2013-26 Banking Services AgreementRESOLUTION 2013 -26
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA, ACCEPTING THE PROPOSAL
SUBMITTED BY WELLS FARGO BANK, N.A. FOR MAJOR BANKING
SERVICES AND AUTHORIZING THE VILLAGE MANAGER TO EXECUTE
ALL DOCUMENTS NECESSARY TO EFFECTUATE SUCH SERVICES;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on December 3, 2012, the Village advertised a Request for Proposals for Banking
Services ( "RFP "); and
WHEREAS, the Village received three proposals in response to the RFP; and
WHEREAS, the Village's Audit Committee reviewed the proposals and both the Committee and
Village Administration recommend accepting the proposal submitted by Wells Fargo Bank, N.A.,
the current provider of major banking services for the Village; and
WHEREAS, the Village Council determines that the adoption of this Resolution is in the best
interests of the residents and citizens of the Village of North Palm Beach.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE
OF NORTH PALM BEACH, FLORIDA as follows:
Section 1. The foregoing recitals are ratified as true and incorporated herein.
Section 2. The Village Council accepts the proposal from Wells Fargo Bank, N.A. to
continue to provide major banking services to the Village and authorizes the Village Manager to
execute all agreements necessary to effectuate such services, including, but not limited to, the
Master Services Agreement attached hereto and incorporated herein by reference.
Section 3. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 9th DAY OF MAY, 2013.
(Village .Seal)
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MAYOR
MASTER SERVICES AGREEMENT
(For GIB Customers)
This Master Services Agreement (this "Agreement ") is entered into as of the —M day of
May, 2013 by and between Wells Fargo Bank, N.A. ( "Bank "), and the Village of North Palm Beach,
Florida, a municipal corporation organized and existing under the laws of the State of Florida
( "Customer ").
Recitals
WHEREAS, Customer has requested that Bank provide certain banking and treasury
management services (collectively, the "Services ") to Customer; and
WHEREAS, Bank has agreed to provide the Services to Customer, and Customer has agreed to
accept the Services, upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which,
each of Bank and the Customer expressly acknowledge, each of Bank and Customer hereby agree as
follows:
Agreement
1. Service Documentation. Bank shall provide, and Customer shall accept, the Services
pursuant to the terms and conditions of the "Service Documentation" which includes:
1.1 This Agreement;
1.2 Bank's Proposal, responses to Requests for Additional Information and
follow up e -mail dated March 20, 2013, from W. Dane Sheldon confirming
that Bank will waive the FDIC recoupment on non - interest bearing accounts
for the term of the Agreement;
1.3 The Customer's Request for Proposals ( "RFP — 2012/2013 Banking Services ")
published on December 3, 2012, including all terms, conditions and
representations set forth therein.
1.4 The Service Description for each Service (each, a "Service Description "), as
given in Appendix F of the Bank's Proposal;
1.5 The account agreement for the deposit accounts that Customer maintains at
Bank (the "Deposit Agreement "), as given in Appendix F of the Bank's
Proposal; and
1.6 User guides, which may include software, software licenses, price schedules,
specifications, instructions and notices.
If there is a conflict among the documents that make up the Service Documentation, the documents
will govern in the order set forth above.
The Service Documentation constitute the entire agreement between Bank and Customer and
supersedes all prior representations, conditions, warranties, understandings, proposals or
agreements regarding a Service. No course of dealing or waiver of any right on one occasion will
constitute a modification of the above referenced documents or be a waiver of that right on a
subsequent occasion.
2. Services; Additional Services. Bank and Customer will agree upon the Service(s) to
be provided. If Customer requests and Bank agrees to provide additional services after the date of
this Agreement, which are governed by additional service descriptions, pricing or other documents,
the terms and conditions thereof shall be deemed to be incorporated herein by reference without
the need to either amend this Agreement or to add such service descriptions, pricing or other
documents as attachments to this Agreement.
Changes to Services or Service Documentation.
Bank may change the Services and /or terms in the Service Documentation at any time upon
thirty days' prior written notification to Customer; provided, however, that, subject to Section 2
above, Bank agrees not to increase the fees for Services during the initial three year term of this
Agreement. If Customer discontinues using the affected Service before the change becomes
effective, it will not be bound by the change. If Customer continues to use a Service after the change
becomes effective, it will be bound by the change.
4. Term and Termination.
Unless terminated sooner in accordance with the Service Documentation, this Agreement
and all Services will continue in effect until terminated by either party upon thirty (30) days prior
written notice to the other party (unless a Service is terminated sooner in accordance with the
Service Documentation). Bank may terminate any Service (a) following notice to Customer of a
breach of any provision of the Service Documentation and Customer's failure to cure the. breach
within fifteen (15) days of the date of such notice, or (b) without notice to Customer if (i) Customer is
subject to a petition under the U. S. Bankruptcy Code or (ii) Bank determines in its sole discretion
that a material adverse change has occurred in Customer's ability to perform its obligations under
the Service Documentation. The termination of a Service will not affect Customer's or Bank's rights
with respect to transactions occurring before termination. Bank will not be liable to Customer for
any losses or damages Customer may incur as a result of any termination of any Service so long as
Bank complies with the provisions of this section.
5. Service Fees. Customer shall pay Bank the fees for the Services as set forth in the
documents referenced in Section 1.2 above, exclusive of taxes based on Bank's net income. Except as
otherwise agreed to between Customer and Bank, Bank shall send an invoice to Customer for any
fees not covered by earnings credits and any taxes that are due, which Customer will promptly pay;
provided, however, if Customer fails to pay the invoiced fees within forty -five (45) days of the due
date, Bank may debit Customer's account(s) with Bank. Bank may assess finance charges at a rate of
1.5% per month (18% per annum) or the highest rate permitted under applicable law, whichever is
less, on any invoiced fees or taxes not paid within forty -five (45) days of the due date and will apply
payments and other reductions of amounts owed first to unpaid interest and then to other fees and
charges.
6. Confidential Information. Unless otherwise provided in the Service
Documentation, all User Guides and software provided to Customer constitute Bank's or its vendor's
confidential information ("Confidential Information "), and Customer will not acquire any ownership
interest in or rights to Confidential Information as a result of Customer's use of any Service. To the
extent permitted by law, Customer will (a) maintain the confidentiality of the Confidential
Information; (b) not disclose (or permit its employees or agents to disclose), copy, transfer,
sublicense or otherwise make any of it available to any person or entity, other than Customer's
employees who have a need to use the Confidential Information in connection with the applicable
Service; and (c) not decompile, reverse engineer, disassemble, modify, or create derivative works of
any Confidential Information. Customer will notify Bank immediately if it knows or suspects that
there has been any unauthorized disclosure, possession, use or knowledge (each, an "Unauthorized
Use ") of any Confidential information. If Customer (or its employees or agents) is responsible for the
Unauthorized Use, Customer will, at its expense, if directed by Bank in lieu of Bank taking such action
itself, promptly take all actions, including without limitation initiating court proceedings to recover
possession and prevent further Unauthorized Use of the Confidential Information and obtain redress
for any injury caused to Bank as a result of such Unauthorized Use.
7. Representations and Warranties.
7.1 Mutual Representations and Warranties. Each of the parties hereto
represents and warrants to the other party that: (i) such party is duly organized and in good standing
in all appropriate jurisdictions; (ii) each party is fully authorized to execute and perform under this
Agreement and the execution of and performance under this Agreement does not violate any law,
regulation, contract or organizational document by which such party is bound; and (iii) the
individual(s) executing this Agreement on behalf of such party has full corporate and /or
organizational authority to do so;
7.2 Customer warrants it will not use any Service in a manner which violates any
federal or state law including without limitation any sanction or control administered by the Office of
Foreign Assets Control or Bureau of Export Administration.
7.3 If Customer employs an agent in connection with its use of any Service,
Customer represents and warrants to Bank that (a) Customer's governing body has duly authorized
the agent and (b) Customer will exercise appropriate controls to ensure each agent so authorized
does not exceed the authority so granted to it. Any communication to Bank regarding Customer's
use of a Service from Customer's agent will be deemed to be a communication from Customer, and
Customer authorizes Bank to communicate with Customer's agent regarding any such
communication or Service.
7.4 Neither Bank nor any software vendor makes any express or implied
representations or warranties with respect to the Services or any software used in connection with
the Services including without limitation any warranty as to the merchantability or fitness for a
particular purpose, other than those expressly set forth in the Service Documentation.
7.5 Neither this Agreement nor any Agreement incorporated herein by reference
shall be construed as granting Bank a lien or security interest in Customer's accounts as prohibited by
Florida law.
8. liability and Reimbursement.
8.1 Bank will perform each Service in accordance with reasonable commercial standards
applicable to Bank's business; laws, regulations and operating circulars governing the activities of
Bank; applicable funds transfer system(s) and clearinghouse rules; and the Service Documentation.
8.2. Bank is under no obligation to honor, in whole or in part, any entry, file,
batch release, transfer instruction, payment order, transaction or instruction that (a) exceeds the
available balance in Customer's account, unless otherwise provided in the Service Documentation; b)
is not in accordance with the Service Documentation or Bank's applicable policies, procedures or
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practices as made available to Customer; c) Bank has reason to believe may not have been duly
authorized, should not be honored for its or Customer's protection, or involves funds subject to a
hold, dispute, restriction or legal process; or d) would possibly result in Bank violating any applicable
rule or regulation of any federal or state regulatory authority including without limitation any Federal
Reserve guidelines such as the limitations on Bank's intra -day net funds position.
8.3 All uses of Services through Customer's ID codes, passwords, token cards,
PINS, or passcodes (each, a "Code ") will be deemed to be authorized by and binding on Customer.
Customer's failure to protect Codes may allow an unauthorized party to (a) use the Services, (b)
access Customer's electronic communications and financial data, and (c) send or receive information
and communications to Bank. Customer assumes the entire risk of unauthorized use of Codes and
unencrypted electronic transmissions unless such use results from the negligence or intentional
misconduct of Bank.
8.4 Customer will promptly furnish written proof of loss to Bank and notify Bank
if it becomes aware of any third party claim related to a Service. Customer will cooperate fully (and
at its own expense) with Bank in recovering a loss. If Customer is reimbursed by or on behalf of
Bank, Bank or its designee will be subrogated to all rights of Customer.
8.5 Bank will have no liability for failure to perform or delay in performing a
Service if the failure or delay is due to circumstances beyond Bank's reasonable control. If Bank
determines that any funds transfer or communications network, Internet service provider, or other
system(s) it has selected to provide a Service is unavailable, inaccessible or otherwise unsuitable for
use by Bank or Customer, Bank may, upon notice to Customer, suspend or discontinue the affected
Service.
8.6 Except in the case of Bank's negligence or intentional misconduct, Customer
shall reimburse Bank, and its directors, officers, employees and agents for losses or damages that
Bank or its directors, officers, employees and agents incur that arise out of: (a) the performance of a
Service in accordance with the Service Documentation including without limitation any warranty
Bank is required to make to a third party in connection with a Service; (b) an act or omission of any
agent, courier or authorized representative of Company; and (c) if the Service includes a license or
sublicense of any software to Company, the use or distribution of the software by Company or any
person gaining access to the software through Company that is inconsistent with the license or
sublicense.
8.7 Bank will only be liable to Customer for Customer's direct monetary losses
due to Bank's negligence or intentional misconduct. Except as expressly provided otherwise in the
Service Documentation, neither party to this Master Agreement will be liable to the other party for
any special, consequential, incidental (including, without limitation, court costs and attorneys' fees)
indirect, or punitive losses or damages, whether any claim is based on contract or tort, or whether
the likelihood of such losses or damages was known to the other party and regardless of the form of
the claim or action.
9. Miscellaneous.
9.1 The Service Documentation will be governed by substantive federal laws,
regulations and rules and, to the extent such laws, regulations and rules are not applicable, those of
the State of Florida, without regard to conflicts of laws principles. Any portion of the Service
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Documentation which is inconsistent with applicable laws, regulations or rules will be deemed
modified and applied in a manner consistent therewith, and Bank will incur no liability to Customer
as a result of the inconsistency or modification and application. If any portion of the Service
Documentation is deemed unenforceable, it will not affect the enforceability of the remaining
Service Documentation.
9.2 Either party may provide notice to the other party by mail, personal delivery,
or electronic transmission. Bank will use the most recent address for Customer in Bank's records,
and any notice from Bank will be effective when sent. Customer will use the address where
Customer's relationship manager or other manager is located and address any notice to the
attention of such manager. Any notice from Customer will be effective when actually received by
Bank. Bank will be entitled to rely on any notice from Customer that it believes in good faith was
authorized by an authorized representative of Customer and, except as expressly stated in the
Service Documentation, will have no obligation to verify the signature (including an electronic
signature). Each party will have a reasonable time after receipt of any notice to act on it.
9.3 The Services rely upon a robust network of Bank assets, employees and
third -party resources located in the United States to provide service to Bank's customers. Bank
reserves the right to perform services using this model and to add and delete service providers at
Bank's discretion. Bank has rigorous vendor engagement policies and procedures. Bank takes
responsibility for the actions of the providers with whom it enters into contracts to provide services
to Bank's customers.
9.5 This Agreement may be executed in any number of counterparts, which
when taken together shall constitute one complete original of this Agreement. This Agreement may
be executed and delivered via facsimile or any electronic means, such as email.
9.6 If any legal action, arbitration or other proceeding is brought for the
enforcement of this Agreement or because of an alleged dispute, breach, default or
misrepresentation in connection with any provision of this Agreement, the prevailing party shall be
entitled to recover from the non- prevailing party reasonable attorney's fees and costs (including
appellate fees and costs) incurred in that action, arbitration or proceeding, in addition to any other
relief to which the party may be entitled.
Each of the parties hereto agrees to be bound by the terms and conditions of this Agreement
and each of the Attachments, as of the above written date.
VILLAGE OF NORTH PALM BEACH
By:
Name: William Le Manuel
Title: Mayor
WELLS FARGO BANK,
Namek) -
Title:
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