936-Wachovia Bank (bank svc) MASTER BANKING SERVICES AGREEMENT L/~L' ~7 ~ ~
THIS MASTER BANKING SERVICES AGREEMENT (the "Agreement") is made
and entered into by and between City of Sanford ("CITY "), and Wachovia Bank,
N.A. ("the Bank"), a national banking association, executed on the date (s) shown on
the signature page hereof.
WITNESSETH:
WHEREAS, CITY issued its Request for Proposals for Banking Services on April
19th, 2002 (the "RFP") pursuant to state and local law to solicit proposals to serve as
the CITY's prim ary relationship bank; and
WHEREAS, the Bank responded to the RFP by submitting its Proposal for
Banking Services dated April 30th, 2002 (the "Proposal"), which Proposal was duly
accepted by the CITY without modification as the most favorable proposal submitted;
and
WHEREAS, the Bank has been selected to provide banking services to the CITY
under the RFP and the Proposal (hereinafter sometimes collectively with this document
called the "Agreement").
WHEREAS, although the RFP and the Proposal address in some detail the
banking services to be provided, there are a number of operational issues not
addressed by either the RFP or the Proposal which the parties desire to address; and
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the CITY and the Bank hereby covenant and agree as follows:
Section 1. Purpose and Effect of this A~reement:
Delineation of Bankin¢l Services
The banking services to be provided to the CITY by the Bank shall consist of:
(a) each of the specific requirements, terms and conditions set forth in the
RFP which is hereby incorporated by reference in its entirety; and
(b) each of the services, terms and conditions set forth in the Proposal,
which is hereby incorporated by reference in its entirety; and
(c) Unless the context requires otherwise, all references to "this Agreement,"
and use of the terms "herein," "hereby," "hereof," "hereto, .... hereunder" and the like
shall be deemed to include the RFP, the Proposal, this document, its exhibits and
amendments, if any.
Section 2. Controllin.q Provisions
Except as otherwise specifically provided in Section 6 hereof, in the event of
any conflict between the specific provisions of this document or any of the Exhibits
hereto, on the one hand, and the requirements or provisions of the RFP and/or
Proposal, on the other hand, the requirements or provisions of the latter documents
shall control. Wherever possible, the provisions of all documents shall be construed in
such manner as to avoid conflicts between provisions of the various documents. It is
the intention of the parties that the Exhibits hereto set forth the day-to-day operational
procedures to be complied with in connection with the CITY'S ordering of and the
Bank's provision of specific banking services covered by the Proposal. In that
connection, the parties hereby acknowledge and agree that, in the event that the CITY
elects to utilize any of the Bank's services not set forth in the Proposal, or in the event
that the Bank, in the normal course of its business, develops specific service
agreements in the future for banking services requested by the CITY in addition to
those covered by the Exhibits hereto, the parties will execute specific service
agreements with respect thereto in form and substance reasonably acceptable to the
parties, and such agreements shall be deemed to be a part of and subject to this
Master Banking Services Agreement, whether or not so stated in such Service
Agreement.
Section 3. Services to be rendered
(a) The Bank shall provide the CITY with the banking services set forth in the
Proposal, as more fully defined herein. With respect to the CITY' s depository demand
deposit accounts, CITY funds collected daily will be deposited in the accounts as
described in the Request for Proposal on the same day. Checks deposited will be
available as outlined in the Bank's Proposal if deposited in the Bank before it normally
closes its transactions for the day, which is currently 2:00 p.m. for branch banks and
4:00pm for the Orlando Money Center.
(b) The CITY will attempt to limit the number of bank accounts maintained
with the Bank; however, where legal requirements dictate, separate bank accounts will
be maintained with the Bank. Should the CITY utilize services not requested in the
RFP, the Bank and the CITY shall negotiate the charges for said services.
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Section 4. Compensation For Services
(a) For the services authorized in the Proposal, the CITY agrees to pay for
said services on a timely basis. Monthly the Bank will prepare a billing for services
rendered. The billing will reflect the amount of due for banking services rendered
according to the fee schedule agreed upon in the Proposal, and subsequent
negotiations, the results of which are reduced to writing and based on the activity
levels for the month under review.
(b) The Bank will deduct the charges for said services from the total interest
earnings calculated on the collected balances on the accounts and pay the CITY the
net interest into its accounts at the end of each month.
Section 5. Representations, Warranties and Covenants
(a) The Bank hereby represents and warrants to the CITY that it has full
power and authority to enter into this Agreement and fully perform its obligations
hereunder without the need for any further corporate or governmental consents or
approvals, and that the persons executing this Agreement are authorized to execute
and deliver it. Assuming the due authorization, execution, delivery, legality and
enforceability hereof by or against the CITY when executed and delivered by the
parties, this Agreement will constitute a valid and binding agreement of the Bank,
enforceable against it in accordance with its terms, Subject only to the application of
general principles of equity and limitations arising from bankruptcy, insolvency,
moratorium and other similar laws affecting the rights of creditors generally.
(b) The Bank has not employed or retained any person employed by the CITY
to solicit or secure this Agreement and it has not offered to pay, paid, or agreed to pay
any person employed by the CITY any fee, commission percentage, brokerage fee, or
gift of any kind contingent upon or resulting from the award of this Agreement.
(c) The Bank is aware of the conflict of interest laws of the ordinances and
regulations of the CITY, and the State of Florida, and covenants that the Bank will fully
comply in all material respects with the terms of said laws.
(d) The CITY hereby represents and warrants to the Bank that it has full
power and authority to enter into and perform all of its obligations under this
Agreement without the need for any further bids, notices or other actions by its
Council, Commission, Board or any other governmental authority. When executed and
delivered by the parties, this Agreement will constitute a valid and binding agreement
of the CITY, enforceable against it in accordance with its terms, subject only to the
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application of general law and principles of equity and limitations arising from
bankruptcy, insolvency, moratorium and other similar laws affecting the rights of
creditors generally, The CITY further represents and warrants to the Bank that it has
authorized the CITY, Director of Finance, or persons designated by the CITY in writing,
to execute and deliver documents to the Bank as necessary hereunder or reasonably
deemed appropriate by such officers to effect the transactions contemplated hereby.
The CITY acknowledges and agrees that the Bank is fully authorized and directed to
accept orders, requests and authorizations from such officers on the CITY's behalf in
connection with the implementation or provision of any of the banking services
covered by the Proposal. Such authorization and direction shall not be deemed to
prohibit or preclude the Bank from relying upon actions or requests of other CITY
personnel so long as the Bank reasonably believes, in good faith, that such persons
have been authorized in writing to act on behalf of the CITY.
(e) At the request of the Bank, the CITY agrees to cause its designated
officials or their designees to execute such signature cards and other signature and
identification verification documents as the Bank deems reasonably necessary for
purposes of establishing appropriate security measures in connection with the banking
services to be provided hereunder.
Section 6. Indemnification
(a) The Bank shall indemnify and save harmless the CITY, its agents and
employees from or on account of any losses or damages resulting from any breach of
fiduciary duty committed during or on account of any operations connected with this
Agreement or by any act of negligence in connection with the same; or by or on
account of any negligent act or omission of the Bank or its subcontractors, agents,
servants or employees. The Bank further agrees to indemnify and save harmless the
CITY, its agents or employees against any claims or liability arising from or based upon
the violation of any federal, state, or County laws, by-laws, ordinances or regulations
by the Bank, its agents, servants or employees.
(b) To the extent and limits permitted by law the CITY shall indemnify and
save harmless the Bank, its directors, officers, employees and agents from or on
account of any losses or damages resulting from any breach by the CITY its agents or
employees of this Agreement and from or on account of any actions or omissions of
the Bank taken or omitted to be taken at the request of the CITY, its employees or
agents or otherwise arising out of any negligent act or omission or failure to exercise
reasonable care by the CITY, its employees or agents. Subject to the aforesaid
limitation, the CITY further agrees to indemnify and save harmless the Bank, its agents
or employees against any claims or liability arising from or based upon the violation of
any federal, state, CITY or City laws, by-laws, ordinances or regulations by the CITY,
its agents, servants or employees.
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(c) In the event that either party hereto shall desire to invoke the foregoing
indemnity provisions (the "lndemnitee") against the other (the "lndemnitor"), the
Indemnitee shall provide written notice to the Indemnitor within a reasonable time after
discovery of the facts allegedly entitling it to indemnification hereunder, specifying in
such notice the relevant facts and circumstances and requesting indemnification as
provided herein. The Indemnitor shall defend at its own expense, or at the
Indemnitee's option provide for such defense of, any and all claims of liability in all
suits and actions of every kind and description that may be brought against the
Indemnitee which may result from the negligent actions or omissions under this
Agreement by the Indemnitor, its employees or agents, as described in subsection (a)
or (b) above, as the case may be.
Section 7. Limitation of Liability
Notwithstanding any other term or provision of this Agreement, neither the CITY
nor the Bank shall in any event be liable to the other for any amount in excess of the
actual loss sustained by the injured party, and in no event shall either the CITY or the
Bank ever be liable hereunder or in any action in tort arising out of the services or
relationship to be provided or established hereunder for any indirect, special, incidental,
punitive or consequential loss or damage of any kind, including lost profits or
opportunities or damage to reputation (whether or not advised of the possibility
thereof) arising or allegedly arising therefrom.
Section 8. Term and Termination
(a) This Agreement shall have a term of three (3) years, commencing as of
June 1 ,t, 2002 and ending May 31 st, 2005. The CITY shall have the right to exercise
a maximum of one (1) additional two-year extension to the term of this Agreement by
providing written notice to the Bank. The CITY shall give written notice to the Bank
prior to the expiration of the then current term of its election not to have this
Agreement so renewed.
(b) Upon the expiration of this Agreement or any extension period, the CITY
may, on the day following the expiration of the Agreement or any extension period,
withdraw all funds maintained in the Bank without penalty or fee and close that
account. The Bank agrees to otherwise maintain the banking relationship with the
CITY in accord with the terms of this Agreement or any extension for a period of six
(6) months from the date of expiration of the Agreement or of any extension period or
upon written notice by the CITY to close the CITY's remaining accounts, whichever
comes first. During this six (6) month period following the expiration of the
Agreement or any extension period, the CITY shall pay a monthly service charge for
banking services based upon the pricing for banking services contained in the Proposal
or made applicable to any extension period.
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(c) If either party does not comply with terms of this Agreement, the CITY
or the Bank, as the case may be, may give written notice of default to the defaulting
party of the specific default. If the default(s) is/are not corrected within thirty (30)
days, this Agreement may be terminated thirty (30) days from the written notice of
default, by the non-defaulting party.
Section 9. Chan{~es
(a) The CITY may, from time to time, request changes in the scope of
services of the Bank to be performed hereunder. Such changes, which are mutually
agreed upon by and between the CITY and the Bank, shall be incorporated in written
amendments to this Agreement.
(b) The fees and charges set forth for the services to be provided to the CITY
will begin on the date this Agreement is signed, shall not be increased for a period of
three (3) years after commencement of the term of this Agreement. For any
extensions beyond the initial three (3) year period, fees and charges may be
renegotiated.
Section 10. Eaual Employment Opportunity; Non-discrimination
(a) The Bank will not discriminate against any employee or an applicant for
employment because of race, color, religion, sex, national origin or handicap. The
Bank shall take affirmative action to ensure that applicants are employed and that
employees are treated fairly during employment without regard to race, color, religion,
sex, natural origin or handicap.
(b) Such action shall include, but not be limited, to the following:
employment, upgrading, demotions or transfers, recruitment or recruitment advertising;
layoff or terminations; rates of pay or other forms of compensation; selection for
training including apprenticeship; and participation in recreational and educational
activities.
(c) The Bank shall keep such records and submit such reports concerning
racial and ethnic origin of applicants for employment and employees as the Secretary
of Labor of the United States requires. The Bank agrees to comply with such rules,
regulations and guidelines as the Secretary may issue to implement these
requirements. Both Parties shall comply with all applicable laws, ordinances and codes
of Federal, State and local governments applicable to that Party.
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Section 11. Waiver
No waiver of a breach of any provision of this Agreement shall constitute a
waiver of any subsequent breach of the same or any other provision hereof, and no
waiver shall be effective unless made in writing.
Section 12. Severability
Should any provisions, paragraphs, sentences, words or phrases contained in
this Agreement be determined by a court of competent jurisdiction to be invalid, illegal
or otherwise unenforceable under the laws of the United States, the State of Florida or
the County of Seminole County, such provisions, paragraphs, sentences, words or
phrases shall be deemed modified to the extent necessary in order to conform with
such laws, and to the extent they cannot be so modified, then same shall be deemed
severable, and in either event, the remaining terms and provisions in this Agreement
shall remain unmodified and in full force and effect.
Section 13. Governin~ Law
This Agreement shall be construed and enforced according to the Laws of the
State of Florida.
Section 14. Exhibits
(a) The following documents are attached hereto and incorporated by
reference herein:
A. RFP
B. Proposal
(b) Additional service agreements may be added from time to time as
mutually agreed upon by the parties, and any service agreement may be terminated
separately and severally without affecting the continued enforceability of all other
provisions of this Agreement as to non-terminated services.
Section 15. Notices
(a) All written notices, demands and other communications required or
provided for under this Agreement shall be sent by certified mail, return receipt
requested, postage prepaid, in the case of mailing, or by overnight or same day
courier, or by electronic transmission producing a written record, or hand delivered to
the following address and person bearing the following title for each party hereto or
such other addressee or person as shall be designated by a party in a written notice
given in the manner required hereby:
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City:
City of Sanford, Florida
Finance Director
300 N. Park Avenue
P. O. Box 1788
Sanford, Florida 32772-1788
Bank:
Wachovia Bank, N.A.
Corrie L Bowman
1791 State Road 44
New Smyrna Beach, FL 32168
(b) All notices shall be deemed delivered when received.
Section 16. Force Maieure
CITY agrees the Bank shall have no responsibility or liability for delay in its
performance under this Agreement or any losses arising out of delays and/or
interruptions of business due to acts of God, acts of government authority, acts of
public enemy or war, riots, civil disturbances, power failure, talecommunications
failure, severe adverse weather conditions or other causes beyond the Bank's
reasonable control. This time, if any, required for such performance under this
Agreement shall be automatically extended during the period of such delay or
interruption.
Section 17. Assi.qnment
Neither party shall assign this Agreement or any interest herein, or delegate any
of its duties hereunder, without the other party's prior written consent. It is agreed by
the CITY that the Bank may delegate certain services to be provided through
independent contractors.
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Section 18. Jurisdiction
The parties hereto agree that the state or federal courts located in the State of
Florida shall have the exclusive jurisdiction over the parties and the subject matter of
any litigation between the parties arising hereunder. For purposes of state court
action, venue shall lie in Seminole County, Florida, and for purposes of Federal court
action, venue shall lie within the United States District Court for the Middle District of
Florida, Orlando, Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement and initialed
each of the Exhibits hereto as of the day and year first above written.
ATTEST: ~:Y NFO~~~,
CYNTHIA PORTER, Acting City Clerk RD, Mayor
Date: ~'Lz- I> ~.
H~ NK//~~~
ATTEST:
~ / 7CORRIE L. BOW~VIAN, Vice President
Date: ~)C//~ I/OD~
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