St Street/US1 Left Turn Lane, in the amount of $35.50. RECOMMENDATION Adopt the attached resolution, and authorize the Chairman to execute same for recordation in the Public records of Indian River County, Florida. ATTACHMENTS I. Resolution APPROVED AGENDA ITEM IN BY Indian River County roved Date Administration Budget Legal Public works to Engineering M FAPubfic Works\FNGiNEERING DIVISION PROJECTS\135941st St USI Left Tum LancWdmin\agcnda items\1359 BCC.Memo 41 St ROW TRC Parccl 11-15-16.doc 1'45 RESOLUTION NO. 2016- A RESOLUTION Of THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, FORMALLY DESIGNATING CERTAIN COUNTY OWNED PROPERTY FOR 41s' STREET RIGHT- OF-WAY NORTHWEST OF THE FLORIDA EAST COAST RAILWAY, LLC RIGHT-OF-WAY, AND DIRECTING THE PROPERTY APPRAISER TO CUT OUT THE PROPERTY DESIGNATED AS RIGHT-OF-WAY FROM THE PARCEL OF PROPERTY IDENTIFIED AS TAX PARCEL NO. 32392600000300000045.2 IN INDIAN RIVER COUNTY, FLORIDA. WHEREAS, Indian River County is the owner of a parcel of property located at the northwest corner of the intersection of 411t Street and the Florida East Coast Railway, LLC by virtue of a warranty deed recorded in O.R. Book 1408, Page 1670 of the Public Records of Indian River County, Florida, and further identified as tax parcel 32392600000300000045.2 ; and WHEREAS, recently in the course of preparing roadway plans for 411t Street, it became apparent that a portion of the Parcel along 411 Street will be required to be used for right-of-way for the construction of the roadway improvement and future roadway expansion; and WHEREAS, a sketch and legal description of the right-of-way have been prepared and are attached hereto as Exhibit "A"; and WHEREAS, would be beneficial to designate by recorded instrument the County's designation of this right-of-way so that the Indian River County Property Appraiser can earmark the property as right-of-way on the appropriate maps, as well as cut out the designated right-of-way from of the Parcel, thus alleviating any potential boundary issues that may surface in the future. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA that: 1. That portion of the Parcel running along 4151 Street, as described and depicted on the attached Exhibit "A" is hereby formally designated as right-of-way.- and 2. This resolution shall be recorded in the Public Records of Indian River County, Florida; and 3. Upon the recordation of this resolution, the Indian River County Property Appraiser is instructed to cut out the designated right-of-way as depicted and described on the attached Exhibit "A" from the parcel and accordingly earmark any maps within the Property Appra'iser's Office to reflect this designation. 14.4, FAPublic Works\ENGINEERING DIVISION PROJECTS\1359-41 at St—USI Lela Tum Lane\Admin%genda Hems\1359 Resolution ROW '11-15-16.doc RESOLUTION NO. 2016 - The foregoing resolution was offered by Commissioner who moved its adoption. The motion was seconded by Commissioner and, upon being put to a vote, the vote was as follows: Chairman Bob Solari Vice -Chairman Joseph E. Flescher Commissioner Wesley S. Davis Commissioner Tim Zorc Commissioner Peter D. O'Bryan The Chairman thereupon declared the resolution duly passed and adopted this day of 2016. BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA By Attest: Jeffrey R. Smith, Clerk of Court and Comptroller By: Deputy Clerk Approve s to for and al E iency: Dylan Reingold, County Attorney Bob Solari, Chairman 147 EAPublic Works\ENGiNEER[NG DPd1S10N PROJECTS\1359-41st St_US1 Left Tum Lane\Adminlagenda items11359 RCSOlutiou ROW 11-15-16.doe &E:OFtCP,.TsdN: THE NORTH 50.00 FEET OF THE SOUTH 75.00 FEET OF THE FOLLOWING: THE NORTH 587.70 FEET OF THE SOUTH 612.70 FEET OF THE NORTHWEST 114 OF SECTION 26, TOWNSHIP 32 SOUTH, RANGE 39 EAST, LYING WEST OF THE FLORIDA EAST COAST RAILWAY, LESS THE WEST 1290.00 FEET THEREOF, LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA. THE ABOVE DESCRIBED PARCEL BEING A PORTION OF THAT CERTAIN LAND RECORDED IN OFFICIAL RECORDS BOOK 1408, PAGE 1670 AT PAGE 1671, INDIAN RIVER COUNTY, FLORIDA. SUBJECT TO ALL EASEMENTS, RESERVATIONS, RESTRICTIONS AND RIGHTS OF WAYS OF RECORD. SAID PARCEL CONTAINING 29,677.53 S.F. SURVEYOR'S NOTES: 1. UNLESS IT BEARS THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER, THIS DRAWING, SKETCH, PLAT OR MAP IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT VALID. 2. NO SEARCH WAS MADE OF THE PUBLIC RECORDS BY THIS FIRM OR SURVEYOR FOR RIGHTS-OF-WAY, RESERVATIONS, EASEMENTS AND RESTRICTIONS OF RECORDS. 3. ANY EXISTING IMPROVEMENTS, FOUNDATIONS AND UNDERGROUND UTILITIES WERE NOT OBSERVED OR RECORDED FOR THIS SKETCH AND DESCRIPTION. 3. BEARINGS SHOWN HEREON ARE BASED UPON THE NORTH AMERICAN DATUM OF 1983, ADJUSTMENT OF 2007, AND ARE PROJECTED IN THE FLORIDA STATE PLANE COORDINATE SYSTEM, FLORIDA EASTZONE (901) AND ARE REFERENCED TO THE ESTABLISHED AND MONUMENTED UNE SHOWN HEREON LABELED AS THE "BEARING BASIS'. 4. THIS MAP IS A SKETCH AND DESCRIPTION ONLY. A BOUNDARY SURVEY WAS NOT PERFORMED TO DELINEATE THE BOUNDARY LIMITS OF THE DESCRIBED PARCEL 6. 6. THE DESCRIPTION SHOWN HEREON WAS DEVELOPED BY THE PROFESSIONAL SURVEYOR AND MAPPER WITH THE AID OF THE PROJECT ENGINEER'S CONSTRUCTION IMPROVEMENT PLANS FOR 41st STREET, INDIAN RIVER COUNTY PROJECT #1359, CAI PROJECT %84E. 7. THIS SKETCH AND DESCRIPTION IS COMPRISED OF 2 PAGES. ONE IS NOT VALID WITHOUT THE OTHER. LEGEND (P) PLAT DATA O.R.B. OFFICIAL RECORD BOOK SID SUBDIVISION R.O.W. RIGHT OF WAY I.R.C. INDIAN RIVER COUNTY 1D IDENTIFICATION FL. FLORIDA PG. PAGE ® PARCEL NUMBER DESIGNATION 0 CERTIFIEDT& Y IWAN RIVER COUNTY °` ` ;t= `•' •`r . FRAN CUCCURESE 'FL. PSM476li ":' Cav he •: ..L8.205 SIGNATUREfE��<p ' (V 111 """"""' CARTERASSOCUM,INC. PML SKETCH AND DESCkIPTION SHEET PART OF NORTHWEST 1f4 OF CONSULTING ENGINEPsRS AND LAND SURVEYORS ,�V. , FOC SECTION 25, TWP 32 S., ROE 39 E Of 2 1708 21st STREET, VERO BEACH, FL 32960 prer a : FmtO . INDIAN RIVER COUNTY, FLORIDA TEl: (rr2) eez�tct FAX M602-7180 Rff.f :14-M PARCEL 2 t4A _ N JdON PLACE. VERO BEACH ` I ASS. 18x0' � 11 N 15' 15'32" W >o$ POUNM 4' bLTE f 7m18A� �9�b674" 3 � /fes 1 ao U)m Z U) �is de I za 0 Q I. H vi o to O `uj Q o „tt -N t�0 (ry4 a N og i � a NN O . ZN rnQ��,�,. ZN U. O C-i d1 0 U I 00 ~f~7 p N Lij LU N U W ; z Qpm O Q Ln 0 n Z O -0 V) to a .3o sa scar (I hmh so Feev 0 E HO Z LEGEND13ASFLNIC CM1N ULh ff (P) PLAT DATA O.R.B. OFFICIAL RECORD BOOK JI SID SUBDIVISION R.O.W. RIGHT OF WAY I.R.C. INDIAN RIVER COUNTY FOUJ0 10 IDENTIFICATION NUMENT 4a 'PmeETE�isea7 a_j ROUND FL FLORIDA NORTH coNcn�47e' zuu+ P 'PRS+ U9 6874' PG. PAGE 60.0 1 1 D700 LOT NUMBER DESIGNATION OF SOUTH.0' � O.R.B. 1048,I( R.1.16m AT PAGE 1872 $ VOO'l- W 50.00' CAWMASSOCIATES.INC . MU.0 pAum>o� SKETCH AND DESCRIPTION SHEET g CONSULTING ENG24E M AND LAND SURVEYORS O AriN5y` rsc PART OF NORTHWEST 114 OF SECTION 26, TWP U S., RGE N E 2 of 2 1708 21st STREET, VERO BEACH, FL 32880 FU)TSY : FrtlGao..w INDIAN RIVER COUNTY, FLORIDA TEL: (772) 982 191 FAX (772) 892 7190 REF.f , IWM F.aarn . t�8e PARCEL 2 wu.s fp/16A INDIAN RIVER COUNTY, FLORIDA PUBLIC WORKS DEPARTMENT - TRAFFIC ENGINEERING DIVISION INTER -OFFICE MEMORANDUM DATE: November 2, 2016 TO: Jason E. Brown, County Administrator THROUGH: Richard B. Szpyrka, P.E., Public Works FROM: Kimberly Graham, P.E., County Traffic SUBJECT: Work Order No. 2, Carter Associates, Inc. Intersection of 21' Street SW and 27th Avenue Mast Arm Traffic Signal Design DESCRIPTION AND CONDITIONS On November 15, 2011, the Board of County Commissioners approved the Continuing Contract for Professional Services with Carter Associates, Inc. and on November 4, 2014, approved an Extension and Amendment of the Continuing Contract. Based on a traffic signal warrant study at the .intersection of 21' Street SW at 27' Avenue the Traffic Engineering Division (Traffic) recommends the installation of a mast arm traffic signal at the intersection. Attached please find Work Order No. 2 for Carter Associates, Inc. to provide design services for the construction of a mast arm traffic signal and associated improvements including pedestrian facilities at the intersection of 21" Street SW and 27"h Avenue. The purpose of Work Order No. 2 is to provide design services to improve the safety and operation of the intersection of 21" Street SW and 27t1i Avenue. The proposed improvements consist of the installation of a mast arm traffic signal, pedestrian crosswalks and curb ramps, including sidewalk ramps, associated signage and pavement markings. The County is responsible for the collection of all necessary survey work and data. Work Order No. 2 is for a lump sum amount of $32,445.00 FUNDING Funding is budgeted and available from the Optional Sales Tax/21" Street and 27" Avenue account (315214441-.066510-17002). RECOMMENDATION Staff recommends approval of Work Order No. 2 to Carter Associates, Inc. authorizing the above- mentioned professional services as outlined in the attached Scope of Services and requests'the Board to authorize the Chairman to execute attached Work Order No. 2 on their behalf for a total lump sum amount of $32,445.00. ATTACHMENTS Work Order No. 2 DISTRIBUTION Carter Associates, Inc. Indian River Co A rov .V,. BY: Admin Jason E. ro , County inistrator Legal ItBud et De artmentFOR: vember 15, 201.6 Risk Mana er 1M CARTER ASSOCIATES, INC. UUNSULTING ENGINEERS AND LAND SURVEYORS 1708 21st STREET • VERU BEACH, FLORIDA 32%0-3472.172-562-4191 • 772-562.7180 (FAX) JOHN H. BLUM, P.E., PRINCIPAL DAVID E. LUETHJE, P.S.M., PRINCIPAL GEORGE A. SIMONS. P.E., PRINCIPAL PATRICK S. WALTHER,P.E.. PRINCIPAL MARVIN E. CARTER, P.S.M.; C6n5t111201 to the Firm DF,AN F. LUETHJE. P.E.. ac&a n Consullnnt to the Firm October 17, 2016 Kimberly Graham, P.E. County Traffic Engineer Indian River County 1801 27th Street, Bldg. A Vero Beach, FL 32960 Re: Signalization of 27th Avenue and 21St Street SW Intersection Professional Engineering Services Agreement Dear Kimberly: FRANK S. CUCCURESE, P.S.M. CLINTON J. RAHJES, P.E. STEVE D. SNOBERGER. P.E. OCT 1 ? 2016 Carter Associates, Inc. (CAI) is pleased to present this proposed agreement for professional engineering services relative to the design of mast arm tmffc signals, pedestrian crossings and appurtenances at the intersection of 27th Avenue and 211s' Street SW; in Indian River County, Florida. The CAI team includes sub -consultants for signalization design and geotechnical services. McMahon Associates, Inc. and KSM Engineering and Testing, Inc., respectively. The following describes our proposed scope of services and terms of agreement between CAI and Indian River County (COUNTY): Part 1. Preliminary Engineering: o The COUNTY will provide CAI with a topographic survey which will include elevations, above ground features and right-of-way for a distance of 200' north, south, east and west of the intersection. The survey will include horizontal location of edges of roads, sidewalks, curbs, gutters, pavement markings, surface features of utilities, signage, existing poles, landscaping trees and features within the project limits and within the right-of-way. The COUNTY will provide CAI with an electronic file of the survey drawing in AutoCad. The survey will be utilized as the base drawing for the design of proposed improvements. • The COUNTY will coordinate buried utility locates through "Sunshine One Call". The buried utility locates will be surveyed by the COUNTY and shown on the base drawing. CAI will identify conflicts and coordinate conflict resolution. • CAI will prepare preliminary design drawings for crosswalks on all four approaches including improvements to sidewalks, curb ramps, pavement markings and signage. • CAI's sub -consultant, McMahon Associates, Inc., will prepare preliminary plan view signalization design drawings incorporating mast arms and appurtenances. CAI- will submit the preliminary drawings to COUNTY staff for review, comment, and approval of the preliminary layout. Since 1911 N:\PS'%\P\16-72E IRC 27th Ave and 21st St Swroposal 10-17-2016.doc Page 1 of 3 1152 Part 2. Design Development: • CAI will meet with COUNTY staff to go over review comments prior to proceeding with design development. • CAI's geotechnical sub -consultant, KSM Engineering and Testing, Inc., will conduct the required geotechnical investigation needed for the design of mast arm foundations. • The CAI team will prepare final design development drawings including details and specifications. • CAI will prepare an opinion of probable construction costs. • CAI will submit final design development drawings to COUNTY staff for review and comment. Part 3. Final Construction Pians: -• CAI will address the COUNTY'S review comments and proceed with the preparation of final construction drawings and specifications. o CAI will update the opinion of probable construction costs. m CAI will submit deliverables to the COUNTY. Final Deliverables to include five (5) paper "hardcopy" signed and sealed sets of plans, Autocad drawing file in release 2013, PDF formats and other pertinent documents. All electronic files to be provided on CD. Assumptions: In developing this proposal, CAI represents to the COUNTY that the following assumptions have been made and that deviation from these assumptions may require additional services and expenditures by CAI that will require additional compensation from the COUNTY: 1. Design and permitting of adjustments to existing water main, sanitary sewer or other utilities that are in conflict with proposed improvements are not included. 2. The existing right-of-way will accommodate the proposed improvements. No additional right-of-way or easements will be required. 3. The project area of development does not contain jurisdictional wetlands or threatened species. 4. The existing north -south crosswalks on the east and west sides of 27th Avenue will remain as striped. New crosswalks will be constructed running east -west on both north and south sides of 21 st St SW. 5. The, proposed scope does not 'include roadway modifications or lane additions. CAI will coordinate the placement of the mast arm on the northeast corner so that the addition of a right turn lane in the future will not conflict with the proposed mast arm. 6. Bidding the project for construction is not included. The COUNTY will handle bidding the project. 7. Construction Phase Services are not included but can be provided as an additional service. Serving -ASuice 1911 N:\PSW\P\16-72E IRC 27th Ave and 21st St SW\Proposal 10-17-2016.doc Page 2 of 3 .153 General: CAI will generally bill the COUNTY monthly for the previous month's charges. All tasks will be invoiced on a percentage complete/lump sum basis including expenses. Should additional services be required, a separate written agreement will be prepared. CA.I's fees are summarized as follows: Part 1 Preliminary Engineering.......................................................$3,620.00 Part 2 Design Development.........................................................$3,545.00 Part 3 Final Construction Plans ............................................:.......$3,0$0.00 CAI Total = $10,245.00 McMahon Associates, Inc. fees are summarized as follows (Reference attached proposed agreement from our sub -contractor McMahon Associates, Inc. dated September 20, 2016.): Signalization Plans...............................:..................................$21,000.00 McMahon Total — $21,000.00 KSM Engineening and Testing, Inc. fees are summarized as follows (Reference attached proposed agreement from our sub -contractor KSM Engineering and Testing, Inc., dated September 23, 2016.): Geotechnical services...................................4..............................$1,200.00 . KSM Total — $1;200.00 GRAND Total = $32,445.00 CAI looks forward to furnishing the services described herein. Our Man-hour/Fee estimate is attached as Exhibit "A" for your use. 'Should you have any questions regarding our proposed scope of work or terms of agreement, please feel free to call me at your convenience. Sincerely, CARTER ASSOCIATES, INC. Patrick S. Walther, P.E. Principal/ Project Manager Attachments o§!- vnA �0otida Since 1911 I . h:\PSW\P\16-72E fRC 27th Ave and 21st St. MProposal 10-17-2016.doc Page 3 of 3 1�4 L 65 C 1.55 0 0 0 0 0 O 'C 0 0 0 0 O O O O p O O O O O O O Q O O O O O O O S oco_oo kr; C5 , , I .0000 C O1 N O N O� O m .-- e} °1 N — ID 00 v1 N M'ID e} 6 6e iA�� M 6e 669 M_ be N 69. E5 fin 64 69 69 � O 6A O O O p O p Q fA 69 EP 0 N N CV N b0 v O 3 C. ,c � o o tz. o v_ � o qo U •� O' p O Q O O N O N O O O O N Q a o 0 0 0 o c o o a a o 0 0 aDD m -'' N �t er N fV 1.55 EnvivA a INQ.77-479! Wh''�NS&8 September 20, 2016 VIA E-MAIL Mr. Patrick S. Walther, P.E. Carter Associates, Inc. 1708.21st Street Vero Beach, Florida 32960 RE 271h Avenue SW at 21st Street SW Signal Design Plan McMahon Project No. N16628.01? Dear Pat: McMAHON ASSOCIATES, INC. 2090 Palm Beach Lakes Boulevard, Suite 400 West Palm Beach, FL 3.3409 p 561-340-8650 I f 561-840-8590 PRINCIPALS Joseph W. McMahon, P.E_ Joseph J. DeSantis, P.E., PTOE John S. DePalma William T. Steffens Casey A. Moore, P.E. Gang R. McNaughton, P.E., PTOE ASSOCIATES John J. Mitchell, P.E, Christopher J. Williams, P.E. R. Trent Ebersole, P.E. Matthew M. Kozsuch, P.E. Maureen Chlebek, P.E., PTOE Dean A. Carr, P.E. McMahon Associates, Inc. (McMahon) is pleased to provide this proposal for traffic engineering services associated with the proposed improvements at the intersection of 271h Avenue SW with 211, Street SW, in Vero Beach, Florida. Specifically, this proposal is for services to prepare signal design plans for the intersection of 271s Avenue SW with 21st Street SW (project intersection). This proposal is based on the assumption that all project baseline geometry, existing and proposed right- of-way, topographic, geotechnical, and sub -surface utility exploration (SUE) information necessary to complete the design will be provided by Carter Associates, Inc. The existing topography information will include existing above ground features and elevations for a minimum distance of 200' in the north, south, east and west direction of thestudy intersection. Field survey data, to be provided by Carter Associates, Inc., must include planimetrie survey delivered in CARD format and shall include horizontal location of edges of roads, curbs, gutters, sidewalks, pavement markings, surface features of utilities, signage, existing poles, landscaping trees and features within the project limits and within all right-of-way. Sufficient data will be provided to establish roadway crown elevations, roadway slopes, and elevations at the base of any new mast arm uprights. In order to provide the proper design for the traffic signal supports, subsurface soil information must be provided by Carter Associates, Inc. Soil borings will be obtained in the field by a Geotechnical Engineer, at all comers of the study intersection. The geotechnical information will be analyzed, and the project Geotechnical Engineer will provide a standard report. This information will be utilized for the design of proposed traffic signal mast amt supports and their foundations. MCM.AHON F Engineering ,.1 Planning I Design I Technology mcmahonassociates.com 156 Patrick S. Walther, P.E. September 20, 2016 Page 2 of 5 McMahon will coordinate with the existing utility owners within the project corridor to receive information to show the existing utilities on the signalization plan, as outlined in the Scope of Work section below. If right-of-way or other project constraints dictate that a proposed mast arm base be placed in the vicinity of an existing underground utility, then Carter Associates, Inc. will provide the sub -surface utility exploration (soft dig) necessary to identify the utility conflict. If additional right-of- way or easements are required for the proposed signal equipment locations, Carter Associates, Inc. will obtain the necessary agreements. This proposal also assumes that all other roadway design work, such as sidewalk, curb and gutter, curb ramps, and signing and pavement marking plans will be completed by Carter Associates, Inc. Signal design plans, prepared by McMahon, will be provided for inclusion in the Carter Associates, Inc. design plan set for submission to the County. The Scope .of Work includes the following tasks: SCOPE OF WORK TASK 1— TRAFFIC SIGNAL DESIGN AND PLANS PREPARATION The signalization plans will be prepared in conformance with State and Federal guidelines regarding traffic signal design in conjunction with any roadway improvements proposed along 2711, Avenue SW and 216{ Street SW. The various tasks required in conjunction with the development of the traffic signal plans are as follows: A. Signalization Plan — The signalization plan will be prepared in Microstation, in a standard plan format of 11" x 17", and at a scale of 1" = 40'. Basic information presented on the plan shall include, but shall not be limited to, roadway geometry, pavement markings, traffic regulatory signs, street names, construction stationing, drainage inlets, sidewalks, right-of- way lines and conflicting underground and overhead utilities. This information will be required to ascertain the location for the proposed mast arms, and traffic and pedestrian signal related equipment. Detailed information will include signal head type and locations, pedestrian signal and detector type and locations, signal pole locations, regulatory signs, and other appropriate details. McMahon will coordinate with the appropriate governmental agencies to ensure that the signal hardware is compatible with other signals along the corridor, and in Broward County. The fee does not include costs for designing utility relocation plans. McMahon will, however, send one (1) set of plans to each affected utility company in order to obtain current utility M Pafrick S. Walther, P.E. September 20, 2016 Page 3 of 5 information to be included on the plans. McMahon will make every effort to design the traffic signal to avoid any existing utilities. If utility relocation is necessary, the utility relocation design and plans can be created under a supplemental work agreement. B. Fiber Optic Network Plan - McMahon will coordinate with Indian River County to determine the County's interconnect needs. If necessary, a Fiber Optic Network plan sheet will be included in the plan set. C. General Note Sheet — A general construction note sheet will be prepared, and will be included with the plan set package. The general notes will include general construction information, utility operation data, maintenance of traffic information, and reference to standard or special construction details/notes as required by Indian River County. D. Quantities Sheet — The quantities sheet will include a tabulation of items, description and quantity of materials, and type of work for the location. Specific notes referencing pay items or indicating special design information will also be indicated. E. Mast Arm Detail Sheets — For purposes of this proposal, it is assumed that the mast arm design will be in conformance with the FDOT Mast Arm Assemblies Indices. The Mast Arm Detail sheets will include the tables showing the mast arm pole and arm designations, as well as the signal and sign data for each mast arm structure. F. Guidesign Detail Sheets — The Guidesign detail sheets will include information for the internally illuminated street name signs that will be mounted on the mast arms. For purposes of this proposal, it is assumed that two (2) different street name legend signs will be required. G. Mast Arm Analysis — The mast arm will be designed and analyzed with Mathcad using the FDOT Mast Arm data files. Any deviations from the FDOT standard mast arm criteria will be detailed in the Special Drilled Shaft section of the Standard Mast Arm Assemblies Data Table and \ or a Special Mast Arm Assemblies Data Table, if required. For the purposes of this proposal, it is assumed that four (4) mast arms will be required. . The services to be performed pursuant to this agreement are strictly limited to those expressly set forth herein. FEE The lump sum fee for the above-mentioned services is $21,000.00, including expenses. If additional services are required that exceed those identified in this Scope of Work, a supplemental agreement will be submitted to the client for review and approval prior to the commencement of any additional tasks. Additional services will commence upon written authorization to proceed by the client. 1S$ Patrick S. Walther, P.E. September 20, 2016 Page 4 of 5 SCHEDULE We are prepared to initiate work on the project upon receipt of written authorization to proceed. McMahon will use its best efforts to complete this work in accordance with the client's meeting schedule. TERMINATION This agreement may be terminated by the authorized representative effective immediately on receipt of written notice. Payment will be due for services rendered through the date written notice is received. BINDING STATUS The client and McMahon Associates, Inc. bind themselves, their partners, successors, assigns, heirs, and/or legal representatives to the other party to the Agreement, and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of the proposal. TERMS The terms of this Agreement call for execution of this contract. Invoices for services will be submitted monthly and are payable within 30 days of issuance. All invoices not paid within 30 days are subject to a 1.5% monthly interest charge, and all projects with overdue balances exceeding 90 days will be subject to a stoppage of all work. Any changes in the specific Scope of Work described above will result in an adjustment of the conditions and fees. All invoices not paid within 30 days are subject to a 1.5% monthly interest charge. All projects with overdue balances exceeding 90 days may be subject to a stop work notice until such time as the outstanding invoices are pard in full. This agreement (and Exhibits, if any) hereto sets forth the entire understanding between the parties with respect to the subject matter hereof, supersedes any and all prior understandings whether written or oral with respect to the subject matter hereof and may not be altered, modified, changed, amended or waived in any manner, except in writing signed by all of the parties hereto. The fee quoted above is valid for a period of 90 days from the date of this proposal. If the terms of this contract, as contained herein; are agreeable to you, please execute it below in the space provided and return one (1) signed original and the above referenced retainer to me. If you have any questions or require further information, please feel free to contact me. We greatly appreciate the opportunity to present our proposal on this project and look forward to working with you. U Patrick S. Walther, P.E. September 20, 2016 Page 5 of 5 Sincerely, R. Trent Ebersole, P.E. Vice President & General Manager — Florida RTE:JDH/arnp Attachments Accepted for Carter Associates, Inc. By: (Signature of Authorized Representative) (Printed Name of Authorized Representative) Title: Date: Please Movide your Accounts Pa able contact information. Name: Phone Number: E-mail Address: In the space below, please provide any details, including the date invoices are due each month for prompt payment: F: \ FL\ 16628N_CarterL,27thAve-21 stSt_Signal \ 16623N_OPN Proposal \ Proposal_PW_092O16.docx ib6 MCMAHON ASSOCIATES, INC. STANDARD PROVISIONS FOR PROFESSIONAL SERVICES JANUARY 1, 2016 SERWCES McMahon Associates, Inc. reserves the right to make adjustments for individuals within these classifications as may be desirable in its opinion by reason of promotion, demotion, or change in wage rates. Such adjustments will be limited to the manner in which charges are computed and billed and will not, unless so stated in writing, affect other terms of an agreement, such as estimated total cost. The following rates will apply to actual time devoted by McMahon Associates, Inc. staff to this project computed to the nearest one-half hour. PERSONNEL HOURLY RATES Principal $250.00 Senior Associate $240.00 Associate $225.00 Senior Engineer/PlannerVIII $210.00 Senior Engineer/Planner VII $200.00 Senior Engineer/Planner VI $195.00 Senior Engineer/Planner V $190.00 Senior Engineer/Planner IV $180.00 Senior. Engineer/Planner III $170.00 Senior Engineer/Planner 11 $160.00 Senior Engineer/Planner I $150.00 Chief of Surveys $140,00 Traffic Control/Construction Specialist $135.00 Party Chief $120.00 Engineer VI $140.00 Engineer V neer Eng N $125,n Engineer III $120.00 Engineer II $110.00 Engineer 1 $105.00 Technician/Word Processor IV $ 95.00 Technician/Word Processor III $ 90.00 Technician/Word Processor 11 $ 85.00 Technician/Word Processor I $ 60,00 Survey Technician $ 75.00 Field Traffic Count Personnel $ 50.00 TERMS 1. Invoices - Invoices will be provided on a monthly basis and will be based upon percentage of completion or actual hours, plus expenses. Payment is due to McMahon Associates, Inc. within 30 days of the invoice date. Unpaid balances beyond 30 days are subject to interest at the rate of 1.5% per month. This is an annual percentage rate of 18%. 2. Confidentiality - Technical and pricing information in this proposal is the confidential and proprietary property of McMahon Associates, Inc. and is not to be disclosed or made available to third parties without the written consent of McMahon Associates, Inc. 3. Commitments - Fee and schedule commitments will be subject to renegotiation for delays caused by the client's failure to provide specified facilities or information, or any other unpredictable occurrences. 4. Expenses - Automatic Traffic Recorder equipment usage will be billed at $25.00 per 24-hour count. Incidental expenses are reimbursable at cost, plus an administration fee of 10%. These include subgonsultants, reproduction, postage, graphics, reimbursement of automobile usage at the IRS -approved rate, parking and tolls. Expenses which by company policy are not billed as reimbursable expenses to clients and therefore, will not be billed as part of this contract include the following: air travel, rental car, lodging, meals, and long distance phone charges between McMahon Associates offices. If it becomes necessary during the course of this project to travel elsewhere, those travel costs will be treated as reimbursable expenses. These expenses will be reflected in the monthly invoices. 5. Attorney's Fees - In connection with any litigation arising from the terms of this agreement, the prevailing party shall be entitled to all costs including reasonable attorney's fees at both the trial and appellate levels. 6. Ownership and Use of Documents - All original drawings and information are to remain the property of McMahon Associates, Inc. The client will be provided with copies of final drawings and/or reports for information and reference purposes. 7. Insurance - McMahon Associates, Inc. will maintain at its own expense Workman's Compensation Insurance, Comprehensive General Liability insurance and Professional Liability Insurance and, upon request, will furnish the client a certificate to verify same. 8. Termination - This agreement may be terminated by the authorized representative effective immediately on receipt of written notice. Payment will be due for services rendered through the date written notice is received. 9. Binding Status - The client and McMahon Associates, Inc. bind themselves, their partners, successors, assigns, heirs, and/or legal representatives to the other party to this Agreement, and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of chis Contract. I:1adna1GENERALWSC12016 RattMtndprv0120 January 2016.docx 6 KELLER, SCHLEICHER & MacWILLIAM ENGINEERING AND ET sSATNING, INC. MARTIN (772) 337-7755 P.O. BOX 78-1377, SEBASTIAN, FL 32978-1377 MELBOURNE (321) 768-8488 PALM BEACH (561) 845-7445 www.ksmengineering.net LUCiE (772) 229-9493 FAX (561) 845-8876 E -Mail: KSMST. KSMENGINEERING.NET FAX (72) 589-6469 C.A.: 5693 September 23, 2016 Patrick Walther c/o. Carter Associates,lnc. 1708 21 st Street Vero Beach, Florida' 32960 Re: 21St Street SW & 27th Avenue Proposed Traffic Light Mast Arm Iodlan River County, Florida Dear Mr. Walther: Thank you for the opportunity to submit a proposal to perform -geotechnical engineering services in the way of soil borings for the referenced project. Our services shall consist of the following: A. Perform two (2) soil borings to a depth of 30 feet at the comers of the intersection in accordance with ASTM Standards described in ASTM 01586, known as the Standard Penetration Test (SPT). B. Provide a report covering the investigation including the boring logs illustrating the soil classification, thickness of each layer, number of blows per foot (N Value), groundwater depth, and recommendations for site preparation with an allowable bearing capacity of the soil. The specified investigation shall be completed along with two (2) copies of our report mailed to your office .after written authorization to proceed is received. Ronald G. Keller, P.E.: 37293 / SI Lic. No.: 660 / Julie E. Keller, P.E : 68366 10 .k KELLER, SCHLEICHER & MacWILLIAM ENGINEERING AND TESTING, INC. MARTIN (772) 337-7755 PO. BOX 78-1377 SEBASTIAN, FL 32978-1377 SEBASTIAN (772) 589-0712 PALM BEACH (561) 845-7445 www.ksmengineering.net MELBOURNE (321) 768-8488 FAX (561) 845-8876 E -Mail: KSM@KSMENGINEERING.NET ST. LUCIE (772) 229-9093 CA.: 5693 FAX (772) 589-6469 21 st Street SW & 27t" Avenue -2- September 23, 2016 Proposed Traffic Light Mast Arm Indian River County, Florida Our fee for the geotechnical investigation and engineering services, including the furnishing of all material and labor necessary for the soil borings, laboratory testing, preparing and submitting boring logs and report shall be twelve hundred dollars ($1,200.00). This cost is predicated on the site being accessible to our drill -rig and boring locations being provided by others. Customer is responsible for marking any underground utilities. The above fee is based on the site being accessible and one mobilization fee. We took forward to working with you on this project. utie E er, P.E. f fill(dent JEK/Ics Accepted this Signature Printed Name day of , 2016, by A[I invoices are due upon receipt. Invoices over thirty days late will 'be charged a 1.5% late fee. Ronald G. Keller, P.E.: 37293 / SI Lic. No.: 860 / Julie E. Keller, P.E.: 68366 163 • WORK ORDER NO.2 (ENGINEERING) FOR PROFESSIONAL CIVIL ENGINEERING SERVICES AGREEMENT WITH CARTER ASSOCIATES, INC. PROJECT: 2711 Avenue and 2111 Street SW Intersection - Signalization Improvements Indian River County Project No. 1643 This Work Order No. 2 is in accordance with the existing AGREEMENT dated November 15, 2011 as amended November 4, 2014 between Carter Associates, Inc, (ENGINEER) and Indian River County (COUNTY). This Work Order No. 2 amends the Agreement as follows: SECTION I — SCOPE OF SERVICES This Work Order No. 2 is for the ENGINEER to perform professional engineering services for the design of signalization improvements at the intersection of 271h Avenue and 21St Street SW. As agreed upon between ENGINEER and COUNTY, the ENGINEER shall provide professional • services to complete all tasks as outlined in the Work Order No. 2; specifically detailed in the attached proposal dated October 17, 2016, Exhibit A. SECTION II — TIME FOR COMPLETION & DELIVERABLES/WORK PRODUCT 1. Project shall be completed as follows: a) Within 90 calendar days of Notice to Proceed. b) Time of FINAL project completion shall be within 30 calendar days of receipt of the County's review comments from the 100% "Paper Submittal". 2. Deliverables — The ENGINEER shall provide the COUNTY: a) As defined in the attached proposal and scope of services (Exhibit A). b) 60%, 90% and 100% submittals shall include 3 sets of plans, 1 original Cost Estimate. c) FINAL Deliverables, five (5) paper "hardcopy" signed and sealed plans (I.E. Borders). Sheeted and model space (as applicable) AutoCad drawing file in release 2013, PDF formats, reports, and other pertinent documents in adequate • recording fashion. All electronic files to be on CD. Carter Work Order No 2C:\Users\jwilliams\AppData\Local\Microsoft\Windows\Temporary Intemet Files\Content.Outlook\DA3K8007\Carter Work Order No 2.docxI Pagel of 3 At�-3-/ SECTION III — COMPENSATION The COUNTY agrees to pay, and the ENGINEER agrees to accept a lump sum/amount of $32,445.00 for the above described services rendered as identified in Sections, II, and III of the Work Order No. 2. !` All and/or any additional services not described hereon shall be pre-appf'o'ved by the COUNTY. Approved additional services shall be invoiced at the rates disclosed in the approved fee schedule with the ENGINEER. All invoicing shall include Project Number 1643 and Work Order No. 2 (WO 2). Payments shall be in accordance with the original Continuing Contract Agreement for Professional Services, dated November 15, 2011 with the COUNTY and as stated/in Section I, II, and III hereon. The AGREEMENT is hereby amended as specifically et forth herein. All remaining sections of the AGREEMENT shall remain in full force and effa t, and are incorporated herein. [The remainder of this page was left blank intentionally.] Carter Work Order No 2C:\Users\jwilliams\AppData\L.ocal\Microsoft\Windows\Temporary Internet Files\Content.Outlook\DA3K8007\Carter Work Order No 2.docx2 Page 2 of 3 • • • 1, SECTION III — COMPENSATION The COUNTY agrees to pay, and the ENGINEER agrees to accept a lump sum amount of $32,445.00 for the above described services rendered as identified in Sections I, II, and III of the Work Order No. 2. All and/or any additional services not described hereon shall be pre -approved by the COUNTY. Approved additional services shall be invoiced at the rates disclosed in the approved fee schedule with the ENGINEER. All invoicing shall include Project Number 1643 and Work Order No. 2 (WO 2). Payments shall be in accordance with the original Continuing Contract Agreement for Professional Services, dated November 15, 2011 with the COUNTY and as stated in Section I, II, and III hereon. The AGREEMENT is hereby amended as specifically set forth herein. All remaining sections of the AGREEMENT shall remain in full force and effect, and are incorporated herein. [The remainder of this page was left blank intentionally.] Carter Work Order No 2C:\Users\jwilliams\AppData\Local\Microso8\Windows\Temporary Internet Files\Content.Outlook\DA3K8007\Carter Work Order No 2.docx2 Page 2 of 3 16'3 �- :7 0 IN WITNESS WHEREOF the parties hereto have executed these presents this day of 2016. OWNER BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Bob Solari, Chairman Approved by BCC. A'T'TEST:. Jeffrey -R. Smith, Clerk of Circuit Court and Comptroller Deputy Clerk Approved as to Form and Legal Sufficiency: Dyldn Reingold, COUNTY Attorney Jason Administrator Carter Associates, Inc. ill Patrick S. Walther, P.E., Principal Witnessed by: (Signa ure) (Prin` d name) Carter Work Order No 2C:\Users\patw.CAMppData\Local\Microsoft\Windows\Temporary Internet Files\Content.OUtlookUBOZKZVK\Carter Work Order No 2.doex3 Page 3 of 3 INDIAN RIVER COUNTY, FLORIDA PUBLIC WORKS DEPARTMENT - TRAFFIC ENGINEERING DIVISION INTER -OFFICE MEMORANDUM DATE: November 2., 2016 TO: Jason E. Brown, County Administrator THROUGH: Michael Smykowski, Budget Director Illi I Richard B. Szpyrka, P.E., Public Works Director FROM: Kimberly Graham, P.E., County Traffic Engi SUBJECT: Designation of Alpha Technologies as Sole Source Traffic Signal Battery Back -Up Systems L_ BACKGROUND: Indian River County has utilized and evaluated three (3) different brands of battery backup systems specifically manufactured for traffic signals. Based upon the Traffic Engineering Division's experience operating and maintaining the various battery backup systems, the Alpha Technologies, Inc. system has been the most reliable, easiest to maintain, and provided timely and responsive customer service related to technician inquires and the timely turnaround of repairs, if needed. Due to the reasons noted above and to ensure consistency and standardization throughout the system is maintained, the Public Works Department is requesting the Board of County Commissioners declare Alpha Technologies as the sole source manufacturer and provider for all traffic signal related battery back-up systems and authorize the waiver of the requirement for bids for their purchase. This will enable efficient installation and replacement of inventory as required for use in the field. FUNDING: Annual expenditures for signals come from various accounts in Transportation/Traffic Engineering, as well as specific roadway projects, as determined by location and type of work to be completed. RECOMMENDATION: Staff recommends the Board declare Alpha Technologies as the County's sole source provider for all traffic signal battery back-up systems and waive the requirement for bids for their purchase. 11M ATTACHMENT: Alpha Teelmologies Letter v MM AIM ImummLrt�T���Plil 165 T'Hci1NOL081 >!>'"' Date: January 21, 2016 To Whom It May Concern: 7700 Riverfront Gate Burnaby, BC VSJ SM4 . Canada T: 604 436 5900 F: 604 436 1233 www.alpha.ca member of T he alf lilt Group!,., Please accept this letter as the formal notice that Temple Inc. is the Alpha Technologies exclusive Preferred Traffic Distributor for Alpha Technologies line of Traffic Battery Backup systems. This Preferred status includes the sales of Alpha's Traffic BBS products but also the managing of any repair service, warranty repairs and on-site visits as deemed required by Temple or Alpha Technologies. Please contact your Temple Inc. representative for assistance with pricing, availability and technical assistance. Ian Cardozo Temple Inc. Lithia, Florida 941-650-6824 ian.cardozo @ temple-inc. com In addition, please feel free to eontact:Alpha Technologies directly for any technical or service questions. Sincerely, Dennis A Bennett National Manager- Traffic & ITS Alpha Technologies Office: 972-637-3527 Cell: 214-585-1699 Four Power Solations Partner 66 INDIAN RIVER COUNTY, FLORIDA AGENDA ITEM Assistant County Administrator / Department of General Services Date: November 2, 2016 To: The Honorable Board of County Commissioners CONSENT AGENDA Thru: Jason E. Brown, County Administrator From: Michael C. Zito, Assistant County Administrator Subject: Final Payment to SRS Services, LLC — Dunes Course Golf Cart Concrete Path Repairs (IRC Bid No. 2016040 BACKGROUND: On June 14, 2016, the Board approved and entered into an agreement with SRS Services, LLC for improvements to concrete cart paths at Sandridge Golf Course. The work has been completed and the firm has subsequently submitted a request to the Clerk's Finance office for compensation. It has been verified that the payment is properly due to SRS Services, LLC. FUNDING: Funding for final payment in the amount of $1,886.00 is budgeted and available: Account -Number Account_ Description _ Budget Amount _ 418-164044 Golf Course Improvements $1,886.00 RECOMMENDATION: Staff recommends that the Board approve the payment request by authorizing the release of the final disbursement for the agreement in the amount of $1,886.00. ATTACHMENT: SRS Services, LLC, Invoice #2361C-3 dated 10/28/2016 Approved Ageqda Item. E. Brown y Administrator FOR: November 15, 2016 Indian.River County Approved Date Administration KA County Attomey f' !U Budget .- Department Risk Management FAAssistant County AdministratorlAGENDA 1TEMS120161BCC 11 NOVEMBER 20161BCC MEMO - SRS Services LLC Final Payment - Sandridge Golfs Concrete Cart Paths.doe do SRS Services, LLC 16090 Aviation Loop Drive Brooksville, FL 34604 I FederalID# 26-3683152 Florida License # CBC1258154 Bill To Indian River County 1800 27th St Vero Beach, FL 32967 k' Assoaste� SA Invoice -Customer Date !lnvoce#p .4 10/28/2016 2361C-3 Phone: 35 F Fax: 352-593-5867 Ship To 5300 73rd St. Vero Beach, FL 32967 P';O Claim k6r4.. None 2361C'Dunes Golf Course Cart Path Repair Amt Description Prig Ea Amount °Terms, Due Date Shlp Date Ship Via 0,00542 Cart paths as per contract 347,970.4797 1,886.00 Contract 10/28/2016 I0/28/2016 Our Truck None 2361C'Dunes Golf Course Cart Path Repair Amt Description Prig Ea Amount JOB SCOPE - COMPLETE CART PATHS AS PER CONTRACT 0,00542 Cart paths as per contract 347,970.4797 1,886.00 0.000 Change order: 7/19/16 Hole #15 Dunes path adjacent to green. Area to right of path was undermined 6,996.50 0.00 by machinery causing the path to shift and partially collapse CHANGE ORDER August 11, 2016 > Added I T -CPS. (+$6,996.50) Total change to estimate +$6,996.50 v va V4 Look Forwairdho Working MAH You I �I All Paymerrts Received Past The Due Date Are Subject Each Month To A 1-1 /2% Finance Charge Payments/Credits $0.00 Balance Due $1,886.00 1.68 CONSENT INDIAN RIVER COUNTY, FLORIDA MEMORANDUM ? TO: Jason E. Brown, County Administrator THROUGH: Dori Roy, Assistant to County Administratda FROM: Will Rice, Manager, GIS Department �. DATE: November 7, 2016 SUBJECT: 2017.Oblique Aerial Imagery Acquisition Project DESCRIPTION AND CONDITIONS Aerial photographs are used by County staff on a daily basis to provide information on the presence or absence of natural and man-made features and the condition of these features. For the past decade, high resolution vertical orthoimagery has been used by staff in conjunction with Geographic Information Systems (GIS) software for both photo interpretive and planimetric mapping tasks. More recently, a newer type of aerial imagery, oblique aerial imagery, has proved valuable in providing additional information and detail not available in the traditional vertical aerial imagery. Oblique aerial imagery, aerial photographs taken with the camera axis at a side angle, provides side and profile views of features. These oblique or side views frequently provide the additional information needed to visually identify a feature. Also, objects that are not visible in vertical aerial imagery can often be detected and identified using oblique imagery. For example, houses or other structures that are obscured by heavy tree canopy in vertical imagery can often be detected and identified using oblique aerial images. Pictometry International Corporation is a firm that specializes in acquiring high resolution oblique aerial imagery. Pictometry oblique aerial imagery provides the "Birds Eye View" aerial imagery found on the Microsoft Bing website. The Counties in Florida Pictometry currently contracts with include Brevard, St. Lucie, Broward, Palm Beach, and Okeechobee County Property Appraisers. Indian River County has previously contracted with Pictometry in 2011, 2013, 2015, and 2016. Staff is proposing a three year, multi-year contract with Pictometry to .acquire new high resolution oblique and vertical aerial imagery during the three time periods of January 2017, January 2018, and January 2019. The area. of coverage for each aerial imagery flight is 285 square miles and the specific limits of the project are shown in Attachment 1. Each area in the project area would be imaged in 5 different directions, north, south, east, and west, and a vertical view at approximately a 3" ground resolution. Staff is proposing the three year, multi-year contract with Pictometry because of the 15% discount Pictometry is offering with the three year contract. The contract includes a "Non -Appropriation" clause which allows the contract to be suspended for subsequent projects if in subsequent years funding is not approved for the contract. Pagel of 2 169 The specific deliverables for the project are listed in Section A. Imagery deliverables for the project include a digital image library containing the oblique aerial imagery and a single seamless image mosaic created from the vertical imagery. Pictometry has specialized software for viewing and working with the oblique and vertical imagery. Pictometry's software applications include their ConnectExplorer web applications, Connect Mobile applications for tablets and smartphones, and Pictometry's Extension for ArcGIS which allows the County's ArcGIS users to view the Pictometry oblique and vertical directly in their ArcGIS software. A concern of staff is making sure that the oblique imagery, once acquired, is made available and distributed as widely and quickly as possible. Under the terms of the Pictometry license agreement, copies of the above image libraries and software can be made available to all government entities located within Indian River County. Government entities would include all municipal governments and Constitutional Officers including the Sheriff's Department and. Property Appraiser. Due to the fact that we have a historical library of imagery provided by Pictometry, and that Pictometry has a specialized nature of the oblique and vertical image library deliverables and specialized software needed for viewing the oblique imagery, staff is requesting that Pictometry be classified as a "sole source" provider and that the Board of County Commissioners authorize the requirement for bids be waived for this contract. FUNDING The total cost of the three year project is $345,933.00. The agreement allows for the fees to be paid in three annual payments of $115,311.00 each. Funds for the first flight and first year of the project are available in the Fiscal Year 2016-2017 GIS Department budget, Account# 505-103- 166153, RECOMMENDATION Staff requests that the Board of County Commissioners classify Pictometry as the sole source provider, waive the requirement for bids, authorize the execution of the attached contract with Pictometry as described in Section A in the amount of $115,311.001, and requests that the Board authorize the Chairman to sign the attached agreement and related documents. ATTACHMENTS: 1. Map of Aerial Imagery Coverage and Project Limits 2. Agreement between Pictometry International Corp. and Indian River County. 3. Section A — Product Descriptions, Prices and Payment Terms 4. Section B — License Terms 5. Section C — - Non -Standard Terms and Conditions 6. Sector Map — Pictometry Imagery Coverage Map for 285 Tiles ENDA BY: k / '1 .L , V FOR: Nover 1(5, 2016 Page 2 of 2 Indian River Co App;ed Date Administrator Legal Budget G GIS lt, l i Q' Purchasing t $ Risk Mand ement t, pg.. v 1� 176 171 AGREEMENT BETWEEN PICTOMETRY INTERNATIONAL CORP. ("PICTOMETRY") AND INDIAN RIVER COUNTY, FL ("CUSTOMER") 1. This order form ("Order Form"), in combination with the contract components listed below: Section A: Product Descriptions, Prices and Payment Terms Section B: License Terms. • Delivered Content Terms and Conditions of Use • Online Services General Terms and Conditions • Software License Agreement Section C: Non -Standard Terms and Conditions (all of which, collectively; constitute this "Agreement') set forth the entire understanding between Pictometry and Customer with respect to the subject matter hereof and supersedes all prior representations, agreements and arrangements, whether oral or written, relating to the subject matter hereof. Any modifications to this Agreement must be made in writing and be signed by duly authorized officers of each party. Any purchase order or similar document issued by Customer in connection with this Agreement is issued solely for Customer's internal administrative purposes and the terms and conditions set forth on any such purchase order shall be of no force or effect as between the parties. 2. In the event of any conflict among any contract components comprising this Agreement, order of precedence for resolving such conflict shall be, from highest (i.e., supersedes all others) to lowest (i.e., subordinate to all others): Non -Standard Terms and Conditions; Product Descriptions, Prices and Payment Terms; .License Terms in order as listed above under the heading `Section B: License Terms'; and Order Form. 3. All notices under this Agreement shall be in writing and shall be sent to the following respective addresses: CUSTOMER NOTICE ADDRESS PICTOMETRY NOTICE ADDRESS 1800 27th Street 25 Methodist Hill Drive Vero Beach, FL 32960 Rochester, NY 14623 Attn: Will Rice; GIS Manager Attn: Contract Administration Phone: 772-226-1609 Phone: 585 486-0093 Fax: 585 486-0098 Either party may change their respective notice address by giving written notice of such change to the other party at the other party's then -current notice address. Notices shall be given by any of the following methods: personal delivery; reputable express courier providing written receipt; or postage -paid certified or registered United States mail, return receipt requested. Notice shall be deemed given when actually received or when delivery is refused. 4. This Agreement, including all licenses granted pursuant to it, shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns, but shall not be assignable by either party except that (i) Pictometry shall have the right to assign its right to receive Fees under this Agreement, provided no such assignment shall affect Pictometry's obligations hereunder, and (ii) Pictometry shall have the right to assign all its rights under this Agreement to any person or entity, provided the assignee has assumed all of Pictometry's obligations under this Agreement. 5. IN NO EVENT SHALL EITHER PARTY BE LIABLE, UNDER ANY CAUSE OF ACTION OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING UNDER THEORIES INVOLVING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR BREACH OF WARRANTY), FOR ANY LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES SUFFERED BY THE OTHER PARTY OR OTHERS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6. With respect to any claims that Customer may have or assert against Pictometry on any matter relating to this Agreement, the total liability of Pictometry shall, in the aggregate, be limited to the aggregate amount received by Pictometry pursuant to this Agreement. 7. The waiver by either party of any default by the other shall not waive subsequent defaults of the same or different kind. 8. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect. Page I of 17 Indian River County, FL — C170426 20161107 DD -0002-20160318 9. Pictometry shall not be responsible for any failure on its part to perform due to unforeseen circumstances or to causes beyond Pictometry's reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, weather, floods, accidents, strikes, failure to obtain export licenses or shortages or delays of transportation, facilities, fuel, energy, supplies, labor or materials. In the event of any such delay, Pictometry may defer performance for a period of time reasonably related to the time and nature of the cause of the delay. 10. In consideration of, and subject to, payment by Customer of the Fees specified in Section A of this Agreement, Pictometry agrees to provide Customer with access to and use of the products specified in Section A of this Agreement, subject to the terms and conditions set forth in this Agreement. Customer hereby agrees to pay the Fees specified in Section A of this Agreement in accordance with the stated payment terms and accepts and agrees to abide by the terms of this Agreement. This Agreement shall become effective upon execution by duly authorized officers of Customer and Pictometry and receipt by Pictometry of such fully executed document, such date of receipt by Pictometry being the "Effective Date." PARTIES: CUSTOMER PICTOMETRY INDIAN RIVER COUNTY FL PICTOMETRY INTERNATIONAL CORP.' entity Type) a Delaware co oration SIGNATURE: SIGNATURE: NAME: NAME: TITLE: I TITLE: DATE: EXECUTION DATE: ---+DATE OF RECEIPT EFFECTIVE DATE): Page 2 of 17 Indian River County, fL — 0170426 20161107 DD -0002-2016031 8 SECTION A Pictometry International Corp. 25 Methodist Hill Drive Rochester, NY 14623 BILL TO Indian River County,FL Will Rice, GIS Manager 1800 27th Street Vero Beach, FL 32960 772-226-1609 write ire ov.com ID PRODUCT DESCRIPTIONS, PRICES AND PAYMENT TERMS SHIP TO Indian River County,FL Will Rice, GIS Manager 1800 27th Street Vero Beach, FL 32960 772-226-1609 writ a)irc ov.com ORDER4 C170426 A116541 I CDeca I Anneal FIRST PROJECT QTY PRODUCT NAME PRODUCT DESCRIPTION LIST PRICE DISCOUN ' AMOUNT PRICE 285 IMAGERY- Product includes: 3 -inch GSD oblique frame images (4- $450.00 $382.50 $109,012.50 NEIGHBORHOOD - 4 -way way), 3 -inch GSD orthogonal frame images, 1 -meter GSD (NS) (3in) Per Sector ortho mosaic sector tiles and one area -wide 1 -meter GSD mosaic (ECW format). Orthogonal GSD: 0.25 feet/pixel; Nominal Oblique GSD (all values +/-1051.): Front Line: 0.24 feet/pixet, Middle Line: 0.28 feet/pixel, Back Line: 0.34 feet/pixel. Applicable Teens and Conditions: Delivered Content Terms and Conditions of Use 285 Tiles - Standard (3in GSD; Available with corresponding 3" GSD imagery purchase. $20.00 $17.00 $4,845.00 1'1FF format) Per Sector 3 -inch GSD Mosaic Tiles in TIFF Format. Tiles are provided "as is." Refer to Product Parameters for additional details. Applicable Terms and Conditions: Delivered Content Teens and Conditions of Use 285 Tiles - Standard Compressed Available with purchase of corresponding tile product. $4.00 $3.40 $969.00 (3in GSD; MrSID format) New processing or re -processing to MrSID of individual (15.0%) Per Sector tiles of 3 -inch GSD imagery. Tiles are provided "as is." Refer to Product Parameters for additional details. Applicable Tents and Conditions: Delivered Content Teens and Conditions of Use 285 Mosaic - Area Wide (3in Available with purchase of corresponding Tile product. $2.00 $1.70 $484.50 GSD; MrSID format:' New processing or re -processing to MrSID of individual (15.0%) individual) Per Sector tiles of 3 -inch GSD imagery. Tiles are provided "as is." Refer to Product Parameters for additional details. Applicable Tenns and Conditions: Delivered Content Teens and Conditions of Use i Change Analysis Enterprise- Perpetual Fnterprice-wide License of Change Analysis. $15,000.00 $0.00. $0.00 wide License Applicable Terms and Conditions: Software License (100.0%) Agreement 1 Oblique Imagery Bundle Includes digital copy of the Licensed Documentation for $0.00 $0.00 with One (1) Year of EFS the License Software, two (2) End User Training Maintenance & Support Sessions, one (1) Advanced User Technical Training, one (1) Administration / IT Training Session, five (5) hours of telephone support, one copy of Pictometry Electronic Field Study (EFS) software, latest version, on the storage media specified herein, and access to download updated versions of the EFS Licensed Software for a period of one years from the initial date of shipment of the EFS software, along with a copy of the updated documentation. Applicable Terms and Conditions: Software License Agreement 1 Survey Report - Imagery Available with corresponding imagery purchase. Product $],500.00 $0.00 $0.00 Project - Compiled To Includes: Report signed/sealed by appropriately (100,0%) Accuracy Statement credentialed personnel. Report details production statistics including GPS/INS post processing and includes an NSSDA compliant "Compiled To" accuracy statement. Applicable Terms and Conditions: Order Form Indian River County, FL—C170426 20161107 DD -0002-20160318 I E-911 Interface -Unlimited Perpetual License. Product enables system interface but $15,000.00 $0.00 $0.00 AMOUNT Seats in all PSAPS does not cover the actual integration. Licensee must (100.0%) PRICE 285 engage third party to provide this integration. Product includes: 3 -inch GSD oblique frame images (4- $450.00 $382.50 $109,012.50 A licable Terms and Conditions: Order Form way), 3 -inch GSD orthogonal frame images, 1 -meter GSD (15.00/0) 1 State License Fee State license fee. $0.00 $0.00 Applicable Terms and Conditions: Order Form mosaic (ECW format). Orthogonal GSD: 0.25 feet/pixel; 1 Electronic Field Study (F,FS) One copy of Electronic Field Study software, latest $0.00 $0.00 version. 0.24 feet/pixel, Middle Line: 0.28 feet/pixel, Back Line: Applicable Terms and Conditions: Software License 0.34 feet/pixel, Agreement Applicable Terms and Conditions: Delivered Content 1 Pictometry Connect - Early Pictometry Connect - Early Access provides authorized $10,000.00 $0.00 $0.00 Access users the ability to login and access imagery captured as Available with corresponding 3" GSD imagery purchase. (100.09/0) $17.00 $4,845.00 part of a specific Project immediately following 3 -inch GSD Mosaic Tiles in TIFF Format. Tiles are (15.0%) preliminary processing and quality control checks and provided "as is." Refer to Product Parameters for prior to final processing of the imagery from the Project. additional details. Imagery will be posted to Pictometry Connect - Early Applicable Terms and Conditions: Delivered Content Access incrementally as captured and processed, typically Terms and Conditions of Use 285 within two week following capture, and will remain Available with purchase of corresponding tile product. $4.00 $3.40 $969.00 available until final, fully processed imagery for the entire New processing or re -processing to MrSID of. individual Project is made available through other access means. tiles of 3 -inch GSD imagery. Tiles are provided "as is." This offering requires purchase of imagery Project and an Refer to Product Parameters for additional details. active Pictometry Connect Account. Applicable Terms and Conditions: Delivered Content Applicable Temns and Conditions: Online Services Terns and Conditions of Use 285 General 'Perms and Conditions Available with purchase of corresponding tile product. $2.00 $1.70 1 RapidAccess - Disaster RapidAccess - Disaster Response Program is an $0.00 $0.00 Response Program emergency response program offering flights after an tiles of 3 -inch GSD imagery. Tiles are provided "as is." emergency or disaster. Refer to the attached detailed Refer to Product Parameters for additional details. description of the Disaster Response Program. Applicable Terms and Conditions: Delivered Content Applicable Terms and Conditions: Order Form Terns and Conditions of Use I Media Drive Capacity 931G - External USB 2.0 / eSATA Externally Powered. Delivery $199.00 $0.00 $0.00 $0.00 Drive Model 1T - media prices include copying a complete image library Applicable Tennis and Conditions: Software License (100.0%) (100.0%) LXTPOWER onto media. Sub -warehousing sold separately. Agreement 1 Applicable Terms and Conditions: Order Form Available with corresponding imagery purchase. Product $1,500.00 $0.00 SUBTOTAL -FIRST PROJECT $115,31 1.00 SECOND PROJECT QTY PRODUCT NAME PRODUCT DESCRIPTIONLIST PRICE DISCOUNT AMOUNT PRICE 285 IMAGERY- Product includes: 3 -inch GSD oblique frame images (4- $450.00 $382.50 $109,012.50 NEIGHBORHOOD - 4 -way way), 3 -inch GSD orthogonal frame images, 1 -meter GSD (15.00/0) (NS) (3in) Per Sector ortho mosaic sector tiles and one area -wide 1 -meter GSD mosaic (ECW format). Orthogonal GSD: 0.25 feet/pixel; Nominal Oblique GSD (all values +/-10%): Front Line: 0.24 feet/pixel, Middle Line: 0.28 feet/pixel, Back Line: 0.34 feet/pixel, Applicable Terms and Conditions: Delivered Content Terms and Conditions of Use 285 Tiles - Standard (3in GSD; Available with corresponding 3" GSD imagery purchase. $20.00 $17.00 $4,845.00 TIFF format) Per Sector 3 -inch GSD Mosaic Tiles in TIFF Format. Tiles are (15.0%) provided "as is." Refer to Product Parameters for additional details. Applicable Terms and Conditions: Delivered Content Terms and Conditions of Use 285 Tiles - Standard Compressed Available with purchase of corresponding tile product. $4.00 $3.40 $969.00 (3in GSD; MrSID format) New processing or re -processing to MrSID of. individual Per Sector tiles of 3 -inch GSD imagery. Tiles are provided "as is." Refer to Product Parameters for additional details. Applicable Terms and Conditions: Delivered Content Terns and Conditions of Use 285 Mosaic - Arca Wide (3in Available with purchase of corresponding tile product. $2.00 $1.70 $484.50 GSD; MrSID format; New processing or re -processing to MrSID of individual (15.0%) individual) Per Sector tiles of 3 -inch GSD imagery. Tiles are provided "as is." Refer to Product Parameters for additional details. Applicable Terms and Conditions: Delivered Content Terns and Conditions of Use 1 Change Analysis Enterprise- Perpetual Fnterprice-wide License of Change Analysis. $15,000.00 $0.00 $0.00 wide License Applicable Tennis and Conditions: Software License (100.0%) Agreement 1 Survey Report - Imagery Available with corresponding imagery purchase. Product $1,500.00 $0.00 $0.00 Project - Compiled To Includes: Report signed/sealed by appropriately (100.0%) Accuracy Statement credentialed personnel. Report details production statistics including GPS/INS post processing and includes an NSSDA compliant "Com iled'fo" accuracy statement. Page 4 of 17 Indian River County, FL - C170426 20161107 DD -0002-20160318 THIRD PROJECT. QTY Applicable Terms and Conditions: Order Form PRODUCT DESCRIPTION LIST PRICE DISCOUNT t Media Drive Capacity 931 G - External USB 2.0 / eSATA Externally Powered. Delivery $199.00 $0.00 $0.00 Drive Model IT - media prices include copying a complete image library Product includes: 3 -inch GSD oblique frame images (4- (100.0%) $382.50 $109,012.50 EXTPOWER onto media. Sub -warehousing sold separately. way), 3 -inch GSD orthogonal frame images, 1 -meter GSD (15.0%) Applicable Terms and Conditions: Order Form ortho mosaic sector tiles and one area -wide 1 -meter GSD 1 E-911 Interface - Unlimited Perpetual License. Product enables system interface but $15,000.00 $0.00 $0.00 Seats in all PSAPS does not cover the actual integration. Licensee must Nominal Oblique GSD (all values +/-101/6): Front Line: (100.0%) engage third party to provide this integration. 0.24 feet/pixel, Middle Line: 0.28 feet/pixel, Sack Line: Applicable Terms and Conditions: Order Form 0.34 feet/pixel. l State License Fee State license fee. $0.00 $0.00 Applicable Terms and Conditions: Order Form Terms and Conditions of Use I Electronic Field Study (EFS) One copy of Electronic Field Study software, latest $0.00 $20.00 $0.00 $4,845.00 version. 3 -inch GSD Mosaic Tiles in TIFF Format. Tiles are (15.0%) Applicable Terms and Conditions: Software License provided "as is." Refer to Product Parameters for Agreement additional details. 1 Pictometry Connect - Early Pictometry Connect - F,arly Access provides authorized $10,000.00 $0.00 $0.00 Access users the ability to login and access imagery captured as Terms and Conditions of Use (100.0%) 285 part of a specific Project immediately following Available with purchase of corresponding tine product $4.00 $3.40 $969.00 preliminary processing and quality control checks and New processing or re -processing to MrSID of individual (15.0%) prior to final processing of the imagery from the Project. tiles of 3 -inch GSD imagery. 'files are provided "as is." Imagery will be posted to Pictometry Connect - Early Refer to Product Parameters for additional details. Access incrementally as captured and processed, typically Applicable ferns and Conditions: Delivered Content within two weeks following capture, and will remain Terms and Conditions of Use available until final, fully processed imagery for the entire Project is made available through other access means. This offering requires purchase of imagery Project and an active Pictometry Connect Account. Applicable Terms and Conditions: Online Services General Terms and Conditions 1 RapidAceess - Disaster RapidAccess - Disaster Response Program is an $0.00 $0.00 Response Program emergency response program offering flights after an emergency or disaster. Refer to the attached detailed description of the Disaster Response Program. Applicable Terms and Conditions: Order Form I Oblique Imagery Bundle Includes digital copy of the Licensed Documentation for $0,00 $0.00 with One (1) Year of EFS the License Software, two (2) End User Training Maintenance & Support Sessions, one (1) Advanced User Technical Training, one (1) Administration / IT'rraining Session, five (5) hours of telephone support, one copy of Pictometry Electronic Field Study (EFS) software, latest version, on the storage media specified herein, and access to download updated versions of the EFS Licensed Software for a period of one years from the initial date of shipment of the EFS software, along with a copy of the updated documentation. Applicable Terms and Conditions: Software License Agreement SUBTOTAL -SECOND PROJECT $115,311.00 THIRD PROJECT. QTY 'PRODUCT NAME PRODUCT DESCRIPTION LIST PRICE DISCOUNT AMOUNT,' PRICE % 285 IMAGERY- Product includes: 3 -inch GSD oblique frame images (4- $450.00 $382.50 $109,012.50 NEIGHBORHOOD - 4 -way way), 3 -inch GSD orthogonal frame images, 1 -meter GSD (15.0%) (N5) (3in) Per Sector ortho mosaic sector tiles and one area -wide 1 -meter GSD mosaic (ECW format). Orthogonal GSD: 0.25 feet/pixel; Nominal Oblique GSD (all values +/-101/6): Front Line: 0.24 feet/pixel, Middle Line: 0.28 feet/pixel, Sack Line: 0.34 feet/pixel. Applicable Terms and Conditions: Delivered Content Terms and Conditions of Use 285 Tiles - Standard (3in GSD; Available with corresponding 3" GSD imagery purchase. $20.00 $17.00 $4,845.00 TIFF format) Per Sector 3 -inch GSD Mosaic Tiles in TIFF Format. Tiles are (15.0%) provided "as is." Refer to Product Parameters for additional details. Applicable Terms and Conditions: Delivered Content Terms and Conditions of Use 285 Tiles - Standard Compressed Available with purchase of corresponding tine product $4.00 $3.40 $969.00 (3in GSD; MrSID format) New processing or re -processing to MrSID of individual (15.0%) Per Sector tiles of 3 -inch GSD imagery. 'files are provided "as is." Refer to Product Parameters for additional details. Applicable ferns and Conditions: Delivered Content Terms and Conditions of Use Page 5 of 17 Indian River County, FL -C17042620161107 DD -0002-20160318 74 285 Mosaic - Area Wide (3in Available with purchase of corresponding tile product. $2.00 $1.70 $484.50 GSD; MrSID format; New processing or re -processing to MrSID of individual individual) Per Sector tiles of 3 -inch GSD imagery. Tiles are provided "as is." Refer to Product Parameters for additional details. Applicable Terms and Conditions: Delivered Content Terms and Conditions of Use 1 Change Analysis Enterprise- Perpetual Enterprice-wide License of Change Analysis. $15,000.00 i $0.00 $0.00 wide License Applicable Terns and Conditions: Software License (100.0%) Agreement 1 Oblique Imagery Bundle includes digital copy of the Licensed Documentation for $0.00 with One (1) Year ofF,FS the License Software, two (2) End User Training Maintenance & Support Sessions, one (1) Advanced User Technical Training, one (1) Administration / IT Training Session, five (5) hours of telephone support, one copy of Pictometry Electronic Field Study (EFS) software, latest version, on the storage media specified herein, and access to download updated versions of the EFS Licensed Software for a period of one years from the initial date of shipment of the EFS soliware, along with a copy of the updated documentation. Applicable Tenns and Conditions: Software License A reement 1 Survey Report - Imagery Available with corresponding imagery purchase. Product $1,500.00 $0.00 $0.00 Project - Compiled To Includes: Report signed/sealed by appropriately (100.0%) Accuracy Statement credentialed personnel. Report details production statistics including GPS/INS post processing and includes an NSSDA compliant "Compiled To" accuracy statement. Applicable Terms and Conditions: Order Form I L-911 Interface - Unlimited Perpetual License. Product enables system interface but $15,000.00 $0.00 $0.00 Seats in all PSAPS does not cover the actual integration. Licensee must (100.0%) engage third party to provide this integration. licable Tenns and Conditions: Order Form State License Fee State license fee. $0.00 $0.00 Applicable Terms and Conditions: Order Form 1 Electronic Field Study (EFS) One copy of Electronic Field Study software, latest $0.00 $0,00 version. Applicable Terms and Conditions: Software License Agreement 1 Pictometry Connect - Early Pictometry Connect - Early Access provides authorized $10,000.00 $0.00 $0.00 Access users the ability to login and access imagery captured as (100.0%) part of a specific Project immediately following preliminary processing and quality control checks and prior to final processing of the imagery from the Project. Imagery will be posted to Pictometry Connect - Early Access incrementally as captured and processed, typically within two weeks following capture, and will remain available until final, fully processed imagery for the entire Project is made available through other access means. This offering requires purchase of imagery Project and an active Pictometry Connect Account. Applicable Terms and Conditions: Online Services General Terms and Conditions I RapidAccess - Disaster RapidAccess - Disaster Response Program is an $0.00 $0.00 Response Program emergency response program offering flights after an emergency or disaster. Refer to the attached detailed description of the Disaster Response Program- rogram_A licable Terms and Conditions: Order Form Applicable 1 Media Drive Capacity 931G - External USB 2.0 / eSATA Externally Powered. Delivery $199.00 $0.00 $_0.00 Drive Model 1T - media prices include copying a complete image library (100,00/0) EX[TPOWER onto media. Sub -warehousing sold separately. Applicable Terms and Conditions: Order Form SUBTOTAL —THIRD PROJECT $115,311.00 Thank you for choosing Pictometry as your service provider. TOTAL $345,933.00 'Amount per product = ((1 -Discount %) " Qty' List Price) FEES; PAYMENT TERMS All amounts due to Pictometry pursuant to this Agreement ("Fees") are expressed in United States dollars and do not include any duties, taxes (including, without limitation, any sales, use, ad valorem or withholding, value added or other taxes) or handling fees, all of which are in addition to the amounts shown above and, to the extent applicable to purchases by Customer; shall be paid by Customer to Pictometry without reducing any amount owed to Pictometry unless documents satisfactory to Pictometry evidencing exemption from such taxes is provided to Pictometry prior to Page 6 of 17 Indian River County, FL — C170426 20161107 DD -0002-20160318 billing. To the extent any amounts properly invoiced pursuant to this Agreement are not paid within thirty (30) days following the invoice due date, such unpaid amounts shall accrue, and Customer shall pay, interest at the rate of 1.5% per month (or at the maximum rate allowed by law, if less). In addition, Customer shall pay Pictometry all costs Pictometry incurs in collecting past due amounts due under this Agreement including, but not limited to, attorneys' fees and court costs. FIRST PROJECT Due at Signing Due at Initial Shipment of Imagery Total Payments SLCOND PROJECT Due at Initial Shipment of Imagery Total Payments THIRD PROJECT Due at Initial Shipment of Imagery Total Payments PRODUCT PARAMETERS FIRST PROJECT IMAGERY Product: Elevation Source: Leaf SECOND PROJECT IMAGERY Product: Elevation Source. I.ear. THIRD PROJECT IMAGERY Product: Elevation Source: leaf. IMAGERY - NEIGHBORHOOD - 4 -way (NS) (3in) Per Sector Customer Provided — LiDAR Leaf Off. Less than 30% leaf cover IMAGERY - NEIGHBORHOOD - 4 -way (N5) (3in) Per Sector Customer Provided — LiDAR Leaf Off: Less than 30% leaf cover EMAGERY - NEIGHBORHOOD - 4 -way (N5) (3in) Per Sector Customer Provided — LiDAR Leaf Off: Less than 30%u leaf cover $28,827.75 $86,483.25 $115,311.00 $1151311.00 $115,311.00 $115,311.00 $115,311.00 STANDARD ORTHO MOSAIC PRODUCTS Pictometry standard ortho mosaic products are produced through autcimated mosaicking processes that incorporate digital elevation data with individual Pictometry ortho frames to create large -area mosaics on an extremely cost-effective basis. Because these products are produced through automated processes, rather than more expensive manual review and hand -touched corrective processes, there may be inherent artifacts in some of the resulting mosaics. While Pictometry works to minimize such artifacts, the Pictometry standard ortho mosaic products are provided on an 'AS IS' basis with respect to visible outlines along mosaic seams resulting from the following types of artifacts: i. Disconnects in non -elevated surfaces generally caused by inaccurate elevation data; ii. Disconnects in elevated surfaces (e.g., roadways, bridges, etc.) generally caused by elevated surfaces not being represented in the elevation data; iii. Building intersect and clipping generally caused by buildings not being represented in the elevation data; iv. Seasonal variations caused by images taken at different times during a season, or during different seasons; V. Ground illumination variations caused by images taken under different illumination (e.g., sunny, high overcast, morning light, afternoon light, etc.) within one flight day or during different flight days; vi. Single GSD color variations caused by illumination differences or multiple-aircraft/camera captures; vii. Mixed GSD color variations caused by adjacent areas being flown at different ground sample distances (GSDs); and viii. Water body color variations caused by multiple individual frames being used to create a mosaic across a body of water (e.g., lakes, ponds, rivers, etc.). Other Pictometry products may be available that are less prone to such artifacts than the Pictontetry standard ortho mosaic products. Page 7 of 17 Indian River County, FL — C170426 20161107 DD -0002-20160318 RapidAccess—Disaster Response Program C'DRP") Customer is eligible for DRP described below from the Effective Date through the second anniversary of the initial Project delivery. Following payment to Pictometry of amounts due with respect to each subsequent Project, Customer will be eligible for the then -current DRP for a period of two years from delivery of such subsequent Project. Customer must be in good -standing with Pictometry to maintain eligibility for DRP. A. Disaster Coverage Imagery at No Additional Charge – Pictometry will, upon request of Customer and at no additional charge, provide standard quality imagery of up to 200 square miles of affected areas (as determined by Pictometry) upon the occurrence of any of the following events during any period Customer is eligible for DRP: fl Hurricane: areas affected by hurricanes of Category II and higher. Tornado: areas aftected by tornados rated EF4 and higher. �.l Terrorist: areas affected by damage from terrorist attack. [ ( Earthquake: areas affected by damage to critical infrastructure resulting from earthquakes measured at 6.0 or higher on the Richter scale. Tsunami: areas affected by damage to critical infrastructure resulting from tsunamis. B. Discounted Rate – Coverage for areas affected by the events set forth above exceeding 200 square miles will be, subject to Pictometry resource availability, offered to Customer at the then current DRP rates. Also, curcjage for areas affected by hurricanes below Category II, tornadoes below E14 or earthquakes rated below 6.0 on the Richter scale will be, subject to Pictometry resource availability, offered to Customer at the then current DRP rates. C. Online Services – Use of Pictometry Connect Eaploreirm – Pictometry's DRP includes the use of Connect Explorer for a term of ninety days from the date of delivery of the DRP imagery. Customer shall have access to the DRP imagery for as long as they maintain an active Connect account. Indian River County, 17L – C 170426 20161107 DD -0002-20160318 SECTION B LICENSE TERMS PICTOMETRY DELIVERED CONTENT TERMS AND CONDITIONS OF USE These Pictometry Delivered Content Terms and Conditions of Use (the "Delivered Content Terms and Conditions"), in combination with the corresponding Agreement into which these terms are incorporated, collectively set forth the terms and conditions that govem use of Delivered Content (as hereinafter defined) for use within computing environments operated by parties other than Pictometry. As used in the Delivered Content Terms and Conditions the terms "you" and "your" in uppercase or lowercase shall mean the Customer that entered into the Agreement into which the Delivered Content Terns and Conditions are incorporated. 1. DEFINITIONS 1.1 "Authorized Subdivision" means, if you are a county or a non -state consortium of counties, any political unit or subdivision located totally or substantially within your boundaries that you authorize to have access to Delivered Content pursuant to the Delivered Content Terms and Conditions. 1.2 "Authorized System" means a workstation or server that meets each of the following criteria (i) it is owned or leased by you or an Authorized Subdivision, (ii) it is located within and only accessible froom facilities that are owned or leased by you or an Authorized Subdivision, and (iii) it is under the control of and may only be used by you or Authorized Subdivisions. 13 "Authorized User" means any employee of you or Authorized Subdivisions that is authorized by you to have access to the Delivered Content through an Authorized System. 1.4 "Delivered Content" means the images, metadata, data layers, models, reports and other geographic or structural visualizations or embodiments included in, provided with, or derived from time information delivered to you by or on behalf of Pictometry pursuant to the Agreement. 1.5 "_Project Participant" means any employee or contractor of persons or entities performing services for compensation for you or an Authorized Subdivision that has been identified by written notice to Pictometry prior to being granted access to Delivered Content and, unless Pictometry expressly waives such requirement for any individual, has entered into a written agreement with Pictometry authorizing such access. 2. GRANT OF RIGHTS; RESTRICTIONS ON USE; OWNERSHIP 2.1 Subject to the terms and conditions of the Agreement, you are granted nonexclusive, nontransferable, limited rights to: (a) install the Delivered Content on Authorized Systems; (b) permit access and use of the Delivered Content through Authorized Systems by: (i) Authorized Users for performance of public responsibilities of you or Authorized Subdivisions that are to be performed entirely within facilities of you or Authorized Subdivisions, (ii) Project Participants under the supervision of Authorized Users for performance of tasks or preparation of materials using only hard copies (or jpg copies) of Delivered Content solely for fulfilling public responsibilities of you or Authorized Subdivisions to be performed entirely within facilities of you or Authorized Subdivisions; and (iii) individual members of the public, but only through Authorized Users and solely for the purpose of making hard copies or jpg copies of images of individual properties or structures (but not bulk orders of multiple properties or structures) to the individual members of the public requesting them. 2.2 You may not reproduce, distribute or make derivative works based upon the Delivered Content in any medium, except as expressly permitted in the Delivered Content Terms and Conditions. 2.3 You may not offer any part of the Delivered Content for commercial resale or commercial redistribution in any medium. 2.4 You may not distribute or otherwise make available any Delivered Content to Google or its affiliates, either directly or indirectly. 2.5 You may not exploit the goodwill of Pictometry, including its trademarks, service marks, or logos, without the express written consent of Pictometry. 2.6 You may not remove, alter or obscure copyright notices or other notices contained in the Delivered Content. 2.7 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in Delivered Content in all media belong to Pictonmetry or its third party suppliers. Neither you nor any users of the Delivered Content acquire any proprietary interest in the Delivered Content, or any copies thereof, except the limited use rights granted herein. 3. OBLIGATIONS OF CUSTOMER 3.1 Geographic Data. If available, you agree to provide to Pictometry geographic data in industry standard format (e.g., shape, DBF) including, but not limited to, digital elevation models, street centerline maps, tax parcel maps and centroids, which data, to the extent practicable, shall be incorporated into the Delivered Content. You agree that any of this data that is owned by you may be distributed and modified by Pictometry as part of its products and services, provided that at no time shall Pictometry claim ownership of that data. 3.2 Notification. You shall (a) notify Pictometry in writing of any claims or proceedings involving any of the Delivered Content within ten (10) days after you learn of the claim or proceeding, and (b) report promptly to Pictometry all claimed or suspected defects in Delivered Content, 3.3 Authorized User Compliance. You shall at all times be responsible for compliance by each Authorized User with the Delivered Content Terns and Conditions. 3.4 Authorized Subdivision Compliance. You shall at all times be responsible for compliance by each Authorized Subdivision with the Delivered Content Terms and Conditions. 3.5 Project Participants. Each notice to Pictometry identifying a potential Project Participant shall include a detailed description of the scope and nature of the Project Participants' planned work and the intended use of the Delivered Content in such work. Pictonmetry retains the right to restrict or revoke access to Delivered Content by any Project Participant who does not comply with the terms of the Delivered Content Terns and Conditions. 4. LICENSE, DURATION; EFFECT OF TERMINATION 4.1 Term. The license granted to you in the Delivered Content Terms and Conditions is perpetual, subject to Pictometry's right to terminate the license in the event you do not pay in full the Fees specified elsewhere in the Agreement, the Agreement is terminated for any reason other than a breach of the Agreement by Pictometry, or as otherwise provided in the Agreement. 4.2 Effect of Termination. Upon termination of the license granted to you in the Delivered Content Terns and Conditions, you shall immediately cease all use of the Delivered Content, promptly purge all copies of the Delivered Content from all workstations and servers on which any of it may be stored or available at the time, and return hard drive/media containing Delivered Content to Pictometry, 5. TRADEMARKS; CONFIDENTIALITY Page n tit I? Indian River County, FL—C170426 20161107 DD -0002-20160318 5.1 Use of Pictometry's Marks. You agree not to attach any additional trademarks, trade names, logos or designations to any Delivered Content or to any copies of any Delivered Content without prior written approval from Pictometry. You may, however, include an appropriate government seal and your contact information so long as the seal and contact information in no way obscure or deface the Pictometry marks. You further agree that you will not use any Pictometry trademark, trade name, logo, or designation in connection with any product or service other than the Delivered Content. Your nonexclusive right to use Pictornetry's trademarks, trade name, logos, and designations are coterminous with the license granted to you in the Delivered Content Terns. 5,2 Confidentiality of Delivered Content. The Delivered Content consists of commercially valuable, proprietary products owned by Pictometry, the design and development of which reflect an investment of considerable time, effort, and money. The Delivered Content is treated by Pictometry as confidential and contains substantial trade secrets of Pictometry. You agree that you will not disclose, provide a copy of of disseminate the Delivered Content (other than as expressly permitted in the Delivered Content Terms and Conditions) or any part thereof to any person in any manner or for any purpose inconsistent with the license granted to you in the Delivered Content Terms and Conditions. You agree to use your best efforts to assure that your personnel, and any others afforded access to the Delivered Content, protect the Delivered Content against unauthorized use, disclosure, copying, and dissemination, and that access to the Delivered Content and each part thereof will be strictly limited. 6. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES 6.1 Limited Warranties; Exclusive Remedy. Pictometry warrants that the Delivered Content will contain true and usable copies of the designated imagery as of the date of capture. As the sole and exclusive remedy for any breach of the foregoing warranty, Pictometry shall use reasonable efforts to correct any deficiency that precludes use of the Delivered Content in the manner intended. 6.2 Disclaimer of Other Warranties. Except as provided in Section 6. 1, above, THE DELIVERED CONTENT IS PROVIDED TO YOU "AS IS" ANF "WITH ALL FAULTS." PICTOMETRY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY.. ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ACCURACY, ARE HEREBY DISCLAIMED AND EXCLUDED BY PICTOMETRY. 6.3 Limitation of Liability. With respect to any other claims that you may have or assert against Pictometry on any matter relating to the Delivered Content, the total liability of Pictometry shall, in the aggregate, be limited to the aggregate amount received by Pictometry in payment for Delivered Content during the immediately preceding twenty-four (24) month period. 7. MISCELLANEOUS PROVISIONS 7.1 Restricted Rights. Delivered Content acquired with United States Government fiords or intended for use within or for any United States federal agency is provided with "Restricted Rights" as defined in DFARS 252.227-7013, Rights in Technical Data and Computer Software and FAR 52.227-14, Rights in Data - General, including Alternate 111, as applicable. 7.2 Governing Law. This License Agreement shall be governed by and interpreted in accordance with the laws of the State of.New York, excluding its conflicts of law principles. (END OF DELIVERED CONTENT TERMS AND CONDITIONS] Indian River County, FL — C170426 20161107 DD -0002-20160318 SECTION B PICTOMETRY ONLINE SERVICES GENERAL TERMS AND CONDITIONS LICENSE TERMS These Pictometry Online Services General Terms and Conditions (the "General'ferms and Conditions"), in combination with the corresponding Pictometryorder fonn, if any, collectively constitute the license agreement (the "License Agreement") that governs your use of the Pictometry online services (the "Online Services"), the images available in the Online Services, and all associated metadata and data layers included in, provided with; or derived from those images (the "Licensed Content") provided by Pictometry International Corp. and its affiliated companies (collectively, "Pictometry"). The terms `you" and "your" in uppercase or lowercase shall mean the individual, entity (e.g., corporation, limited liability company, partnership, sole proprietor, etc.) or government agency entering into the License Agreement, 1. GRANT OF RIGHTS; RESTRICTIONS ON USE; OWNERSHIP 1.1 You are granted a nonexclusive, nontransferable, limited right to access and use tate Online Services and the Licensed Content obtained or derived from the Online Services solely for your internal business purposes and not for resale or redistribution. The rights granted to you include, subject to the restrictions set forth below and on the Order Form, the right to copy limited portions of the Licensed Content onto your computer to facilitate preparation of hardcopies and work product records, and the right to make hardcopies of the Licensed Content, provided that the Licensed Content and the permitted copies thereof stay not be sold, leased, loaned, distributed, or copied for use by anyone other than you. 1.2 You may not make the Online Services available to any other party. 1.3 You may not copy die Licensed Content or portions thereof onto any computer or storage device or media for the purpose of creating or maintaining one or more databases of drat content for use in substitution for subsequent access to the content through the Online Services. 1.4 You may not distribute or otherwise make available any Licensed Content to Google or its affiliates, either directly or indirectly. 1.5 You may not exploit the goodwill of Pictometry, including its trademarks, service marks, or logos, without the express written consent o1' Pictometry. 1.6 You may not remove, alter or obscure copyright notices or other notices contained in the Licensed Content. 1.7 You may not offer any part of the Online Services or the Licensed Content for commercial resale or commercial redistribution in any medium. 1.8 You may not use the Online Services or the Licensed Content to compete with any businesses of Pictometry. 1.9 You may not use information included in the Online Services or the Licensed Content to detennine an individual consumer's eligibility for (a) credit or insurance for personal, fancily, or household purposes; (b) employment; or (c) a government license or benefit. The term "consumer" is defined in the United States Fair Credit Reporting Act at 15 USC § 1681. 1.10 You may not access the Online Services via mechanical, programmatic, robotic, scripted or any other automated means. Unless otherwise agreed by Pictometry in writing, use of the Online Services is permitted only via manually conducted, discrete, human -initiated individual search and retrieval activities. 1.11 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in die Online Services and the Licensed Content in all media belong to Pictcnnetry or its third party suppliers. Neither you nor any users of the Online Services or the Licensed Content acquire any proprietary interest in the Online Services, the licensed Content, or any copies thereof except the limited use rights granted herein. 2. ACCESS TO SERVICES 2.1 Only you, your employees, and temporary or contract employees dedicated to performing work exclusively for you (each, an "Eligible User" and collectively, the "Eligible Users") are eligible to access and use the Online Services and the Licensed Content pursuant to the License Agreement. Each Eligible User to be provided access to the Online Service shall be assigned a unique login/password ("Pictometry Credential") for purposes of accessing the Online Services. You agree that each Pictometry Credential shall only be used by the Eligible User to whom it was originally assigned and that Pictometry Credentials may not be shared with. or used by, any other person, including other Eligible Users. You will promptly deactivate an Eligible User's Pictometry Credential in the event the Eligible User no longer meets the eligibility requirements or you otherwise wish to terminate the Eligible User's access to the Online Services. You are responsible for all use of the Online Services accessed with Pictometry Credentials issued to your Eligible Users, including associated charges, whether by Eligible Users or others. You will use reasonable commercial efforts to prevent unauthorized use of Pictometry Credentials assigned to your Eligible Users and will promptly deactivate any Pictometry Credentials you suspect are lost, stolen, compromised, or misused. 2.2 The Online Services, the Licensed Content, and features and functionality within the Online Services may be enhanced, added to, withdrawn, or otherwise changed by Pictometry without notice. 2.3 You are aware and understand that any user data collected or stored by the Online Services may be accessed by US law enforcement agencies under die US PATRIOT Act. You hereby release, and agree to hold Pictometry harmless from, all claims against Pictometry with respect to such access. 3. DISCLAIMERS 3.1 The Online Services and the Licensed Content are provided for visualization purposes only, are not authoritative or definitive, and do not constitute professional engineering or surveying services. 3.2 The Online Services and the Licensed Content are not to be relied upon to precisely locate or determine property boundaries and should not be used in lieu of a professional survey where the accuracy of measurements, distance, height, angle, area and volume, may have significant consequences. 3.3 All measurements and reports generated by the Online Services or from the Licensed Content are based upon second order visualization and measurement data that do not provide authoritative or definitive measurement results suitable for professional engineering or surveying purposes. 3.4 Contour information obtained from the Online Services or contained in the Licensed Content is generated from undersampled elevation data, is provided for informational purposes only, and is not suitable for use as dee basis for hydrographic computations, estimations or analyses. 3.5 While the Online Services and the Licensed Content may be considered useful supplements for life critical applications, they are not designed or maintained to support such applications and Pictometry and its third party suppliers of the Online Services and the Licensed Content hereby disclaim all liability for damages claims and expenses arising from such use. 3.6 Your reliance on the Online Services and the Licensed Content should only be undertaken after an independent review of their accuracy, completeness, efficacy, timeliness and adequacy for your intended purpose. 3.7 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content assume no responsibility for any consequences resulting from the use of the Online Services or the Licensed Content. 3.8 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content hereby disclaim all liability for damages, claims and expenses arising from or in any way related to the accuracy or availability of the Online Services and the Licensed Content. 3.9 By accepting these General Terms and Conditions or by using the Online Services or the Licensed Content, you waive any and all rights you may have against Pictometry, each third party supplier of any portion of the Online Services or the Licensed Content, and each of their directors, officers, members and employees, arising out of use of or reliance upon the Online Services or the Licensed Content. P6& I I of 17 Indian River County, FL—C17042620161107 DD -0002-20160318 4. LIMITED WARRANTY l I Pictometry represents and warrants that it has the right and authority to make the Online Services and the Licensed Content available to you and your Eligible Users as authorized expressly by this License Agreement. 4.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.1, THE ONLINE SERVICES AND LICENSED CON'T'ENT ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASiS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF LICENSED CONTENT EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, 5. LIMITATION OF LIABILITY 5.1 No Covered Party (as defined below) shall be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Online Services or the Licensed Content, (b) the unavailability or interruption of the Online Services or any features thereof or the Licensed Content, (c) your or an Eligible User's use of the Online Services or the Licensed Content, (d) the loss or corruption of any data or equipment in connection with the Online Services or the Licensed Content, (e) the content, accuracy, or completeness of the Licensed Content, all regardless of whether you received assistance in the use of the Online Service from a Covered Party, (f) any delay or failure in performance beyond the reasonable control of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services. 5.2 "Covered Party" means (a) Pictometry and any officer, director, employee, subcontractor, agent, successor, or assign of Pictometry; and (b) each third party supplier of any Licensed Content, third party alliance entity, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of any Licensed Content or third party alliance entity and their affiliates. 5.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR THE LICENSED CONTENTOR THIS LiCENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE, THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BF, IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE, AGAINST ANY COVERED PARTY, 5.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINF SERVICES, THELICENSED CONTENT, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR ELIGIBLE USERS') INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS THIRD PARTY SUPPLIERS. 5.5 Notwithstanding anything to the contrary in this Section 5: (a) If there is a breach of the warranty in Section 4.1 above, then Pictometry, at its option and expense, shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or description based on a third party's claim of patent, trademark, service mark, copyright or trade secret infringement related to use of the Online Services or the Licensed Content, asserted against you by such third party provided: (i) all use of the Online Services and the Licensed Content was in accordance with this License Agreement; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the Online Services or the Licensed Content with or into other products, applications, images or data not approved by Pictometry; (iii) you give Pictometry prompt notice of such claim; and (iv) you give Pictometry the right to control and direct the investigation, defense and settlement of such claim. You, at Pictometry's expense, shall reasonably cooperate with Pictometry in connection with the foregoing. (b) In addition to Section 55(a), if the Online Services, the operation thereof or the Licensed Content become, or in the opinion of Pictometry are likely to become, the subject of a claim of infringement, Pictometry may, at its option and expense, either: (i) procure for you the right to continue using the Online Services or the Licensed Content, (ii) replace or modify the Online Services or the Licensed Content so that they become non -infringing; or (iii) terminate the License Agreement on notice to you and grant you a pro -rata refund or credit (whichever is applicable) for any pre -paid fees or fixed charges. (c) The provisions of Sections 5.5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein. 6. MISCELLANEOUS 6.1 The terms and conditions of this License Agreement may be changed from time to time immediately upon notice to you. if any changes are made to this License Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Eligible Users but will apply to all similarly situated Pictometry customers using the Online Services. You may tenninate this License Agreement upon written notice to Pictometry if any change to the terms and conditions of this License Agreement is unacceptable to you. For termination to be effective under this Section 6. 1, written notice of termination must be provided to Pictometry within 90 days of the effective date of the change. Continued use of the Online Services following the effective date of any change constitutes acceptance of the change, but does not affect the foregoing termination right. Except as provided above, this License Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized representatives of both parties. Furthermore, this License Agreement may not be supplemented, modified or otherwise revised by email exchange, even if the email contains a printed name or signature line bearing signature -like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated. 6.2 in the event of a breach of this License Agreement by you, any Eligible User or someone using the Pictometry Credential of an Eligible User, Pictometry may temporarily suspend or discontinue providing access to the Online Services to any or all Eligible Users without notice and Pictometry may pursue any other legal remedies available to it. 6.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by Pictometry. Notices shall be deemed to have been properly given on the date deposited in the mail, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner. Legal notices to Pictometry should be sent to Pictometry, Attn: General Counsel, 25 Methodist Hill Drive, Rochester, New York 14623. 6.4 The failure of you, Pictometry, or any third parry supplier of the Online Services or any Licensed Content to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. 6.5 Neither you nor any Eligible User may assign or otherwise transfer your rights or delegate your duties under this License Agreement without the prior written consent of Pictometry. Any attempt by you or any Eligible User to assign, transfer or delegate your rights or obligations under this License Agreement without Pictometry's consent shall be void, and shall also void the limited license granted to you by this License Agreement. This License Agreement and any amendment thereto shall be binding on, and will inure to the benefit of the parties and their respective successors and permitted assigns. 6.6 This License Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflicts of law principles. Unless you are a government entity, in the event that any legal proceedings are commenced with respect to any matter arising under this License Agreement, 1111 g i _` of I" Indian River County, FL — C170426 20161107 DD -0002-20160318 the parties specifically consent and agree that the courts of the State of New York or, in the alternative, the I-ederal Courts located in the State of New York shall have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings, and that the venue of any such action shall be in Monroe County, New York or the U.S. District Court for the Wester District of New York, as applicable. 6.7 This License Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this License Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this License Agreement. 6.8 Where applicable, each affiliated company of Pictometry and each third party supplier of the Online Services or any Licensed Content has the right to assert and enforce the provisions of this License Agreement directly on its own behalf as a third party beneficiary. 6.9 In the event of a breach of your obligations under this License Agreement or your payment obligations with respect to access to the Online Services or the Licensed Content, you agree to pay all of Pictometry's costs of enforcement and collection, including court costs and reasonable attorneys' fees. 6.10 This License Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations relating to that subject matter. 1.6uc.1N.,I, f117 ]END OF ONLINE SERVICES GENERAL TERMS AND CONDITIONS] Indian River County, FL—C170426 20161107 DD -0002-20160318 SECTION B PICTOMETRY SOFTWARE LICENSE AGREEMENT LICENSE TERMS PLEASE READ THIS SOV17WARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE. BY USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. I GENERAL. The software ("Pictometry Software") and any written materials that accompany the software ("Documentation") in any media or form are licensed, not sold, to you by Pictometry International Corp. ("Pictometry") for use only under the terms of this License. Pictometry reserves all rights not expressly granted to you in this License. 2. LICENSE. Subject to the terms and conditions of this License, you are granted a limited, non -transferable, terminable, non-sublicenseable, non-exclusive license to install and use the Pictometry Software and the Documentation (collectively, the "Proprietary Materials") solely for internal use. Use of the functionality provided by the Pictometry Software other than for your internal use is prohibited, except with the prior written approval of Pictometry. You may make one copy of the Pictometry Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright and other proprietary notices contained in the original. You will not and will not enable others to decompile, reverse engineer, disassemble, attempt to derive the source code of decrypt, modify, create derivative works of, or tamper with or disable any security or monitoring features within the Pictometry Software. Any attempt to do so is a violation of the rights ofPictontetry and its licensors. 3. TITLE. The Proprietary Materials are confidential information of, trade secrets ol; and are proprietary to Pictometry. Title to the Proprietary Materials is and will remain in Pictometry and its licensors. All applicable rights to patents, copyrights, trademarks, trade secrets, and other intellectual property rights in the Proprietary Materials are and will remain in Pictometry and its licensors. You will not assert any right, title or interest in the Proprietary Materials provided to you under this License, except for the express license granted to you hereunder. You will not remove any copyright or other proprietary notice or legend contained on or included in any Proprietary Materials and you will reproduce all such information on all copies made hereunder. You will keep the Proprietary Materials free of All claims, liens and encumbrances. 4. DISCLAIMERS OF WARRANTY. USE OF THE PICTOMETRY SOFTWARE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PICTOMETRY SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PICTOMETRY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PICTOMETRY SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCIIANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. PICTOMETRY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE PICTOMETRY SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PICTOMETRY SOFTWARE WILL BE UNIN'T'ERRUPTED OR ERROR -FREE, OR THAT DEFECTS IN THE PROPRIETARY MATERIALS WILL BE CORRECTF,D, 5, LIMITATION OF LIABILITY. IN NO EVENT WILL PICTOMETRY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA; BUSINESS INTERRUPTION OR ANY OTI TER COMMERCIAL, DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THEPICTOMETRY SOFTWARE,, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHL'RWISE), EVEN IF PICTOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PICTOMETRY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL, INJURY) CAUSED BY, ARISING OUT OF OR IN ANY WAY RELATED TO THE PICTOMETRY SOFTWARE EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE. STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 6. TERMINATION. This License will terminate automatically without notice from Pictometry if you fail to comply with any term of this License. Upon the termination of this License, you will cease all use of the Pictometry Software and destroy all copies, full or partial, of the Proprietary Materials. MISCELLANEOUS PROVISIONS. A. Restricted Rights. Pictometry Software acquired with United States Government funds or intended for use within or for any United States federal agency is provided with "Restricted Rights" as defined in DFARS 252.227-7013, Rights in Technical Data and Computer Software and FAR 52.227-14, Rights in Data -General, including Alternate Ill, as applicable. Pictometry must be notified in advance of any license grants to United States federal governmental entities. The Pictometry Software is developed for general use in a variety of applications and is not developed or intended for use in any inherently dangerous applications or applications that could lead to property damage, personal injury or death. If you use the Pictometry Software in such applications, then you will be responsible for taking all appropriate fail-safe, backup, redundancy, and other measures to ensure the safe use of the Pictometry Software in such applications, including but not limited to, in any nuclear, aviation, mass transit, public safety or medical applications. B. Foreign Trade Restrictions The parties acknowledge that certain information, software technology, accompanying documentation and technical information may be subject to United States export control laws. You will not directly or indirectly export or re-export the Pictometry Software in violation of the Export Administration Regulations of the U.S. Department of Commerce. C. Governing Law. This License will be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflict of laws principles. D. Assignment. You may not assign this License without Pictometry's prior written consent. Any assignment in violation of this License will be null, void and of no force and effect. For all purposes under this License, any merger, consolidation, spin-off, acquisition or change -in -control will be deemed an assignment. E. Partial Invalidity; Survival. If any provision of this License is held invalid or unenforceable by competent authority, that provision will be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it will then appear. The total invalidity or unenforceability of any particular provision of this License will not affect its other provisions and this License will be construed in all respects as if the invalid or unenforceable provision were omitted. The provisions of this License that by their nature would survive its termination will survive indefinitely. Page 14 of 17 Indian River County, FL — C170426 20161107 DD -0002-20160318 F. Force Majeure Neither party will be liable for any costs or damages due to nonperformance under this License arising out of any cause not within the reasonable control of such party and without its fault or negligence. Neither party will be liable for any delay or failure in the performance of its obligations under this License that directly results from any failure of the other party to perform its obligations as set forth in this License. G. Waiver. No waiver of a breach of any term of this License will be effective unless in writing and duly executed by the waiving party. No such waiver will constitute a waiver of any subsequent breach of the same or any.other term of this License. No failure on the part of a party to exercise, and no delay in exercising any of its rights hereunder will operate as a waiver thereof, nor will any single or partial exercise by a party of any, right preclude any other or future exercise thereof or the exercise of any other right. No course of dealing between the parties will be deemed effective to modify, amend or discharge any part of this License or the rights or obligations of any party hereunder. H. Entire Agreement; Construction. This License contains the entire understanding of the patties with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings regarding that subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Pictometry. There are no representations, warranties, or obligations of any party not expressly contained herein. The headings in this License are for convenience only. They do not constitute a portion of this License and will not be used in any construction of it: [END OF SOFTWARE LICENSE AGREEMENT] Indian River County, FL — C170426 20161107 DD -0002-20160318 SECTION C NON-STANDARD TERMS AND CONDITIONS Online Services Eligible Users: Notwithstanding anything in the Online Services General Terms and Conditions incorporated in this Agreement to the contrary, the terms 'Eligible User' and 'Eligible Users' as defined in those Online Services General Terms and Conditions shall, for the purposes of this Agreement, also include each 'Authorized User' as that term is defined in the Delivered Content Terms and Conditions of Use incorporated in this Agreement. 2. Applicable Law: Notwithstanding anything to the contrary set forth elsewhere in this Agreement, this Agreement and any modifications, amendments or alterations shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Florida, excluding its conflicts of law principles. 3. Venue: Venue for all actions arising under this Agreement shall lie in Indian River County, Florida. 4. Non -Appropriation: Notwithstanding anything in this Agreement to the contrary, in the event that the funds due for all subsequent projects after the First Project under the terms and conditions of this Agreement are not lawfully appropriated, the following provisions shall apply: a. Customer will provide Pictometry with written documentation of non -appropriation of funds from its funding source prior to commencement of a subsequent project; b. This Agreement shall remain in full force and effect, however commencement of the subsequent project will be deemed postponed until such time as funds for the subsequent project have been appropriated and all other sums due under the terms and conditions of this Agreement have been paid by Customer. In the event that the postponement exceeds eighteen months, Pictometry reserves the right to terminate any and all obligations with respect to the postponed project and all subsequent projects included in this Agreement; and c. If Customer, or any party authorized under the terms and conditions of this Agreement to use the licensed products set forth in Iffikon A, is in possession of licensed products for which Pictometry has not been fully compensated in accordance with Wnsthe payment of this Agreement, Customer or such authorized party must immediately cease use of those licensed products, purge those ed products from all Customer and authorized party computers, and return those licensed products to Pictometry. 5. Early Access: With respect to the Pictometry Early Access product ("Early Access") as described in Section A, Customer understands that this product cannot be utilized by Customer unless they have a valid Pictometry Connect account which must be purchased separate from this Agreement. 6. Ownership: Notwithstanding anything in this Agreement to the contrary, Indian River County shall own the copy of the 3in Area Wide Mosaic (Product Name "Mosaic — Area Wide") (hereinafter "Area Wide Mosaic") that is delivered in MrSID image format to Indian River County pursuant to this Agreement. As such Indian River County is free to use, reproduce and redistribute copies of the Area Wide Mosaic in any manner without any accounting to Pictometry. Pictometry shall own a copy of the Area Wide Mosaic delivered pursuant to this Agreement that are in Pictometry's possession. As such Pictometry is free to use, reproduce and redistribute copies of the Area Wide Mosaic in any manner without any accounting to Indian River County. 7. Public Records: Any limitation under this Agreement on the disclosure of public records, as defined by section 119.011, Florida Statutes, shall be to the extent permitted by the Florida Public Records Law, Chapter 119, Florida Statutes. [END OF NON-STANDARD TERMS AND CONDITIONS) • Page 16 of 17 Indian River County, FL — C170426 20161107 DD -0002-20160318 ECTOR MAP(S) LIN Indian River County, FL — C170426 20161107 DD -0002-20160318 :K a. LIN Indian River County, FL — C170426 20161107 DD -0002-20160318 SECTOR MAP(S) iso LU i( CC'S fl In r! vn ^ •, fn r'1 �I _ )r meq• km l -- - li n, n. i. p4 ��M f i r_ t tri' .�'''-: R" `-1 r -'PTCI �r-- `.Y ';Y `fie ' �_ .r '�; .•! r ,yf a r F FY j r Ir 1 .- 1' Pn�r 17 i;f 1 i Indian River County, FL — C170426 20161107 DD -0002-20160318 y�8 October 31, 2016 heriff Dei yl Lvar Indian River County Jason Brown., County Administrator Indian River Board of County Commissioners 180127' Street Vero Beach, FL 32960-3388 Dear Mr. Brown: Pursuant to the Board of County Commission's actions on November 8, 2016, in reference to the return of the year end funds, I would like to respectfully request the following to be returned the Sheriffs Office accounts listed below: Fund 166, MACE (Co Fund 126) $2,750.00 Fund 168, Optional Sales Tax $70,718.1.4 (Hangar Project) M Please place this item on the Constitutional agenda for November 15th, 2016 board agenda. If you have any questions or require additional information, please contact me at 978-6404. Sincerely, Deryl Loar, Sheriff DL:nj cc:Kelly Goodwin Metcalf, Comptroller 4055 41" Avenue, Vero Beach, Florida 32960 www.iresheriff.org (772) 569-6700 ®R! - Dylan Reingold, County Attorney William K. DeBraal, Deputy County Attorney Kate Pingolt Cotner, Assistant County Attorney Public Hearings - B. CC 11. 15.16 Office Of INDIAN RIVER COUNTY MEMORANDUM TO: Board of County Commissioners FROM: Dylan Reingold, County Attorney DATE: October 25, 2016,/` SUBJECT: Fra.cking Ordinance BACKGROUND. ATTORNEY On October 18, 2016, the Indian River County Board of County Commissioners (the "Board") authorized the County Attorney's Office to draft an ordinance prohibiting fracking, hydraulic fracturing and any other related processes in Indian River County. Pursuant to the Board's direction, and after examining various ordinances and resolutions from other local governments across the State of Florida, including Seminole, Citrus, Pinellas, Brevard, Broward and Miami -Dade Counties, the County Attorney's Office has drafted the attached proposed ordinance. The attached proposed ordinance creates a new Chapter 317 of the Indian River County Code of Ordinances, titled.Oil and Gas Well Stimulation Prohibited. The proposed ordinance defines several terms including acid fracturing, cyclic steam injection, hydraulic fracturing, matrix stimulation and well stimulation. The proposed ordinance then prohibits these various activities within Indian River County. The proposed ordinance authorizes the County Attorney, or special counsel, to pursue injunctive relief or any other remedies to cure, remove or end any such activities. APPROVED FOR NOVEMBER 15, 29J -6— B. -6'B. C. C. MEETING — PUBLIC HE GS COUNTY ATTORNEY ��......:_�ugxJ:n'�lrt�7kunlLrc'.N'•R:'t;_oii�ii_rrthm�'rm�f:i%�':k �+'���:.��=^..r,_m. ��tL::ir:C(C(.t.`i'�!?IP4;:�t'.^;l�rnn:,:.,� ;.. l+tow. Qt...i9o•.::��tifiJt :i. J: -f'('6 �• eM,.�rmu.:FF..—+Vm-{>: ,:6�,vir.. 190 Indian River Co. Appr d Date Adnun jI t Co. My. Budget Dept. Risk Mgr. 1= I! i /G ��......:_�ugxJ:n'�lrt�7kunlLrc'.N'•R:'t;_oii�ii_rrthm�'rm�f:i%�':k �+'���:.��=^..r,_m. ��tL::ir:C(C(.t.`i'�!?IP4;:�t'.^;l�rnn:,:.,� ;.. l+tow. Qt...i9o•.::��tifiJt :i. J: -f'('6 �• eM,.�rmu.:FF..—+Vm-{>: ,:6�,vir.. 190 Board of County Commissioners October 25, 2016 Page Two Additionally, the proposed ordinance includes a provision that whenever a violation occurs, any person who has a legal, beneficial or equitable interest in the facility or instrumentality contributing to the violation, or who has a legal, beneficial or equitable interest in real property upon which such violation occurs, that such person will be jointly and severally liable for such violation. FUNDING. The only cost associated with this matter is the cost of advertising the notice of public hearing. The .cost was $136.67. This cost was funded from General Fund/County Attorney/Legal Account No. 00110214-033110. RECOMMENDATION. The County Attorney's Office respectfully requests that the chair open the public hearing.and take any comments from the public and then have the Board vote whether to approve the proposed ordinance. ATTACHMENTS Proposed Ordinance r.14t,s-,rv!MIL11:(:''.M�L�?l,.f?�!'<o rdh of+m•J'mN' i�„fnn.. f,,..Fun v i —' .. ORDINANCE NO. 2016 - AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, CREATING CHAPTER 317 OF THE CODE OF INDIAN RIVER COUNTY, FLORIDA, ENTITLED "OIL AND GAS WELL STIMULATION PROHIBITED"; PROHIBITING OIL AND GAS WELL STIMULATION; AND PROVIDING FOR CODIFICATION, SEVERABILITY, A GENERAL REPEALER AND AN EFFECTIVE DATE. WHEREAS, clean water is fundamental to the health of Florida's environment, economy and its citizens; and WHEREAS, the public utilities in Indian River County rely on water from the Upper Floridan Aquifer for potable water supplies; and WHEREAS, the Indian River County Board of County Commissioners seeks to protect the water resources of Indian River County from potential contamination by carcinogenic chemicals; and WHEREAS, oil and gas well stimulation including, but not limited to, hydraulic fracturing, matrix stimulation, acid fracturing (a.k.a. "acidizing') and cyclic steam injection, is performed by injecting fluid into a rock formation in order to increase production at an oil or gas well; and WHEREAS, oil and gas well stimulations involve the use of chemical compounds, some of which are determined by the Center for Disease Control and Prevention to be carcinogenic or which could otherwise pose a widespread and significant risk to public health, safety, and the environment; and WHEREAS, the oil and gas industry is not required by federal or state law to publicly disclose chemical formulas or well stimulation and fracturing fluids; and WHEREAS, in both the 2015-2016 and 2016-2017 Florida State Legislative Sessions the Florida Legislature considered legislation which would have required a peer review study to be performed by the Florida Department of Environmental Protection, which would have: i) evaluated geologic features; ii) evaluated potential hazards and risks, and potential for groundwater contamination; and iii) reviewed and evaluated potential for reclaimed water use and the ultimate disposition of waste fluids; WHEREAS, the legislation would have prohibited permitting activities during both rulemaking and peer review study processes; and WHEREAS, the Florida Legislature did not pass the proposed legislation, thus leaving the citizens of Florida without the critical knowledge of the peer review study nor the prohibition of such activities during such process; and 192 ORDINANCE NO. 2016 - WHEREAS, the residents of Indian River County have a reasonable expectation that their local governments will endeavor to protect their health, safety and welfare; and WHEREAS, the Indian River County Board of County Commissioners has determined to exercise its home rule powers and authority to prohibit well stimulation and therefore prohibit potential detrimental impacts to the community through contamination of critical water supplies; .NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA THAT: Section 1. Enactment Authority. Article VIII, section 1 of the. Florida Constitution and chapter 125, Florida Statutes vest broad home rule powers in counties to enact ordinances, not inconsistent with general or special law, for the purpose of protecting the public health, safety and welfare of the residents of the county. The Board specifically determines that the enactment of this ordinance is necessary to protect the health, safety and welfare of the residents of Indian River County. Section 2. Leallslative Findings. The Board finds that the "Whereas" clauses above are true and correct, and hereby incorporates such clauses as the legislative findings of the Board. Section 3. Creation of New Chapter. Chapter 317 of the Code of Indian River County, Florida is hereby created to read as follows: CHAPTER 317. OIL AND GAS WELL STIMULATION PROHIBITED Sec. 317.01. - Purpose and scope. It is the purpose and intent of the Board to prohibit all oil and gas well stimulation activities within the boundaries of the County. Sec. 317.02. - Definitions. The following words, terms, and phrases shall apply in the application, interpretation and enforcement of this division: Acid fracturing (a.k.a. acidizing) shall mean pumping acidic fluids into a well at a pressure that fractures the rock. Cyclic steam injection shall mean all stages of thermal method which involves injecting a well with steam with the purpose of heating the reservoir near the wellbore. Exploration shall mean geologic or geophysical activities related to the search for oil, natural gas or other subsurface hydrocarbons. 2 ORDINANCE NO. 2016 - Hydraulic fracturing shall mean the process by which fractures in the earth's subsurface are widened by injection of water, chemicals, or both, under high pressure used in the extraction of oil and gas. Matrix stimulation shall mean the injection of any acid or solvent into.a well to break up impediments without fracturing the well. Well stimulation shall mean any process of using vast amounts of water, chemicals, or both, injected into the ground as a means of oil and gas exploration, including but not limited to hydraulic fracturing, acid fracturing, cyclic steam injection' and matrix stimulation. Well stimulation does not include routine well cleaning that does not affect the integrity of the well or formation. Sec. 317.03. - Prohibited Activities. (a) No person or entity may engage in any oil and gas well stimulation that shall cause, suffer, permit or allow the use of any form of well stimulation including, but not limited to, hydraulic fracturing, matrix stimulation, acid fracturing, or cyclic steam injection within the boundaries of the County. (b) No person or entity may engage in oil or gas well stimulation techniques originating outside of the boundaries of the County that in any way enters onto, into, or under the ground within the boundaries of the County. Sec. 317.04. - Enforcement. The County Attorney, or special counsel as otherwise authorized, is authorized to pursue temporary or permanent injunctive relief or any other legal or equitable remedy authorized by law in courts of competent jurisdiction to cure, remove or end any activity which violates this chapter. Sec 317.05. — Liability for violation. Whenever a violation of this chapter occurs or exists, or has occurred or existed, any person, individually or otherwise, who has a legal, beneficial or equitable interest in the facility or instrumentality causing or contributing to the violation, or who has a legal, beneficial or equitable interest in real property upon which such violation occurs or exists, or has occurred or existed, shall be jointly and severally liable for such violation. This provision shall be construed to impose joint and several liability upon all persons, individually or otherwise, who, although such persons may no longer have any such legal, beneficial or equitable interest in such facility or instrumentality or real property, did have such an interest at any time during which such violation existed or occurred or continued to exist or to occur. Section 4. Codification. It is the intention of the Board of County Commissioners that the provision of this ordinance shall become and be made part of the Indian River County i] 194 ORDINANCE NO. 2016 - Code, and that the sections of this ordinance may be renumbered or re -lettered and the word ordinance may be changed to section, article or such other appropriate word or phrase in order to accomplish such intention. Section 5. Severability. If any part of this ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, the remainder. of this ordinance shall not be affected by such holding and shall remain in full force and effect. Section 6. Conflict. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 7. Effective Date. This ordinance shall become effective upon adoption by the Board of County Commissioners and filing with the Department of State. This ordinance was advertised in the Indian River Press Journal on the 2nd day of November, 2016, for a public hearing to be held on the 15 day of November, 2016, at which time it was moved for adoption by Commissioner a seconded by Commissioner and adopted by the following vote: Chairman Bob Solari Vice -Chairman Joseph E. Flescher Commissioner Wesley S. Davis Commissioner Tim Zorc Commissioner Peter D..O'Bryan The Chairman thereupon declared the ordinance duly passed and adopted this day of November, 2016. BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA By:. Bob Solar-Cfiai-rman ATTEST: Jeffrey R. Smith, Clerk and Comptroller APPROVED AS TO FORM By: AND LEGAL SUFFICIENCY Deputy Clerk DYLAN REINGOLD COUNTY ATTORNEY EFFECTIVE DATE: This Ordinance was filed with the Department of State on the day of November, 2016. a t�� W r C) N N 4D W.0ner L,y, Nwemdv L ]0+6 TTw Cert NRwaPap.r. 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XendGx, Es. v Puell 111, b: November 1, 9, 2016 Pub: November 2.9.3016 PUG:NOwmber;9,11116 FI.Hda Bar No. 827052 TCN 839998 TCN RIOCR Avid.hendrix@p.1y-robin- T,ElltOe CPMtNewspapers Wednesday, November L 2016 3D NON SEQUITUR WRIGHT, WORLEV,POPE, EKSTER A MOSS. PLLC ATTORNEYS FOR THE ESTATE PASO' IS] TABOR CRY, NC -13 (S10)653-2083 : November 1. 9, IS. 23, IN THE TIME PERIODS SET FORTH INFLORIDASTATIRES SECTION 733.702 WILL BE FOREVER BARRED. NOTWITHSTANDING THE TIME PERIOD SET FGRTH ABOVE, NY•CLAIM FIL Two (U THE CIRCUITCOURT OF tlrew 1. Mrytz. 11. ESO. fiorlde Bar Nu 81121 aintg IlDx aln eox THE IN THE CIRCUIT COURT OFTHE CIRCUIT, IN AND FNR INDIAN Ana ^.Mayts@pray-rebinson FINE CIRCVITCOU0.T OFTXE NINETEENTH IU ILIAL CINETEENTX IUDICIAL RIVER oOUN-,PLO RIDA GRAYROBINSON. P.A. 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RE 38631 Box 599 (112) 3-5310 P(]7y18S30128 - Duty Wwl1-]O pVp'a 510, m2)366 Sf10RmD6311]3. W 1976 CHESE FREE3ER - ft0 OBO (1I)166]850 k 1 8x20 nybn TRVCXS-300811 Xaw in BAVERS-ebout 12050 H SIDS. $5,pR)569-BI1t BBox 399,(772188.5310 mZMfi 381 SPARE TIBC BONIT . 520. WWII PVG 5U. NEW gift $10, m2)S71-0993 (7 7 22 6 619 76 )95-?- Indian River Press Journal 1801 U.S. 1, Vero Beach, FL 32960 AFFIDAVIT OF PUBLICATION STATE OF FLORIDA COUNTY OF INDIAN RIVER Before the undersigned authority personally appeared, Sherri Cipriani, who on oath says that she is Classified Inside Sales Manager of the Indian River Press Journal, a daily newspaper published at Vero Beach in Indian River County, Florida: that the attached copy of advertisement was published in the Indian River Press Journal in the following issues below. Affiant further says that the said Indian River Press Journal is a newspaper published in Vero Beach in said Indian River County, Florida, and that said newspaper has heretofore been continuously published in said Indian River County, Florida, daily and distributed in Indian River County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she has neither paid or promised any person, firm or corporation any discount, rebate, commission or refund for the purpose of securing this advertisement for publication in the said newspaper. The Indian River Press Journal has been entered as Periodical Matter at the Post Offices in Vero Beach, Indian River County, Florida and has been for a period of one year next preceding the first publication of the attached copy of advertisement. Customer Ad Number CoRyline PO # 461741- INDIAN RIVER CO ATTORNEYS OFC 1335445 Meeting: 11/15/16: Oil & Gas Well Meeting: 11/15/16 Pub Dates Novembe , 16 Sworn d ubs ibed before me this November 01, 2016, by who is Sherri Cipriani (X) personally known to me or ( ) who has produced Sandra Coldren Notary Public as identification. rare `'r A SANDRA COLDREN `• " MY COMMISSION FIIF 004035 EXPIRES: A20 Bonded Thru Nota P ril 1, ry u 17 blic Underwriters NOV 7 2016 COUNTY ATTORNJETS OFEC,E INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSION d . 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(Z): limit remarks to three minutes unless additional time is granted by the commission NAME OF INDIVIDUAL OR ORGANIZATION: Brian Heady ADDRESS: 406 19`h Street, Vero Beach PHONE: 772-696-4242 SUBJECT MATTER FOR DISCUSSION: Representative Government IS A DIGITAL/ELECTRONIC PRESENTATION PLANNED? FIYES Fx I NO IS THIS AN APPEAL OF A DECISION WHAT RESOLUTION ARE YOU REQUESTING OF THE COMMISSION? F-1 YES Corrective Action By County Commission ARE PUBLIC FUNDS OR ACTIVITIES REQUIRED? F-1 YES WHAT FUNDS OR ACTIVITIES ARE Corrective Action by County Commission REQUIRED TO MEET THIS REQUEST. Transmitted to Administrator Via: Interactive Web Form X_ E -Mail Hand Delivered Phone COUNTY ADMINISTRATOR MEETING DATE: FX1 NO F1 NO Jason E. Brown November 15, 2016 DOCUM t2 INDIAN RIVER COUNTY IC BUILDING DIVISION INTEROFFICE MEMORANDUM TO: Jason E. Brown County Administrator DATE: November 2; 2016 SUBJECT: Condemnation, Demolition and Removal of Unsafe Structures Located at 529 20" Street S.W., 2385 11" Court S.W., 479532 d Avenue, and 6345 85h Street THROUGH: Stan Boling, Dir t r Community Deve pment Department FROM: Scott P. McAdam, MCP, CBO Building Official It is requested that the data herein presented be given formal consideration by the Board of County Commissioners at its regular meeting of November 15, 2016. DESCRIPTION AND CONDITIONS: The structures listed in the attached condemnation list have been condemned and ordered repaired or removed by the Building Official. Said structures have been inspected by staff and are considered unsafe and detrimental to the health, safety, and welfare of the general public. As per county code requirements, the owners of the properties and others with an interest in the properties were issued notices to repair or remove the structures within 60 days, and advised of their right to appeal the condemnation order before the Indian River County Building Code Board of Adjustments and Appeals. In addition, condemnation cards were posted on the properties. The owners were also notified that the Board would consider a Resolution to demolish the buildings and impose liens, if they failed to demolish the structures or obtain permits to repair the structures. None of the owners have applied for repair permits, demolition permits, or appealed the decision of the Building Official. FXommunity Development\BUILDING\BCC Agendas\11.15.16.doc ' i'97 ANALYSIS: The subject residential structures have been vacant for a considerable time. During that time, the buildings have continued to deteriorate and have been frequented by vandals and transients. Not only have the owners failed to maintain the structures in compliance with the Minimum Standard Codes, they have failed to bring the structures into compliance as required by posted notice. Since the owners have not filed an appeal to the condemnation order, the county may now proceed with demolition of the structures and With assessing "a lien against the -property f6r demolition and removal. Recent County demolition contracts have averaged $5,000 per residential site. The County Attorney's Office has reviewed the title reports on these four parcels and found the following encumbrances: 1. Martha R. Williams, 529 20`' Street S.W., Vero Beach: this parcel has five outstanding tax certificates for 2011 through 2015 with taxes due and owing in the amount of $3,897.12. There are also two code enforcement liens accruing on the parcel: a 2013 lien for long grass and discarded furniture and a 2015 lien for junk trash and debris. The two code liens total over $152,000. There is also a 2010 utility lien for $117.93, plus interest and penalties. The Sheriff's Office has expressed concerns about this structure being used for nefarious activity -in close proximity to Indian River Academy Elementary School. 2. Helen Cooper, 2385 1 Ph Court S.W., Vero Beach: this parcel has three outstanding liens for Vero Beach Highlands Property Owners Association unpaid dues accruing since July 2011 totaling $3,896.54, plus interest and additional fees since 2014. There is also a code enforcement lien on the property for long grass and weeds from 2011, now over $176,000. 3. LaCrystal Demario. and Antonio Yorker, with full rights of survivorship, 4795 32nd Avenue. Vero Beach: this parcel has a 2006 utility lien for $543.64, plus penalties; interest and accruing line charges. There are also code enforcement liens from 2009 and 2014 totaling over $94,000. One of the owners has a judgment for costs in a 2010 criminal case for $275.00. 4. William C. Minns, Sr. and William C. Minns, Jr., as joint tenants with the right of survivorship, 6345 85h Street: The Minnis property is immediately west of Lee's Pool Hall in Wabasso. This parcel has a County lien for water on the property from 2011 in the amount of $221.64, plus current charges, interest and penalties. There are Tax Certificates outstanding for 2013, 2014 and 2015 for a total due and owing of $2,902.96. The Health Department has expressed concerns about this structure. F:\Commun4 Development\BUILDING\BCC Agendas\1 1. 1 5.16.doc 19;8 Preliminary research shows that while this is an older building, it would not qualify as a historic structure. One of the properties is located in the Gifford Neighborhood Plan area known as east Gifford. Demolition of unsafe structures on those sites, as proposed, will help meet the neighborhood plan objective of demolishing 10 unsafe structures in east Gifford by 2016. Also, in accordance with the neighborhood plan, the demolition project will include weed removal/control on the subject lots. FUNDING It is estimated that funding in the amount of $20,000 (4 x $5,000) will be needed for the demolition and removal of the unsafe structures on the four residential sites and that funding is available in the MSTU Fund/Reserve for Contingency. After demolition bids are received and a demolition contract is awarded, a budget amendment will need to be processed to move those funds to the MSTU/Road & Bridge/Other Contractual Services - Account 4 00421441-033490. RECOMMENDATION Staff recommends that the Board of County Commissioners declare the referenced structures unsafe and a nuisance and order the buildings demolished, with related debris removed from the property by a private vendor approved through standard bid procedures. Staff further recommends that the Board adopt the attached resolution authorizing the Building Official to report the county's demolition and debris removal cost for said structures to the County Attorney for the preparation and recording of a lien to be placed on the real property of the owners of the demolished unsafe structures for the purpose of recovering the County's demolition costs. Attachments: 1. Resolution 2. Condemnation List 3. Pictures of Condemned Structures APPROVED / FOR: Indian River Co. Appro c Date Admin. Legal 1D Budget fyq S '7� Dept. u 710 Risk Mgr. FACommunity Development\BUILDING\BCC Agendas\1 1. 15. 16.doc I" RESOLUTION NO. 2016- A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, PROVIDING FOR THE DEMOLITION OF UNSAFE STRUCTURES AND THE RECOVERY OF COSTS. WHEREAS, Indian River County has adopted the Property Maintenance Code at Chapter 403, Indian River County Code; and WHEREAS, Section 403.08 of the Property Maintenance Code provides for the recovery of the costs of repairs to and/or demolitions of unsafe structures; and WHEREAS, Section 100.080 of the Indian River County Code provides that the Board of. County Commissioners may cause, by resolution, a lien to be filed in the Official Record Books of the County against properties on which the county has incurred demolition costs; and WHEREAS, A notice of intent to adopt a lien resolution has been given to the proposed lienee(s), NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that the unsafe structures on the properties described on the attached Condemnation List be demolished; and that any costs incurred by County government as a result of such demolition undertaken at the direction of the Board of County Commissioners shall be recovered from the property upon which each unsafe structure is located, as identified in the attached Condemnation List. The costs of such demolition shall be reported to the Building Director who shall notify the County Attorney's Office to prepare lien(s) for the recovery of those costs, to be placed upon the real property of the unsafe structures as listed in the,attached Condemnation List, any such liens bearing interest at the rate established by the Board of County Commissioners for the calendar year in which the lien is recorded, such interest to commence accruing from the date the lien is recorded in the Public Records of Indian River County, Florida, until such time as the lien, including interest, is paid. FACommunity DevelopmentWILDINGWC Agendas\11.15.16 resolution.doc.docx Attachment 1 200 RESOLUTION NO. 2016 - The foregoing resolution was offered by Commissioner and seconded by Commissioner and, upon being put to a vote, the vote was as follows: Bob Solari, Chairman Joseph E. Flescher, Vice Chairman Wesley S. Davis, Commissioner _ Peter D. O'Bryan, Commissioner Tim Zorc, Commissioner The Chairman thereupon declared the resolution duly passed and adopted this 15th day of November, 2016. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Bob Solari, Chairman ATTEST: Jeffrey R. Smith, Clerk By Clerk of Court and Comptroller APPROVED AS TO FORM AND LEGAL SUFFICIE Y: Wam K. DeBraal Deputy County Attorney F:\Community Development\BUILDING\BCC Agendas\] 1. 15.16 resolution.doc.docx Attachment 1 201 i. Owner: Pro e Tax IN: Lecwl Desc.: 2. Owner: Pro e Tax ID#: Legal Desc.: 3. Owner: Property: .Tax ID#: Legal Desc.: CONDEMNATION LIST: Martha R, Williams 529 20th Street S.W. 33-39-36-00002-0280-00026.0 Lot 26, Block 28, Vero Beach Highlands Sub Unit 2, according to the Plat thereof, recorded in Plat Book 5, Page 77, of the Public Records of Indian River County, Florida. Helen Cooper 2385 11 th Court S.W. 33-39-36-00005-1180-00023.0 Lot 23, Block 118, Unit 5 of The Vero Beach Highlands according to the Plat thereof as recorded in the Plat Book 8, Page 56 of the Public Records of Indian River County, Florida. LaCrystol Demario and Antonio Yorker 4795 32nd Avenue 32-39-22-00007-0090-000 12.0 Lots 12 and 13, Block 9, Smith Plaza S.D. according to the plat filed in the office of the Clerk of the Circuit Court of Indian River County, Florida, in Book 1, Page. 18. FXommunity Development\BUILDING\BCC Agendas\ 11. 15.16 condemnation list.docx Attachment 2 4. Owner: William C. Minnis, Sr. & William C. Minnis, Jr. Property: 6345 85th Street Tax 1D#k1 31-39-32-00001-0030-00004.0 Legal Desc.: Lot No, 4, Block 3, of Colored School Subdivision, a subdivision of the N.E.'/< of the N.W. Y< of Section 32, Township 31 South, Range 39 East, according to the plat filed for record in the Clerk of the Circuit Court of Indian River County, in Plat Book 2, Page 52, less North 15 Feet for Road Right of Way. FACommunity Development\BUILDINGIBCC Agendas111.15.16 condemnation li st.docx Attachment 2 �tl� 529 20th St SW � 5 o4 ull i � 1 t' o4 ull a may' �. ,� l � '.�*��� �f,.�l�;� � � )� f 1�j yr,•� $y s vv {fi{t i♦� ry3 t1,I) {r �` Ci!` 1i) ,ifs• #� rj ( G 7 �. .~� ig1A�,A,{�'�, 1 ,. r t� S f���(+�[��%^� �' ' � j ��7fS� �" S'�4�'4� � , � y �liC!'' 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Awk 1- •r_. Y If } • �l1 P ?� t • r � i r V � t ,- • •` �., ' +'� a', � Vit• ��� r• 1 to Oil q0 - M r / l 1 + i , 111 ►� r ••y •, 4five • • r � 1 •S{ 1,�a s •- 1. �!22 �1, 71 rVIJ r CONDEMNATIONS NOVEMBER 15, 2016 PROPERTY#1 OWNER MARTHA R WILLIAMS 52920TH STREET SW 33-39-36-00002-0280-00026.0 1 11/16/2016 I2)1\.I. 11/16/2016 5292 OTH STREET SW 02/25/2016 � E K 52920TH STREET SW 11/10/2016 529 20TH STREET SW 11/10/2016 529 20TH STREET SW 11/10/2016 1 11/16/2016 i , I 1 I 1 2.2.7 3 529.20T" STREET SW 11/10/2016 52920TH STREET SW 02/25/2016 . 11/16/2016 PROPERTY#2 OWNER HELEN COOPER 2385 11TH COURT SW 33-39-36-00005-1180-00023.0 2385 11TH COURT SW 11/10/2016 11/16/2016 X7';5 2385 11TH COURT SW 11/07/2016 2385 11TH COURT SW 11/10/2016 I , Z2-- 6 2385 11TH COURT SW 11/10/2016 2385 11TH COURT SW 11/10/2016 s 11/16/2016 12 PROPERTY#3 OWNER LACRYSTAL DEMARIO AND ANTONIO YORKER 479532 ND AVENUE 32-39-22-00007-0090-00012.0 479532 ND AVENUE 11/10/2016 11/16/2016 11/16/2016 479532 ND AVENUE 11/10/2016 227-9 479532 ND AVENUE 11/10/2016 PROPERTY #4 OWNER WILLIAM C MINNIS SR AND WILLIAM C MINNIS JR 634585 TH STREET 31-39-32-00001-0030-00004.0 11/16/2016 I 3 I t 1 1 227-10 634585 TH STREET 11/10/2016. 634585 TH STREET 11/07/2016 11/16/2016 I 11/16/2016 634585 TH STREET 6345 08/03/2015 t.. �� T. S� i •�;y pii� 2_71-12 1 6345 85TH STREET t.. �� T. S� i •�;y pii� 2_71-12 1 634585 TH STREET 08/03/2015 634585 TH STREET 08/03/2015 2i 13 6345 85TH STREET 11/10/2016 634585 TH STREET 11/10/2016 11/16/2016 634585 TH STREET 08/03/2015 11/16/2016 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Jason E. Brown; County Administrator FROM: Stan Boling, CP; Pinmunity Development. Director DATE: November 4, 2016 SUBJECT: Request for Authorization to Initiate a Comprehensive Plan Text Amendment to Mixed Use Policy 5.6 of the Future Land Use Element (FLUE) It is requested that the data herein presented be given formal consideration by the Board of County Commissioners at its regular meeting of November 15, 2016. BACKGROUND In 2013, the Board authorized staff to pursue a number of economic development initiatives. Many initiatives have been acted upon by the Board, including an LDR change for building heights in an I-95/SR60 industrial area adjacent to the CVS distribution center, reduction in commercial/industrial impact fees, expansion of Go -Line bus system hours, and the economic positioning initiative. One initiative staff has pursued that has not yet been formally considered by the Board involves an evaluation of commercial zoning and mixed use allowances along SR60 in the area of 66" Avenue and the adjacent Indian River State College (IRSC) campus. In pursuit of the initiative staff has evaluated zoning and mixed use opportunities in the subject area and coordinated with IRSC staff and the owner of land at the adjacent SR60/660h Avenue intersection, together with his engineer, regarding land use, shared infrastructure, and future property development. There is now agreement in concept for a potential mixed use project on re -configured private property that provides for shared infrastructure that will serve the IRSC campus and adjacent commercial and residential uses. Those coordination activities and mixed use concept were reported to the Board at its October 18, 2016 meeting under Commissioner Zorc's matter. Staff's position is that a mixed use PD (plannedd development) process is the best approach for integrating the expanding IRSC campus and developing adjacent property for commercial and multi- family development in a preferred mixed use development form. Any such PD project will provide a unique mix of uses and accommodate proper expansion of a unique community asset and resource (IRSC). It is also staff's position that such a project would be located in a "preferred location" and would warrant special mixed use criteria. In order, to allow an appropriately large mixed use development plan for the subject area and to ensure provision of shared infrastructure, the County's existing mixed use policy needs to be amended. Staff has drafted proposed changes to the mixed use policy (FLUE Policy 5.6) that provide for a large, special mixed use project that appropriately WAGTNDA\Current Year120WReyucst for Authorization to Initiate a Comp Plan Text Amend to Mixed Use Policy 5.6 - 1115168CC.doex 1 229 integrates commercial and residential uses with the adjacent IRSC campus and guarantees appropriate shared infrastructure improvements. The Board now needs to direct staff to proceed with a County -initiated comprehensive plan text amendment to Policy 5.6. ANALYSIS • Commercial Nodes Generally The Future Land Use Element (FLUE) of the County's Comprehensive plan established various commercial/industrial (C/1) nodes at appropriate locations throughout the county. Most nodes are centered around major roadway intersections such as CR512/CR510, US 1/37' Street (Medical Node), and SR60/I-95. Each of those nodes as well as many others, is less than 50% developed and has sufficient vacant acreage to accommodate future conventional commercial/industrial. development. The SR60/58th Avenue node, which extends from the 43rd Avenue/Vero Beach limits boundary on the east to 66`h Avenue on the West, is a heavily developed commercial area that includes the Indian River Mall and multiple shopping centers, and is situated adjacent to the Indian River State College (IRSC) Mueller Campus. The ±140 acre campus includes the Indian River Charter High School, Brackett Public Library, the Richardson Center, and various classroom and administration buildings, yet the western two-thirds of the campus with instructional and associated facilities is currently undeveloped and has significant frontage on SR60 (620') and 66th Avenue (1,200'). In the future, IRSC intends to develop the western two-thirds of the campus and desires direct access to the campus from SR60 and 66th Avenue. Although IRSC is not subject to the County's land use regulations, the college has coordinated with the County to ensure that campus development is generally consistent with the County's comprehensive plan. SR60/58TH Avenue Node The SR60/58th Avenue node is uniquely regulated in the County's comprehensive plan by a "cap" on the node acreage, set at a total of 308.48 acres. That 308.48 acre cap allows for an intensive regional commercial shopping area that is balanced with surrounding residential uses and SR60 infrastructure capacity. Currently, the SR60/581h Avenue node is 90.9% (280.43 acres) "built -out" with commercial sites consisting of buildings, parking areas, stormwater areas, and open space areas. Many of those sites, including Indian River Mall and a number of shopping centers, can be in -filled with additional big box and out -parcel development. The remaining 28.05 acres of non-commercial acreage within the node (vacant or remaining residential) can be developed as conventional commercial development. Mixed Use In addition to the conventional commercial development (new development, infill development, and re -development) allowed within the 308.48 acre SR60/586'Avenue node, mixed use residential and commercial development is allowed on certain sites adjacent to the node, subject to PD (Planned Development) special mixed use criteria and PD rezoning and conceptual plan approval from the Board. To date, one PD mixed use project has been approved adjacent to the node. That project, M:1AGEN'DA1Cuaent Yea620161Request for Authorization to Wtiate a Comp Plan Text Amend to Mixed Use Policy 5.6 - 111516BCC.doex 2 120 The Reserve at Vero, was approved by the Board in 2014, provides for ±4 acres of commercial development (Chick-Fil-A, future Outback Steakhouse, and future retail building) and provides for 159 multi -family units on +16 ".residential" acres. The Reserve at Vero is now mostly constructed, is designed to integrate the multi -family units with adjacent commercial uses inside and outside the project, and directly accesses College Lane and a "public" north/south access road that lies on the western edge of the adjacent Century Town Center retail center. As a result, The Reserve at Vero supplements the amount of commercial acreage in the node and provides benefits of a mixed use project which include appropriately Iocated and designed multi -family residential, infrastructure improvements that benefit the flow of residential and commercial traffic, and alternatives to SR60 access. The existing Mixed Use Policy 5.6 of the Future Land Use Element will allow a mixture of residential and commercial uses at the southeast and southwest corners of SR60 and 66' Avenue but at a limited scale (40 acres maximum) and without guarantees of shared infrastructure that will integrate the project with the IRSC expanding campus. Currently, property at the southeast and southwest corners of SR60 and 66th Avenue are under control of a single owner and are adjacent to the ±140 acre IRSC Mueller Campus which includes 90+ acres of yet -to -be -developed campus area. Through a mixed use PD "area master plan" approach, there is a unique opportunity to accommodate and integrate residential, commercial, and institutional (college) uses. Such an approach will require property reconfiguration to properly and logically consolidate owner/developer property and IRSC campus property and to ensure properly located major infrastructure improvements including shared access roads to SR60 and 6661 Avenue, a bridge over the Lateral A canal, and a traffic signal at 66th Avenue and "186i Street" (see attachment #3). In order to properly master plan and integrate uses on the east and west sides of 66' Avenue, the current mixed use project size limit needs to be increased to allow for an 80. acre maximum PD project area. Other changes to Policy 5.6 are needed to guarantee and incentivize construction of shared infrastructure improvements and to add flexibility for the timing of commercial building and residential unit construction. These changes will increase the portion of commercial area allowed within the project and will allow the timing and pace of commercial and residential "vertical development" (buildings) to vary. To address these issues, staffhas coordinated with IRSC staff and the adjacent land owner and his project engineer, and drafted proposed changes to the mixed use policy (see attachment #5). • Draft Changes to Mixed Use Policy 5.6 As structured, the draft changes establish special mixed use criteria for a "preferred location area" such as the area adjacent to both the SR60/58t1i node and the IRSC campus. Special criteria for a preferred location include an .increase in mixed use PD project maximum area from 40 acres to 80 acres. The proposed preferred location criteria also allow an increased proportion of project area for commercial use from 25% to up to 50% with a cap of 30 acres, and an increase in individual building maximum area from 25,000 sq. ft. to 60,000 sq. ft. Proposed criteria also require provision of infrastructure improvements for SR60 access, 666i Avenue access, a bridge over Lateral A canal, and signalization at 66' Avenue/" 18th Street" for any mixed use project at a preferred location adjacent to MA.AGENDA\Current Year\2016\Request for Authorization to Initiate a Comp Plan Text Amend to Mixed Use Policy 5.6 - 111516BCC.docx 3 230 IRSC. The proposed criteria require the applicant/developer to coordinate with County Public Works and IRSC with respect to .those improvements. Finally, proposed changes allow for development of. more commercial area "up front' together with a requirement for completing or entering into developers agreement for completion of the infrastructure improvements referenced above. Staff has put the draft Policy 5.6 changes as a `'place -holder" for an October 2016 comprehensive plan amendment. Therefore, if the Board authorizes staff to formally initiate the amendment review process, the draft Policy 5.6 amendment will be treated as an amendment request filed during the October 2016 comprehensive plan amendment application window. The amendment process would involve a Planning and Zoning Commission public hearing in January, a Board of County Commissioners transmittal public hearing in February/March, and a Board of County Commissioners final (adoption) hearing in April/May. If adopted, the proposed Policy 5.6 changes will accommodate the mixed use PD concept discussed by IRSC, the adjacent land owner, and staff but will leave the Board as the ultimate decision -maker for any specific mixed use PD project proposal reviewed under the amended Policy 5.6. Any project -specific decision will be made through the PD review and approval process which will involve a public bearing before the Planning and Zoning Commission and a public hearing before the Board. RECOMMENDATION Staff recommends that the Board direct staff to initiate an amendment to Future Land Use Element Policy 5.6. ATTACHMENTS: 1. SR60 /586 Avenue Node Map 2. Aerial of The Reserve at Vero Mixed Use PD 3. Sample Conceptual Lay -out of Mixed Use and IRSC Campus 4. Sample "Master Plan" Area 5. Draft Changes to Mixed Use Policy 5.6 APPROVED AGENDA ITEM: FOR: Indian River Co. ApprgxW Date Admin_ J D(p Legal Budget Dept. ,/f tl 8 lip Risk Mgr. M:\AGENDA\Current Year\2016\Request for Authorization to Initiate a Comp Plan Text Amend to Mixed Use Policy 5.6 - 111516BCC.doex 4 2311 t. +M�,:..iiw� _._: �.if�1 a.► _ !1 +�. � ..r�r . . �..► �..! i I t ., •., � • _ 'n� ,IS : _ '� �r -r - •.1� __ ' 1]' _.. r.r•. _ Tye•. .� V I•� jam. ' ' • h — �� �� • it•C. PAW I �7�tL•� qAM of 14,1 x1 q� Aw,ALL I .. /� � � � t •� '� �'�'� �! 1�'; '1+ C !� � i •.+. ws�wwY.+ err- ova r. ^low, or • c. - , / �.• w. �.- wL ` ! ♦ {jam �C' � � t r - • '- •! � .• �-" s ` - - r . a_ . ,•fir 20TH STREP R. 64. ( �. I I virmccrj�,o COMMIERCUL / :4* 't - RE i AIL/ SU INESS ,. PAR i ERSHT AEA 12V ACI- CCAEA t9.0 AQ EASE -MEN V INDIAN Tti'n C LLEGE C r 1~ �. t; r riOne virmccrj�,o a Attachment 3 234 DRAFT CHANGES TO MIXED USE POLICY S.6 Policy 5.6: By 2011, Indian River County shall adopt development regulations allowing mixed use PDs in residentially -designated areas. All mixed use PDs in residentially designated areas shall meet all of the following criteria: Development Parameters 1. The maximum project area for a mixed use PD in a residential area shall be 40 acres 'educational facility such as Indian River State College In a preferred location areal the maximum mixed use PD project area shall be 80 acres.1 Mixed use projects' not located in a preferred location areal exceeding 40 acres shall be designed as Traditional Neighborhood Design '(TND) developments and shall :comply with Future .Land Use Element Policies 18.1, 18.2, and 18.3. 2. Mixed use PDs shall be limited to areas designated L-1, L-2, M-1, and M-2 and shall be located along SR 60, US 1, Indian River Blvd., 58`h Avenue, CR 510 (west of the Indian River Lagoon), CR 512, or Oslo Road. Alternatively, mixed use PDs in M-1 and M-2 designated areas may be located on sites that are adjacent to C/i nodes. Mix of Uses 3. To ensure that mixed use PDs contain an appropriate mix of residential and commercial uses, commercial uses shall_ be. allowed to constitute no more than 25%yup to 50% in a ferred location area not to exceed_ a total of 30 acres of commercial arca) of a project's land area. 4. The vertical mixing. of uses is allowed and strongly encouraged. Where residential and/or office uses are designed and located above commercial uses, the amount of commercial area may constitute up to 30%'(up to 60% in a crcferred location ares of the project's land area. 5. For purposes of these mixed use regulations, commercial area shall include buildings, parking areas, and adjacent improvements that serve commercial uses. Open space areas and common areas/improvements that are shared with residential uses, however, shall not be treated as commercial area. ;6 Commercial uses allowed in mixed-use PDs shall be limited to lodging, institutional, office, retail (including fuel sales), personal service, and restaurant use=an live/work/commercial flex space' -� 7. Within mixed use PDs, the Floor Area Ratio (FAR) for commercial uses shall be applied to the commercial area. For the commercial area, the maximum FAR shall be 0.35. I Attachment 5 DRAFT CHANGES TO MIXED USE POLICY S.6 8. Within mixed use PDs, the maximum number of allowable residential units shall be derived by applying the applicable comprehensive plan land use designation density allowance to the entire area of the project and, in addition, may include any applicable density bonuses. 9. Within mixed use PDs, commercial areas may be internal to the project or may be located along a project's boundary, where such boundary abuts a thoroughfare road or is adjacent to C/1 -designated property. Where such commercial uses would face residential uses located outside the project, buffering and compatibility improvements shall be required to mitigate any adverse impacts.. 10. On -street parking shall be allowed within mixed use projects. 11. All mixed use PDs shall be designed to include a transit stop within the project. Building Design and Setbacks 12. Within mixed use PDs, common architectural themes, common hardscape and signage themes, and multiple pedestrian connections shall be required to integrate nonresidential uses with residential uses. Common architectural themes shall apply to both commercial and residential areas of the project. 13. Within mixed use PDs, no individual commercial building shall exceed 25,000 sq. ft. (up to 60.000 sq. ft. in a preferred location area) in commercial floor area. Lodging uses shall be exempt from this these limitations. 14. Where a nonresidential building in a mixed use PD is adjacent to residential buildings located outside the project, the nonresidential buildings shall be compatible with nearby residential buildings. The scale of such nonresidential buildings may be minimized by articulating the building's mass, using sloped roofs instead flat roofs screened by parapets, and/or by planting canopy trees around the building's foundation. For residential buildings adjacent to a mixed use PD, an existing buffer may be used to satisfy the compatibility requirement. Street Network 15. Each mixed use PD shall offer alternative routes and connections between destinations within the project and to appropriate uses on adjacent sites by designing and constructing a street network that consists of a grid or modified grid pattern that accommodates connections to appropriate uses on adjacent sites. 16. The project shall contain a network of interconnected streets, sidewalks, and pathways. Streets shall be designed to balance pedestrian and automobile needs, to discourage high automobile speeds, to effectively and efficiently accommodate transit systems, and to distribute and diffuse traffic rather than concentrate it. Attachment 5 237 DRAFT CHANGES TO MIXED USE POLICY 5.6 17. Street trees shall be provided so as to shade sidewalk areas and buffer sidewalk areas from automobile traffic. 18. For a mixed use nroiect located in a nrefe Timing of Construction 19. IT In each mixed use PD, no more than'3 acres (up to 15 acres in apreferred location IT or 50% of the total commercial area allowed, whichever is greater, shall be constructed until at least 25% of the proposed residential development has been constructed, and no certificate of occupancy_shall be issued for commercial area exceeding 3 acres Euj to 15 acres in a referred location or 50% of the total commercial area allowed, whichever is greater, unless at least 25% of the total residential development has received certificates of occupancy. 20. For a mixed use project located in a preferred location area adiacent to Indian River F:\Community Development\Comprehensive Plan Elements\2030 supplements for 2030 comp plan\Supplement#13\Future Land Use Policy 5.6.docx 3 Attachment 5& _ C/3 p Q] C CQ L -i cu --j cp CQ U-� . — C= v C3 p C O.] cu W z 0 L CU 0 p U H- CD p O O LJ7 U LL. 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Brown, County Administrator, THROUGH: Richard B. Szpyrka, P.E., Public Works Director . James W. Ennis, P.E., PMP, County Engineer FROM: Michael D. Nixon, P.E., Roadway Production Manager SUBJECT: As -Built Resolution and Final Assessment Roll for 51st Avenue Petition Millings Project (65th Street to 671h Street) DATE: October 31, 2016 DESCRIPTION AND CONDITIONS Representatives in the Winter Beach Highlands Subdivision presented County staff with a petition to install asphalt millings on a portion of 51s' Avenue. This portion of 51St Avenue is a dirt road that begins approximately 58 feet north of the paved intersection with 65th Street and terminates approximately 75 feet south of the paved intersection with 671h Street. The petition met the requirements for petition paving (millings). On May 3, 2016 the Board of County Commissioners conducted the Public Hearing with regard to the special assessment and directed staff to move forward with the project. The proposed improvements to 51St Avenue consisted of the installation of 8 -inch thick compacted asphalt millings over 9 -inches of stabilized sub -grade. The roadway limits are from 65th Street to 67th Street, approximately 1,180 feet. At the residents' request, the millings were placed in the same area as the existing dirt roadway and no roadway widening, shoulder work or drainage was included as part of the project. The final cost was $34,274.20 less than the preliminary estimate and the final assessment is as follows: PRELIMINARY ESTIMATE Total Project Cost (100%) = $74,731.51 Property Owners Participation = $57,169.60 (75% plus 2% collection fee) Total Square Feet = 362,419.20 Property Owners Participation Cost per square feet = $0.1577444021 FINAL COST Total Project Cost (100%) = $40,457.31 Property Owners Participation = $30,949.84 (75% plus 2% collection fee) Total Square Feet = 362,419.20 Property Owners Participation Cost per square feet = $0.0853979039 239 PAPubbe Works\ENGINEERING AMSION PROIECMI5i I-Slst Ave Mdling_65th Stto 67Th SAA"n\nge a item\1436- BCC 51 AWIAS-BUILT, RES 4, 11�&16.dm Page 2 As -Built Resolution and Final Assessment Roll for 51s' Avenue Petition Millings Project (65th Street to 67th Street) The Final Assessment Roll has been prepared and is ready to be delivered to the Clerk to the Board. The Board of County Commissioners approved the two (2) year payment plan so that assessments can be paid within 90 days or spread out over two (2) equal installments, the first to be made twelve (12) months from the due date and the subsequent payment to be due the next year at an interest rate of 5.00% as established by the Board of County Commissioners. FUNDING The total project cost $40,457.31 75%to. be paid by property owners = $30,342.98 2% Collection fee (75% figure) = $606.86 Total assessment = $30,949.84 25% to be paid by the County = $10,114.33 to be allocated from the Secondary Roads Gas Tax Account No. 10921441-035510-16019, Petition Paving — 51St Avenue (65th Street to 67th Street). RECOMMENDATION Staff recommends the Board of County Commissioners move to approve the As -Built Resolution and the Final Assessment Roll. The Final Assessment Roil and Assessment Map are available for viewing in the Board of County Commissioner's Office and are to be transferred to the Department of Utility Services for billing and collection. ATTACHMENTS 1. As -Built Resolution 2. As -Built Costs 3. Final Assessment Roll and Assessment Map DISTRIBUTION 1. William S. Scott, P.E., Road & Bridge Superintendent 2. Vincent M. Burke, P.E., Director of Utilities Services APPROVED AGENDA ITEM FOI BY: Indian River County Approv Administration /Date l)/ . 14/ , Budget Legal Utilities Public Works Engineering / 240 F:\Public NoikS\BNGINEERING DIVISION PROJECTS\1511-51St Ave Nilling_65th St to 67th St\Admin\agenda iteMS\1436- BCC 51 Ave -AS - BMW, RES 4, 11-8-16.doc - As -Built (Fourth Reso.) RESOLUTION NO. 2016- A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA, CERTIFYING "AS -BUILT" COSTS FOR CERTAIN ASPHALT MILLING IMPROVEMENTS TO 51" AVENUE IN THE WINTER BEACH HIGHLANDS SUBDIVISION, INDIAN RIVER COUNTY PROJECT NO. 1511; AND OTHER CONSTRUCTION NECESSITATED BY SUCH PROJECT; PROVIDING FOR FORMAL COMPLETION DATE, AND DATE FOR PAYMENT WITHOUT PENALTY AND INTEREST. WHEREAS, the Board of County Commissioners of Indian River County determined that the improvements described herein specially benefited the property located within the boundaries as described in this title, designated as Project No. 1511, are in the public interest and promote the public welfare of the county; and WHEREAS, on May 3, 2016 the Board held a public hearing in the Commission Chambers at which time the owners of the property to be assessed were afforded an opportunity to appear before the Board to be heard as to the propriety and advisability of making such improvements; and WHEREAS, after such public hearing was held the County Commission adopted Resolution No. 2016-040 which confirmed the special assessment cost of the project to the property specially benefited by the project in the amounts listed in an attachment to that resolution; and WHEREAS, now that the project has been completed, the Director of Public Works has certified the actual "As -Built" cost to be $0.0853979039 per square foot, which is less than $0.1577444021 per square foot in the Confirming Resolution No. 2016-040. F.\Public Works\ENGINEERING DIVISION PROJECTS\1511-51st Ave Milling_65th St to 67th St\Admin\agenda items\1511 Resolution -As Built (FOURTH).docx l '241 As -Built (Fourth Reso.) NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that: 1. To avoid interest and penalty charges, payment may be made within ninety (90) days after the passage of this resolution. 2. Payments bearing interest at the rate of 5.00% per annum may be made in 2 equal annual installments, the first to be made twelve (12) months from the due date. The due date is ninety (90) days after the passage of this resolution. 3. The assessment roll for said project listed in Resolution No. 2016-040 shall be as set forth in attached ASSESSMENT ROLL to this resolution. 4. The assessments as shown in attached ASSESMENT ROLL shall stand confirmed and will remain legal, valid, and binding first liens against the property against which such assessments are made until paid. 5. The assessments shown in ASSESMENT ROLL, attached to Resolution No. 2016-040 were recorded by the County on the public records of Indian River County, and the lien shall remain prima facie evidence of its validity. F:\Public Works\ENGINEERING DIVISION PROJECTS\1511-51st Ave Milling -65th St to 67th St\Admin\agenda Items\1511 Resolution -As Built (FOURTN).doar 2 '242 m mm N m:: �i egif W, m. m1 ' K7. ni a! rn. ® i tl0 w+ m n : �i, 6)� �tj� N n• n� N� n N nI N n; n'�r. cm ciil —� t C -4 h- i7! 1 N 1!f N plll! 4 m" ' -0 CD N Nt s� m' O! O� Imo! t0 W CD O Ol 11 m� W I W m " W m " f Q:' m 'a "r N f ;'6Ga "f I uat4 w! w a 4+ lo, ": "i ylj 4* ---N` a gym. ml of m b=' m + of N+ mi rI n. o—} of o� I. ni ODD I r m r vi v! a a •{I _ H; Oji Nf mi N{ OI N� f71 N� N. O O� o O O Of OI OI �I riz N� eV 245 4WA4 o rONdNOI9Wa�jNM33N19N3lsVOM>31@Vflj CM HOV38 831NIM 'S) '1S H199 Dylan Reingold, County Attorney William K. DeBraal, Deputy County Attorney Bate P. Cotner, Assistant County Attorney Office Of Attorneys Matters 19/ 15116 INDIAN RIVER COUNTY MEMORANDUM TO: Board of County Commissioners THROUGH: Vincent Burke, Utilities Directogg and Richard B. Szpyrka, P.E., Public Works Director FROM: William K. DeBraal, Deputy County Attorney DATE: November 4, 2016 ATTORNEY s RE: Approval of Mediated Settlement Agreement - Parcel of Property Owned by Kevin and Paula Jones Located on 27"' Avenue SW at the South Main Relief Canal I. Background. Kevin and Paula Jones own a 0.30 acre parcel of property that lies north of the South Main Relief Canal on 27a' Avenue. SW. This rectangular -shaped property contains a single- family home that makes up one part in a 4 -unit subdivision. The property is zoned A-1, agricultural, 1 unit per five acres. The home shares a 150' boundary with the canal. The parent parcel of the subdivision is owned by Milo Miller, a longtime resident and business owner in Indian River County. Mrs. Jones states that there are now five generations of the Miller family living on the four lots. Please see the aerial photo of the property attached as Exhibit A. In 2013, the County began work on the Osprey Marsh Algal Turf Scrubber. Osprey Marsh combines the brine water byproduct from the South County Water Treatment Plant and combines it with water pumped from the South Relief Canal prior to its introduction into the Indian River Lagoon. The benefit of Osprey Marsh is twofold: removal of nutrients from water that would normally flow untreated to the Lagoon and disposal of the reverse osmosis water treatment by- product. APPROVLD "FOR�—� ..C.C. MEETING REGI!GENJA - 247 MEMORANDUM —Jones Mediation Nutrient Removal System November 4, 2016 Page 12 The first step of the treatment process is pumping water from the canal to the Osprey Marsh site. Two large submerged pumps were installed on the north side of the canal just west of the 27th Avenue SW bridge. The canal water is pumped into a pipe that leads to the Osprey Marsh site. In order to protect the pumps from getting damaged and/or clogged with vegetation or other solid material present in the canal, the County constructed a nutrient removal system just upstream from the pumps. The nutrient removal system uses screens to trap solids that are then brought to the surface via a conveyor belt and dumped into a dumpster. The nutrient removal system was constructed wholly within Indian River Farms Water Control District right-of-way but unfortunately, Mr. and Mrs. Jones' house is approximately 14 feet from the right-of-way line and the removal system dumpster is less than 25 feet from their house. Initial plans submitted to the Farms called for the removal system to be installed on the south side of the canal but those plans were changed at the. behest of the Farms. Problems arose soon after construction of the nutrient removal system. Excavation revealed that the drain field from the Jones' septic system encroached into the Farms' canal right-of-way and clearing of the site destroyed most of the drain field. Construction plans called for sheet'piles to be driven into the ground for pouring the concrete walls for the installation of the nutrient removal system. The contractor set up seismic measuring equipment to monitor pile driving. While the measuring equipment showed readings within acceptable levels, the Jones' complained of cracks in their floors, ceilings, exterior walls and their septic tank. Later when epoxy was used to seal cracks in the concrete walls of the nutrient removal system, the Jones' claimed the fumes from the epoxy inundated their house. After construction was complete and the nutrient removal system was operating, the Jones' noticed that odors were emanating from the dumpster. Aside from vegetative debris accumulating in the dumpster, apple snails were being caught in the nutrient removal system and deposited in the dumpster. Apple snails are a species of fresh water snail common to South Florida, Central and South America. The snail can grow up to the size of a golf ball or bigger. Shortly before the Fourth of July holiday, the Jones' complained that the smell from the rotting apple snail was so acrid they had to leave their house and retreat to a hotel to avoid the smell. In November, 2015, the County received notice that the Jones' were filing a lawsuit claiming the nutrient removal system was a nuisance creating problems to the extent that a taking had occurred, together with damages suffered through construction. A nuisance inverse condemnation suit consists of two parts. First, the person making the claim must prove a nuisance exists at a trial before a judge only. Second, if a nuisance is proved, the case proceeds to the assessment of damages before a 12 -member jury. If the court finds the nuisance is severe enough, the judge may order the nuisance to be stopped, which in this case may mean the discontinuation of the use of the nutrient removal system. F:\Attomey\Nancy\DOCSBILL'S\SCC memo mediation agreement acceptance.doc 249 MEMORANDUM —Jones Mediation Nutrient Removal System November 4, 2016 Fag e 13 If the judge would find a nuisance exists at the first part of the trial, the County would be responsible for attorney's fees and costs. In the second part of the case on damage, the County would once again be responsible for the injured party's attorney's fees and expert witness costs. Seeking to keep its costs to a minimum, the County Attorney's Office asked the Jones' attorney, J. Stanley Chapman of the Equels Law Firm in Tallahassee, for pre -suit mediation. They agreed and on October 25, 2016, mediation was held here in the County Administration Building with H. Randall Brennan as the mediator. Those in attendance were Kevin and Paula Jones; J. Stanley Chapman, their attorney; Vincent Burke, Utilities Director; Richard B Szpyrka, P.E., Public Works Director; Keith McCulley, Project Engineer; and Bill DeBraal, Deputy County Attorney. The parties met for over seven hours and produced the attached mediation agreement for the Board's consideration. The major points in the agreement are: 1. The County will pay $85,000.00 to the Jones' in full and final satisfaction of all claims arising out of this matter, inclusive of all costs and attorney's fees. 2. The County will continue with its twice weekly emptying of the dumpster at the nutrient removal system. 3. Cooperate with the Jones' in permitting of the new septic tank and drain field. 4. Permit a curb to be installed along the north side of the nutrient removal system property at the Jones' expense to reduce drainage onto the Jones' property. 5. Allow the Jones' to plant and maintain landscaping at the Jones' expense along the fence of the nutrient removal system. H. Evaluation. Staff had considered connecting the :!ones' house to County sewer at the County's expense but the closest line would have required installation of a small lift station on the Jones' property. Coupled with the house being built before building permits were required, the retrofitting of pipes and electricity in a 60 -year old house could produce several new problems during the construction process. The current offer was based on making the Jones' property whole again by providing them with the ability to replace the septic system, repair the damage done to the house and compensate them for the claimed diminution of value to the house caused by the nutrient removal system. 1I1. Risk Assessment. If the matter would proceed to a law suit, the County is exposed to attorney's fees, expert witness costs and on its worst day, cessation of the use of the nutrient removal system. On its best day, the court would not find a nuisance or a taking exists and our exposure would be limited to our own expert costs and attorney's fees. Mrs. Jones has lived on the property for most of her life. Her father recently gave them ownership of the house and lot in 2014 and it is their intent to fix up the property. F:\Attomey\Nancy\DOCS\BlLL'S\BCC memo mediation agreement acceptance.doc: 240 MEMORANDUM -Jones Mediation Nutrient Removal System November 9, 2016 17a e J4 IV. Funding. Funding for the $85,000 will be made available through a budget amendment from the Transportation Fund/Reserve for Contingency to Transportation Fund/Stormwater/Other Contractual Services/Osprey Marsh Acct # 11128138-033490-06050 for 70% of the expense ($59,500) and 30% ($25;500) from Utilities/Cash Forward -Oct 1"T to Utilities/Osprey Marsh/Other Contractual Services, Acct # 47128236-033490. V.Recommendation. The County Attorney's Office recommends that the Board approve the Mediated Settlement Agreement and authorize the Chairman to execute any documents in furtherance of the agreement on behalf of the Board. All appraisal reports, expert reports and copies of invoices are not attached to this memo due to their length but are available for review at the County Attorney's Office. Copy to: Bill Doney H. Stanley Chapman Attachments: Aerial Photo Mediated Settlement Agreement Release 4 F:\Attorney\Nancy\DOCS\BILL'S\BCC memo mediation agreement acceptance.doc '25'50 P. 4j � c• � ~� I?' FFFp Pre -Suit Settlement Agreement Paula Jones and Kevin Jones (collectively Plaintiffs) and Indian River County (hereafter. IRC and/or Defendant) and agree to settle all claims between them arising out of a dispute involving the County's nutrient removal facility, which is located adjacent to the Plaintiff's premises located at 285 27thAve SW, Vero Beach, Florida (hereafter the Premises), as follows: 1. Defendant agrees to pay Plaintiffs the sum of $85,000.00 (Eighty -Five Thousand Dollars), subject to the provisions of this agreement. 2. Defendant agrees to cooperate with Plaintiffs with regard to repair or replacement of the septic system installed at the Premises, at Plaintiffs expense. Plaintiffs understand that permitting for repair or replacement of the septic system involves agencies other than IRC. 3. Defendant agrees to cooperate with the Plaintiffs and to allow Plaintiffs to install reasonable curbing along the cement slab of the County's nutrient removal facility in order to reduce drainage flowing onto the Premises. 4. Defendant agrees to allow Plaintiffs to place landscaping along the fence line between the Premises and the County's nutrient removal facility. 5. Defendant agrees to pay the full cost of this pre -suit mediation. 6. This agreement is subject to approval by the Indian River County Commission. If approved, Defendant agrees to pay the amount stated in paragraph one above within 10 days of approval. 7. Plaintiffs agree to sign a general release in favor of IRC. 8. If the County Commission does not approve this agreement, then this agreement is void. 9. The County agrees to pay the entire cost of this mediation, whether or not the agreement is approved. This agreement is signed this 25th Day of October, 2016, in Vero Beach, Florida. Signat es: Kevin Jones Pa a o s Indian River County B eputy County Attorney J. nley C man, Plaintiff Counsel 252 IN WITNESS WHEREOF; the County has executed this Pre -suit Settlement GENERAL RELEASE (Wherever used herein, the terms "first party" and "second party" shall include singular and plural, heirs, legal representatives; and assigns of individuals, and the successors and assigns of corporations, wherever the context so admits or requires.) KNOW ALL MEN BY THESE PRESENTS: That we, PAULA JONES and KEVIN JONES, first party, for and in consideration of the sum of EIGHTY-FIVE THOUSAND AND N0/100 DOLLARS ($85,000.00), or other valuable consideration, received from or on behalf of INDIAN RIVER COUNTY, second party, the receipt whereof is hereby acknowledged, hereby remise, release and acquit, satisfy, and forever discharge the said second party, of and from any and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have, against said second party, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the date of these presents. IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of , 2016. - Paula Jones By: Kevin Jones STATE OF FLORIDA COUNTY OF INDIAN RIVER SUBSCRIBED and SWORN TO before me this day of , 2016, by Paula Jones and Kevin Jones, who are either personally known to me or who each produced a oath. (driver's license or passport), and who did not take an NOTARY: My Commission No: My Commission Expires: SEAL: 254 Dylan Reingold, County .-Attorney William K. DeBraal, Deputy County Attorney Kate Pingolt Cotner, Assistant County Attorney Attorneys Matters - B. CC 11. 15.16 Office of INDIAN RIVER COUNTY ATTORNEY MEMORANDUM TO: Board of County Commissioners FROM: Dylan Reingold, County Attorney DATE: November 2, 2016 .SUBJECT: 1016 Booker Street - County Deed to City of Fellsmere BACKGROUND In 2004, the property located at 1016 Booker Street, legally described as Lot 194, Block 8, Hall, Carter &. James Subdivision, according to the plat thereof as recorded in Plat Book 3, Page 31, Public Records of St. Lucie County, Florida, within the City of Fellsmere (the "Property"), escheated to Indian River County. In 2009, Indian River County deeded the property to Every Dream Has A Price, Inc. with various restrictions concerning its use for affordable housing. Unable to utilize the Property, in 2010, Every Dream Has A Price, Inc. deeded the Property back to Indian River County. Recently, the City of Fellsmere expressed an interest in the Property for use for parking, drainage or affordable housing. The Property is located adjacent to three lots currently owned by the City of Fellsmere. Approved for November -15, 2016 BCC Meeting Attorney's Matters TY ATTORNEY FAdmin. r Co. Appr ed Date Department Risk Management --- --- F'A!1 y'di.dcY71WLRA1.VLCC-Ag-da A4—i!Baok,SbeelFWL— D—fdoc _ 255 Board of County Commissioners November 2, 2016 Page Two Pursuant to Section 125.38, Florida Statutes, Indian River County can convey the Property to the City of Fellsmere, so long as the Board of County Commissioners of Indian River County (the "Board") is satisfied that the Property is not needed for county purposes. In order to convey the Property, the Board must adopt a resolution setting forth the purpose for which the Property will be used and the price for the Property. The County Attorney's Office has drafted both the County Deed and the appropriate resolution. At the request of the City of Fellsmere, the County Deed eliminates the restrictions concerning use for affordable housing purposes. FUNDING. There is no funding associated with this item. All costs for recordation of the County Deed will be paid by the City of Fellsmere. RECOMMENDATION. The County Attorney's Office recommends approving the attached resolution and County Deed and authorizing the chair to execute any and all documents to effectuate same. ATTACHMENT(S). Proposed Resolution County Deed F.• -Ad weyiU�daIGEAZBADB C CAgembAlews Bovke Svw Mim m Deed doe 254 RESOLUTION NO. 2016-_ A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, APPROVING A COUNTY DEED TO THE CITY OF FELLSMERE, CONVEYING LOT 194, BLOCK 8, HALL, CARTER & JAMES SUBDIVISION, LOCATED AT 1016 BOOKER STREET WITHIN THE CITY OF FELLSMERE. WHEREAS, in 2004, the property located at 1016 Booker Street, legally described as Lot 194, Block 8, Hall, Carter & James, Subdivision, according to the plat thereof as recorded.in Plat Book 3, Page 31, Public Records of St. Lucie County, Florida, within the City of Fellsmere (the "Property"), escheated to Indian River County; and WHEREAS, in 2009, Indian River County deeded the property to Every Dream Has A Price, Inc. with various restrictions concerning its use for affordable housing; and WHEREAS, unable to utilize the Property, in 2010, Every Dream Has A Price, Inc. deeded the Property back to Indian River County; and WHEREAS, the Property is located in the City of Fellsmere and Indian River County has no use for the Property, Indian River County wishes to transfer the Property to the City of Fellsmere for parking, drainage or affordable housing; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA THAT: 1. The Board finds that the City of Fellsmere has made application as required by Florida Statutes section 125.38 for conveyance of the Property; 2. The Property will be used for parking, drainage or affordable housing purposes; 3. The Board approves, and authorizes the Chairman to execute the County Deed conveying Lot 194, Block 8, Hall, Carter & James, Subdivision, according to the plat thereof as recorded in Plat Book 3, Page 31, Public Records of St. Lucie County, Florida, to the City of Fellsmere for $10.00; and 4. The County Deed is executed pursuant to the authority of Florida Statutes sections 125.38 and 125.01. The foregoing Resolution was offered by Commissioner and seconded by Commissioner , and, upon being put to a vote, the vote was as follows: Chairman Bob Solari Vice Chairman Joseph E. Flescher Commissioner Peter D. O'Bryan Commissioner Wesley S. Davis Commissioner Tim Zorc 257 RESOLUTION NO. 2016- Prepared by: Office of County Attorney 1801 2T" Street Vero Beach, FL 32960 772-226-1425 COUNTY DEED INDIAN RIVER COUNTY, FLORIDA THIS DEED, made this day of , 2016, by INDIAN RIVER COUNTY, FLORIDA, a political subdivision of the State of Florida, party of the first part, whose mailing address is 1801 27th Street, Vero Beach, Florida 32960, and CITY OF FELLSMERE, FLORIDA, a municipal corporation created pursuant to the laws of the State of Florida, party of the second part, whose mailing address is 22 S. Orange Street, Fellsmere, Florida 32948. WITNESSETH that the said party of the first part, pursuant to Section 125.38, Florida Statutes, has granted, bargained, conveyed and sold to the party of the second part, its successors and assigns forever, the following described land lying and being in Indian River County, Florida: HALL, CARTER & JAMES SUBDIVISION LOT 194, BLOCK 8 PBS 3-2&31 FURTHER, the designation of the above-described parcel for affordable housing pursuant to Resolution No. 2007-068 of the Board of County Commissioners of Indian River County, and all reversionary interest's and restrictive covenants with regard to single family and multi family residential dwelling rental units imposed under that certain "Agreement Between Indian River County and Every Dream Has A Price, Inc. for Donation of Surplus County Owned Lands" dated June 2, 2009, and in that certain County Deed recorded in Book 2351, Page 1390 of the Public Records of Indian River County, which are recited in Exhibit "A" and Exhibit "B" attached hereto, are hereby released, relinquished and extinguished in their entirety. City of Fellsmere, Florida, as successor grantee, acknowledges and agrees to the release and extinguishment of all reversionary interests and restrictive covenants as evidenced by its signature below. IN WITNESS WHEREOF the said party of the first part has caused these presents to be executed in its name by its Board of County Commissioners, acting by the Chairman of said Board, the day and year aforesaid. Attest: Jeffrey R. Smith, Clerk of Court and Comptroller By: Deputy Clerk APPROVED AS TO FORM AND LES.FFIOIENCY BY DYLAN REINGOLD 0OUNTY ATTORNEY INDIAN RIVER COUNTY, FLORIDA By its Board of County Commissioners By: Bob Solari, Chairman BCC approved: November 15, 2016 (Official Seal) 250 EXHIBIT AW SUBJECT TO that certain reversionary interest in the Grantor as set forth in paragraphs 1.1; 3.1; and 9.1(a). of that certain "AGREEMENT BETWEEN INDIAN RIVER COUNTY AND EVERY DREAM HAS A PRICE, INC. FOR DONATION OF SURPLUS COUNTY OWNED LANDS" by and between Grantor and Grantee (therein styled "Applicant") dated June 2, 2009, excerpts of which are attached hereto and made a part hereof as Exhibit "B", and a complete copy of which is on file with the office of the Cleric to the Indian River County Board of County Commissioners and the Indian River County Community Development Department; and SUBJECT TO RESTRICTIVE COVENANTS RUNNING WITH THE LAND As to the Lot hereinabove granted, Grantee covenants and agrees, by accepting and placing this Deed of record in the public records of Indian River County, Florida, that Grantor conveys the Lot to Grantee with the following restrictions ("Restrictions") that run with the land and touch and concern both the Lot and any and all single family or multi family residential dwelling rental units constructed on the Lot: For the purposes of this Deed, the Lot as Improved with the single family or multi family residential dwelling rental units Is herein referenced as the "Property", and any one individual rental unit is herein referenced as a "Rental Property Unit": 1. Use of Pro e . Each Rental Property Unit shall be used solely for residential rental purposes. The Rental Property Unit may not be used for any non-residential purposes whatsoever, except for home office uses permitted by applicable zoning regulations. 2. Definitions. The following terms as used in this Deed shall have the meanings given below: 2.1. "Rented" means execution of a Rental Agreement between the Grantee as landlord and the Tenant for one of the Rental Property Units at a Rent that is Affordable. 2.2 "Tenant' means the natural person who has or natural persons who have: (a) Rented the Rental Property Unit to use and occupy as the principal residence of the household; and (b) a household Adjusted Gross Income (as defined herein) that qualifies as Very -Low-income or Low - Income (as such terms are defined in Florida Statutes section 420.0004)- 2.3. "Adjusted for Family Size" means adjusted in a manner which results in an income eligibility level which is lower for households with fewer than four people, or higher for households with more than four people, than the base Income eligibility determined as provided In Florida Statutes section 420.0004(1) based upon a formula as established by the United States Department of Housing and Urban Development. 2.4. "Adjusted Gross Income" means all wages, income from assets, regular cash or noncash contributions or gifts from persons outside the household, and such other resources and benefits as may be determined to be Income by the United States Department of Housing and Urban Development, Adjusted for Family Size (as defined herein), fess deductions allowable under section 62 of the Internal Revenue Code. "Adjusted Gross Income" is calculated on an annual basis. 2.5. "Affordable" is defined to mean that monthly Rent payments do not exceed 30 percent of the annual Adjusted Gross Income for a household that is Very -Low-income or Low-income (as such terms are defined in Florida Statutes section 420.0004). 2.6. "Rent" means the periodic payments due to the Grantee as landlord from the Tenant for occupancy under a Rental Agreement and any other payments due to the Grantee as landlord from the Tenant that are designated as rent in the Rental Agreement. 2.7. "Rental Agreement" means any legally binding written residential lease agreement, including amendments or addenda, between the Grantee as landlord and a Tenant, providing for use and occupancy of a Rental Property Unit. 261 3. Rental of Property. The Rental Property Unit shall be Rented only by Tenants who meet the criteria set forth hereinbelow. 3.1. The Rent for the Rental Property Unit must be Affordable (as defined herein) to the Tenant. The Tenant shall have monthly Rent payments that are Affordable (as defined herein). 3.2. The Property may not be Rented by a Tenant whose household Adjusted Gross Income exceeds the thresholds set forth in Florida Statutes section 420.004 for Very -Low -Income or Low-income households. 3.3. The security deposit, If any, for any Rental Property Unit shall not exceed one month's Rent. 4. Maintenance of Property. Grantee shall maintain the exterior of the Rental Property Units in good repair, including, but not limited to, painting, landscaping and lawn maintenance, as necessary. Grantee shall maintain the Rental Property Units in accordance with the applicable laws, regulations and ordinances of the County, and if applicable, the governing municipality. For so long as the original Grantee is the owner of the Lot, the Property, or the Rental Property Units, the maintenance obligations set forth herein are binding on Grantee. 5. Covenants Run with the Land. All covenants, conditions and restrictions contained in this Deed shall be covenants running with the land, and to the fullest extent permitted ,by law and equity, be binding upon the Property for the benefit of and in favor of, and be enforceable by, the County against the Grantee and any party in possession or occupancy of the Property or any portion thereof. The covenants, conditions and restrictions set forth in this Deed are intended to be perpetual, but may be modified in a document In recordable form executed by the County and the Grantee, or the Grantee's successors in interest in the event that the character of the neighborhood within which the Property is located changes substantially through the passage of time. 6. Pronertv as Servient Estate.. For the purposes of this instrument, the Property and all portions thereof shall be the servient tenement and the County shall be the dominant tenement. The Restrictions shall run with the Property and be binding on all persons acquiring title to the Property, or any portion thereof, and all persons claiming under them. 7. Enforcement by County. The County is the beneficiary of these Restrictions, and as such, the County may enforce these Restrictions by action at law or in equity, including without limitation, a decree of specific performance or mandatory or prohibitory injunction, against any person or persons, entity or entities, violating or attempting to violate the terms of these Restrictions. 8. Waiver: Invalidity: Construction: Venue. Any failure of the County to enforce these Restrictions shall not be deemed a waiver of the right to do so thereafter. No waiver of these Restrictions shall be effective unless'contained in a written document executed by County. Any waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver. If any covenant, restriction, condition or provision contained in this Deed is held to be invalid by any court of competent jurisdiction, such invalidity shall not affect the validity of any of the other Restrictive Covenants herein contained, all of which shall remain in full force and effect. This Deed shall be construed in accordance with the laws of Florida and venue shall be in Indian River County, Florida. 0 262 EXHIBIT "B" 1.1. Applicant shall construct and complete, through the receipt of a Certificate of Occupancy, one or more affordable housing rental units on each Lot as permitted by the zoning of each Lot, within three (3) years of the date of the deed of conveyance of the Lots to Applicant. Applicant and County acknowledge and agree that one (1) of the Lots has the capacity to be subdivided into multiple Lots and each such subdivided Lot shall have one (1) single family residence on it and all such subdivided lots are, for all purposes herein, collectively included within the terms Lot and Lots. If a Certificate of Occupancy is not issued for any of the single family residences on any Lot within the referenced 3 year timeframe, the title to any such Lot shall revert to the County unless an extension of the three (3) year time frame is approved by the Indian River County Board of County Commissioners at a regularly scheduled meeting thereof. 3.1. Applicant shall maintain its existence as a not-for-profit corporation under the applicable laws of the State of Florida and its qualification as a Section 501(c)(3) Entity during the term of this Agreement. Applicant acknowledges and agrees that, in the event (a) Applicant loses its status as Section 501(c)(3) Entity; or (b) Applicant dissolves its corporate existence, Applicant shall promptly notify County. If either of the foregoing events occur, prior to rental of any Property, then all right, title and Interest of Applicant in and to the Lots shall automatically terminate and be rendered null and void, and ail right, title and interest in and to the Lots shalt automatically vest in Indian River County, a political subdivision of the State of Florida. If either of the foregoing events occur after rental of any Property Applicant shall transfer title to the Property to another Section 501(c)(3) Entity specifically organized for the purpose of building, rehabbing, and revitalizing homes and/or rental units for very -low-income and low-income households. 9.1. Applicant acknowledges that the County is donating the Lots pursuant to Florida Statutes section 125.379 for the construction of permanent affordable rental housing. Accordingly, the parties acknowledge and agree that the County's remedy for breach of this Agreement by Applicant shall be as follows: (a) Any use of any Lot and/or any Property by Applicant in violation of this Agreement shall result in reversion of the Lot to the County and ,4pplicant shall, immediately upon request of County, execute and record a Quitclaim Deed conveying such Lot to the County; 263 1115 /K. BCC AGENDA November 15, 2016 ITEM 14.A (1) INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER -OFFICE MEMORANDUM TO: Members of the Board of County Commissioners DATE: November 8, 2016 SUBJECT: The Spoonbill Conspiracy FROM: Commissioner Bob Solari A county resident, Barry Shapiro, has made allegations about the effectiveness of Indian River County's Spoonbill Marsh. Among other things Mr. Shapiro alleges "not only an environmental tragedy'but also a potentially criminal cover-up of the truth by our county officials". (Shapiro letter "To whom it may concern" dated August 20, 2016) He asserts that the Spoonbill Marsh is "not properly functioning" and is damaging the Indian River Lagoon. I would like to present a response to M. Shapiro's .allegations. Thank you. 24.4 I i 11%--15/2016 N A.1 11/15/2016 Since water began flowing to the Spoonbill Marsh in 2010, the Marsh has received and treated over 2.2 Billion Gallons of Demineralized Concentrate from the Water Treatment Plant, as well as nearly 4.2 Billion Gallons of water from the Indian River Lagoon. Demineralized Concentrate Total Flow from 2010 to present (September 2016 2.2 Billion Gallons 4.19 Billion Gallons �3 Indian River Lagoon Total Flow to Spoonbill Marsh from 2010 to present Spoonbill Marsh Nutrient Removal Sum of Nitrogen and Phosphorus removed by the Spoonbill Marsh (20 10 to September 2016) • Total Nitrogen 59,597 lbs 01> • Total Phosphorus 13,288 lbs Spoonbill Marsh Total Nitrogen 3 ._...._..__ .............._..................... . -_-_.__._..._._...__ ------ E _-- _E 2 m 7a h 0.5 Turbidity Value Comparison 90 o r -----_. --------- - - - --...... ----- 2o16(through 80 2011 2012 2013 2014 2015 5 pt th- 70 r�INF03(ROPI-t)i 2.08 1.91 1.63 1.66 1.63 1.6 i 60 _ -__ _.................___.._..__ __-_.__._.._.._....................._....................... I-INT03(Rlver) 2.34 1.97 1.42 1.47 - 1.63 2.44 F� 50 - - I--WIM02(Outfal1) 1.33 1.13 0.73 0.64 I 0.72 Ti 40 - Z F30 ..._.._......._.___---____ -- _--..___..._........__...............---............_.__....__ Spoonbill Marsh Total Phosphorus 20 to- - - - �- --- - ---..................................._............._.. 0.6 os ------_.... --- m - .__ ___._______........___-.._--_ �yti.by°.�.SI°.yl, .y41.y4�.e�.e�.ey°.ey°.e�.b�°.°y, .e�.ee.ee. g o.a --- ---- - -.. - - -� - --- - ----- °y\°�o��o�°��°boy°doh\°.so^°�o�\°y�\,°yo\.yyti°,royry°roti°,aory°ti6o�\tiA�°,�oy°,,J�\,eo1°,�,oe\.,��\.yy°\tib\ti°l 0.3 - --___ _____..__-, -_ a n 0.2 IRLaboSpoonbill D&harg e F- 0.1- 0 {� f �INT03 (River) Q L_ WIMD2 (OuHaI 2016 (through 2011 2012 2013 2014 2015 I September( IN F03 (RO Plant) 0.06 0.05 0.06 0.07 ,2� 007 0.09 0.550.45 0.37 034 033 0.47 0.09 0.05 0.06 0.06 0.08 0.08 - 2 Total Phosphorus Comparison —Demmean:auon Contenate -IR Lagoon-SpoonbM Discharge xA °N IP ,�b1 :8Pb�aP �,°. n`',8,R.8xAap��is°:§�b�bl,8xf'r9.eQ.8.8eS:8� 4,&'s, cP .o5 .8 rP»°xP»°.+`'rS»° +y�+++y�+y�,y�y�sy+•b`y����y��yy�+��,y,y�,y�`y+p�h+y,S+py+ph++�8,�y��h�,y8•,b++,O�,b�,b�+b�,b+°�b�+b++OOg,0��0•,.s+b�+b�.bp,68.1O�.6�.6��68•lb�.b�. O+`o1O+` 0�0�`+OOA`�OA\+�� ��`+Oh\�5�\O6`°A\CS°\+^O�\°�O`+y� �+B\O S�+\>°`�ti`�++�� °,•�°�i•�`'^o+`°^o+`Sao•��O'�`+o`�o"`'e\cP`��radt`�\o`t`�\d'`�d°�~a�`�o^`�\om`oA\oa`+^\8`�\d\~��\�\�\+9\+'�oa�o Total Nitrogen Comparison Demine 14.Uon Concentrate -IR Lagoon -Spoonbill Discharge 14 i 12 E 10 I g i i 6 Z I 0- r9,S�,°>p>S B,Se°,°+`'+`',5.8>5�.8�xP+P�,°.6t.8sP8�a4�,dl,A41b1AP61d18 ahrp sp+,°,8�,° •S cp+ ++. +o.'S. OA �. °�'. +. 8,. e. �. d 8. �. ;. e +e. +,,. +o. +e. +v 8;. 8,. 8,. 8,. ++. cp �. O. d5 +o. �. +o, di, d ++. 8;. dn. +o. g. g. 8. g. �. �. B. g. o+9,0+�, 0+^,0' do+�,(J+y, o+�,o�, of 10^�,0+�,0�\,0,�+�o+�, oZo+,yoti\,yo+\,�0+\do+�•1(l+`O•�tl�\1o�\1o\\,�0 �\CP` ` d` d` + ` \d ♦ ti cP +` �° o + \&` N cP + o 0 0 0 0 0 o cP cP 6� d° d' o"`` o�` �` o�` 81`oBI� +°\ +oC'++` ++\ +•yP++` o'`oo+N6o'�` I I j 2016 The habitat created at the Spoonbill Marsh is home to many species of native plants and animals. Below is a partial list of the numerous species that have been seen in the Spoonbill Marsh. Vegetation 77 - Mangroves (Black, Red and White) Saltwort Sea Oxeye �0 0 W 15. Black Needlerush Saltgrass Saltmarsh Bulrush Animals and Birds American Alligator Bobcat River Otter Grey Fox Roseate Spoonbill Belted Kingfisher Great Blue Heron Osprey Double Breste d Cormorant Red -Tailed Hawk Boat -Tailed Grackle .-4 SWOTTED SEA TKOUT RLAN DRUH Kx Pogonias cromis , MIiLLET LA19Y F15H $odlana nAm cv-scion nebvlosis Mug(lidae RED DRUM CROAKER qlll �. sdaenidae HARD HEAD CATFISH sciaenops ocellatus a A of fish" A{ Anopsis Jabs x aun cone . SKATE MANGROVE SNAPPERM 95 SHEEP HEAD L*nus gdsaus r a r knhosargusprobatocephalus- a� on NEEDLE FISH SPOTTAILPINFISN SNOOK WoWdae rnptodusWbmck! 11/'112016 �dy 5 Il/A5/2016 ANHINGA Anhinga anhmga TREE SWALLOW LEAST BITTERN Tachycinetabicoior Lxobrychus exfrrs WRM BUT TAILED GRACKLE �� palustds Uw Qziisc¢lus nw.�r ROSEATE SPOONBILL Platalea eja%a WHITE IBIS EWocdmus:ofim Egmtte (hula 016 /qA i INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER -OFFICE MEMORANDUM TO: Members of the Board 'of County Commissioners DATE: November 15, 2016 I SUBJECT: The Spoonbill Conspiracy FROM: Commissioner Bob Solari A county resident, Barry Shapiro, has made allegations about the effectiveness of Indian River County's Spoonbill Marsh. Among other things Mr. Shapiro alleges, "not only an environmental tragedy but also a potentially criminal cover-up of the truth by our county officials". (Shapiro letter "To whom it may concern" dated August 20, 2016) Shapiro asserts that the Spoonbill Marsh is "not properly functioning" (August 20, letter) and is damaging the Indian River Lagoon. I am addressing this issue, as opposed to Mr. Burke, our Utility Director, or Mr. Reingold, the County Attorney, because, I believe, as will be made clear, the Spoonbill Conspiracy was not driven by any substantial problems at the Spoonbill Marsh but was simply a nasty and sophomoric attempt to alter the outcome of the last elections, specifically, my County Commission primary race against Jay Kramer. As Shapiro writes: County Commission chairman Bob Solari has aggressively defended the marsh system and is currently basing his re-election campaign on the benefits to the county these marshes provide." (August 18 email and August 20 letter) Perhaps the best place to begin this story is with 'a short description of the Spoonbill Marsh. 2,ll" V As many residents know, County drinking water is supplied from wells, which draw water from the Floridian Aquifer. The majority of County water is processed at the North County Reverse Osmosis Treatment plant. A byproduct of the reverse osmosis treatment process is demineralization concentrate, also known as brine. Basically water is drawn from the aquifer, goes through the reverse osmosis process, undesirable minerals and salts are removed, the potable water is sent to our water customers and the brine concentrate is disposed of. Roughly 20% of what is drawn from the aquifer ends up as brine concentrate. For years this concentrate was simply put into a canal, which led to the Indian River Lagoon through the North Relief Canal. In 2002, the Florida Department of Environmental Protection (FDEP) asked the County to come up with an alternative discharge method for the brine concentrate. The most obvious solution, one chosen by the.COVB for its brine, was to construct a deep injection well to dispose of the brine by pumping it back into the aquifer. The County chose a much more innovative method of disposal, the Spoonbill Marsh, which would create a wetland from an old mosquito impoundment site adjacent to an abandoned citrus grove, both of which were being overrun by invasive species such as pepper trees. When FDEP discussed the project with the County, FDEP was clear that any permit would require that the project clearly demonstrate a "Net Environmental Positive Benefit". This net benefit would require not only that the treated water entering the Lagoon be cleaner than the existing water in the Lagoon, but also demonstrate a net increase in wildlife populations including birds and fish and other marine life. The Spoonbill Marsh is located on a 67 -acre parcel of land owned by the Grand Harbor Development from which the County received a perpetual easement. It is bordered by the Lagoon to the east, the Grand Harbor Development and North relief Canal to the South, undeveloped Grand Harbor land to the west and an undeveloped parcel of conservation land owned by the Indian River Land Trust to the north. The Land Trust property and the Spoonbill Marsh are separated by a FDOT ditch, which drains water from U.S. 1. The Spoonbill Marsh process, while innovative, is fairly simple. The brine concentrate from the Water Treatment Plant is piped to mixing areas located on the western portion of the Spoonbill Marsh. Polluted Lagoon ,20-9 W water is pumped to the same location, mixed with the Brine and then moves through a series of ponds, runnels, restored wetlands more runnels and natural wetlands and eventually, after removing significant amounts of nitrogen and phosphorus, returns to the Lagoon. The Spoonbill Marsh has been operating for just over six years and, given its purpose, can be considered a great success. It is clear to anyone who has visited the site that there has been a marked increase in both birds and marine life and regular testing documents the removal of significant amounts of nitrogen and phosphorus. In the twelve months corresponding to the County's 2015-2016 Fiscal Year, over 13,000 pounds of nitrogen and more than 2,300 pounds of phosphorus were removed from nitrogen and phosphorus laden waters, which, but for the Spoonbill Marsh, would now be polluting the Indian River Lagoon. I am proud of the work that the County has done at Spoonbill Marsh. It is a cutting edge environmental project that everyone in the'County can be proud of. Is it a perfect project? No. Is it polluting the Lagoon? No. Is it a step to restoring the Lagoon to better health? Yes, it most certainly is. On with our story. On the evening of Friday, August 19, 1 received a somewhat frantic phone call from a supporter telling me about a disturbing story about the Spoonbill Marsh that was running in Marc Schumann's blog, Inside Vero. The Inside Vero blog begins with a picture of one of my campaign mailers, which touts the benefits of the Spoonbill Marsh. The first paragraph states: "County Commissioner Bob Solari, who is running for re-election, has made the effectiveness of Spoonbill Marsh an issue in his campaign..." Schumann then wrongly calls the�Spoonbill Marsh a "wastewater treatment facility". The bulk of the blog consists of an email sent on August 18, 2016 from Barry Shapiro. The email is, quite frankly, bizarre. It talks a meeting that Shapiro is "asked not to tell anyone about". The meeting was attended by people whose names he cannot disclose. It talks about a report written by someone whose name cannot be revealed. The report evidently says that the Spoonbill Marsh is bad, but the report is not attached to the email. Interestingly though, Shapiro does state: "If you want to read the report I will make it available to you". At the County we were interested in reading the report. Mr. Burke emailed Shapiro asking for a copy on August 23. Shapiro replied the same day writing that it would be available "in the next couple of days". Having heard nothing from Shapiro Mr. Burke emailed back on August 30. Shapiro replied September 1, replying in part: "I have spoken with the key authors of the report and at this time they have asked me not to send the report directly to you". Shapiro goes to a meeting he cannot talk about attended by attendees he cannot disclose upset about a report he will not share with us written by an anonymous author and vetted by leading scientists and environmentalists who are not disclosed. What do we know about Shapiro? 1. Shapiro states: "Clearly I have a political ax to grind." 2. In Kramer's race against me for the County Commission, Shapiro gave Kramer a $950 in-kind donation 3. On August 23, Shapiro had a letter to the editor published on TCPalm in support of Kramer for County Commission. 4. And in his own words, Shapiro is not an "...environmentalist or an expert in any way when it comes to issues of our ecology" 5. But Shapiro does have a "media background", which he used to try to get Kramer elected to the County Commission. While Shapiro would not send the County a copy or the report, the County did obtain one and Mr. Burke notified the Florida Department of Environmental Protection about Shapiro's allegations. Given the nature of the report and its context, released two days before early voting, written and vetted by undisclosed people championed by a supporter of my opponent, this should have ended things and would have, had 32963 not published a story about it. While the story itself is written at the same level as Shapiro's email, it will serve to address some of Shapiro's allegations about Spoonbill Marsh. The article is from the October 6, 2016 issue of 32963. The 32963 article on the Spoonbill Marsh runs under the headline "Environmentalists call zG`-l_ I I Spoonbill Marsh a `toxic waste dump"' The article then lists allegations including: 1. "marsh water that is overflowing onto environmentally sensitive land to the north that is owned by the Indian River Land Trust." 2. Supposed disappearing water, that was not accounted for. 3. An outflow meant to facilitate the flow of water back to the Lagoon was not functioning. 4. Shortly after the facility was constructed the FDEP cited the County for permit infractions for "failure to construct the disposal system at the Spoonbill Marsh site in accordance with the approved design". 5. The Spoonbill Marsh "is detrimental to fish and wildlife." Please note, despite the purposefully inflammatory headline, "Environmentalists call Spoonbill Marsh a `toxic waste dump"', none of the allegations have anything to do with pollution. Yes, the article notes that Barry Shapiro says that the Spoonbill Marsh is "a liquid toxic waste dump", but Mr. Shapiro also clearly states that he is not an "environmentalist or an expert in any way when it comes to the important issues of our ecology." (September 20, 2016 letter) Shapiro also states about the report in question, "It's Greek to me but maybe you can decipher it". So, and please think about this, the only basis for the nasty headline, is a statement from someone who claims he is not an environmentalist or "an expert in any way when it comes to the important issues of our ecology", who in fact says of the report, upon which he bases his malicious politically motivated comment: "It is Greek to me but maybe you can decipher it." "Its Greek to me". Now, for Mark Schumann and his coterie of useful idiots (and let me give a special shout -out to Bea Gardner), "It's Greek to me" "is an idiom in English, expressing that something is not understandable." (Wikipedia) Again, the nasty headline and tendentious article in 32963 is based on the comments of an admitted non -expert who clearly states that he does not understand the report upon which his statements are based. As for the mentioned allegations: 1. "marsh water that is overflowing onto environmentally sensitive land to the north that is owned by the Indian River Land Trust." Yes, this may be true and our County staff has been working on this issue with FDOT, Grand Harbor and the Indian River Land Trust since February of 2016. 2. Supposed disappearing water. Perhaps, but it may just be evapotranspiration and seepage, in any case there is no indication of harm to anyone or anything. 3. A blocked outflow meant to facilitate the flow of water back to the Lagoon. Yes, there is, but our permit with FDEP allows us to use the outfall to the south. 4. Shortly after the facility was constructed the FDEP cited the County for permit infractions for "failure to construct the disposal system at the Spoonbill Marsh site in accordance with the approved design". This is true, but before the facility started operating the "the County suggested, and the State approved, four major additions: a debris ,screen at the intake point; floating plant maps; oyster seed structures; and sea grass zones". 5. The Spoonbill Marsh "is detrimental to fish and wildlife." This is ludicrous. The mystery report does not even mention fish and wildlife. A pre -construction wildlife survey (not including water dependent species such as fish) identified 17 species on site. A 2013 wildlife survey identified 53 species on-site during the winter survey and 58 species on site during the summer survey. While the author of the article does mention a number of unsubstantiated rumors, she does not bother to mention that the promulgator of the report was a $950 Jay Kramer contributor who just a couple weeks prior had a letter of support for Kramer's commission race published in the local paper or that he admittedly did not understand the report that she probably had not read. This is information that was readily available and might have been useful for a reader who wanted to make a fair appraisal of the issues discussed. Is there any wonder that people do not trust the press these days? If the writer had actually decided to investigate the allegations instead of simply regurgitate them, she might have discovered and then been able to question the apparent author of the report. Mr. Burke did. He examined the electronic file that Shapiro had sent to a member of the press, which was forwarded to the County. To confirm Mr. Burke's discovery, the file was sent to our Computer Services Manager, Basil D. Dancy. 2_vl� YID I will quote from Mr. Dancy's report: I have been asked to authenticate the identity of the author of a report/presentation referenced by Barry Shapiro in a recent news article questioning the efficacy of a county. facility (Spoonbill Marsh). While we have not received a copy of this report directly from Mr. Shapiro (see e-mail dated September 1, 2016), a copy was sent. to Mr. Vincent Burke, Director of Utility Services, by Mr. Thomas Hardy on August 26, 2016 (copy attached). Upon investigation of the file submitted by Mr. Hardy, it is apparent from the properties of the file that it started out as a PowerPoint presentation authored by Mr. Carter Taylor. It was then converted to an _Acrobat PDF file on August 25, 2016. These pieces of information are set by the program used when the file is created. The created date references when the file was converted to the PDF format not the original presentation date. We would need to get a copy of the original PowerPoint file to see when it was created but from viewing the PDF file there are dates in the presentation which imply the presentation was created on'August 5, 2016. Due to the nature of the PDF file format the information listed cannot be changed after the file is created so no user could alter the data referenced and displayed in the screen shots attached without these changes being readily apparent. Who is Carter Taylor? The only Carter Taylor I know is a director of the Indian River Neighborhood Association, known as the IRNA. Coincidently, the IRNA endorsed and contributed'to Kramer's campaign. It is also one of Inside Vero's biggest advertisers. But could the same Carter Taylor actually be the one described as Shapiro as "The author of the report, the whistle -blower, (who) can not come forward... " The Carter Taylor I know has had a number of conversations with me. The last significant conversation was one he had in my office about the County's proposed short-term rental ordinance. That day he indicated that he was perfectly happy with the direction the Commission was taking. The Carter Taylor I know could have no realistic fears about coming to any County Commissioner with any information about any County activity. Yet the IRNA member Carter Taylor who was part of the IRNA review committee, which chose to endorse Jay Kramer over me is the only Carter Taylor I know of in the County. As sad as it is to believe that he was the author of the benighted, scurrilous report, until another Carter Taylor is discovered, I will believe that he and the author of the report are one and the same. I now draw near, but am not quite at the conclusion. A number of things are hopefully clear. The Shapiro report was nothing more than a scurrilous last minute Hail Mary to influence a local county commission race. The Spoonbill Marsh is not perfect, but it is a great cutting edge project that is, literally, as we sit here, helping to return the Lagoon to a healthier state. I am proud of this organization for having the guts and foresight to champion the Spoonbill Marsh and I am proud of all the County employees, consultants and contractors who built and operate the facility. I would like to thank Thomas Hardy, the author and publisher of the Vero Communique for his well-written and researched articles about the Spoonbill Marsh. For anyone interested in the truth I recommend they visit the Vero Communique website and read his Spoonbill Marsh articles. I would also like to thank the Press Journal. The Press Journal received the same information as 32963, but they did not respond like Pavlov's mad dog and immediately regurgitate the Shapiro missive. They did ask me about it during a candidate interview and this was certainly a reasonable and professional approach. I have come to expect little from the progressive 32963. It is sad that 32963 cannot simultaneously hold onto its progressive ideology and maintain professional standards. The saddest creature in this whole affair may be the pathetic blogger Mark Schumann, the progressive useful idiot of choice. He does respond like Pavlov's mad dog to anything negative about the County, regardless of Z6y-15 how ridiculous it is. The best description of Mark Schumann that I have come across is from a book review that I read in the October 1, 2016 Wall Street Journal (page c7): ... as one of his fellow radicals wrote: "Everyone who contradicted him he treated with abject contempt; every argument that he did not like he answered with biting scorn at the unfathomable ignorance that had prompted it, or with opprobrious aspersions upon the motives of him who advanced it." The book review is about the progressive Karl Marx, but it artfully describes the progressive blogger Mark Schumann. Marc Schumann calls for civility but is the most uncivil of people. Schumann calls for truth but is the most disingenuous of bloggers. Schumann trumpets for tolerance but is the most intolerant of the intolerant strain of modern progressive. The worst thing about Shapiro's pathetic attempt to try to alter the election with his Spoonbill Conspiracy is that it wastes the time and energy of a lot of good people, time taken away from doing the type of work they like to do, the work of making Indian River County a better place for the people who live and work here. ' The good news is that this election season is now over and the Barry Shapiros will disappear, at least for a while. The better news is that there are few Barry Shapiros and Mark Schumanns in Indian River County. The vast majority of residents are good people doing good things for themselves, their family and their community each day. It is this vast majority of good decent people who have made this a great county, the county that I am happy to live in and proud to serve. Thank you. r1t) INDIAN RIVER COUNTY INTER -OFFICE MEMORANDUM OFFICE OF MANAGEMENT AND BUDGET TO: Jason Brown County Administrator DATE: September 2, 2016 SUBJECT: File Parameters FROM: Basil D. Dancy Computer Services Manager I have been asked to authenticate the identity of the author of a report/presentation referenced by Barry Shapiro in a recent news article questioning the efficacy of a county facility (Spoonbill March). While we have not received a copy of this report directly from Mr. Shapiro (see e-mail dated September 1, 2016), a copy was sent to Mr. Vincent Burke, Director of Utility Services, by Mr. Thomas Hardy on August 26, 2016 (copy attached). Upon investigation of the file submitted by Mr. Hardy, it is apparent from the properties of the file that it started out as a PowerPoint presentation authored by Mr. Carter Taylor. It was then converted to an Acrobat PDF file on August 25, 2016. These pieces of information are set by the program used when the file is created. The created date references when the file was converted to the PDF format not the original presentation date. We would need to get a copy of the original PowerPoint file to see when it was created but from viewing the PDF file there are dates in the presentation which imply the presentation was created on August 5, 2016. Due to the nature of the PDF file format the information listed cannot be changed after the file is created so no user could alter the data referenced and displayed in the screen shots attached without these changes being readily apparent. t Basil D. Dancy Computer Services Manager 'H J til Basil Dancy From: Jason Brown Sent: Tuesday, September 06, 2016 10:46 AM To: Basil Dancy; Michael Smykowski Subject: FW: Report From: Vincent Burke Sent: Thursday, September 01, 201612:01 PM To: Jason Brown <jbrown@ircgov.com> Cc: Dylan Reingold <dreingold@ircgov.com> Subject: FW: Report FYI. I have been unable to obtain a copy of the report. Please see below. From: Barry Shapiro[mailto:barry.nohhands@gmail.com] Sent: Thursday, September 01, 2016 10:37 AM To: Vincent Burke <vburke@ircgov.com> Subject: Re: Report Vincent, I have spoken with the key authors of the report and at this time they have asked me not to send the report directly to you. This is the response I received from them: Tell him that (l) we cooperating with the EPA and (2) there is regulatory action pending, and potentially litigation. (3) Our attorney has advised us not to talk with anyone who is the potential subject of the investigation. (4) EPA may choose to share this information with them. Their prerogative. I would (5) urge the Board of County Commissioners to launch an independent investigation and forensic audit of data collection methods, analysis, and reporting by a nationally -recognized environmental consulting firm. (6) They need to fess up -- they know whats going on over there. We will back off only if they come clean. I assume they by "they", they mean the County Commissioners Sorry for the delay in getting back to you but I was waiting on their response. I realize this is not the response you are looking for but this is how it is at this time. Respectfully, Barry On Tue, Aug 30, 2016 at 7:09 PM, Vincent Burke <vburke ircov.com> wrote: Good evening Barry, Were you able to send the report? Thank you, Vincent )-,9 L1-tI I ,E `4 From: Barry Shapiro[mailto:barry.nohhands@gmail.com] Sent: Tuesday, August 23, 201610:21 PM To: Vincent Burke <vburke@irc-gov.com> Subject: Re: Report I will have everything ready for you in the next couple of days. I am happy to share what information I have Thank you for contacting me. Barry On Tuesday, August 23, 2016, Vincent Burke <vburke(a ircgov.com> wrote: i Good afternoon! I have been forwarded a copy of your email with respect to Spoonbill Marsh. While the County is very proud i of the thousands of pounds of dissolved nutrients that have been removed at the site since 2010, it comes to'us as a surprise that there could be some issues with the operation and performance of this site. Your email mentioned that you have an "in depth report" about the site and we would be interested in reading the information it contains so that we can understand more about this issue. If there is something amiss about our ability to comply with the Florida Department of Environmental Protection permit requirements, we want to know about it. I understand that you do not wish to divulge your source, but let us know if you can submit an electronic version (reply to this email with the attachment) or drop a hard copy at the address below: i I i Indian River County Utilities Department fi 1801 271" Street, Building A Vero Beach, FL 32960 Thank you, Vincent Burke, P.E. 3 Utilities Director, Indian River County 1801 27i' Street 2 3 Vero Beach, FL 32960 T: 772.226.1830 F: 772.770.5143 ±i vburkegircgov.com r Please consider the environment before printing this email 1- Basil Danc a From: Vincent Burke Sent: Monday, August 29, 2016 8:44 AM To: Basil Dancy Subject: FW: Revised Press release Attachments: Spoonbill Marsh.pdf i Basil, Can you verify the author of this file? i i From: Thomas Hardy [mailto:hardythomast@gmail.com] Sent: Friday, August 26, 2016 3:32 PM To: Vincent Burke <vburke@ircgov.com>; robert Solari <daidalos1184@gmail.com>; Ecotech <ecotech@bellsouth.net> Subject: Fwd: Revised Press release FYI again. i I' I I s i I 1 I I 1 I 1 1 1 I View Custom . 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"o L O i U C:) o E -� a m CN C CL .-CU 0) O N cua, d' ro L i M O ani o +- > o -a X a c� pa -, — an w c C �n a) °� rn -a 3 ao O N•2O0u- O-ru � �,r 0i U L -� c x -a 'a °A L O ctf O N C p N C "� E a ++ CJ n ' C a t� C fD 41 +�+ Ql CL V_1 W au 0 -oV E O C p N m E'E C CLO v v- "W '0 Q C +�+ N 'S oLn +�O .E > Uro O L 4J COU c 'O GJ L N N c -I 0 "23 E ..0 Ln O E— pN 'a o p, • V m O Ca C (Q m N C t O � C W >G m p L 4- O •� V) uv— X 4-- .3 µayL ra m ra O a� v� p r� � ^� .0 •— 4-o.- ° C E c) Ln -0 -v . or -1--J 4-1 O L1 n i1 o E E J w to E F, o m U U J25N E An• Q.� li LL [a LL > N ate+ N O.S _ V) }r •� • • • • • • O • • lL LL m 2�'y 3s 8/x24/2016 e `4 Main menu August 19, 2016 What is really going on at Spoonbill Marsh? o InsideV6ro What is really going on at Spoonbill Marsh? 3 by Mark Schumann • Indian River County, Indian River Lagoon MARK SCHUMANN County Commissioner Bob Solari, who is running for re-election, has made the effectiveness of Spoonbill Marsh an issue in his campaign, bragging in campaign mailers to be the driving force behind the wastewater treatment facility. Earlier this week, Inside Vero submitted a public records request to the County Attorney's Office seeking copies of written correspondence and calendar . evidence of meetings between County Commissioners and County Staff and representatives of the Indian River Land Trust regarding the possible flow of brine -contaminated water from the County's Spoonbill Marsh wastewater treatment facility onto adjacent Land Trust property. No one at the County Attorney's office is available to address our public records request until after Aug. 24. Land Trust Executive Director Ken Gruden did not return our call, and no one at the Land Trust appears willing at this point to speak on the record. One Land Trust staff member did ask us to "please" follow up with him after receiving the County's response to our public records request. Yesterday, Barry Shapiro, a concerned citizen, distributed the following email raising his concerns about a possible cover up of issues at Spoonbill Marsh. From: Barry Shapiro Date: Thu, Aug 18, 2016 at 10:14 AM Subject: Important information for anyone who cares about our environment. About a week ago I was asked to attend a meeting here in Vero Beach and at that time asked not to tell anyone about the meeting or it's attendees. Given we are in the middle of a heated political campaign here in Indian River County, I expected this to have something to do with a candidate I am supporting. At this time 1 cannot tell you who was in this meeting however I can tell you'that as the information was presented to the group I went into a state of shock. Our most important economic and ecological asset, the Indian River Lagoon, is being destroyed by pollution, a fact that anyone who lives in our area surely is aware of What is generally not known is that one of the prime polluters of the Lagoon is our own county government. https:/lnsidevero.com/2016/08/19/what-is-really-going-on-at-spoonbill-marsh/#print 2,9/, 3� 1/12 8/24/2016 What is really gang on at Spoonbill Marsh? a InsideVero o There is a scandal being perpetrated that no one is willing to talk about. This information is confirmed by leading scientists and environmentalists and yet the local media has not only not been made aware of the situation but in some cases where the have been tipped off they are burying the story until after the election. Most of our local media have endorsed both incumbents Bob Solari and Tim Zorc to return to the County Commission despite their false and misleading statements about just what the county is doing. I believe they are suppressing this story because they don't want to look like schmucks just a couple of weeks after endorsing people who may possibly be committing criminal acts. I left that meeting angry as hell and determined to do something about it. I was invited because of my media backgfound, as someone they felt could help get the word out. And yet even now, some of the people in this meeting have since been unwilling to go on the record — afraid of making a false move that could come back on them before the election. I have no such fear. I am not a politician or a journalist. I answer to no one but my own code of ethics. There are two issues that I care deeply about and place above all others: education and the environment. On this issue 1 feel I cannot sit still and wait to see what happens. At the risk of offending some people I am starting the process of letting everyone possible know about what I have learned. Frankly I don't give a (expletive) about what anyone else thinks. As you will read in my attachment, I believe that our elected county officials are at the very least deceiving the public. I believe that by not reporting truthfully to the DEP they are doing something illegal but that will be for the courts to decide. I have been told by people smarter than me that their actions may be prosecutable. The author of the report, the whistle -blower, cannot come forward and so I am committed to never revealing my source. I will tell you that I have already spoken to someone in a better position to know about this and that person indicated that he/she was in agreement that this is factual and needs to be brought to the public's attention. If this is a scandal of the proportions I believe it is, some people could lose their jobs. This is one reason that some feel we should hold back the information for now. I believe that we need to put all the cards on the table and come what may. This is bigger than an election or some people's feelings. This is about our future and our children's future and their children's future. The attachment is merely an explanation of the basic problem at Spoonbill Marsh. It only scratches the surface. I have in my possession a more in-depth report that will be delivered to all media outlets as well as appropriate government agencies in the next 2 days. Once this hits I hope to arrange TV, radio, print media interviews with experts who can back this report up. The IRL is the lifeblood of this county's economic health. It is also one of the most significant environmental bodies of water on the east coast affecting everything from the fishing industry to migratory patterns of important species. We all know that the lagoon is dying. Here is something we can do about it. I ask that you read this attachment. If it resonates with you — no matter what side of the political spectrum you are on — I ask you to please get the word out — via email, social media, letter campaigns and phone calls. Talk about this with everyone! If you want to read the report I will make it available to you. It's Greek to me but maybe you can decipher it. Clearly 1 have a political ax to grind. I admit it. I attended last nights candidate forum in Sebastian with the intention of divulging this information but the group I am with felt it was not the time or place to do so. Still, when I heard the BS being told the public I left angrier than ever and I am just not willing to hold back until "all the ducks are in a row." I'd rather err by speaking too soon than speaking too late. If you have any contacts at the DEP at the state or federal level I ask you to please help me get the report to them. I -thank you for your time and patience. I know this is very long winded but I have the need to be clear and specific. I know everyone on the list this is going out to personally and I know that no matter who you are supporting in this election you will see that this is so important it supersedes politics. 1 am asking you to help this message go viral. We need the public to know and to act now! I appreciate your support. Barry Shaprio PS: To residents of John's Island, Windsor and the Moorings, you are the largest contributors to the Indian River Land Trust and to the political campaigns of several prominent district politicians. Be clear that in regards to the Indian River Lagoon cleanup you have been LIED TO! Now what? Shapiro's email included the following attachment: SPOONBILL MARSH FACT SHEET The following points are facts supported by scientific evidence. What is clear is that the County and its officers have invested so heavily in the marsh system and have lied to the public about its effectiveness. We do not attempt to address potential problems with Osprey Marsh or Egret Marsh, but we do know that these have reporting issues as well. The bottom line is that Spoonbill Marsh, which is in reality a liquid toxic waste dump, is not operating as designed or permitted. When properly investigated by an independent agency, this should be grounds for legal action to stop illegal discharges of toxic and untreated wastewater. County Commission chairman Bob Solari has aggressively defended the marsh system and is currently basing his re-election campaign on the benefits to the county these marshes provide. Clearly this is disinformation at best. Salient points: • Spoonbill Marsh is not properly functioning and not being properly maintained by the county, specifically as to how it collects and reports data. v 3 / • On the record, based on the official self-reported and unaudited DMR figures from January, 2015 to June, 2016, Spoonbill takes in on average 2.99 million gallons per day of toxic brine and water from the Indian River Lagoon. The number can vary somewhat according to weather and other factors. •. Approximately 0.5 to 1.0 million gallons run out of Spoonbill a day. IRC claims that an average of 2.28 million gallons is pumped out but their figures are contradicted by site visits by experts. The county doesn't have a system in place to meter the outfall, as required by the permit, so they go by their https:/Iinsidevero.com/2016/08/19/what-is-really-gang-on-at-spoonbill-marshl#print 2/12 -.4. 8/24/2016 What is really going on at Spoonbill Marsh? « InsideVero own best estimate. • Given this disparity, approximately 2.0 to 2.5 million gallons of effluent (untreated wastewater) is unaccounted for every day. That totals almost 1 billion gallons unaccounted for each year. • The county audits itself and reports its findings to the DEP. By the county's self -audit report no missing water has ever been reported giving the appearance of a "don't ask, don't tell" policy between the DEP and the County. This `tacit agreement' between the county and the DEP has been going on since Spoonbill's inception. • By design there should be 2 outfalls for Spoonbill water. As per independent site inspection, only one outfall is in use. The other to the north has apparently not worked for years. Therefore all effluent MUST go through the one functioning outfall. As a condition of the permit all discharges must go through these outfalls. Obviously the majority of this unaccounted for water is going somewhere else. • The difference in the amount of input and outfall cannot be accounted for by evaporation leaving the question "where is this water going?" • A 1 inch rainfall adds about 1.8 million gallons to the unaccountable wastewater volume. • IRC is operating Spoonbill Marsh in flagrant violation of its permit. • IRC is misreporting Spoonbill's outfall by millions of gallons a day. The following graph shows the amount of wastewater the county acknowledges is unaccountable: These are supportable facts. There is also much anecdotal evidence to support our claims: • According to one expert witness, the Indian River Land Trust has been aware of overflow from Spoonbill entering abutting IRLT property but has never known the extent of the spill. • Site visits by experts that were recorded on video show that the measured outfall rate (area -velocity method of measurement) for a 24 hour period only comes to 646,317 gallons. This falls far short of the amount reported by the county. It is a simple measurement because the outfall is just a trench that is approximately 2' wide and l' deep. • Observers standing atop the weir (containment berm) clearly saw that Spoonbill's water level was over the top of the weir and flowing onto neighboring property. Photographic evidence of this is available upon request. The licensed design does not permit the facility to operate with a water elevation that overtops the containment. • It is possible that certain media outlets are aware of these facts but are burying this story until after the coming county elections. If true this would clearly indicate a potential conflict of interest. 2/- 363 https:/l nsidevero.com/2016/O8/19/what-is-really-going-orrat-spoonbill-marsh/#print 3/12 j - i f fig t These are supportable facts. There is also much anecdotal evidence to support our claims: • According to one expert witness, the Indian River Land Trust has been aware of overflow from Spoonbill entering abutting IRLT property but has never known the extent of the spill. • Site visits by experts that were recorded on video show that the measured outfall rate (area -velocity method of measurement) for a 24 hour period only comes to 646,317 gallons. This falls far short of the amount reported by the county. It is a simple measurement because the outfall is just a trench that is approximately 2' wide and l' deep. • Observers standing atop the weir (containment berm) clearly saw that Spoonbill's water level was over the top of the weir and flowing onto neighboring property. Photographic evidence of this is available upon request. The licensed design does not permit the facility to operate with a water elevation that overtops the containment. • It is possible that certain media outlets are aware of these facts but are burying this story until after the coming county elections. If true this would clearly indicate a potential conflict of interest. 2/- 363 https:/l nsidevero.com/2016/O8/19/what-is-really-going-orrat-spoonbill-marsh/#print 3/12 8/24/2016 What is really going on at Spoonbill Marsh? a InsideVero this table explains the officially self-reported, unaudited waste water volumes going into and out of Spoonbill Marsh along with unaccountable differences. The figures are in millions. f1-01166S111Ft(UD North County Demin. (on(entrat:e ("Spoonblll Marsh") Average €total Flow3 (MGD) Per Month Share this: • Twitter • Facebook • LinkedIn • Email • Print • Related Post navigation Barefoot. island weekly attack Kramer for representing his own constituents 32963's latest attack on Kramer is a campaign `ad' for Solari 3 comments 1. Cathy Katrovitz says: August 19, 2016 at 3.52 pm It is outrageous that public records requests - particularly of such significance - would not be readily available... unless there really IS something to hide. Come on, County leaders! If this is all true, there may be heads rolling before it's over (not literally -but we citizens demand the truth), 2. beagardner says: August 19. 2016 at 5.41 pin 2, % - 3% Bob Solari and all of the current elected County Commissioners should be brought to task on this one. They have been fooling the public for far too long and this commission needs new blood. While they seem to be in love with a sale that cannot and will not take place they are ignoring the real issues and the Spoonbill Marsh is just one example. Not supporting the Lagoon Council is another mis-step with this current Commission. During this election cycle it is time to replace Bob Solari and Tim Zorc. The Press Journal has it all wrong .... but then again they are the FPL paper and that is why a dead sale is the whole reason for these two bad endorsements. https://insidevero.com/2016/08/19/what-is-really-going-on-at-spoonbill-marsh/#print 4/12 Days (A) (1)", (A)iih) 114) A,)4(s"i(c (D) ((.( iu) IgJ-03 + Variance Variante, INF -03 INT -03 ;NT -03 EFF 03 MF <�, EFF.. WiM-402 EFF03 - Deminer iniakr- altration Slater Blended Conten#r frornthe €ffluent. .ate Rrver Disc+ierges Jan -15 31 27. 34 58.44; 85.76 84.85 0.43 69.20 16.65 Fels -15 28 22.6$ 41.33 64,01 64.12 (0.11( 50.96 13.16 Mat -15 31 27.99 32.64 60.64 61,01 111.371 29.55 31.45 Apr -15 30 36.27 37.29 73.56 73.56 39.22 35-34 May•15 31 41.98 41.14 83.02 83.02 64,74 18.23 Jun -15 30 39.60 71.10 110..10 110.58 (6.45; 94.90 ..25.68 Jul -15 31 39.5.3 84.65 1.24,62 .1?4.62 9532 27.50 Aug -15 31 37.59 90.99 128.4% 129.96 49.92 29.19 Sep 15 30 35.28 88.85 124.17 12,.57 Q.30 97.50 26.37 C'7ct-15 31 31.6.3 50,22 87.35 VA5 74:09 13.76 Lvov -15 30 37.68 61.35 99.03 99.03 78:60 20.43 Dec -15 31 42.14 57.35 99.54 49.51 0,03 72.95 26.66 Jan -16 31 38-58 74.39 11,2.97 1.17.97 0.00 91.85 21.12 ret, -16 29 36.32 1'2.74 59.06 59.06 0..00 46.99 12.07 n4ar 16 31 42.72 34.74 77.46 77.47 f0.00) 61.13 16.34 Apt -16 30 42.37 32.15 73.52 74.5.1 0.01 57.67 16.84 May -16 31 42-37 28.44 70.91 70.9? i0,01 :4.9'7 14.95 Jun -16 30 42.36 55:93 9&24 98.29 77.17 21.12 547 670,118 963.92 1,634.49 1,6,34.19 O O 1.246.98 387.2.1 Avg 1.23: 1.76 2.99 2.99 0,00 2..28 0.71 Share this: • Twitter • Facebook • LinkedIn • Email • Print • Related Post navigation Barefoot. island weekly attack Kramer for representing his own constituents 32963's latest attack on Kramer is a campaign `ad' for Solari 3 comments 1. Cathy Katrovitz says: August 19, 2016 at 3.52 pm It is outrageous that public records requests - particularly of such significance - would not be readily available... unless there really IS something to hide. Come on, County leaders! If this is all true, there may be heads rolling before it's over (not literally -but we citizens demand the truth), 2. beagardner says: August 19. 2016 at 5.41 pin 2, % - 3% Bob Solari and all of the current elected County Commissioners should be brought to task on this one. They have been fooling the public for far too long and this commission needs new blood. While they seem to be in love with a sale that cannot and will not take place they are ignoring the real issues and the Spoonbill Marsh is just one example. Not supporting the Lagoon Council is another mis-step with this current Commission. During this election cycle it is time to replace Bob Solari and Tim Zorc. The Press Journal has it all wrong .... but then again they are the FPL paper and that is why a dead sale is the whole reason for these two bad endorsements. https://insidevero.com/2016/08/19/what-is-really-going-on-at-spoonbill-marsh/#print 4/12 � _t: 8/24/2016 What is really going on at Spoonbill Marsh? a InsideVero 3. John E Church says: August 19. 2016 at 9.39 pm Perhaps it will be necessary to contact the attorney general of the state or the DEP in Washington. This is a serious matter that needs to be exposed to the general public and corrected ASAP. If it is true that this may be a criminal matter it must be pursued to the end. Comment - Please use your first and last name. Comments of up to 350 words are welcome. Enter your comment here... I Fill in your details below or click an icon to log in: Gravatar Email (reguired) (Address never made public) Name (required) - -- Website �WordRress.c You are commenting using your WordPress.com account. ( Log Out / Change ) Twitter picture You are commenting using your Twitter account. (Log Out / Change ) IFacebooki You are commenting using your Facebook account. ( Log Out / Chan e ) r---- Goo photo hoto You are commenting using your Google+ account. ( Log_Out / Change ) Cancel Connecting to %s Notify me of new comments via email. Notify me of new posts via email. Post Comment Receive Instant Email updates from InsideVero.com For instant email updates of news from InsideVero please sign up here. Your contact information will remain confidential, and you can unsubscribe at any time. 1.1111 -- ._ ........ ...... _ _... - -- _— ..... ----- _. ---- Enter your email address Follow Search for:I �----- -- _ _.__------� Search https://insidevero.com/2016/08/19/what-is-really-going-on-at-spoonbi I1-marshl#pri nt 5/12 8/24/2016 What is really going on at Spoonbill Marsh? a InsideVero 1 Aug st 3oth Pad Politick Advoisemert paid int and approved by ft IRNAPdibca`: Cownbee. P.O.8%-643868. Veto Beach, FL 32864, Meper&dV any mddata_ This adverkonerd was rd amleved bvare caiddate. Latest Stories • When changes in facts do not lead to altered opinions • Feds to investigate Solari's pet project • FPL chief defends $1.3B rate request • Solari's Indian River Shores connections • R963's latest attack on Kramer is a campaign `ad' for Solari • What is really going on at Spoonbill Marsh? • Barefoot, island weekly attack Kramer for representing his own constituents • Candidate Laura Moss: Divining the will of the people or distorting the truth? • Media Watch: What constitutes a raise? No one at the Press Journal seems to know. • Fitch Ratings affirms Vero Electric's 'A+' bond rating Pages • About • Arts & Ent. • Business • Community • Helping Hands • Sebastian River Area Recent Comments • John E Church on When changes in facts do not lead to altered opinions • John E Church on Feds to investigate Solari's pet project • John wester. on Feds to investigate Solari's pet project • Cathy Katrovitz on FPL chief defends $1.3B rate request • Jeanette White on Shores strong men descend on Vero Beach https:/Ii nsi devero.com/2016/08119/w hat -i s -real ly-goi ng-on-at-spoonbi l l -m arsh #pri nt 6/12 14M Barry Shapiro 1548 par Court Vero Beach, FL 32966 917-225-1231 cell bar-ry.nohhands@gmail.com August 20, 2016 To whom it may -concern:. My name is Barry Shapiro. I am not a politician, scientist, environmentalist or an expert in any way when it comes to the important issues of our ecology. I am a concerned citizen who has come across what I believe is important information about malfeasance by our County Commissioners and the damage being done to important ecological expanses in Indian River County where I live. I am passing along to you what I believe to be vital information about an environmental disaster taking place at the Spoonbill Marsh water treatment facility operated by the county. This report has come to me through a source that wishes to remain anonymous. I have been led to believe this is not only an environmental tragedy but also a potentially criminal cover-up of the truth by our county officials. In addition to the report I am submitting, Spoonbill is having a negative impact on fish breeding and surrounding native flora. Spoonbill is not functioning as a native wetland and is not functioning as it was designed to do. Despite the protestations of many scientific and environmental experts the county officers went to get expense to create the 3 marshes that treat waste water in the county. I believe that now they will do anything to cover up the fact that they were wrong. I am requesting that you look at the enclosed materials to determine if an independent review of the facility is warranted. If the information is correct I believe you will find ample reason to investigate for yourself. I am also led to believe by reliable sources that this information just scratches the surface of what is going on at the marsh facilities. This report has been shown to a creditable group of environmentalists and scientists who concur with its content. 2z5-5;1 Z1z In addition there is ample anecdotal evidence to spur an independent audit of the marshes. For the purpose of this report I will stick to the known facts about Spoonbill Marsh. The attached document is an overview I have written with bullet points to highlight our case. The in-depth, detailed report is available upon request. We also have photographic and video evidence to support our claims that is available as well. I respectfully await your response. I am available at your convenience to discuss this report and anything else related to the catastrophe that is Spoonbill Marsh. Sincerely, Barry Shapiro .2 `Z/3 SPOONBILL MARSH FACT SHEET The following points are facts supported by scientific evidence. What is clear is that the County and its officers have invested so heavily in the marsh system and have lied to the public about its effectiveness. We do not attempt to address potential problems with Osprey Marsh or Egret Marsh, but we do know that these have reporting issues as well. The bottom line is that Spoonbill Marsh, which is in reality a liquid toxic waste dump, is not operating as designed or permitted. When properly investigated by an independentagency, this should be grounds for legal action to stop illegal discharges of toxic and untreated wastewater. County Commission chairman Bob Solari has aggressively defended the marsh system and is currently basing his re-election campaign on the benefits to the county these marshes provide. Clearly this is disinformation at best. Salient points: • Spoonbill Marsh is not properly functioning and not being properly maintained by the county, specifically as to how it collects and reports data. • On the record, based on the official self-reported and unaudited DMR figures from January, 2015 to June, 2016, Spoonbill takes in on average 2.99 million gallons per day of toxic brine and water from the Indian River Lagoon. The number can vary somewhat according to weather and other factors. • Approximately 0.5 to 1.0 million gallons run out of Spoonbill a day. IRC claims that an average of 2.28 million gallons is pumped out but their figures are contradicted by site visits by experts. The county doesn't have a system in place to meter the outfall, as required by the permit, so they go by their own best estimate. • Given this disparity, approximately 2.0 to 2.5 million gallons of effluent (untreated wastewater) is unaccounted for every day. That totals almost 1 billion gallons unaccounted for each year. • The county audits itself and reports its findings to the DEP. By the county's self -audit report no missing water has ever been reported giving the appearance of a "don't ask, don't tell" policy between the DEP and the County. This 'tacit agreement' between the county and the DEP has been going on since Spoonbill's inception. • By design there should be 2 outfalls for Spoonbill water. As per independent site inspection, only one outfall is in use. The other to the north has apparently not worked for years. Therefore all effluent MUST go through the one functioning outfall. As a condition of the permit all discharges must go through these outfalls. Obviously the majority of this unaccounted for water is going somewhere else. • The difference in the amount of input and outfall cannot be accounted for by evaporation leaving the question "where is this water going?" • A 1 inch rainfall adds about 1.8 million gallons to the unaccountable wastewater volume. • IRC is operating Spoonbill Marsh in flagrant violation of its permit. • IRC is misreporting Spoonbill's outfall by millions of gallons a day. • These are supportable facts. There is also much anecdotal evidence to support our claims: • According to one expert witness, the Indian River Land Trust has been aware of overflow from Spoonbill entering abutting IRLT property but has never known the extent of the spill. • Site visits by experts that were recorded on video show that the measured outfall rate (area - velocity method of measurement) for a 24 hour period only comes to 646,317 gallons. This falls far short of the amount reported by the county. It is a simple measurement because the outfall is just a trench that is approximately 2' wide and 1' deep. • Observers standing atop the weir (containment berm) clearly saw that Spoonbill's water level was over the top of the weir and flowing onto neighboring property. Photographic evidence of this is available upon request. The licensed design does not permit the facility to operate with a water elevation that overtops the containment. • It is possible that certain media outlets are aware of these facts but are burying this story until after the coming county elections. If true this would clearly indicate a potential conflict of interest. The following graph shows the amount of wastewater the county acknowledges is unaccountable: Spoonbill Marsh "Officially" Unaccountable Wastewater Millions of Gallons Per Month Self -Reported, Unaudited January, 2015 -June, 2016 40.00 ... -. .. .... ._... ... 35.00 30.00 25.01 2000. 15.00 10.00 ........._..... - ._.._ - 5.00 Jarr15 Feb -I5 hoar -15 .Apr -15 play -15 kn-15 1uF15 ALC -15 Sep -15 Oct -15 Nar15 Dec -15 1arr16 FEb-16 friar -16 Apr -16 May -16 Jurr16 2 �� UV This table explains the officially self-reported, unaudited waste water volumes going into and out of Spoonbill Marsh along with unaccountable differences. The figures are in millions. FL-01665111RCUD North County Demin. Concentrate ("Spoonbill Marsh" I Average FITotal Flows (MGD) Per Month Days T ( A) ( R � -� (A) (-�R) } 4 !A)+( 0" )-( C (D ) _ _.-r_^ 1 - 1 INF -03 + Varoance INF -03 INT -03 INT -03 _ EFF -03 , 1INF <> EFF- WIM-02 -- Deminer Intake 22 68 � .alization water Elended x64.3.2 I Concentr from the Effluent 13.16 j ate River Discharges; 2799 ; EFF03 Jan -151 311 27.34 1 58.44 85.78 84.85 i 0.93 68.20 j 16.65 Feb -15 281 22 68 � 41.33 i 64.01 i x64.3.2 I (0.11) � 50.95 1 13.16 j Mar 15i - 31 2799 ; .29 t 61.01 (0.37)1 � 3145 1 Apr-151 pr 1.51 30; 36 27 7. 37.29 2 73.55 ± 73.55 _ � _ 38.225 35.34 May -151 - 31� 4188 ' - 41.14 ' -- -56 _ 83.02 ' .._ _ a 83.02 - - _. -,2 64.79 18.23 Jun -151 30! 39 00 71.10 110.10 110.58 (0.48) 84.90 25.68 Jul -35 31; 39 93u ; 84.459 ' 124.62 124.62 - 96.72 ' 27.90 Aug 151 31 37.98 ' 90.99 ' 128.96 128.96' - 99.82 ; 29.14 Sep -151 301 35.28 88.89 124.17 1 123.87 i 0.30 1 97.50 26.37 Oct -151 311 37 63t 50.22 87.85 j 87.85 1 '74.09 ' 13.7 5 N ov-15)301 _ 37.658 1 61 35 ! 99.03 1 99.03 } - 78.60 20.43 1 Dec -151 311 42.19 1 57.35 99.54 ' 99.51 i _ 0.03 ' 72.85 1. _ 26.65 1 Jan -1,61 31! 3858; 74.39; 112.97 112.97; 0.00{ 91.8.5; 21.12; Feb -16; 29'1 36.32: 22.74 ' 59.06 ; 59.06 0.00 46.99 ! 12.07 Mar 16i 31 42.72 34.74 77.46 ; 77.47 ° (0.00) 61.13 16.34 Apr 16!: 301 4237 ? 3215: 74.52 i 74.51 ' 0.01 57.67I 16.84 May -16; 3L 42 37 28.54 70.91 70.92 (0.01) 55.97 14.95 1 Jun -16+ 30 42.36 ; 55.93 98.29 98.29 ' - 77.17 `:. 21.12 5471 670.58 ; 963.91 ' 1,634.49 1,634.19 _ 0.30 1,246.98 387.21 Avg 1..23 1.76 2.99 2.99 ' 0.00 2.28 i 0.71 2z��'- z-15 This graph shows millions of gallons a day unaccountable, averaging about 0.71 million. As you can see in April and May of 2015 there was over a million gallons of unaccountable waste water each day. Spoonbill Marsh "Officially" Unaccountable Wastewater, MGD Self -Reported, Unaudited January, 2015 - June, 2016 1.40 .. _ ... _ ...... _........ .......... .... .... _, ..... _.._..._.... _........... _._ .....,..... ..... ....._.- --- -.. ---'---- �--.-...w.._--. _...,..�_ ._ .__ ... ;. 11/7/2016 Environmentalists call Spoonbill Marsh'toxic waste dump' - VeroNews: Vero Beach 32963 Features �Al Environmentalists call Spoonbill Marsh `toxic waste dump' Posted: Thursday, October 6, 2016 5:00 am Spoonbill Marsh — which has been cited for infractions by the Florida Department of Environmental Protection in the past — has again become the target of a torrent of stinging accusations, including suggestions that the county is not reporting truthfully to the FDEP. Since 2010, the $4 million Spoonbill Marsh project has operated as the disposal site for brine left over after drinking water is purified at the county's reverse osmosis treatment plant. The high -salt concentrate is mixed with lagoon water 080916_SpoonbiIIMarsh_DR01J pg and filtered through the manmade marsh to purify it. County Example of poor water quality surrounding reports to the FDEP show that pollutant levels are consistently the mangroves in WIM-02, and flowing lower in the water flowing from Spoonbill into the lagoon than into the lagoon. in the water flowing into the system from the lagoon. But a group of mostly nameless opponents of the project are not buying it. An email, written and widely distributed by local resident Barry Shapiro, contains charges that Spoonbill is, basically, "a liquid toxic waste dump," not built according to its approved design and operating beyond the restrictions of its FDEP permit. Shapiro claims that marsh water is overflowing onto environmentally sensitive land to the north owned by Indian River Land Trust; that outflow into the lagoon is not being monitored with a proper meter; that the operation is not well maintained; and that it is detrimental to fish and wildlife. Utilities Department Director Vincent Burke said that, as a result of Shapiro's email blast, a Florida Department of Environmental Protection representative visited the county to take a look at Spoonbill. So far, that visit has not resulted in any sanctions from the state. Dr. Richard Baker, a longtime local environmentalist, president of Pelican Island Audubon Society and a longtime opponent of the Spoonbill project, echoed Shapiro's concern. "Indian River County was dumping this pollution directly into the lagoon and was told to stop. Now they are still polluting. When will we learn that dilution is not the solution to pollution?" A recent visit to Spoonbill provided a first-hand look at the marsh operation. On the day Vero Beach 32963 visited the site, water was flowing over the north boundary and onto Land Trust property, and the walkway was submerged. This is, unquestionably, a malfunction, and according to an expert who wishes to remain anonymous, the overflow has been occurring for "years" and is harming the Land Trust property. 2, 4, y _ y/;I The north boundary of Spoonbill Marsh is Florida Department of Transportation Ditch 3, which runs under U.S. 1 between 63rd and 57th streets and empties into the lagoon. Although Spoonbill's water level, like the lap-oon's, is influenced by the tide — when lap-oon water is high, the water in Spoonbill is high — the DOT ditch http://www.veronews.com/32963 features/environmentalists-call-spoonbill-marsh-toxic-waste-dump/article 3a5e624a-8be7-1le6-93ff-8bbba782ee55.html?mo.. 1/3 11/7!2016 Environmentalists call Spoonbill Marsh 'toxic waste dump' - VeroNews: Vero Beach 32963 Features is supposed to keep marsh water on county property. County utility staff member Art Pfeffer, who oversees daily operation of the marsh and conducts FDEP- required tests, blames DOT for the malfunction. He says the Florida Department of Transportation "hasn't maintained the ditch in years." Which raises the question — what has the county done about that? Utilities Director Burke, who wasn't with the county at the beginning of the Spoonbill project, says both the Department of Environmental Protection and the Department of Transportation have been notified about the problem several times. "The DOT came out in February. They're aware of the issues that exist," Burke says. Because the DOT has jurisdictional control, the county isn't willing to take action on its own. "We're waiting to hear from the DOT as far as the next steps. We'll probably ask public works to help keep the conversation going," since the overflow is, in part, a stormwater issue. Another major concern among those who view the marsh as an environmental menace is what happens to millions of gallons of effluent they say flows into the marsh daily but doesn't flow out again.. Burke counters that "effluent" typically refers to domestic wastewater discharged from a sewage plant and "would be incorrect to use here." He says 4 percent to 20 percent daily variance between water brought in and the water that is metered leaving the site is attributed by county consultants "to seepage and evapotranspiration losses." The critics are skeptical of this, doubting that evaporation and seepage can account for what they say is as much as 2.5 million gallons of missing water per day. Another allegation is that the two outflows or breeches, through which mixed water flows back to the lagoon, are not being monitored properly, and that one is virtually inoperable. Pfeffer admits the north breech is not functioning, and the south breech is handling virtually all the outflow — which seems like it might contribute to the marsh overflow problem. Pfeffer says the DEP is aware of the blockage and it is reflected in the daily reports. He also acknowledges there is no permanent meter installed to measure water flow, but says that he measures water velocity and volume daily, during the week, using an FDEP-approved hand-held electronic flow probe. He says he transfers his daily on-site notes to detailed FDEP log sheets and his desk is piled with stacks of notes and daily reports forms that he is required to keep. Burke adds, "As with all our operating permits, the data is collected in accordance with the permit requirements and submitted to the FDEP." Responding to questions about Spoonbill's maintenance, Burke says, "We will continue to maintain that site properly, including but not limited to normal routine, access roads, mowing, and maintaining the boardwalk." And what of the Land Trust property? 2 z�rlj' 2-/ F Land Trust Executive Director Ken Grudens says the trust's 50 acres north of Spoonbill is "hydrologically co mplicated,"with,many factors to consider. He said a site study is„underway, funded by a grant from:U:S. I 2/3 1117/2016 Environmentalists call Spoonbill Marsh'toxic waste dump' - VeroNews: Vero Beach 32963 Features f Fish and Wildlife Service and conducted by Knight McGuire & Associates. "We'll have a better sense [of how much Spoonbill Marsh overflow is affecting the property] this fall. We like to work with partners, and we will work with the county to improve our habitat." The current round of criticism is not the first time the county has faced problems at Spoonbill Marsh. Shortly after it was constructed, FDEP cited the county for permit infractions, charging that "failure to construct the disposal system at the Spoonbill Marsh site in accordance with the approved design and DEP issued permits had altered the basis for issuance of the permit, resulting in a need to provide a new basis for reasonable assurance of compliance." In response, the county suggested, and the state approved, four major additions: a debris screen at the intake point; floating plant mats; oyster seed structures; and sea grass zones in the ponds. All four were accomplished. The oysters, Pfeffer notes, are thriving to the point that the county may consider harvesting them. The Department of Environmental Protection, in response to a list of questions from Vero Beach 32963 has responded via email and telephone that answers are being prepared, but they had not been received by press time. http:/twww.veronevvs.com/32963 features/environmentalists-call-spoonbill-marsh-toxic-waste-dump/article 3a5e624a-8be7-11e6-93ff-8bbba782ee55.html?ma.. 313 Candidate Reports - Candidate Log In Total Contributions 8/26/16 6:41 AM $3,400.00 Amend Amount $26.22 $;10.58 $99.04 $1,000.00 $950.00 $9 $100.00 $280.00 Total In -Kind Contributions Campaign Treasurer's Report - Itemized Expenditures $60.00 $3,475.84 Seq Num Date Campaign Treasurer's Report ; In Kind Contributions Seq Num Date Contributor Contributor Occupation In -Kind Type Type Description Jay Kramer 1 6/1/2016 4145 9 str. SW 1 6/16/2016 5035 Tradewinds dr Candidate copies vero beach, FI 32963 to Themselves Office Depot Linda Ceilley 2 6/1/2016 5950.20 Str. 2 6/8/2016 5728 Riverboat Cir SW Individual retired office Vero Beach, FI 32968 supplies Colostore 3 6/1/2016 campaign 3 6/15/2016 P.O. Box 5121 Business technology promotional Vero Beach, FL 32961 materials Mr. J's Media Production 4 6/1/2016 929 7 Ave Business Marketing campaign video Vero Beach, FI 32960 production Jemal Hayes 5 6/2/2016 831 Montrose Ave. Individual marketing campaign video Sebastian, FI 32958 production Barry Shapiro 6 6_/2/2016 1548 Par Ct Individual consulting campaign video ZVero Beach FI -32966 production Barbara .Weltman 7 6/5/2016 1708 Lake Club Ct. Individual food and drinks for Vero Beach, FI 32963 event Janie Hoover 8 6/9/2016 1410 46 Ave Individual marketing food and drinks for Vero Beach, FL 32966 event Julianne Martensen 9 6/20/2016 1979 Grey Falcon Cir. Individual food and drinks for Vero Beach, FI 32962 event . 8/26/16 6:41 AM $3,400.00 Amend Amount $26.22 $;10.58 $99.04 $1,000.00 $950.00 $9 $100.00 $280.00 Total In -Kind Contributions Campaign Treasurer's Report - Itemized Expenditures $60.00 $3,475.84 Seq Num Date Vendor Purpose Expenditure Amend Amount Type Publix 1 6/1/2016 4145 9 str. SW postage Monetary $47.00 Vero Beach, A 32968 Office Depot 2 6/1/2016 5950.20 Str. printing Monetary $38.00 Vero Beach, F132966 Netbrands Media Corp. 3 6/1/2016 14550 Beechnut St. camp. promotional materials Monetary $120.06 Houston, TX 77003 Oriental Trading 4 6/6/201.6 4206 5.108 St camp. promotional materials Monetary $58,97 Omaha, NE 68137 Transfirst LLC 5 6/10/2016 12202 Airport Way # 100 online donations fee Monetary $25.17 Broomfield, CO 80021 Signs by Tomorrow j" (J 6 6/13/2016 3300 43 rd Ave. # 6 signs Monetary $410.88 https://www.voterfocus.com/ws/WScand/candidate_pr.php?op=rp&e=1... 3E(6/l/2016%20-%206/24/2016)%20&rellevel=4&dhc=2373&committee=N Page 2 of 3 Letter: Jay, _tamer is smart, proven, effective and right on the important i J �vtr►atts�+edlagrtxep � + l 8/23/16 7:16 AM LETTERS TO THE EDITOR Letter'. Jay'K-ramer. is smart, P roven, effective and right on t he important issues, 4: 00 a.m. Barry Shapiro, Vero Beach Letter: Jay Kramer is smart, proven, effective and right on the l important issues��. htt p //www.printthis.clickability.com/pt/cpt.' expire=&title=Letter%3A.:.-right-on-the_important-issues-39a24d2d-4d 7f-31a6-e05-390889831.htmI Pi 15/ leIof3 I Letter: J4, I<Admer is smart, proven, effective and right on the important issues Someone once said that all politics is local and I believe it's true. Our state and county elections are incredibly important, and this is why we must get out the vote in the August primaries. As a Vero Beach businessman and concerned citizen I am throwing my support behind Republican Jay Kramer for County Commissioner in District 5. Though I am an independent, this election will have a lasting impact on how government in our county is run and Jay Kramer is smart, proven and effective. I personally know that he's a great guy with a commitment to do the right thing for our community. He's been right on every issue that concerns us. Bob Solari has been terribly wrong on many positions, most importantly how to save the Indian River Lagoon, which is at a critical. juncture and affects us all. Solari also has pretty much run the commission his way for years and for me that's reason enough alone for him to be gone. I worked with Kramer on the creation of the Downtown Vero Beach Art District and the Downtown Business District, and I've seen how he approaches things with a personal touch. I know his commitment to bringing smart growth to the region, to the lagoon and to the children in our county. I know he's a "get -'r -done" kind of guy who finds workable solutions to problems. He's a team player who brings everyone together instead of pushing away people he might disagree with. Those are qualities I want in my local leaders. The issues are clearly defined: the environment, infrastructure, water quality, taxes, short-term rentals and the elephant in the corner — All Aboard Florida. On these and other points I know Jay Kramer is the right man for the job. 8/23/16 7:16 AM ,Z,1, �,-fZ http://www.printthis.clickability.com/pt/cpt?expire=&title=Letter%3A...-right-on-the-important-issues-39a24d2d-4d 7f-31a6-e05-390889831.htmI Page 2 of 3 Tues�September 6, 2016 8:39:58 AM ET Subject: Fwd: Barry Shapiro mailing Date: Thursday, September 1, 20161:50:13 PM ET From: Paladin Plan To: Bob Solari Begin forwarded message: From: "David L. Cox" <coxecoloey(@gmail.com> Date: August 21, 2016 at 9:33:47 PM EDT To: Joe Paladin <jpsparks76(@vahoo.com>, Joe Paladin <paladinolan(CDvahoo.com> Subject: Fwd: Barry Shapiro mailing Joe: This is what I received from Mr. Shapiro, whom I do not know He called me to ask if I would be willing to meet with him to discuss the Spoonbill Marsh. I said yes. Knowing what I now know about what's going on I would now say "NO." My take on all of this " environmental concern" is that it's all election driven. I am NOT involved in their effort, and have not provided any information, comment, review or analysis. I have had nothing to do with these people. The path to improving the problems at Spoonbill Marsh does not lead through the arena of campaign politics. Dr. D David Cox, Ph.D. David Cox Consulting, LLC 2044 14th Avenue, Suite 24 Vero Beach, FL 32960 772.564.0540 office 772.766.2074 cell dlc@davidcoxconsulting.com www.davidcoxconsulting.com Begin forwarded message: Frdm: Barry Shapiro <barrv.nohhands(@email.com> Subject: cover letter Date: August 19, 2016 at 9:16:14 PM EDT To: undisclosed -recipients:; Attached is a cover letter I plan to send out tomorrow via email or hard copy to the DEP in Washington, the DEP in Tallahassee, a laundry list of local and state politicians, the media, notable environmentalists, notable Vero citizens, and donors to Bob Solari's Pagel of 2 November 15, 2016 ITEM 14.E.1 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER -OFFICE MEMORANDUM TO: Members of the Board of County Commissioners DATE: November 8, 2016 SUBJECT: Privately Funded Indian River Lagoon Pilot Project FROM: Tim Zorc Commissioner, District 3 Discussion Item: A free Pilot Project on water that is being conveyed in the canal system of the Indian River Farms Water Control District has been offered by Greenfield Resources. The offer for the free pilot project came up during a recent meeting when Greenfield Resources President/CEO, Adam Taylor, was visiting the Space and Treasure Coast last month looking for opportunities where they could field test their technology and equipment in Florida. Pilot Project Phases: Phase 1 - The offer, if accepted by the County and Indian River Farms Water Control District, would start with representatives coming to the County to take a number of water samples from a variety of locations in the canal system. These samples will them undergo a complete analysis of the water to see how well the technology utilized by Greenfields removes elements in the water. Water samples would then be transported back to Greenfields Corporate headquarters located in Troy, Michigan, for processing. Phase II — Following the analysis of the water samples, the next phase of the pilot project would be for Greenfield Resources to temporarily locate one or more water processing units at a location suitable to Indian River Farms Water Control District and Indian River County. The temporary units would pull water from an approved location and then discharge the clean water back into the canal. I would like to offer assistance to Greenfield Resources in coordinating with Indian River Farms Water Control District on furnishing electricity for the processing unit at an existing county facility or at the equipment location. I would also like to discuss suggestions, at an upcoming meeting with staff, for testing types and data that could be run in conjunction with the duration of the pilot project to measure the effectiveness of the water processing. �5S The timetable for the project would include collecting the water samples sometime over the next 3-6 weeks and running the pilot project in early 2017. A brief background on Greenfield Resources (information provided via the website, i3�:llcireenfiieldresources.corai): Greenfield Resources develops and manufactures the world's most advanced industrial water treatment systems. Greenfield's A.L.E.F. (Advanced Linear Electro -Floatation) system stands alone as the most innovative and cost-effective water treatment technology in the world today. Greenfield's systems are capable of treating wastewater in over 35 different key industries, from the oil and gas sector to aquaculture; poultry farming and municipal water facilities. Founded in June. of 2014, Greenfield Resources Corporation is a privately owned and operated industrial wastewater technology company based in Troy, Michigan, with regional offices in Denver, Colorado and Beijing, China. The company is the developer and manufacturer of the world's most advanced industrial water treatment systems. Their seasoned team of professionals boasts over 250 years of combined experience in energy, environmental technology, international business, finance and management. Greenfield Resources diligently seeks to expand its horizons and influence by discovering and developing new methods to cost-effectively treat and recycle the world's most valuable resource water. The company holds numerous US and international patents on the world's most advanced, chemical -free water treatment technologies. 246 /2_ Greenfield Resources Home About Us Technology Cost `(866) 283-3010 AS'a-pac:, c Contact 43)z fi. 44, Technological Innovation The Water Project Operating Cost a - .low Greenfield Resources Corporation Greenfield Resources develops and manufacturers the world's most advanced industrial water treatment systems. Greenfield's A.L.E.F. (Advanced Linear Electro -Floatation) system stands alone as the most innovative and cost-effective water treatment technology in the world today. Greenfield systems are capable of treating wastewater in over 35 different key industries, from the oil and gas sector to aquacuhure, poultry farming and municipal rater facilities. 'All rnen drea-m, bu; not equalhy. T hose who dream by night in, the dusty recesses of their minds, wake in the dsy to find that it t:as Vanit'i: buy the dreamers of the day are daigero.s men, for they may act on the'r dreams with open eyes, to make them possii. e. -T.E. Lawrence Lit ee7t►eld t!� a,, wete[ k olect I'1.ivc ?G r" 5 Lwv).00 267 November 15, 2016 ITEM 14.E.2 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER -OFFICE MEMORANDUM TO: Members of the Board of County Commissioners DATE: November 8, 2016 SUBJECT: No Net Loss Policy for Ballfields FROM: Tim Zorc Commissioner, District 3 Discussion Item: As has been discussed at other Board of County Commission meetings, there are times when Ballfields are sold to private owners or closed down. I would like to propose an amendment to the Comprehensive Plan creating a "no net loss" policy for ball fields (i.e. a 1 to 1 replacement at County owned parks and recreational areas). Through the Comprehensive Plan, the Commission would provide that lost ball fields have to be established in new comparable sites within the County. The County may limit the areas where the new ballfields may be built, i.e. add fields to existing facilities. The "no net loss" .policy will send a message that Indian River County is serious about the issue and the provision of recreational activities for its citizens. 264